Notice to Profession – Divisional Court

For Court Hearings During COVID-19 Pandemic

February 18, 2021

The Divisional Court will hear matters in accordance with this Notice to the Profession until further notice. This Notice to the Profession is an update to and replaces the June 29, 2020 Notice to the Profession – Divisional Court. It is supplemented by and does not replace the Notice to Profession for Appeals from the Landlord and Tenant Board in the Divisional Court (Effective August 24, 2020).

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

Set out below is the practice to be observed to commence or continue and to schedule any step in a matter in the Divisional Court anywhere in Ontario. Please note that this direction applies to all matters in the Divisional Court, including matters commenced prior to the suspension of regular court operations in March 2020 and all matters commenced after that date. This direction also applies to all Divisional Court matters, including panel matters, in-writing motions for leave to appeal and matters ordinarily heard by a single judge, including Small Claims Court appeals and motions.

D.2.  Commencing Proceedings and Scheduling Divisional Court Matters

  1. Any party wishing to commence a new Divisional Court proceeding or to schedule a step in an existing Divisional Court proceeding shall contact the court through the following email address (with a copy sent to all other parties):  Other parties should not respond to the email. They will have an opportunity to respond after the Court responds to the request as detailed below.

scj-csj.divcourtmail@ontario.ca.

  1. Requests should contain the following information:
    1. Title of Proceedings, file number (if one already exists), 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 brief particulars (for example, “appeal from the final order of Doe J. of the Superior Court of Justice (2020 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. Where the decision below has not been reported on CanLII, a copy of the decision should be attached.
    4. The estimated time required for the hearing.
    5. A brief explanation of any urgency, time sensitivity, or other factors 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).
    7. Whether the matter was commenced before the suspension of regular court operations in March 2020 or whether this is a new proceeding.
    8. Where the proceeding is new, the request should include the originating document (for example, Notice of Application for Judicial Review, Notice of Appeal or Notice of Motion for Leave to Appeal).
    9. Where parties have agreed on a timetable for the exchange of materials in advance of the hearing request, the proposed agreed timetable should be included.
  2. Where a party submits a request to commence a new matter, the Court will confirm by email that the originating document is deemed to have been filed on the date it was received and provide a Divisional Court File Number. The Court will also provide directions for payment of the filing fee.
  3. In all cases where a party submits a request for a hearing, the Court will respond with a request that the parties agree on a schedule for the exchange of documents or will schedule a case conference with a Divisional Court Administrative Judge or a designate. The case management process is addressed in more detail at D.7 below.
  4. Matters will be scheduled at the direction and in the discretion of a Divisional Court Administrative Judge or a designate. Urgent matters will be given priority, but the Divisional Court is currently scheduling all matters, including non-urgent matters, based on availability of court dates.
  5. Where a party wishes to commence a proceeding to preserve the party’s rights, but does not wish to proceed immediately or to give notice of it to other parties, the party need not send a copy to all other parties [or provide addresses and email addresses for opposing parties], but should clearly indicate, instead, that the party wishes to commence but not yet move forward with the application.

D.3.  Electronic hearings

  1. All hearings are currently conducted electronically, either by teleconference or by videoconference. Teleconferences are conducted on court teleconference lines. Videoconferences are conducted using the application ZOOM. The court will send parties a conference call number or a link to the videoconference in advance of the hearing.
  2. In the case of videoconference hearings, counsel are not required to gown for the hearing. Instead, business attire is required for anyone with a speaking role in the hearing. All parties must ensure that they participate in the video conference from appropriate surroundings.
  3. Counsel are permitted to share conference call numbers or Zoom links with their clients and other members of their firm. In the case of videoconference hearings, if the parties anticipate that there will be broad media interest and/or public interest in the hearing, the parties should advise the court ahead of time so that appropriate arrangements can be made. For hearings not expected to generate media interest, any member of the media or the public who wishes to observe the remote proceeding may email their request to the local courthouse staff in advance of the hearing in accordance with Part C, paragraph 5 of the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media.

