ONTARIO

May 15, 2020 Update: The Ontario Superior Court of Justice has announced a further expansion of its operations, with variations across the different regions.

May 8, 2020 Update: The OLRB and the HRTO have announced the cancellation of hearings up to the end of June 2020.  Further details about these tribunals are set out further below.

On March 25, 2020 the Government of Ontario enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act (“HTPA”), thus providing tribunals with the broad power to control the nature of their proceedings with regards to process, format and conduct.

Under the HTPA, a tribunal may conduct a hearing in person, electronically, in writing or by a combination of these methods, as the tribunal deems appropriate. Furthermore, the HTPA provides tribunals with the power to make any orders or give any direction regarding:

• the format and conduct of the hearing; and
• any ancillary matters regarding notice of the hearing, the service or filing of materials, attendance at the hearing, as well as any recording or public access related to the hearing.

In addition to hearings, the HTPA applies to any other appearance before a tribunal or member of a tribunal, including a case management conference, pre-hearing conference, or alternative dispute resolution process, such as arbitration.

Moreover, the HTPA applies to

• every hearing in a proceeding to which the Statutory Powers Procedure Act (“SPPA”) applies;
• every hearing in a proceeding to which the SPPA would apply if its application were not excluded by another Act; and
• every hearing in any proceeding before a tribunal that may be specified by the regulations.

In response to the COVID-19 outbreak, a number of courts and workplace tribunals have announced a cancellation of hearings and other related adjustments to their operations, including:

Ontario Labour Relations Board (“OLRB” or “Board”)

• All in-person mediation meetings scheduled will be cancelled until further notice and held instead by teleconference or email.
• In-person hearings have been cancelled, up to and including Tuesday, June 30, 2020, unless otherwise directed by the Board. The Board will not issue cancellation notices for hearings during this time. Where possible, mediations may be conducted by teleconference or videoconference.
• Where possible, Case management Hearings may be conducted by teleconference of video conference.
• Front reception area is closed to the public for walk-in inquiries
• All Board forms, submissions, and materials must be filed through the Board’s e-filing process.  E-mail, courier, hand delivery or fax will not be accepted.
• All representation votes will be held electronically until further notice. This may cause delay in some cases.

The Board is continuing to assess the need for the cancellation of hearings scheduled after June 30, 2020.  Parties are able to make submissions to the Board with respect to rescheduling any adjourned hearings to be held instead by telephone or in writing.  The OLRB will continue receiving applications, responses, and other forms of submissions; however, processing may be delayed.

As of March 23, and until further notice, the OLRB will be implementing the following changes:

1. With regards to certification, termination and displacement applications, the applicant is now required to confirm to the Board that the employer is continuing to operate and carry on its business.
2. Though the Board will continue to hold representation votes electronically, votes will not be held in relation to workplaces that have had to close due to the current public health situation. Moreover, such votes may be delayed.
3. In relation to grievance referrals specific to the construction industry, default decisions will not be issued until the applicant confirms with the Board by declaration that the employer continues to operate and carry on business.
4. Case Management Hearings (“CMHs”) may be through teleconference. These CHMs may fall on any weekday, and need not occur on Wednesdays.

Please note that the OLRB has not suspended time periods in which steps in a proceeding must be taken. Provided that the required declarations establishing that an employer continues to operate and carry on business have been made, the Board intends to process applications as usual. However, the Board has indicated its willingness to continue exercising its discretion to extend timelines at the request of the parties to the proceeding, as may be appropriate in all of the circumstances and where there is a specific and compelling reason to do so.

The OLRB has also released a new Information Bulletin (No. 37) relating to Video Hearings, which is available here.

Human Rights Tribunal of Ontario (“HRTO”)

• In-person hearings up to June 30, 2020 have been postponed, to be rescheduled to a later date
• All front-line counter services are closed until further notice
• All limitation periods and procedural time periods relevant to HRTO matters have been suspended, retroactive to March 16, 2020
• If current and / or new parties are not able to meet a timeline, the HRTO will allow them to do so at a later date

Where feasible, the HRTO will consider alternative hearing options (such as written and telephone hearings) in order to try and minimize disruption to hearings across the organization.

