Modernizing the Court’s Processes in the Wake of COVID-19

Sarah Naughton
Posted January 22, 2021 Category: Businesses, Individuals/Families

Amendments to the Rules of Civil Procedure took effect on January 1, 2021. The changes are intended to further modernize the Court through greater use of virtual hearings and promoting electronic communications. Highlights from Ontario Reg. 698/20 are set out below:

Method of Hearing (r. 1.08)

A party seeking to schedule a hearing or other step in a proceeding that permits or requires the attendance of parties is now required to propose whether that step should proceed in person, by teleconference or by video conference.

Where no objection is filed, the parties are deemed to agree on the method of hearing proposed. Where an objection to the form of hearing is served, the Court shall convene a case conference to decide the issue, having regard to a list of factors which include:

  • the availability of telephone conference or video conference facilities;
  • the general principle that evidence and argument should be presented orally in open court;
  • the importance of the evidence;
  • the effect of a telephone conference of video conference on the Court’s ability to make findings, including determinations about the credibility of witnesses;
  • the importance of observing the demeanour of a witness;
  • whether a party, witness or lawyer is unable to attend in person;
  • the balance of convenience; and,
  • any other relevant matter.

    The Rule applies, with modifications, to mandatory mediations and examinations for discovery.

CaseLines (r. 4.05.3)

The amendments also address procedural requirements for CaseLines, which is an electronic platform that the Court is adopting to facilitate the presentation of evidence during hearings.

For motions and applications, documents must be uploaded to CaseLines three days prior to the hearing (i.e., when motion confirmation is due). For all other matters, the deadline is five days prior to the hearing or conference, unless the court directs otherwise.

Draft orders and factums must be submitted to CaseLines in both PDF and Word formats. Compendiums are required and must be bookmarked.

Uploading documents to CaseLines does not constitute “service” or “filing”. All documents must be served and filed in the ordinary course, prior to being uploaded to CaseLines.

Court and Registrar to Communicate with Lawyers by Email [r. 4.12(1)]

The Court and Registrar can now send “any” document to a lawyer via email. The Court will use the lawyer’s email as contained in the court file or as it appears on record with the Law Society of Ontario.

Service by Email [r. 16.01(4)] instead of Service by Fax [r. 16.05(1)(d)]

Where a document is not required to be served personally, the document may be served on a person or party (or their lawyer) by email. The former rule required consent or a Court order before serving anything by email.

Service of a document on a lawyer of record by fax is no longer permitted.

Confirmation of Motion by Email [r. 37.10.1]

The Rules now require that a confirmation of motion be sent to the other parties by email. Sending a Confirmation of motion by fax will no longer be permitted.

Electronic Issuance of Orders [r. 59.03(3), r. 59.04(2) and r. 59.05(2)]

The Rules now provide for the electronic issuance and entry of orders by the Registrar, which are then emailed to the parties or their lawyers. This will eliminate the need for paper copies of orders to be shuttled to and from the Court office by process servers.

Where an order is for the payment of money on which post judgment interest is payable, the rate of interest and the date from which interest is payable shall be stated in the draft order.

These and other amendments to the Rules of Civil Procedure effective January 1, 2021 are welcome changes, which will further modernize the Court’s processes in the wake of the COVID-19 pandemic.

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Sarah Naughton
Posted January 22, 2021 Category: Businesses, Individuals/Families

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