Dec. 15, 2020 - The economic dislocation caused by the COVID-19 pandemic has led to an uptick in “busted deal” litigation in M&A transactions in the United States and Canada. 1 The crux of the litigation is whether the buyer may abandon the transaction without penalty on the basis of allegations that the...
COVID-19 and the Courts: What You Need to Know
Across the globe, courts have rapidly adapted their practices and procedures in response to the COVID-19 pandemic. While they began resuming activities and easing restrictions over the summer and early fall, many courts are now reintroducing restrictions as various regions experience a second wave of infections. In most jurisdictions, hearings that were adjourned have now been resumed; limitation periods that were previously suspended have restarted; and procedures and timelines for filings have continued on an amended basis. However, the courts have modified their normal operations substantially, and continue to update and adjust them on an ongoing basis. We have summarized below the need-to-know information about civil proceedings in a number of courts and tribunals in Ontario and Québec, as well as the Federal Courts and the Supreme Court of Canada. We will continue to monitor and update our clients and community members on applicable practices as events unfold.
Filings and Procedural Deadlines
Ontario Superior Court of Justice
- In-person hearings. The Chief Justice has advised that effective December 29, 2020, all non-jury matters should proceed virtually unless an in-person hearing is absolutely necessary. This advisement applies to proceedings throughout the province and will remain in effect until the lockdowns in Northern and Southern Ontario are lifted or until further notice from the Court.
- The Court will remain open during the provincial lockdown, but all Superior Court of Justice courtrooms will be subject to a 10-person capacity limit. Litigants are asked to arrive at least 30 minutes early due to extra screening requirements.
- Proceedings that are in progress may continue subject to the discretion of the trial judge.
- As of January 1, 2021, a party seeking a hearing or other step in a proceeding that permits or requires the parties to attend must propose whether the hearing should be heard (1) in person; (2) by telephone conference; or (3) by video conference.
- Parties may object to the proposed method of hearing by delivering a notice of objection (Form 1A). If a party delivers such an objection, the Court will determine the method of hearing at a case conference.
- Unreasonable objections to proceeding by telephone or video conference may be considered in awarding costs.
- Remote hearings. The Court will continue to hear matters remotely in writing or by videoconference. The Court has requested that parties abide by its Best Practices and Etiquette for Remote Hearings.
- As of January 1, 2021, all case conferences will be held by telephone conference unless the court specifies otherwise.
- Other matters that may be heard remotely include the following:
- unopposed motions and applications;
- opposed short motions and applications;
- long motions and applications;
- requests for chambers appointments and case conferences;
- class action case management conferences as well as pre-certification, certification and post-certification motions.
- CaseLines. CaseLines will be used in Toronto civil cases starting the week of September 21, 2020. Parties will be notified by email that CaseLines will be used in their hearings. The Court has announced that it expects all judicial regions in Ontario will be using CaseLines by the end of 2021.
- Jury. No new jury selection will commence during the province-wide lockdown.
- All jury trials are suspended until May 3, 2021, at the earliest.
- Filings. The Court will accept filings via email at the specific email addresses indicated in a region’s Notice to the Profession only for urgent matters or those identified in a region’s Notice to the Profession. Any materials filed via email must then be filed in paper format, with the requisite filing fee, at the court counter when regular court operations resume.
- Parties should file Claims or Statements of Claims through the Civil Claims Online Portal. For matters that are not “urgent” or have not been identified to be dealt with in a region’s Notice to the Profession, counsel and parties are discouraged from physically attending courthouses to file documents in person.
- Effective January 11, 2021, documents submitted electronically to the Court must follow a standard document naming protocol.
- Time periods for steps in civil proceedings as established by statute, regulation, rule, bylaw or order of the Government of Ontario were suspended between March 16 and July 16, 2020.
- The Court has also relaxed procedures related to commissioning affidavits. Where it is not possible for a commissioner to administer an oath in the presence of a deponent, the Court will accept affidavits commissioned by video. As of January 1, 2021, remotely commissioned affidavits are generally acceptable in Ontario. If it is not possible to commission an affidavit by video, 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.