Workplace Safety and Insurance Board (“WSIB”)

• WSIB Offices: WSIB offices have been closed to the public, requests will not be processed by mail. Options available to reach the WSIB include:
  • Phone (1-800-387-0750);
  • Online (online services, and upload claim-related information online);
  • Email (employeraccounts@wsib.on.ca); or
  • Fax (416-344-4684 or 1-888-313-7373).
• WSIB Appeals: Coordinators are reaching out to everyone who had a previously scheduled in person appeal hearing with three options: 
  • Hearing via teleconference;
  • Hearing in writing; or
  • Postpone until in person hearings resume.
• Return to Work Specialists: Return to Work Specialists will not be visiting workplaces until further notice.
• Loss of Earnings Benefits: The WSIB will continue to pay all wage-loss benefits and have ensured all loss of earnings benefits are up to date.
• Claim-Related Appointments: If individuals are not able to attend or are uncomfortable attending claim-related appointments, individuals are asked to cancel the appointment directly with the applicable person or organization. A decision to avoid an appointment will not affect entitlement to benefits or services.

Workplace Safety and Insurance Appeals Tribunal (“WSIAT”)

• All in-person hearings that were scheduled from March 16, 2020 until April 3, 2020 have been postponed and rescheduled to a later date;
• The WSIAT reception area, the Ontario Workplace Tribunals Library, the Ian J Strachan Conference Centre and the Hamilton Hearing Centre are now closed to the public;
• The WSIAT Mail Room is receiving deliveries, but the public is asked to not make hand deliveries; and
• WSIAT will continue to receive forms, evidence, and submissions in accordance with its Practice Directions. These documents are to be submitted by mail, courier or fax.

Where feasible, WSIAT will consider alternative hearing options, such as written and telephone hearings, in an effort to minimize disruptions to hearings across the organization. Parties who wish to schedule a written or telephone hearing can send a request to the WSIAT by mail, courier or fax.

Ontario Superior Court of Justice

On May 13, 2020, the Ontario Superior Court of Justice announced a new notice that consolidates previous province-wide directions outlining the expansion of operations, allowing for certain non-urgent matters to begin to be heard, with details varying by region based on the available resources. In-court hearings and jury trials will not resume in-person until July 6, 2020 at the earliest. Matters will continue to be heard virtually, the scope of which is expected to expand shortly. Effective May 19, 2020, the following general changes will be effective across all regions:

• Service by Email: Despite the Rules of Civil Procedure, and subject to a contrary Court order, it is not necessary to obtain consent or a Court order to serve a document by email where service by email would otherwise be permitted;
• Filing by Email: : During the suspension of the Court’s regular operations, the Court will accept filings via 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. For matters that are not “urgent” or have not been identified in the Region’s Notice, parties should file pleadings through the civil claims online portal, or the small claims court online filing service. The Court has emphasized the importance of being succinct in any filings or scheduling requests.
• Orders: Judgments, orders and endorsements are effective as the date they are made, unless specifically stated otherwise.  Physically attending at the Court to issue and enter an Order is discouraged unless necessary for enforcement purposes.  Only orders relating to matters of urgency will be formally issued until the Court returns to regular operations.
• Gowning: The requirement to gown for Superior Court appearances is suspended.  Counsel and parties are expected to dress in appropriate business attire.
• Public and media access: Requests to participate in a remote hearing can be emailed to Court staff in advance of the hearing.

Effective as of May 19, 2020, the Toronto region will continue scheduling non-urgent matters for remote hearings by telephone or video conference, or heard in writing, including:

• Select pretrial conferences: The Court will be prioritizing the rescheduling of pretrial conferences which had previously been scheduled to be held between March 16 and July 3 but were cancelled due to the Court closure.  To be rescheduled, all parties will be required to confirm, in writing, that the case is trial-ready and provide certain commitments about participating remotely with full intention and authority to settle, and that there is no impediment to resolution (such as outstanding expert reports or productions that would be critical to settlement).  Details on how to reschedule a pre-trial conference are available here.
• Motions and applications in writing which are proceeding on consent: Electronic copies of motion materials, in searchable PDF format, may be filed with the Court by email.  Consent forms must still be signed, unless a signed statement is provided representing that a party whose signature cannot be obtained consents to the order sought.  Written motions filed since March 17, 2020 are advised to be re-filed electronically.
• Requests for chambers appointments and other case conferences: Requests are to be sent to Torontochambersappointments@ontario.ca.

