Notice to the Profession – Civil Matters in the Superior Court of Justice, Central East Region (Effective January 4, 2021)

 

OVERVIEW

[1] This Notice applies to civil matters in the Superior Court of Justice in the Central East Region (“the Region”), until further notice.

[2] It is subject to change from time to time as may be necessary.

[3] The Notice consists of three Parts. Part 1 sets out the Protocol for filing documents which shall remain in place until Central East utilizes Caselines, at which time the provisions of Rule 4.05.3 of The Rules of Civil Procedure shall apply. Part 2 sets out a Protocol governing the creation and maintenance of a running list for civil (non-family) trials, and a running list for civil (non-family) long motions, meaning summary judgment motions, other long motions, and Applications in the Region.

[4] Part 3 sets out a Protocol governing judicial pre-trials, and short motions in the Region.

[5] It is expected that written materials and documents for civil matters will be filed with the court electronically in the manner specified below. If, however, a party is unable to file materials and documents electronically, they may file them in-person at the courthouse filing office.

PART 1

[6] For any documents which counsel will be relying on whether they be for a motion, long motion, pretrial application, or trial, counsel must first consider whether they intend to refer to such documents during argument. Counsel are encouraged to read the Best Practices Guidelines which have been published by both the Ontario Bar Association and the Advocates’ Society which provide helpful guidance on how to conduct a virtual hearing.

[7] Counsel are strongly encouraged to review and follow the Guide Concerning e-delivery of Documents in the Ontario Superior Court of Justice published on the Superior Court website for guidance on how to properly prepare and file documents electronically. Please note that the naming convention in Part III(B) of the Guide will only apply before January 11, 2021. All documents submitted to the Court electronically on or after January 11, 2021 must be named in accordance with the standard document naming protocol set out in Part C of Chief Justice Morawetz’s Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media.

[8] When counsel is preparing a factum, they must hyperlink all references to caselaw to an electronic database such as CanLii. The hyperlink must NOT be to another document which has been filed or submitted online but rather MUST be to an external URL such as Dropbox, Sync.com, Google Drive or something similar and NOT password protected. Provided this protocol is followed, the hyperlink to a PDF document filed via the Civil Submissions Online portal will open. Counsel MUST NOT file Briefs of Authorities UNLESS the caselaw they intend to refer to is not found on an electronic database like CanLii.

[9] Where counsel file more than 25 pages of documentary evidence, whether by affidavit or otherwise, counsel must, in addition to the filing of such documentation, file a Compendium which shall only contain those documents and caselaw that counsel will actually refer to in argument.

PART 2

SECTION A: INTRODUCTION

[10] The Region’s November 2020 civil trial sittings were cancelled, due to the ongoing impact of COVID-19 on court operations in the Region. The status of the May 2021 civil trial sittings is uncertain at this time.

[11] The objective of this Protocol is to provide parties and counsel for parties (referred to compendiously in this Protocol as “party” or “parties”) with an alternative opportunity to have civil cases heard. This alternative is specific to the Region. It involves civil trials, summary judgment motions, long motions, and Applications being placed on a running list of cases that the Court can call in for trial or hearing as courtrooms and judges become available in the Region.

[12] Under this Protocol, which commenced on October 5, 2020, the Region maintains two running lists. The first is called The Running Civil Trial List. The second is called The Running Civil Long Motions List.

[13] This Protocol will remain in place until such time as the Region’s civil trial sittings may resume.

SECTION B: THE RUNNING CIVIL TRIAL LIST

Eligibility of a Matter to Be Placed on The Running Civil Trial List

[14] Only cases that have been pre-tried and deemed ready for trial by a pre-trial judge are eligible to be placed on The Running Civil Trial List. By implication, this includes all cases that were not reached in the November 2019 and May 2020 civil trial sittings. In addition, any case pre-tried since March 15, 2020, and deemed ready for trial by the pre-trial judge is eligible to be placed on The Running Civil Trial List. There is no requirement to attend in the CETSC (Central East Trial Scheduling Court).

How Cases That Are Eligible Get Onto The Running Civil Trial List

[15] Cases that are eligible as specified in paragraph 10 can get onto the running list in one of two ways, either on consent of the parties or by order of a triage judge.

[16] If all parties consent to be placed on the running list, a letter of request confirming that the case was on the November 2019 or May 2020 trial sittings list, or that it has been pre-tried since March 15, 2020, and by whom, together with the written consent of all parties (which can be in the form of an email message), shall be sent to Stephen.Colomvakos@ontario.ca. The information will be forwarded to the triage judge. The triage judge will confirm that the case meets the definition of eligibility and the matter will then be placed on the running list.

