Advancing litigation during COVID-19
Friday, September 11, 2020 @ 11:57 AM | By Miguel Mangalindan
This article will outline the major changes that occurred in the Ontario Superior Court of Justice because of the pandemic, and some of the solutions the legal profession has used to overcome these problems, including taking advantage of resumed case conferences (or chamber’s appointments as they are referred to interchangeably). These have emerged as a useful tool to bring parties’ counsel together before a judge or master of the court that might otherwise be stuck in a limbo, which has the positive effect of eliminating delay and establishing a road ahead for the litigation.
For the purposes of this article, I assume that the party implementing the aforementioned solutions would like to move their matter ahead, be they a plaintiff or a defendant.
I begin by identifying the biggest change caused by COVID-19 to advancing litigation, which is the unprecedented closure of the courts. To safeguard the health and safety of all court users, the Superior Court suspended in-person operations effective March 17, 2020. Limitation periods and procedural deadlines were also suspended at that time by the Ontario provincial government.
These changes drastically hampered litigants who were unable to settle their dispute between the parties and who were simply waiting for a trial to resolve their case. Fortunately, the number of cases that proceed to trial represent only a small fraction of all civil cases and, while the impact on those specific cases awaiting trial meant that those parties had no choice but to wait until the courts resumed regular operations, for the vast majority of cases, the inability to secure a trial did not prevent us litigators from moving files in other ways.
For example, during this time, my colleagues and I have generally worked from home while continuing to send e-mails, write letters, draft documents and correspond with opposing counsel and our clients. We also have, through the benefit of videoconferencing technology, engaged in virtual consultations, mediations and examinations for discovery and have also been commissioning documents virtually.
As of mid-May 2020, the Superior Court of Justice expanded the list of matters to be heard in Toronto to include case conferences. My colleagues and I have benefited tremendously from this development, and in effect so have our clients.
A case conference is an appointment with a judge or a master during the life of an action or application. A party must simply complete a case conference request form and submit it to the trial co-ordinator, who typically responds within a few days. Then, on consent with counsel for the opposing party, my experience during the courts’ shutdown has been that we are able to schedule a case conference within two weeks of the request. The case conference itself is a 15-minute teleconference with a judge or master.
At the conference, the judge or master has broad authority to provide directions and make a variety of orders for the benefit of the proceeding, including in the following circumstances:
• The parties cannot agree on scheduling or procedural matters that may be involved in a proceeding; or
• The matter involves a party who fails to abide by the timelines and requirements of the Rules, and assistance from the court is needed.
I have found case conferences to be invaluable in both these circumstances during the courts’ shutdown and for obtaining directions from a decision-maker informally instead of going through the effort and expense of bringing a motion, or worse, delaying the file indefinitely. In several cases, just by requesting the case conference alone, that has brought opposing counsel to the table to get agreement on consent to preclude the need for the case conference altogether. It can also lead to a motion, if necessary, which are now being heard by the courts as well.
As of August 2020, the courts have now expanded the list of matters that can be heard, including pretrial conferences and Civil Practice Court, the latter at which summary judgment motions, appeals from the Consent and Capacity Board, long motions and applications and urgent matters may be scheduled. The courts have also greatly expanded the list of documents that can be filed online. By Sept. 11, 2020, limitation periods and procedural deadlines should begin to run again, and at that point, with some measured optimism, litigation should revert to more of a state of normalcy.
While we will likely have to adjust our meaning of the word “normalcy” as COVID-19 continues to be a part of our lives, I am proud to say that the legal profession has managed to weather a portion of this storm during a particularly difficult time, through the adaptive use of existing technologies, court functions and most importantly, an overarching desire to protect and advance the legal interests of our clients. This pandemic has accelerated the modernization of the profession and the courts, which few will doubt was a necessary evolution anyway. Like in other aspects of life, we will make it out of this stronger.
Miguel Mangalindan is a senior associate lawyer at Monkhouse Law where he practises employment, human rights and disability insurance law.
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