- More generally, the Court has indicated that it will relieve compliance with procedural rules, regulations and statutes as necessary to manage matters before it during the emergency.
Ontario Superior Court of Justice – Commercial List
- Hearings. Effective July 6, 2020, in-person court hearings will resume in Courtrooms 8-1 and 8-6 at 330 University Avenue as announced in the updated Notice to the Profession. Counsel will be notified by the Commercial List Office regarding these hearings.
- The court cannot hear any matters of more than four (4) hours’ duration. All contested matters will be heard by teleconference using Zoom or another videoconference facility.
- The Court will also begin to hear select motions, applications and conferences.
- The procedures set out in the Notice announced on March 16, 2020, remains in place. The Commercial List is remotely hearing urgent matters, as well as select motions and applications, case management conferences, pre-trial conferences and judicial settlement conferences.
- CaseLines. CaseLines will be used in select Commercial List hearings scheduled on or after November 16, 2020. Parties will be notified by email that CaseLines will be used in their hearings.
- Filings. Commercial List judges are accepting materials via email. Filing hard copies is unnecessary provided that the Commercial List office is copied on the email.
Ontario Superior Court of Justice – Divisional Court
- Hearings. On June 29, 2020, the Divisional Court issued a Notice to the Profession announcing that the Court would not resume in-person hearings on July 6, 2020, and would continue to hear matters remotely in accordance with this Notice.
- The court’s schedule of cases is entirely suspended until September 4, 2020, and matters will not be heard according to that schedule. Only matters scheduled in accordance with this Direction will be heard. A party in a matter that has been scheduled previously for hearing up to September 4, 2020, will have to obtain a new date if the party wishes to proceed remotely. This can be done by contacting the Court by email in accordance with the process set out in the Notice.
- CaseLines. CaseLines will be used in Divisional Court hearings starting in October 2020. Parties will be notified by email that CaseLines will be used in their hearings.
- Filings. All materials must be filed via email. Electronic documents are required for all hearings, even if parties have previously filed paper documents. Paper copies of all documents filed electronically will be required once ordinary court operations resume.
Ontario Court of Appeal
- Hearings. As of November 16, 2020, the Court of Appeal will no longer be conducting in-person appeals until further notice. All appeals will be conducted remotely during this time.
- The Court has postponed its planned Ottawa sitting until 2021.
- Effective July 16, 2020, and subject to certain exceptions, the times prescribed to take any step in a civil proceeding were reinstated.
- Filings. All documents that are required for the hearing of any matter must be filed electronically. If hardcopy materials have already been filed, parties must file electronic copies as set out in the October 2020 Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Pandemic dated October 26, 2020. Among other things, the documents containing text must be filed in text-searchable PDF and must be filed either via email or through delivery of a USB key by mail or courier. The filing guidelines set out in this Practice Direction apply to all materials filed on or after November 9, 2020. The Amended Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Emergency dated July 13, 2020, applies to materials filed before November 9, 2020.
- Affidavits. In the event that an affidavit of service cannot be commissioned due to COVID-19, the affidavit must still be completed, signed and e-filed, accompanied by an explanation as to why the acknowledgment could not be obtained.
Superior Court of Québec
- Hearings. Since June 2020, courtrooms in Québec have gradually resumed operations, both in person and remotely as needed. Further information regarding practices in the Court’s various districts can be found here (in French).
- On January 8, 2021, the Chief Justice confirmed that the Court’s activities would continue during the period of confinement and curfew in effect from January 9 to February 8, 2021, in most regions of Québec. While the Court will remain operational and maintain its planned activities during this period, Judges will identify cases best suited for remote hearings and encourage parties to proceed virtually where possible.
- As of November 30, 2020, any proceedings in civil matters scheduled to be heard at the Montreal Courthouse will be held virtually, unless the hearing involves testimony evidence or is otherwise authorized to proceed in person.