D.4. Submitting Electronic Documents for Hearings

  1. All documents required for a 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 regular court operations. 
  2. Once a schedule is set for the exchange of materials, parties are to comply with the directions below for making electronic documents available for the hearing. If necessary, a teleconference may be arranged with an Administrative Judge or designate for directions respecting what materials are required and how they are to be provided to the Court.
  3. In general, hearing materials are to be uploaded to CaseLines or provided to the court through a document sharing platform provided by the parties. Unless a Divisional Court Administrative Judge or Divisional Court staff provide different directions, materials are to be uploaded as follows and in accordance with the following deadlines:
    1. Unless the Court approves an expedited or modified schedule, all materials are to be uploaded at least four weeks before the hearing date. (This does not apply to deadlines for the compendium for oral argument, counsel sheet or costs outline, which are addressed below.)
    2. All documents are to be uploaded in PDF format. The indexes to all records should include bookmarks. Factums should contain hyperlinks to authorities and to the records.
    3. Factums are also to be uploaded in Word format.
    4. In accordance with Rule 4.05.3(6), document names must set out (a) the document type, (b) the type of party submitting the document, (c) the name of the party submitting the document, and (d) the date on which the document was created or signed, in the format DD-MMM-YYYY (e.g. 12-JAN-2021). Examples of documents typically filed in the Divisional Court labelled in accordance with this direction are set out in Appendix A. Document names must not include firm specific naming conventions, abbreviations or file numbers.
    5. Pages should be numbered sequentially within each PDF document.
    6. Parties are not required to upload Books of Authorities containing the full text of authorities. However, citations to cases in the factums are to provide, if possible, hyperlinks to CanLII. The only exceptions are authorities not available on CanLII, such as excerpts from textbooks, foreign law, or Canadian decisions not reported on CanLII: these should be collected in a brief of unreported authorities and uploaded electronically.
    7. Parties are also encouraged to upload a compendium for oral argument in advance of the hearing, containing excerpts of evidence and authorities to which counsel will refer in oral argument. The compendium for oral argument is to be uploaded to CaseLines or other document sharing platform no later than 5 business days before the hearing date. Where portions of cases are included in a compendium, the title of proceedings and headnote should be included as well. Where portions of the record are included in a compendium, the first page of the document and identification of where it may be found in the record, by reference to CaseLines page number, should also be provided.
    8. At least one day before the hearing, the parties are to upload a counsel sheet setting out the name(s) of counsel and the estimated time for counsel’s submissions.
    9. Unless the court has directed an earlier deadline, at least one day before the hearing, the parties are to advise that they have reached agreement on costs or are to upload bills of costs and costs outlines.
    10. To assist the panel, each party’s documents should be uploaded so that they are displayed in CaseLines in the following sequence:
      1. Factum
      2. Application Record/Appeal Book and Compendium/Motion Record
      3. Oral hearing compendium, if any
      4. Book of Authorities, if any
      5. Transcripts, if any
      6. Exhibit Books, if any
      7. Bill of Costs and Costs Outline
      8. Counsel Sheet
      9. Other documents if any
  4. The deadlines set out above take precedence over the deadlines set out in Rule 4.05.3 of the Rules of Civil Procedure.
  5. At the hearing of a case where documents have been uploaded to CaseLines, the parties should be prepared to use the Direct Others to Page function or to advise the court of the CaseLines page number when referring to documents.
  6. It is the responsibility of the parties to ensure that all materials they upload for the matter comply with the Rules of Civil Procedure. For example: (a) the maximum length of a factum is 30 pages, plus permitted appendices; and (b) reply factums are not permitted, except on motions for leave to appeal in writing and only, in accordance with Rule 61.03.1(11) of the Rules of Civil Procedure, where the responding party’s factum raises an issue on which the moving party has not taken a position in the moving party’s factum. Parties may depart from the Rules of Civil Procedure only if a judge grants them leave to do so. If a party uploads a document that does not comply with the Rules, the court may strike out the document, with or without leave to upload a new document that complies with the Rules of Civil Procedure, and may order costs against the party that uploaded the non-compliant document.
  7. It is the responsibility of the parties to ensure that all materials they provide to the court for a matter contain only materials properly put before the court. Appeals and applications for judicial review are generally conducted solely on the record that was before the court or tribunal whose decision is under appeal or review in Divisional Court. Generally, parties are not permitted to add to the record below in Divisional Court unless they obtain an order from the Divisional Court permitting them to adduce fresh evidence. If a party uploads documents that are not properly before the Divisional Court, the court may strike out the documents, with or without leave to bring a motion to adduce fresh evidence, and may order costs against the party that uploaded materials.
  8. A party who is unsure about the application of these principles in their case may raise that issue with the court during the case management process, either by email or at a case management conference.

