Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media

Re: Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020

May 13, 2020

A. INTRODUCTION

Effective March 17, 2020 and to address the safety of all who use and work in the Ontario Superior Court of Justice (SCJ), the Court suspended its regular operations in courthouses due to public health concerns related to COVID-19. It implemented processes to have ONLY urgent matters heard through virtual means.  Notices to the Profession were issued on March 15, 2020 identifying the urgent matters that would be heard.  On April 2, 2020, further Notices to the Profession were issued expanding the scope of matters that would be heard in each region.

This Notice consolidates previous province-wide direction in a single document so that reference to previous provincial Notices relating to COVID-19 is not required.

While in-court operations were suspended, the SCJ has not closed.  It continues to expand its operations virtually – in writing, or by telephone or video conference hearings.  During this suspension of regular in-court operations, lawyers and parties are expected to take an active role in moving cases forward to final settlement or disposition, including seeking and attending virtual court attendances.

This Notice to the Profession, Litigants, Accused Persons, Public and the Media (“Notice”), effective on May 19, 2020, supersedes previous provincial Notices issued between March 15, 2020 to May 5, 2020 relating to the COVID-19 crisis, except the Notice regarding the Suspension of Small Claims Court Operations (May 4, 2020).

This provincial Notice is supplemented by Regional Notices.  Each region of the Court has similarly issued new Regional Notices on May 13, 2020, which supersede previous Regional Notices.  They are also effective on May 19, 2020.   Regional Notices and the process to follow to have a matter heard may be found at:

This Notice and the Regional Notices, together, further expand the scope of work of the Court, effective May 19, 2020, and the process that will be followed.

The Court is grateful for the tremendous support it has received from the Attorney General and the bar.  It is committed to overcoming this crisis as quickly as possible, and to significantly modernizing its operations for the future.

B. SUSPENSION OF IN-COURT HEARINGS AND JURY TRIALS

Given the on-going public health situation due to COVID-19 and the uncertainty as to when it will be safe to return to courthouses, the SCJ:

  1. Will not resume in-person hearings of any court matters until July 6, 2020, at the earliest.  It will, however, continue to hear matters virtually, and expects to shortly further expand the scope of matters that will be heard virtually.
  2. Will not recommence criminal or civil jury selection or jury trials until September, 2020at the earliest.

For civil jury matters, each region of the Court will consider how it can best reschedule civil jury trials that were to have been heard during this suspension of regular operations.  Details will be provided in Regional Notices as they become available.

C. PROCEDURES GOVERNING ALL SCJ PROCEEDINGS DURING SUSPENSION OF IN-COURT OPERATIONS

1. Responsibilities of Lawyers and Parties During Suspension of In-Court Operations, including Mediation

During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means.  This guidance also applies to self-represented parties.

For example, where it is possible through virtual means to comply with procedural timelines, produce documents, engage in discoveries, attend pre-trials, case conferences and hearings, and respond to undertakings, those steps should be pursued.  Where COVID-19 has prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 has rendered compliance not feasible.

The Court also calls upon the cooperation of counsel and parties to engage in every effort to resolve matters. For civil proceedings, this includes attendance at mediation – whether prescribed or not – where a mediator is willing to engage in a virtual mediation.  Family mediation services are discussed in section E below.

In criminal matters, the Court encourages judicial pre-trials on matters that have been adjourned and is open to suggestions from counsel on creative ways to resolve, streamline or move matters forward by remote or alternate processes. This includes applications in writing, oral submissions made remotely and the possibility of evidentiary hearings by remote processes in the appropriate circumstances.

2. Gowning

The requirement to gown for an appearance in the SCJ is suspended.  Counsel, parties and others participating in video hearings are expected to dress in appropriate business attire.  Judges will similarly dress in business attire.

3. Manner of Hearing

During the suspension of in-court operations, matters will only be heard in-writing, or by telephone or video conference. Counsel and parties will be advised by trial coordination staff on how to connect to telephone and video conference hearings.

4. Etiquette During Virtual Hearings

Hearing participants should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. Some guidance on these points can be found on the http://www.ontariocourts.ca/scj/remote-hearings/.

