SUPERSEDED Notice to the Profession – Divisional Court

IMPORTANT NOTICE

This notice has been superseded.  Please see the May 13, 2020 Notice to the Profession – Divisional Court for current information.

April 2, 2020

Urgent matters will continue to be heard under the Notice to the Profession dated March 15, 2020. Effective April 6, additional matters will be scheduled for remote hearings by telephone or video conference or heard in writing.

D.1. Provincewide Protocol applies to all Divisional Court matters

Starting on Monday April 6, 2020, Divisional Court will begin to schedule hearings on non-urgent matters arising throughout the Province of Ontario, subject to available resources.  Set out below is the practice to be observed to schedule a matter in Divisional Court anywhere in Ontario.

Please note that this direction applies to all matters in Divisional Court. The court’s schedule of cases as of the suspension of ordinary court operations is, itself, entirely suspended, and matters will not be heard according to that schedule so long as in-person hearings are suspended.  Only matters scheduled in accordance with this Direction will be heard.  Therefore, a party in a matter that has been scheduled previously for hearing in the coming weeks will have to obtain a new date for hearing following the process set out below, if the party wishes the case to proceed during the suspension of in-person hearings.

D.2.  Scheduling Divisional Court Matters

  1. Any party wishing to schedule a Divisional Court matter shall contact the court through the following email address (with a copy sent to all other parties):  scj-csj.divcourtmail@ontario.ca. Other parties should not respond to the request for scheduling until requested to do so by the court.
  2. Scheduling requests should contain the following information:
    1. Title of Proceedings, file number, and jurisdiction (judicial region) from which the case originates.
    2. The names and email addresses of representatives of the parties (counsel, or self-represented persons).
    3. The nature of the matter to be scheduled (motion, application or appeal) and some brief particulars (for example, “appeal from the final order of Doe J. of the Superior Court of Justice (2019 ONSC 123456) granting judgment of $25,000 in a defamation action” or “judicial review from the Ontario Labour Board decision granting / denying certification”).  The explanation should not be more than a sentence or two in length.  Where the decision below has been reported on CanLII, a citation to that decision should be included.
    4. The estimated time required for the hearing.
    5. A brief explanation of any urgency, time sensitivity, or other factor the party wishes the court to take into account in scheduling.
    6. Whether some or all parties consent to scheduling the matter (consent is not required but will be taken into account).
  3. Matters will be scheduled at the direction and in the discretion of the Divisional Court Administrative Judge or his designate. Court staff will then contact the parties to confirm arrangements for providing file documents to the court in electronic format, and to provide details of the hearing.
  4. Hearings will all be conducted electronically, either by teleconference or by videoconference. Teleconferences will be conducted on court teleconference lines. Videoconferences will be conducted using the application ZOOM. Parties will be required to confirm in advance that they will be able to participate in the hearing using the selected technology.
  5. This direction applies to all Divisional Court matters in Ontario, including panel matters and matters ordinarily heard by single judges in Regions outside Toronto.
  6. For the moment, the Divisional Court is able to hear more than urgent matters, but, given technological and staffing constraints, it is not able to hear a full docket of cases.  Scheduling preference will generally be given as follows:
    1. Where a matter is considered urgent by the Administrative Judge or his designate, the matter will be scheduled to proceed as soon as reasonably possible on a schedule to be fixed by the court.
    2. Where a matter is not urgent, but is time sensitive, in the opinion of the Administrative Judge or his designate, the matter will proceed on a schedule to be fixed by the court, taking account the time sensitivity.
    3. Other matters will be scheduled to be heard in due course, bearing in mind the demand for urgent and time-sensitive matters and the technological and staffing limitations under which the court is operating.  To the extent that it is possible to do so, the length of time the matter has been awaiting a hearing, and the likely delay if the matter is not heard until in-person hearings resume, will be taken into account in prioritizing hearings.

D.3.  Filing Electronic Documents for Hearings

    1. Any matters heard by the court pending resumption of in-person hearings will be heard remotely, and therefore all documents required for the hearing must be available to the court electronically. The requirement of electronic documents applies to all matters, including cases where parties filed paper documents prior to the suspension of ordinary court operations. Divisional Court staff will provide directions to the parties about what will be required and, if necessary, a teleconference may be arranged with the Administrative Judge or his designate for directions respecting what materials are required and how they are to be filed.  In general, the following guidelines will apply:
      1. All documents will be delivered to the court by email at the following address: scj-csj.divcourtmail@ontario.ca.
      2. No individual email can be larger than 10 MB.
      3. Generally, documents should be sent as individual attachments (for example, an affidavit and each of its exhibits should be sent as separate pdf files, each one clearly named to identify it (i.e. “Affidavit of John Doe”, “Exhibit “C” to Affidavit of Jane Doe”), preferably with each page numbered sequentially.
      4. Factums should be filed in Word format.
      5. Books of Authorities are not to be filed. Instead, parties shall, where possible, provide hyperlinks to the CanLII version of cited cases. Parties may file a Brief of Case References that includes single pages or brief portions of cases cited; where this is done the title of the case and headnote (where applicable) should also be provided. The only exceptions to this principle will be references not available on CanLII, such as excerpts from textbooks, foreign law, or Canadian decisions not reported on CanLII.
    2. After the end of the suspension of ordinary court operations, parties will be required to file paper copies of documents provided to the court electroncially pursuant to this Direction, and to pay any applicable court fees for steps that have taken place pursuant to this Direction.

D.4.  Motions in Writing for Leave to Appeal to the Divisional Court

  1. Motions for leave to appeal that have been filed with the court prior to the suspension of in-person hearings generally will not be decided during the current suspension of court operations: the files cannot be made available to judges as matters currently stand.
  2. If a party considers that a pending motion for leave to appeal is urgent or time sensitive, that party may seek a direction from the Administrative Judge or his designate that the motion for leave to appeal proceed forthwith. The party would email the request to the following address: scj-csj.divcourtmail@ontario.ca. This direction applies both to motions for leave to appeal that were initiated prior to the suspension of ordinary court operations, and to motions for leave to appeal arising after the suspension of ordinary court operations. In such cases, the parties will be required to make the materials available to the court electronically.

Corbett J.
Divisional Court Administrative Lead