By way of a summary respecting civil proceedings in other regions (not including criminal or family matters), court regions across the province will begin hearing consent motions, Rule 7 motions and, in most cases, written motions and pre-trial conferences (for the purposes of settlement only).  Highlights include:

• Central East (details here) As of May 5, 2020, all civil proceedings scheduled to proceed between March 16 and July 6 are adjourned.  Commencing the week of May 18, 2020, designated judges will be assigned to conduct civil pre-trials on re-booked dates, for those cases where pre-trials were previously scheduled to proceed between March 16 and July 10, 2020. Urgent matters, Rule 7 motions and urgent estate matters will also be heard.

• Central South (details here) All urgent matters will continue to be heard, with scheduling through the trial coordinator.  The Court will also begin hearing consent motions, basket motions and court approval motions, in writing. 
• Central West (details here) Urgent matters will continue to be heard, along with Rule 7 and consent motions, and motions in writing where all parties agree that the motion can be heard in writing.
• East (details here) In addition to urgent matters, the Court will begin handling matters with a focus on those that are focused and succinct aimed at dispute resolution, routine matters that can be disposed of in writing, and certain types of motions or applications where delay may cause hardship.  The Court will begin taking requests to reschedule cancelled pre-trial conferences, for settlement purposes only as well as motions and applications that were commenced and adjourned.  The Court will also begin hearing Rule 7 motions, written consent motions and some case conferences. The Court will also begin hearing some matters that are not necessarily “urgent”.
• North East (details here) In addition to urgent matters, the Court will begin handling written consent motions and Rule 7 motions, and will begin scheduling judicial pre-trials in non-urgent matters for the purpose of exploring resolution. Contested motions and applications will be heard depending on the complexity.
• North West (details here) Urgent matters will continue to be heard, along with Rule 7 and consent motions, and motions in writing where all parties agree that the motion can be heard in writing.  The Court will also begin scheduling pre-trial conferences (limited to 30 minutes) to deal with one or two urgent or pressing issues, where the parties have a desire to reach a resolution. Non-urgent civil matters for certain proceedings will not be considered; parties should review the appropriate information prior to submitting requests.
• South West (details here) Urgent matters will continue to be heard, along with Rule 7 and consent motions (in writing), as well as non-complex short opposed motions (excluding summary judgement) and applications.  The Court will also begin scheduling pre-trial conferences (limited to 30 minutes), but only for the purposes of settlement.

Where courts are allowing matters to be scheduled and materials to be filed electronically, specific procedures have been established that must be followed, including what email addresses are to be used, and what information must be provided.  The full details of the Court’s expansion of services are available here, including the above-cited links to the various regional directives.

Subject to the changes noted above:

• All regular operations of the Superior Court are otherwise suspended until further notice
• All civil matters scheduled to be heard after March 17, 2020 are adjourned, including telephone and videoconference appearances, unless presiding judicial officer directs otherwise
• All sittings of the Small Claims Court are suspended until further notice, including trials, settlement conferences, motions, assessment hearings, garnishment hearings, contempt hearings and examinations, including telephone and video conference hearings
• Courthouses to remain open for urgent filings
• All urgent matters emailed to trial coordinators received at or after 4:30pm will be addressed the following business day due to the high volume of emails received

Urgent and time-sensitive motions and applications, relevant to workplace law, involve matters such as:

• Urgent requests for injunctions related to COVID-19;
• Urgent Divisional Court appeals and requests for judicial review related to COVID-19;
• Situations where immediate and significant financial repercussions may result if there is no judicial hearing; and
• Outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.

