A. Over-arching principles in the application of the presumptive guidelines:
These guidelines set out presumptive methods of attendance for events in Superior Court of Justice proceedings. In applying these guidelines, the Court will take into account the following general principles:
- Discretion of the Court:
While presumptions for each event set out the default position of the Court, the final determination of how an event will proceed will remain subject to the discretion of the Court. This will take into account the issues in the proceeding, the expected length of the hearing, the evidentiary record, the status of parties (e.g. self-represented litigants) and access to technology (including virtual capacity at institutions and courthouses).
- Rule 1.08:
Rule 1.08 of the Rules of Civil Procedure sets out the procedure for the moving party to specify the proposed method of attendance at a hearing or other step in a proceeding. The moving party and responding party/parties are to refer to these guidelines which set out the general expectations of the Court regarding the method of attendance.
- Access to justice:
While virtual platforms to conduct proceedings remotely have enhanced access to justice for many, the Court also recognizes that there are significant variations in the abilities of litigants to access and use the technology that is required for virtual hearings. Until such time as there is a means to provide access to technology to those who do not have it so that they can fully participate in a remote hearing, the Court will take this access issue into account when determining the appropriate mode of proceeding. In that respect, if remote proceedings are utilized, the needs of all participants must be met so they can fully and equally participate.
- Self-represented litigants:
While the Court’s determination of the appropriate mode of proceeding will necessarily take into account the ability of litigants to access and effectively use technology for virtual hearings, the Court will also consider other circumstances uniquely related to self-represented litigants. Issues such as the inability to obtain timely assistance from duty counsel and court staff, needing support to use technology or the inability to adequately address issues in writing may mean that in proceedings involving a self-represented litigant, Courts may favour an in-person mode of proceeding.
- In-person hearings important:
While the continued use of virtual proceedings increases efficiency at many stages in the litigation process, the Court also recognizes the importance of in-person interaction and hearings for more substantive attendances. For these matters, in-person advocacy and participation will remain an essential feature of our justice system.
- Hybrid options:
In determining the mode of proceeding and the application of the guidelines, the Court will also take into account whether some parts of a proceeding should be conducted virtually and other parts conducted in person. In other words, hybrid options will be considered where appropriate or necessary.
- Impediments to a virtual hearing:
There may be statutory, security or other impediments to having a remote hearing in certain matters, particularly criminal cases, civil contempt hearings and other matters that deal with sensitive information (e.g. child protection cases). Moreover, a party’s or participant’s personal circumstances (e.g. disabilities or caregiver responsibilities) may make remote hearings less suitable.
B. Terms used in the guidelines:
“Virtual” = proceedings using a platform like Zoom video or audioconference or by teleconference.
“Hybrid” = proceedings in which some justice participants are appearing physically in the courtroom and others are participating virtually.
“In-person” = all parties, counsel and the judge are physically in the courtroom.
“Videoconference or audioconference” = connecting into a proceeding using a platform like Zoom through video and audio or audio only.
“Teleconference” = connecting into a proceeding via a telephone number to a landline.
C. Presumptive guidelines to determine mode of proceeding in civil matters:
The following guidelines set out the Court’s expectations for the default method of appearance for all civil events that will be applied across the province. However, the Court also recognizes that some Regions, in particular the Northwest, Northeast and those with circuiting judges, will require greater flexibility in hearing more cases virtually.
- Case conferences:
All case conferences will be held virtually (by videoconference or audioconference or by teleconference) unless the Court specifies a different method of attendance.
- Pre-trial conferences involving trial management and scheduling issues only:
All pre-trial conferences involving trial scheduling issues only will be held virtually (by videoconference or audioconference or by teleconference) unless the Court specifies a different method of attendance.
- Pre-trial conferences: settlement and trial management conferences:
All pre-trial conferences directed at settlement or both settlement and trial management will be held virtually (by videoconference or audioconference or by teleconference) unless the Court directs that an in-person pre-trial conference is required.
- Trial and motion scheduling court:
All trial and long motion scheduling court appearances will be held virtually (by video conference or audioconference or by teleconference) unless the Court specifies a different method of attendance.
- Consent motions, without notice motions and unopposed motions:
All motions on consent of both parties, all motions without notice and all motions that are unopposed will be held in writing unless the Court specifies a different mode of proceeding.
- Contested motions and applications:
All contested motions (short or long) and all contested applications will be held virtually unless a party requests that it be held in person and the Court agrees or the Court directs that it will be held in person. In directing that the contested motion or contested application be held in person, the Court will take into account the positions of the parties; the complexity of the legal or factual issue; whether the outcome of the motion or application is legally or practically dispositive of a material issue in the case (e.g. summary judgement); whether viva voce evidence will be heard; and any other factor bearing on the administration of justice.
- Examinations for discovery:
All examinations for discovery will be held in person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding.
- Mandatory mediations:
All mediations will be held in person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding.
- Judge-alone trials:
All judge-alone trials will be held in person unless all parties consent to a virtual trial and the Court approves. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.
- Jury trials:
All civil jury trials will be held in person. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.
- Assessment hearings:
All assessments for solicitor fees or judge-referred orders for assessment of costs will be held virtually (by videoconference).
All motions for costs will be held in writing or as the Court directs.
- Motions for leave to appeal to the Divisional Court:
All motions for leave to appeal to the Divisional Court will be held in writing unless the Court specifies a different mode of proceeding.
- Appeals to the Divisional Court and applications for judicial review:
All appeals and applications for judicial review in Divisional Court will be held in person, unless all parties consent to it being heard virtually and the Court agrees or the Court decides that the appeal or application should be conducted virtually.