D.5.     Filing Documents with the Court and Payment of Fees

  1. Uploading documents to CaseLines in accordance with this Notice to Profession or a case management direction or order does not constitute “filing” of documents. Documents uploaded to CaseLines are also to be filed with the Divisional Court on the day they are uploaded to CaseLines by sending them by email to the Court. Documents are to be sent to the following email address:

scj-csj.divcourtmail@ontario.ca

The re line in the email is to include the following: “FOR FILING – Case name – File No. – Date of hearing”.

  1. Parties are required to pay ordinary court fees payable for proceedings in the Divisional Court, which shall be paid in accordance with a direction made by or on behalf of the Registrar or a Local Registrar of the Divisional Court.

D.6.     Self-Represented Litigants

  1. This direction applies to all matters in Divisional Court, whether parties are represented by counsel or are self-represented.  If a self-represented litigant is unable to conduct a case in accordance with any of the requirements set out in this Notice to the Profession, then the self-represented litigant shall advise the court of the difficulty and request variation in the requirements to enable that litigant to provide documents to the Court and participate in the hearing by some alternative means. These requests can be submitted by email at scj-csj.divcourtmail@ontario.ca or by telephone at (416) 327 – 5100.
  2. In preparing materials for an appeal or application for judicial review, self-represented litigants are encouraged to refer to the following guides:

Guide to Appeals in Divisional Court at: https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf

Guide to Judicial Review in Divisional Court at: https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf

D.7.     Case Management

  1. All matters in Divisional Court, and all steps in all matters in Divisional Court, are subject to case management by an Administrative Judge of the Divisional Court or a designate. The purpose of case management is to facilitate the timely adjudication of all matters in Divisional Court in a cost-effective and proportional manner.
  2. When the court is contacted by a party pursuant to this Notice to the Profession, the party’s request is subject to triage by an Administrative Judge of the Divisional Court or a designate. At that stage, the triage judge may give directions on matters such as (a) jurisdiction, (b) timeliness of the matter, (c) prematurity (d) identification of proper parties to the matter, and (e) any other issue that, in the opinion of the triage judge, ought to be addressed with the parties prior to making a scheduling direction. This part of the triage process does not preclude any party from raising preliminary issues with the court after the triage judge has given an initial direction.
  3. Where no preliminary issues are identified by the court, the triage judge will give scheduling directions. Parties should raise any preliminary issues they have at the time they address the court’s request for an agreed schedule from the parties.
  4. Where the triage judge is of the opinion that a case management conference is required to address any issue, the triage judge may direct that such a conference be scheduled by staff. Case management conferences are held by telephone unless the triage judge directs otherwise. The triage judge is not seized of case management unless the triage judge directs otherwise.
  5. Any timetable or deadline set through case management supersedes the deadlines set in the Rules of Civil Procedure.

D.8.     Motions for a Stay or Lifting a Stay Pending Appeal or Judicial Review

  1. Except in a case of urgency, the court will not schedule or grant a stay or a motion to lift a stay prior to conducting triage and making an initial case management direction/order in accordance with this Notice to Profession. A party seeking a stay of all or part of an order should raise this issue with the court at the earliest opportunity, generally when first contacting the court to request a hearing.
  2. Where a party is seeking a stay, that party is expected to agree to serve its materials and to participate in the hearing of the case as quickly as reasonably possible, to minimize the prejudice of any stay that may be granted. Where a party is responding to and opposing a motion for a stay, that party is expected to agree to prepare its responding materials and to participate in the hearing of the case as quickly as reasonably possible, to either obviate the need for a stay or to minimize the prejudice of granting or refusing a stay.
  3. An Administrative Judge of the Divisional Court or a case management judge may grant or decline a motion for stay or to lift a stay by case management direction/order or may direct that a motion be brought for a stay or to lift a stay, on such schedule and terms as the judge considers just, and may take into account the parties’ positions on scheduling the underlying case in deciding what process to follow and whether to grant or lift a stay and, if a stay is granted or lifted, on what terms.