[17] In situations where all parties do not consent, the party seeking to be placed on the running list shall send a letter of request confirming that the case was on the November 2019 or May 2020 trial sittings list, or that it has been pre-tried since March 15, 2020, and by whom, to Stephen.Colomvakos@ontario.ca together with a memorandum not to exceed two pages in length detailing the history of the case and the reasons why it should be placed on the running list. Any party who opposes being placed on the running list shall provide their position in a responding memorandum not to exceed two pages in length, sent to  Stephen.Colomvakos@ontario.ca no later than five days after receipt of the requesting party’s email.

[18] If no responding memorandum is received before the expiry of the five days, the triage judge will deal with the request as an unopposed request.

[19] If a responding memorandum is received before the expiry of the five days, the triage judge will consider whether they can decide the request to be placed on the running list on the basis of the parties’ memoranda, or whether there is a need to conduct a conference call with the parties.

[20] The triage judge will advise the parties of the decision on the request to be placed on the running list, by email. In deciding whether to add a case to the running list, the triage judge may order that it not be called before a certain date, where a party has advised about issues concerning witness availability or other trial commitments of counsel.

Consequences of Being Placed on The Running Civil Trial List, and Adjournments

[21] Once a matter has been placed on The Running Civil Trial List either on consent of the parties or by order of the triage judge, the parties will be expected to be available to commence the trial when called, unless there is a settlement. Cases will be called in on a minimum of three days’ notice prior to the trial commencement date.

[22] Where there is an exceptional circumstance such that a party needs to seek an adjournment, the party must immediately send a request for adjournment to Stephen.Colomvakos@ontario.ca. The request will be put before the triage judge who will make an initial determination whether the request can be dealt with in writing or whether a conference call is required. While the granting of an adjournment is always discretionary, the Court will apply an “exceptional circumstances test” to any request for adjournment.

Counsel with Multiple Cases on The Running Civil Trial List

[23] Counsel who have multiple cases on The Running Civil Trial List will NOT be expected to try those cases back to back. In other words, if a case proceeds to trial and counsel has other cases on the list, they will not be expected to start another trial immediately upon completion of the first. The Court will extend an interval of three weeks before another of counsel’s cases is called in. This will allow counsel time to prepare the cases they have on the running list.

Status of The Running Civil Trial List

[24] The Court will attempt to provide updated copies of The Running Civil Trial List to the Local Bar Associations at regular intervals. It will be the responsibility of the parties to know where they are on the list. The parties are asked to avoid contacting the trial coordinators about where a case is on the running list. The trial coordinators are inundated with emails and phone calls and may be unable to respond promptly to queries about the running list.

In Person and Virtual Non-Jury Trials, and Documentary Evidence

[25] Parties should be prepared to conduct non-jury civil trials virtually, via Zoom. When a request is made to add a non-jury case to The Running Civil Trial List, each party should indicate in their two-page memorandum any reason why the case must be heard in person rather than via Zoom. The triage judge will decide the issue based on the parties’ memoranda, unless the triage judge finds there is a need to conduct a conference call with the parties. In some cases, it may be determined that a hybrid trial is appropriate, i.e. that some part of the trial will be heard via ZOOM, and some part by in person appearances in a courtroom.

[26] Whether a non-jury case proceeds in person or via Zoom, all parties should consider and discuss among themselves in advance of the trial what documents the trial judge needs to render a fair decision. The parties should have all documents available in an electronic format that is user-friendly. At the end of the evidence, the parties will be expected to present their closing arguments with the assistance of written submissions that are hyperlinked to the relevant documents and case law.

SECTION C: THE RUNNING CIVIL LONG MOTIONS LIST, FOR SUMMARY JUDGMENT MOTIONS, LONG MOTIONS (i.e. MOTIONS LONGER THAN ONE HOUR), AND APPLICATIONS

[27] Summary judgment motions, long motions, and Applications are referred to in this Protocol compendiously as Long Motions.

[28] Any Long Motions that were scheduled to be heard during the November 2019 and May 2020 civil trial sittings, any Long Motions that were scheduled and adjourned from mid-March 2020 onward due to the COVID-19 pandemic, and any new Long Motions that have not been scheduled are eligible to be added to The Running Civil Long Motions List.

[29] The preceding paragraphs in this Protocol apply to The Running Civil Long Motions List, except as set out below.