5. Public and media access to SCJ Virtual Hearings

The SCJ remains committed to the open court principle throughout the COVID-19 pandemic.

Any member of the media or the public who wishes to hear/observe a remote proceeding may email their request to the local courthouse staff in advance of the hearing. The person requesting access should advise of the hearing they wish to hear/observe, and their contact information.

Every effort will be made to provide the requestor with information on how they may hear/observe the proceeding.

Certain proceedings are closed to the media and public by legislation or court order.

The Court posts matters scheduled to be heard by the Court at ontariocourtdates.ca so that the media can know what matters are being heard and can contact the court to learn how to hear or observe a proceeding.

In addition, section 136 of the Courts of Justice Act restricts the recording by a member of the public of a court hearing.

6. Recording of SCJ Virtual Hearings

Due to resource constraints during the COVID-19 pandemic, some SCJ proceedings are being recorded on devices other than Digital Recording Devices. This should not be a barrier to accessing recordings.

Under this Notice, section C of Part VI of the Consolidated Provincial Practice Direction (Release of Digital Court Recordings) also applies to all digital court recordings that meet all of the following criteria:

  • the recording is of a Superior Court of Justice hearing that took place remotely after March 17, 2020;
  • the recording was made by the presiding judicial official, by another person at the direction of the presiding judicial official or by staff of the Court Services Division of the Ministry of the Attorney General; and
  • the recording is in the possession of the Court Services Division.

Also under this Notice, digital court recordings made on a device other than a Digital Recording Device will not have annotations.

7. Communicating with Court, Staff and Trial Coordinators

Counsel and self-represented persons shall not communicate directly with a judge, unless the court directs otherwise. Counsel and self-represented persons will communicate with court staff and trial coordinators by email pursuant to a Region’s Notice.

The below direction should be followed when communicating by email with court staff and trial coordinators.

  1. To ensure the email is received and processed by the appropriate court office, the subject line should include the following information:
    • LEVEL OF COURT (SCJ)
    • TYPE OF MATTER (Criminal, Family, Civil, Commercial List, Estates)
    • FILE NUMBER (indicate NEW if no court file number exists)
    • TYPE OF DOCUMENT (e.g., Motion, Conference Brief, Other Request)
  2. The body of the email should include the following information if applicable:
    1. court file number (if it is an existing file)
    2. short title of proceeding
    3. list of documents attached (note: attachments cannot exceed 35 MB)
    4. type of request
    5. name, role (i.e. lawyer, representative, party, etc.,) and contact information of person submitting the request (LSO #, email and phone number)

8. Filings

The Court expects parties will only submit brief materials to allow for a fair, timely and summary disposition. Emailed filings cannot exceed 35MB.  If the size of electronically filed material exceeds 35MB, further emails may be sent within the 35MB maximum.  Every effort must be made, however, to limit filed materials to only those necessary for the hearing.

Filings must also comply with restrictions that have been placed on the length of material that can be submitted in connection with each event, such as limits on the number of pages for an affidavit or conference brief.  Refer to the relevant regional Notice for these requirements.

Unless a matter is proceeding ex parte (i.e. without notice to responding parties), filed materials must indicate when and how service on responding parties was made.

Filed materials should also include any prior orders or endorsements that were issued and that are relevant to the request(s) being made.

Caselaw and other source materials referenced in factum should be hyperlinked. Where hyperlinks are provided, it will not be necessary to file Books of Authorities.

Responding material shall be filed in the same manner as a moving party/applicant. The trial coordinator will provide to the parties the triage judge’s schedule for the service and filing of any responding material.

9. Commissioning of Affidavits

Pursuant to section 9 of the Commissioners for taking Affidavits Act, R.S.O. 1990, c. C.17, when an affidavit is sworn, every oath and declaration “shall be taken by the deponent in the presence of” the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration.

The Law Society of Ontario has interpreted the requirement to be “in the presence of” the deponent, found in section 9 of the Commissioners for Taking Affidavits Act, as not requiring the lawyer or paralegal to be in the physical presence of the client.  Rather, alternative means of commissioning such as commissioning via video conference will be sufficient.