D.9.     Costs of Triage and Case Management

  1. Unless the presiding judge orders otherwise, there shall be no costs associated with triage or case management in the Divisional Court. This principle is without prejudice to a party claiming costs in respect of the preparation of materials for use at the hearing of the underlying proceeding or step in the proceeding. For example, (a) an initial request to bring a case in Divisional Court will not ordinarily give rise to an award of costs, but the preparation of the Notice of Appeal or the Notice of Application provided to the court in support of the request is subject to a claim for costs in the underlying case; and (b) a request to bring a motion and/or a case management teleconference to consider and give directions in respect of the request to bring a motion will not ordinarily give rise to an award of costs, but the preparation of the Notice of Motion and/or other motion materials provided to the court in support of the request to bring the motion is subject to a claim for costs in the underlying motion.

D.10.   Release of Digital Court Recordings or Transcripts

  1. Digital court recordings or transcripts of case management teleconferences are generally not available, and where they may be available, cannot be obtained except with permission from the court in accordance with Part VI, C, of the Consolidated Provincial Practice Direction.

D.11.   Recording of Proceedings Not Permitted Without Leave

  1. Under section 136 of the Courts of Justice Act, it is an offence for anyone to copy, record, publish, broadcast or disseminate a court hearing or any portion of it, including a hearing conducted over videoconference or teleconference, without leave of the Court. This prohibition includes screenshots.

D.L. Corbett and Favreau JJ.

Divisional Court Administrative Judges

February 18, 2021


Appendix A

Divisional Court CaseLines Naming Convention

Applicant

Factum – Applicant ABC Inc. – 01-JAN-2021
Application Record – Applicant ABC Inc. – 01-JAN-2021
Supplementary Application Record – Applicant ABC Inc. – 01-JAN-2021
Oral Argument Compendium – Applicant ABC Inc. – 01-JAN-2021
Book of Authorities– Applicant ABC Inc. – 01-JAN-2021
Transcript Brief – Applicant ABC Inc. – 01-JAN-2021
Exhibit Book – Applicant ABC Inc. – 01-JAN-2021
Counsel Slip – Applicant ABC Inc. – 01-JAN-2021
Cost Outline – Applicant ABC Inc. – 01-JAN-2021

Appellant

Factum – Appellant ABC Inc. – 01-JAN-2021
Appeal Book and Compendium – Appellant ABC Inc. – 01-JAN-2021
Oral Argument Compendium – Appellant ABC Inc. – 01-JAN-2021
Book of Authorities – Appellant ABC Inc. – 01-JAN-2021
Transcript Brief – Appellant ABC Inc. – 01-JAN-2021
Exhibit Book – Appellant ABC Inc. – 01-JAN-2021
Counsel Slip – Appellant ABC Inc. – 01-JAN-2021
Appellant’s Cost Outline – Appellant ABC Inc. – 01-JAN-2021

Moving party

Factum – Moving Party ABC Inc. – 01-JAN-2021
Motion record – Moving Party ABC Inc. – 01-JAN-2021
Oral Argument Compendium – Moving Party ABC Inc. – 01-JAN-2021
Book of Authorities – Moving Party ABC Inc. – 01-JAN-2021
Counsel Slip – Moving Party ABC Inc. – 01-JAN-2021
Cost Outlines – Moving Party ABC Inc. – 01-JAN-2021

Tribunal

Record of Proceedings – ABC Board – 01-JAN-2021

Respondent

Factum – Respondent Smith – 01-JAN-2021
Responding Record — Respondent Smith – 01-JAN-2021
Supplementary Respondent Record — Respondent Smith – 01-JAN-2021
Responding Appeal Book and Compendium – Respondent Smith – 01-JAN-2021
Oral Argument Compendium – Respondent Smith – 01-JAN-2021
Book of Authorities – Respondent Smith – 01-JAN-2021
Transcript Brief – Respondent Smith – 01-JAN-2021
Exhibit Book – Respondent Smith – 01-JAN-2021
Counsel Slip – Respondent Smith – 01-JAN-2021
Cost Outline – Respondent Smith – 01-JAN-2021

Additional documents not specifically identified in this Appendix are to be named by analogy.