[30] Long Motions do not need to be pre-tried. The requirement that a matter be pre-tried does not apply to The Running Civil Long Motions List.

[31] Where a Long Motion is urgent, the party should clearly explain the urgency in the letter of request. The triage judge will determine whether the Long Motion should be assigned an early fixed hearing date or placed on the running list.

[32] Counsel who have multiple Long Motions on The Running Civil Long Motions List will NOT be expected to appear on back to back Long Motions. Counsel who have multiple Long Motions will have a minimum of 10 days between appearances on matters on the running list.

SECTION D: FILING OF DOCUMENTS AND WRITEN MATERIALS

[33] Any documents and written materials for civil trials or civil long motions must be filed electronically using the Civil Claims Online portal or the Civil Submissions Online portal and must adhere to the provisions of Part 1 of this Protocol.

SECTION E: QUESTIONS SEEKING CLARIFICATION

[34] Any question about the application of this Protocol should be addressed to Stephen.Colomvakos@ontario.ca.

PART 3

SECTION A: JUDICIAL PRE-TRIALS

[35] Civil pre-trials are being held for actions outstanding in all centres in the Region. There is NO requirement that the parties certify that the case is capable of settlement.

Procedure for Booking a Judicial Pre-Trial

[36] It is the responsibility of counsel with carriage of the file to initiate a request for a pre-trial in accordance with this Protocol. The Court will not initiate scheduling of a pre-trial.

[37] A request for a pre-trial on an action commenced at any location in the Central East Region shall be made to Ms. Arzu Kaya at the following email address: arzu.kaya@ontario.ca (“the pre-trial email address”). Counsel may use this email address only for communications related to the request for and scheduling of a pre-trial.

[38] Counsel requesting a pre-trial must indicate the style of cause and court file number of the case; the court centre where the action was commenced; and where applicable, the date and location of any pre-trial that was previously scheduled. Counsel requesting the pre-trial must also provide an explanation not to exceed two typed pages of the nature of the action, why a pre-trial would be of assistance, and what if any settlement discussions have taken place. Counsel for all other parties must be copied on the email request.

[39] Counsel who opposes the holding of a pre-trial shall, within 48 hours of the date and time shown on the email requesting the pre-trial, submit to the pre-trial email address a responding email message not to exceed two typed pages. The responding email message must explain why a pre-trial should not be held. The responding email message must be copied to counsel for all other parties.

[40] The requesting email and any responding email message will be submitted to a triage judge, who will determine whether a pre-trial will be scheduled. Counsel for all parties will be advised of the decision in writing.

Pre-Trial Memos

[41] No pre-trial memos shall be filed unless and until counsel are notified that the request for a pre-trial has been granted.

[42] Pre-trial memos may not exceed 15 pages. Any additional documents that counsel wish the pre-trial judge to review must be hyperlinked or made available by “Drop Box” or some other means that does not require sending by email. Counsel must also conform with the requirements of Part 1 of this Protocol.

43] All pre-trial memos shall be filed with Ms. Arzu Kaya at the following email address: arzu.kaya@ontario.ca (“the pre-trial email address”).

[44] Pre-trial memos must be filed no later than five business days prior to the pre-trial.

[45] Pre-trial memos that do not adhere to these requirements will not be accepted by the Court.

The Pre-Trial

[46] Pre-trials will be held remotely by ZOOM. The Court will make the connection arrangements and will advise counsel/self-represented parties of the connection arrangements.

[47] The only individuals who may be present for the pre-trial are counsel who have carriage of the file, any party who is self-represented, and the pre-trial judge.

[48] No recording may be made of the pre-trial by any participant. The exception is where a party is self-represented, in which case a recording of the pre-trial will be made by court staff at the direction of the presiding judge, for the assistance of the Court. Neither the recording nor a transcript of it may be released to anyone without an order of a judge of the Court.

[49] The pre-trial judge may wish to speak separately with counsel (caucus) and/or speak with counsel and their client. Counsel must ensure the ability of the pre-trial judge to do so.

[50] Counsel are required to have their clients available so that immediate instructions can be sought about proposed terms of settlement. Counsel retained by a corporation such as an insurance company must certify to the presiding judge at the beginning of the pre-trial that they have available a representative of the corporation with the authority to settle.

[51] At the conclusion of the pre-trial, if counsel or a self-represented party requires an Order (such as an Order dismissing the action), a draft Order must be provided in Word format through the pre-trial email address for forwarding to the pre-trial judge for electronic signature.

