Since the onset of the COVID-19 Pandemic (Pandemic), the courts, counsel, and litigants have pivoted to address our “new normal”. In the early days of the Pandemic, courthouses shuttered their doors – but quickly responded to the changing climate by leveraging technology. As a result, virtual proceedings have not only become a necessary adjustment to keep the legal system moving but have also modernized the Ontario court system irreversibly.
Ontario Regulation 689/20 (Regulation), published as of November 30, 2020, will amend the Rules of Civil Procedure (Rules) to reflect this technological shift and the modernization of our legal system. These amendments come into force on January 1, 2021.
Key highlights of this amendment are set out below.
Telephone conferences and video conferences are here to stay
Hearings: Pursuant to the Regulation, parties can specify the manner in which they want a hearing to proceed (whether in-person, by telephone conference or video conference).[1] If the proposed method is challenged by another party, the court shall make an order at a case conference determining the method of attendance. In so doing, the court must consider certain factors, including the importance of the evidence, the effect on determining credibility, the importance of observing a witnesses’ demeanor, and any other relevant matter. Accordingly, the court will retain flexibility to determine whether a matter ought to be heard orally, by video or telephone conference – recognizing that “one size does not fit all.”[2]
Mandatory Mediation and Discovery: Parties can agree to an in-person, video or telephone conference as a method of attendance.[3] If the parties disagree, this will be decided by the court at a case conference. The court, at its discretion, can now direct a party to make the necessary arrangements or make any other direction regarding a video and telephone conference it finds appropriate in the circumstances.
Where trial is necessary: In addition to the court’s existing discretion to give such direction or impose such terms as are just where an action is ordered to proceed to trial, it now has specific authority to order that an oral examination at the trial proceed by video conference.
Good-bye fax, hello e-mail
E-mail is finally an accepted form of service (where documents need not be served personally or by an alternative to personal service). Consent from the recipient is no longer required. The Rules will also require that e-mail information be included with counsel’s or a party’s contact information.
Electronic certification
Certified copies of documents in the court file can be provided electronically. A certified copy must have the registrar’s signature and the date of certification. The new Rule recognizes that the way the content is displayed may differ but that the document is certified so long as the copy accurately reproduces the information. Requirements that certified copies be provided in paper form can be satisfied by printing the electronic certified copy.
Issuing, filing, and entering
A document may be issued electronically by the registrar dating, signing and sealing the document with an electronic version of the court’s seal or by using the software authorized by the Ministry of the Attorney General. A document issued or filed electronically outside of regular business hours shall indicate that the document was issued or filed, as the case may be, on the next day that is not a holiday.
Issuing an Order: An order is considered to have been issued on the completion of – (i) signing of the order by the judge, master, officer making the order or registrar where applicable; and (ii) the registrar dating and sealing the order.
Entering an Order: Once an order has been issued the registrar shall enter and file it in the court file. This will be done in electronic format in the court’s case tracking system.
CaseLines
CaseLines is the software authorized by the Ministry of the Attorney General and shall be used by parties in submitting documents to the court (including compendiums). Any document submitted via CaseLines must be submitted by the confirmation deadline (where applicable) or five (5) days before the date of the hearing or conference unless otherwise ordered by the court.
The original documents submitted to CaseLines must be kept for 30 days after the expiry of the period for an appeal in the proceeding.
Filing Requirements
Draft Orders and Factums: must be submitted to CaseLines in PDF and Word format. Other documents must be submitted either as PDF or Excel (where appropriate).
Compendium and Factums (additional requirements): must be submitted in PDF with bookmarks appropriately titled and hyperlinks to cited authorities. Hyperlinks should be to websites where the cases can be viewed free of charge (i.e. CanLii). Where relevant excerpts of a cited authority are not available for free, such excerpts should be provided.
Costs
Parties may face cost consequences for unreasonably objecting to proceeding by telephone or video conference.[4]
Takeaways
The modernization of the legal system and the Rules present opportunities not only keep things moving during the Pandemic but to address systemic issues of access to justice and make legal services more accessible and efficient. In many instances telephone and video conferences work and are often cheaper and more practicable than in-person hearings or appearances.
Technology provides an opportunity to improve the efficiency of our court system. As a result, this creates an opportunity to make litigation more efficient from a time and cost perspective. We anticipate that these changes are just the beginning and that the now proven opportunity for technology to improve adjudication has set into motion what we expect to be more grandiose changes and improvements to our legal system.
[1] For example, your Notice of Motion should set out whether you propose that the matter be heard: i) in person, ii) by telephone conference, or iii) by video conference.
[2] Note that based on these amendments, the default method for case conferences is by teleconference unless specified by the court.
[3] Best Practice: Indicate the method of hearing on your Notice of Examination.
[4] Subrule 57.01(1) of the regulation is amended to provide that the court may consider whether the party unreasonably objected to proceeding by telephone or video conference in awarding costs.