Accordingly, where it is not possible to administer an oath in the physical presence of the deponent, a lawyer or paralegal may commission an affidavit by video.  The affidavit should state that it was commissioned by video conference.

Where it is not possible to commission an affidavit by video conference, an unsworn affidavit may be delivered to the Court, but the deponent must be able to participate in any telephone or videoconference hearing to swear or affirm the affidavit.

D. PROCEDURES GOVERNING CIVIL AND FAMILY MATTERS

1. Urgent Civil and Family Proceedings

The following urgent civil and family matters shall be heard by the Court.  Please refer to each Region’s Notice for the process to bring an urgent matter, as well as a list of non-urgent matters that may be heard in each region.

a. The following matters related to PUBLIC HEALTH AND SAFETY and COVID-19:

    1. applications by the Chief Medical Officer of Health for orders in relation to COVID-19;
    2. applications to restrain the contravention or continued contravention of an order made under the Health Protection and Promotion Act;
    3. applications to enforce orders requiring the seizure of premises, medications or supplies under the Health Protection and Promotion Act;
    4. appeals under subsection 35(16) of the Health Protection and Promotion Act;
    5. urgent requests for injunctions related to COVID-19; and
    6. urgent Divisional Court appeals and requests for judicial review related to COVID-19.

b. The following FAMILY AND CHILD PROTECTION matters:

    1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
    2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
    3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
    4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

c. The following CIVIL and COMMERCIAL LIST (Toronto) matters:

    1. urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.
    2. outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.

d. Any other matter that the Court deems necessary and appropriate to hear on an urgent basis.

The Court has discretion to decline to schedule for immediate hearing any particular matter described in the above list, if appropriate.

2. Service by Email During the Suspension of Regular Operations

Notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules and subject to an order of the Court directing otherwise, it is not necessary to obtain consent or a court order to serve a document by e-mail where e-mail service is permitted.

3. Filings

During the suspension of the Court’s in-court operations, the Court will accept filings by email at the specific email addresses indicated in a Region’s Notice only for those matters that are “urgent” or have been identified to be dealt with in this document or a Region’s Notice.

Where counsel and parties deliver materials by email, subject to direction from the Court, they undertake to file the same materials in paper format, and pay the requisite filing fee, at the court when regular court operations resume.  This includes preparation of the court’s Continuing Record for family cases.

For matters that are not “urgent” or have not been identified to be dealt with in a Region’s Notice, counsel and parties are discouraged from physically attending courthouses to file documents in person.  Parties should file Claims or Statements of Claims, Statements of Defence or certain other civil Pleadings through the Civil Claims Online Portal for Superior Court civil matters. Plaintiff’s Claims in Small Claims Court matters should be filed through the Small Claims Court online filing service.

Limited applications can also be filed electronically through the Ministry of the Attorney General’s portal for filing simple and joint divorce applications.

4. Virtual hearings permitted without consent or court order

Notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules, it is not necessary to obtain consent, or a court order, for a hearing to proceed by virtual means.

5. Orders

Judgments, endorsements and orders of the Court are effective as of the date they are made, unless the judgment, endorsement or order states otherwise.  Counsel and parties are encouraged to submit draft Orders with their filed material.  The issuance and entering of a formal Order, which may require a physical attendance at a courthouse, is not recommended, unless an issued order is necessary for enforcement purposes (e.g., a family law restraining order).  Only orders relating to matters of urgency will be formally issued until the Court returns to regular operations.

6. Assistance for Self-represented persons

Self-represented parties who seek assistance may contact:

  • Civil matters: Pro Bono Ontario’s Free Legal Advice Hotline: 1-855-255-7256
  • Family matters: The Law Society of Ontario emergency family law referral line can be accessed at the following phone numbers:
    • General: 416-947-3310
    • Toll-free: 1-800-268-7568
  • Summary Legal Advice is also available from Legal Aid Ontario at 1-800-668-8258.
  • Additional family law information is available from Steps to Justice at https://stepstojustice.ca/covid-19/covid%E2%80%9119-family-law

E. OTHER PROCEDURES GOVERNING FAMILY LAW AND CHILD PROTECTION MATTERS

The court does not have access to the continuing record.  Parties should therefore include a copy of all relevant orders and endorsements with the materials that are filed for each hearing in accordance with section C.7. above.