SECTION B: RULE 7 MOTIONS (COURT APPROVAL FOR SETTLEMENTS INVOLVING INFANTS AND PARTIES UNDER DISABILITY)

[52] Where judicial approval is required of a settlement involving an infant or other party under disability, counsel may bring a motion in writing.

[53] These motions shall be filed electronically using the Civil Claims Online portal or the Civil Submissions Online portal.

[54] The materials must comply with the requirements of Rule 7, except that any exhibits that would normally be attached to the affidavit filed in support of the motion should be hyperlinked.

[55] Counsel shall submit with their motion materials a draft Judgment in Word format for electronic signature.

SECTION C: CIVIL MOTIONS ON CONSENT

[56] The Court will hear, in writing, motions (including estate and guardianship matters) that are on consent, meaning where a party to an action or an Application has served a Notice of Motion and the responding party is consenting to an Order granting the relief sought.

[57] All consent motion materials must be filed electronically using the Civil Claims Online portal or the Civil Submissions Online portal.

[58] The motion materials filed electronically must include: A Notice of Motion, an affidavit or affidavits in support, a Consent signed on behalf of all parties, email addresses for all parties, a draft order approved as to form and content by all parties, and a draft Order in Word format for judicial signature.

[59] The moving party must also provide a written Undertaking that an original copy of the motion materials with proof of service and any fee payable will be filed with the Court filing office in the applicable location, within 45 days of the motion being heard.

[60] Once a judge reviews the motion materials and determines that the relief sought will be granted, the judge will sign the draft Order using their electronic signature. A copy of the signed Order will be returned to the moving party electronically. The moving party is responsible for providing a copy of the signed Order to all responding parties within 7 days of its receipt.

SECTION D: CONTESTED SHORT CIVIL MOTIONS

[61] Beginning on January 1, 2021 the new provisions of Rules 1.08 of the Rules of Civil Procedure will apply to all non-consent motions in Central East. If counsel can not agree as to the method of hearing the provisions of Rule 1.08 shall apply. A triage judge will convene a case conference to determine in accordance with Rule 1.08 whether the motion is to be heard in writing; in person; or via Zoom. Counsel shall submit to the trial coordinator a 2-page memorandum explaining their position as to the method of hearing.

[62] To obtain a date for the hearing of a short motion counsel shall contact the trial coordinator utilizing the trial coordinators generic email address set forth in paragraph 70 below.

[63] Once a date for the hearing of the motion has been obtained from the trial coordinator the moving party shall serve their motion materials, including a Notice of Motion, a factum not to exceed 15 typed pages, and a draft order in Word format on all other parties by email, and then file the materials with the Court electronically using the Civil Claims Online portal or the Civil Submissions Online portal. Casebooks should not be filed. Counsel should provide a list of cases with hyperlinks.

[64] The moving party must also provide a written Undertaking that an original copy of the motion materials with proof of service and any fee payable will be filed with the Court filing office in the applicable location, within 45 days of the motion being heard.

[65] Any responding party shall serve their motion materials, including a factum not to exceed 15 pages, on all other parties by email and then file the materials with the Court electronically using the Civil Submissions Online portal, in accordance with the time set out in the Rules. Casebooks should not be filed. Counsel should provide a list of cases with hyperlinks.

[66] The timelines set out in the Rules for the filing of motion materials apply.

[67] If the materials filed do not comply with this Protocol, the motion will not be heard.

[68] Short motions heard in writing will be placed before a judge on a roster basis. If an oral hearing by ZOOM video or teleconference is requested, a hearing date will be arranged by the trial coordinator.

SECTION E: ESTATES MATTERS

[69] Estates matters including applications for appointment of estate trustees with a will, applications for estate trustees without a will, and resealing applications should be filed electronically using the Civil Claims Online portal or the Civil Submissions Online portal.

SECTION F: QUESTIONS SEEKING CLARIFICATION

[70] Any question about the application of this Protocol should be addressed to the trial coordinator:

Newmarket
Newmarket.SCJ.TC@ontario.ca

Barrie and Bracebridge
Barrie.SCJ.TC@ontario.ca

Oshawa
Oshawa.SCJ.TC@ontario.ca

Tri County (Cobourg, Lindsay, and Peterborough)
Peterborough.SCJ.TC@ontario.ca

Dated December 18, 2020

Justice Michelle Fuerst
Regional Senior Judge,
Superior Court of Justice,
Central East Region