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Manitoba Chief Justice Glenn Joyal

Nation’s courts making moves amid omicron spread

Wednesday, January 05, 2022 @ 9:49 AM | By Terry Davidson

Last Updated: Wednesday, January 05, 2022 @ 3:06 PM


Courts across the country are once again scaling back operations due to the rising case numbers of COVID-19 and the omicron variant.

The changes, many of which take hold this week, involve the postponing of trials, the cancelling of in-person appearances and a return to virtual hearings. 

In Alberta, a province recently hit by record numbers of new cases, the provincial court has adjourned all non-urgent out of custody criminal trials, preliminary inquiries and other hearings requiring witness evidence between Jan. 4 and Jan. 21. Lawyers “will obtain new dates remotely,” according to a notice.

Other matters, including docket applications and pretrials, will be done virtually, as will docket appearances scheduled at “circuit point” locations.

Counsel who feel an out-of-custody criminal trial should proceed should contact the appropriate assistant chief judge, stating why the matter should be considered urgent, the notice states.   

Alberta’s Queen’s Bench has adjourned all in-person criminal trials and matters (including jury trials), civil, commercial, surrogate and family matters will be adjourned — exceptions include scheduled emergency protection orders and matters “involving unusual and urgent circumstances.”

All three levels of courts in British Columbia have also made changes.

B.C.’s Supreme Court is adjourning all in-person civil and family proceedings, including trials, scheduled to begin between Jan. 4 and 7. New criminal matters and trials are also being adjourned for that period and lawyers and their clients are to appear by telephone on their scheduled date to arrange a new appearance, according to a notice.   

Matters that were scheduled to continue during that week are also adjourned, but counsel should appear by telephone to address whether the matter should continue during that week.

B.C.’s provincial court will adjourn all out-of-custody criminal trials, trial continuations and preliminary inquiries scheduled between Jan. 4 and 7, according to a notice.

Those aforementioned criminal matters involving those in custody, however, will remain on the schedule.  

“Counsel and self-represented litigants are to attend Court in person (or as otherwise scheduled) on the date scheduled at 9 [a.m.] to advise if they are ready to proceed that day,” it states. “Witnesses and parties represented by counsel are to wait outside the courthouse … and be prepared to be called to attend court in person. The Court will determine which trials will proceed.”

Manitoba’s Queen’s Bench is also cutting in-person hearings due to the “heightened dangers surrounding the new Omicron variant and specifically, its worrisome transmissibility,” stated Chief Justice Glenn Joyal in a notice.

Jury trials set to take place between Jan. 10 and March 4 will be rescheduled, as will judge-alone out-of-custody trials. All currently scheduled in-custody trials, however, will proceed. In these cases, counsel and presiding judges should ensure precautions are taken to minimize risk.

Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal

Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal

Previously scheduled civil trials set to proceed in person between the Jan. 10 and March 4 time period will not proceed as so. But video will be used for matters already scheduled. 

“If and where all parties are represented by counsel, all civil trials already scheduled are to be viewed as presumptively proceeding by video conference,” states Justice Joyal. “Arrangements should be made by counsel for a pre-trial conference in advance of the trial to ensure that all practical issues surrounding the trial by video conference have been addressed.”

He went on to address how the ongoing impact of viral spread. 

“The COVID-19 positivity rate continues to rise at a steady and alarming rate. The infections are [fuelled] by both the Delta and increasingly, the Omicron variants. Much uncertainty continues to surround the new Omicron variant but what is not unknown ... is its obvious transmissibility even ... to some who are vaccinated.”

Saskatchewan’s provincial court announced Jan. 3 that it would be hearing most out-of-custody docket matters by telephone for a period of six weeks. Those scheduled to appear during that time must contact the court office to make arrangements to take the call. Trials, however, will proceed in person unless otherwise ordered by the presiding judge.

Court parties at fly-in circuit courts will appear remotely.

The Appeal Court in Ontario, a province that has seen its own unprecedented surges in new cases, announced in December that it will again be using Zoom for its hearings, and the province’s Superior Court has stopped any new jury selections at all court locations until Feb. 7. Judges will decide if matters already in progress will continue.  

Judge-alone criminal trials and other such matters may proceed in person or using a hybrid model at judges’ discretion, with considerations made to accommodate those not wanting to attend in person.

Civil and family court matters will proceed virtually. For urgent matters, the court may use hybrid hearings. 

A Jan. 4 notice from the Ontario Court of Justice stressed the “importance of limiting in-person attendance at courthouses.”

“The Court is committed to facilitating the conduct of proceedings by remote technology (video or phone) wherever possible and urges all judicial officials, parties and counsel to use remote proceedings unless an in-person appearance is required to ensure meaningful access to justice,” it states.

It goes on to stress that it is following expert medical advice and that it “will continue to accommodate in-person appearances where they are required to ensure meaningful access to justice,” and that Ontario’s Attorney General “has implemented a broad range of health and safety measures at all courthouses open to the public.”

Courts in Nova Scotia are also returning to tighter restrictions: From Jan. 4 to Jan. 14, the province’s provincial and youth justice courts will suspend most in-person proceedings.

The provincial court will operate virtually through Microsoft Teams or via telephone. However, trials for those in custody will be heard in person. This applies to youth justice, night court and Wellness Court matters.

It is noted this does not impact scheduled or new provincial and youth court matters that can be done remotely or by phone.

New Brunswick’s top court has also returned to a scaling back of court appearances, according to a Jan. 4 update by Chief Justice Marc Richard.

“As the highly contagious Omicron variant continues to spread, the Court of Appeal will hear appeals by video or telephone conference and will continue to hear motions by telephone conference in January 2022 and until further notice,” Justice Richard states in a notice.

The new directives apply to both civil and criminal appeals.

The notice states that under New Brunswick’s Revised Mandatory Order, “courthouses are closed to the general public,” with the exception of judges, those whose work require them to be in the buildings, litigants, accused people, witnesses, those attending under a summons, accredited media and victim witnesses.

Others may enter a courthouse by appointment to pay a fine or meet with an administrator or Crown. Documents to be filed with a court can be dropped in secure boxes.

If you have any information, story ideas or news tips for The Lawyer’s Daily, please contact Terry Davidson at t.davidson@lexisnexis.ca or call 905-415-5899.