Parties are encouraged to be concise in the material filed for each family event.  Regional Notices include limits on the number of pages for certain filings (e.g., conference briefs and affidavits).  Material that exceeds these page limit may not be considered by the presiding judicial officer.

By order dated May 6, 2020, child protection lists (often referred to as “to be spoken to events”) have been adjourned until a date to be scheduled in July, 2020 in accordance with Regional Notices.

Parties are encouraged to consider using Ministry-funded family mediation services to attempt to resolve their family law disputes during the period of reduced court operations, which services are now available virtually.  Information about these services and whether they may be appropriate in the circumstances is available by contacting local mediation service providers.  Contact information for those services is available at:  https://www.attorneygeneral.jus.gov.on.ca/english/family/mediation.php

F. PROCEDURES GOVERNING CRIMINAL MATTERS

1. Criminal Matters Suspended Effective March 17, 2020 and further by Order of May 5, 2020

By my Order, dated May 5, 2020, and unless the court orders otherwise, criminal appearances have been adjourned as follows:

a. Matters originally scheduled for appearances in March 2020 (after March 17) that had been adjourned to June 2, 2020 are further adjourned to July 6, 2020.

  1. Accused persons subject to this Order must now appear on July 6, 2020 at 10:00 a.m. at the court location at which they were to appear in March 2020,
  2. the bench warrant with discretion (s. 597(4)) issued to return on June 2, 2020, is extended to July 6, 2020,
  3. if the person fails to appear on July 6, 2020, a warrant will be issued for their arrest, and
  4. the bench warrant with discretion is extended as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

b. Matters originally scheduled in April 2020 that had been adjourned to June 3, 2020 are further adjourned to July 7, 2020.

  1. Accused persons subject to this Order must now appear on July 7, 2020 at 10:00 a.m. at the court location at which they were to appear in April 2020,
  2. the bench warrant with discretion (s. 597(4)) issued to return on June 3, 2020 is extended to July 7, 2020,
  3. if the person fails to appear in this Court on July 7, 2020, a warrant will be issued for their arrest, and
  4. the bench warrant with discretion is extended as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

c. Matters originally scheduled in May 2020 that had been adjourned to June 4, 2020 are further adjourned to July 8, 2020.

  1. Accused persons subject to this Order must now appear on July 8, 2020 at 10:00 a.m. at the court location at which they were to appear in May 2020,
  2. the bench warrant with discretion (s. 597(4)) issued to return on June 4, 2020 is extended to July 8, 2020,
  3. if the person fails to appear in this Court on July 8, 2020, a warrant will be issued for their arrest, and
  4. the bench warrant with discretion is extended as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

d. Accused persons with matters scheduled in the SCJ in the month of June 2020 and on July 2 and 3, 2020 must now appear on July 9, 2020 at 10:00 a.m. at the court location at which they were to appear in June, 2020.

  1. A bench warrant with discretion (s. 597(4)) is issued as of the date in June on which the person was scheduled to appear,
  2. if the person fails to appear in this Court on July 9, 2020, a warrant will be issued for their arrest, and
  3. the bench warrant with discretion is issued as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

Persons scheduled to appear in the SCJ on July 6, 7, 8 and 9 should do so as scheduled.

The Order extends, as necessary, all warrants of remand for accused persons in custody to whom the Order applies.

At a future date, Notice will be given of an orderly process for the re-booking of trial and motions dates affected by this Notice and that of March 15, 2020.