Ontario Superior Court of Justice, Divisional Court

On May 13, 2020, the Divisional Court announced an update to the expansion of operations, allowing for certain non-urgent matters to begin to be heard, effective on May 19, 2020, subject to available resources.  The following parameters apply to the rescheduling of Divisional Court matters:

• Any party wishing to schedule a Divisional Court matter is to contact the Court via email, copied to all other parties, listing certain required information about the parties and nature of the proceedings, estimated time for hearing, a brief explanation of any need for urgency, and an indication as to whether some or all parties consent to the scheduling request;
• Some matters will be scheduled, at the discretion of the Divisional Court Administrative Judge.  Non-urgent matters will be heard, but scheduling priority will be given to urgent and time sensitive matters;
• For matters which are scheduled, parties will be provided with directions for the electronic filing of documents.  All hearings will be conducted by telephone or videoconference.

Further details are available in the Court’s Direction, issued May 13, 2020, available here.

With the exception of matters scheduled/rescheduled in accordance with the May 13, 2020 direction, the Divisional Court’s schedule of cases as of the suspension of ordinary court operations is suspended.  Matters will not be heard according to that schedule so long as in-person hearings are suspended. 

Ontario Court of Justice

• On May 4, 2020, the Ontario Court of Justice announced that it will not be returning to full operations on May 29, 2020.
• Provincial Offences Act (“POA”): All POA matters scheduled from March 16, 2020 to at least May 29, 2020 will be adjourned and rescheduled to a later date. Individuals with matters scheduled during this time do not need to attend court.A notice of the new court date will be sent by mail to the address on file with the court.
• No trials or preliminary inquiries will be conducted until July 6, 2020 at the earliest, unless a judge seized with a continuing matter orders otherwise. This applies to criminal, family and POA matters.
• The court will soon provide a detailed notice about all proceedings in the Ontario Court of Justice. The Court also stated that it is working closely with its justice partners, including the Ministry of Attorney General, to adopt technology that will increase participants’ ability to access the Court’s services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings.
• Extension of Timelines: The Chief Justice, pursuant to s. 85, has extended the following timelines:
  • Sections 5(6), 5.1(b), 5.1(12), 9(1)(a), 11(1), 11(4), 17.1(6.1), 18(1), 18.1(5), 18.2(1), 18.3(1),  19, 66(1), 69(1), 116(2)(a), 116(3) and 135(2) of the Provincial Offences Act, and sections 5(2) and 5(3) of the Rules of the Ontario Court (General Division) and the Ontario Court (Provincial Division) in Appeals Under Section 116 of the Provincial Offences Act, O. Reg. 723/94.

Ontario Court of Appeal

• Parties to non-urgent appeals scheduled to proceed before April 30, 2020 are encouraged to request and consent to adjournments
• Where matters are proceeding, parties are encouraged to consider appearing by video to teleconference

Cancellation of Limitation Period & Time Periods in which Steps in a Proceeding Must be Taken

On March 20, 2020, the Ontario Cabinet issued an Order in Council (available here) suspending any limitation period established under any statute, regulation, rule, by-law or order of the Government of Ontario. The suspension will be retroactive to Monday, March 16, 2020, and will continue until the state of emergency ends.

Furthermore, the Order in Council also suspends any step (including normal filing and other deadlines) in a proceeding established under any statute, regulation, rule, by-law or order of the Government of Ontario, subject to discretion by the court, tribunal or other decision-maker overseeing the proceeding.

Much like the limitation period mentioned above, this suspension will also be retroactive to Monday, March 16, 2020, and will continue until the state of emergency ends.

FEDERAL

Canada Industrial Relations Board (“CIRB”)

• All in-person hearings and meetings scheduled between now and May 31, 2020 will not be held as planned
• It is requested that documents are filed using e-filing rather than mail or courier
• Offices remain open and Board officers remain available to respond to questions and provide information, however most employees and Board members are equipped to work remotely and continue to provide service as required
• Certifications: the Board requires original copies, please call one of the regional office to make arrangements for filing

For parties whose hearings, meetings and votes are impacted, the CIRB will be contacting those parties on a case-by-case basis to plan alternative methods to conduct those hearings, meetings and votes.

Federal Court of Canada

The Federal Court of Canada has released an updated Practice Direction and Order relating to COVID-19, available here.

Supreme Court of Canada

The Supreme Court of Canada has closed its building to visitors, with all scheduled public events and guided tours cancelled until further notice.  The Court remains open for case-related matters, with certain restrictions and precautions in place.  Details about the most recent changes are available here.

We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.