2. Filings in Criminal Matters

a. Electronic Filing: The SCJ will dispense with the requirement to file documents personally and in hardcopy pursuant to rule 2.01 of its Criminal Proceedings Rules. Pursuant to ss. 841-844 of the Criminal Code, all criminal filings with the SCJ are to be done electronically, by way of email to the email addresses indicated in the Regional Notices. Some filings are to be directed to Court staff others to trial coordinators. Trial Coordinators email addresses can be accessed here.  See email list here

When a document has been filed electronically, it is not necessary to file a paper copy.

b. Electronic Signatures: The SCJ will accept electronically signed documents where a signature is required.  An electronic signature consists of electronic information that identifies the signatory and the date and place of signing.

c. Electronic Service:The SCJ will dispense with the requirement for personal service where personal service is required.  In place of personal service, pursuant to rules 5.05(4) and 5.01(6), the SCJ directs service of all materials under the rules be done by email to the opposing party with proof of service.

d. Proof of Service: When a document has been served by email and is being filed by email, a formal affidavit of service is not required to be filed.  However, the person filing the document should retain a copy of any relevant affidavit(s) of service and/or related documents (e.g., email confirmations) and should be prepared to produce it to the Court on request.

e. Affidavits – refer to Section C, subsection 9 above.

f. Self-represented accused persons are strongly encouraged to file documents electronically whenever possible. Access to courthouses is strictly limited due to the COVID-19 pandemic.  If unable to file materials for a criminal matter by email, self-represented persons should contact their local courthouse by email or telephone for directions as to how to proceed. Contact information for all SCJ courthouses are posted on the Ministry of the Attorney General website.

Please note that the court will only accept emailed filings for those matters that can proceed during the suspension period pursuant to a Regional Notice.

g. Books of Authorities: Caselaw and other source materials referenced in factum should be hyperlinked. Where hyperlinks are provided, it will not be necessary to file a Book of Authority.

h. Transcripts: Counsel launching an appeal, extraordinary motion or otherwise who must file a transcript should make efforts to file electronic versions of the transcripts. Wherever possible, the parties should contact the transcriptionist and seek an electronic version for filing signed per the above.

3. Trials

By my Orders datedMarch 15, 2020 and May 5, 2020, trials and in-person proceedings were suspended and adjourned. Currently the suspension is in effect until July 6, 2020.

The Court will not recommence criminal or civil jury selection or jury trials until September, 2020, at the earliest.

In-person judge alone trials and all other in-person appearances will not resume until July 6, 2020, at the earliest.

4. Witnesses, Lawyers and Jurors

Upcoming trials: Witnesses, lawyers and jurors should not attend court for trials or any matters between March 17 and July 6, 2020 and for jury matters to September, 2020 unless specifically ordered to do so by the presiding judge. Jurors and witnesses will be notified when to attend.

Witnesses, lawyers and jurors involved in jury trials that were in progress received direction from the presiding judge on March 16, 2020.

5. Sureties

Defence counsel are responsible for arranging to confirm sureties’ identification and to assist them to sign bail by signing an electronic bail release and scanning it back to the court registrar to be forwarded to the institution, or as otherwise directed by the Court.

6. Criminal Matters that the Court will Hear

Please refer to the updated Regional Notices that set out the many matters that the Court will deal with in addition to the initial urgent matters prioritized by the Court when in-person operations were first suspended on March 17, 2020.

Urgent matters include: Bail, Bail Review, Detention Review, Guilty Pleas and Sentencing will continue to be prioritized for in-custody persons in urgent circumstances. Habeas corpus applications will be conducted.

7. Remote Proceedings

The Court encourages and is open to suggestions from counsel on creative ways to resolve, streamline or move matters forward by remote or alternate processes. This includes applications in writing, oral submissions made remotely and the possibility of evidentiary hearings by remote processes in the appropriate circumstances.

Counsel are encouraged to book judicial pre-trials and raise these suggestions with the Court at the judicial pre-trial.

The court will utilize to the fullest extent Criminal Code provisions permitting matters to be heard by audio, or if necessary, video, written applications or, where appropriate, in the absence of the accused.

Parties are urged to provide consent to the use of these alternative processes to the fullest extent possible, where such consent is required.

Assistance to self-represented persons may be available through a roster of volunteers from the criminal defence bar.

8. Resumption of Normal Operations

In the weeks ahead, the Court will finalize a plan to resume regular operations.  Criminal matters are scheduled to return commencing July 6, except jury trials and jury selection which is currently scheduled to resume in September, at the earliest.

Geoffrey B. Morawetz,
Chief Justice.