- Since September 2020, the Montréal and Québec Districts have resumed scheduled hearings on the merits. Additionally, the Court is hearing:
- urgent matters and certain uncontested requests;
- settlement conferences and conciliation sessions; and
- case management requests in civil, commercial and family matters, including in cases under special management.
- Filings. Filings can be mailed. Only urgent filings will be accepted at the Court office counter. Urgent requests for hearings in Commercial Chamber matters and any related documents must be submitted by email.
- Documents that will be used in any matter proceeding on its merits before the Court’s Civil Chamber in the Montréal Division must be delivered to the Bailiff’s office, at the judge’s attention, 15 days prior to the hearing.
Québec Court of Appeal
- Hearings. As of January 11, 2021, hearings on the merits will be heard by videoconference. The Court office will contact the parties or counsel concerned in order to make the necessary arrangements for this purpose. The Court office will also contact parties in exceptional cases where a virtual hearing is not appropriate. The Court has advised that, in principle, motions before a judge alone or before a panel will continue to be heard by videoconference.
- Appeals scheduled to be heard between March 17 and May 15, 2020, were adjourned.
- Filings. Only urgent filings will be accepted at the Court office counter. On April 9, 2020, the Court launched the Digital Office of the Court of Appeal, which is now accepting certain filings in civil matters.
- Hearings. Hearings in Ontario and Québec will not proceed in person until February 12, 2021, at the earliest, with limited exceptions. The Court continues to conduct its regular operations by video conference, teleconference, and in writing. Otherwise, the Court’s facilities in Ontario and Québec are closed to the public until further notice.
- Matters scheduled to be heard between March 17 and July 10, 2020, were adjourned. The Court did not hold in person hearings until July 13, 2020, and the Court did not hold general sittings or other hearings in Ontario and Québec before July 27, 2020.
- Timelines. The Court announced the resumption of the previously suspended timelines, beginning on June 29, 2020, in Ontario, Québec and the three territories. The timelines also began to run for the four provinces of Western Canada and the four provinces of Atlantic Canada, starting on June 15, 2020.
- Previously, the Court had suspended the running of all timelines under Orders and Directions of the Court made prior to March 18, 2020, and under the Federal Courts Rules, subsection 18.1(2) of the Federal Courts Act and paragraph 72(2)(c) of the Immigration and Refugee Protection Act as well as timelines under the Federal Courts Citizenship, Immigration and Refugee Protection Rules and section 22.1 of the Citizenship Act.
- Deadlines for commencing matters under other statutes apply and cannot be extended or varied unless permitted under the terms of those statutes.
- Filings. Filings should be made electronically through the Court’s e-filing portal.
- Parties in Ontario and Québec who are unable to file documents electronically may contact the Court’s Registry to make arrangements to file physical documents.
- In the rest of Canada, as of January 18, 2021, Registry counters will no longer accept documents until further notice. Drop boxes are available for physical documents instead.
Federal Court of Appeal
- Hearings. Since June 22, 2020, the Court has been hearing select matters as posted on the Court’s website every subsequent Monday. The suspension period will end on the first Monday after being added to the selected files list. A party may bring a motion to be either added or removed from the selected file list.
- In-person hearings at the Court for selected cases resumed on September 1, 2020. The Court is currently holding three types of hearings: hearings where all counsel appear in person, hearings where all counsel appear remotely and hearings where some counsel appear in person while others appear remotely (hybrid hearings). Hearing lists are available, reflecting which cases are being heard remotely or in person.
- Selected cases that are not ready to be determined will be directed to move forward. Parties will receive a direction notifying them that normal deadlines will begin to apply to their matter as of a particular date. Once the parties complete any remaining procedural steps for the case to be ready for hearing, the Court will decide whether it should be heard and, if so, determine the mode of hearing among the options listed above.
- Cases that are not selected to progress will remain adjourned. As before, the Court will consider any party’s request for an urgent hearing as well as requests on consent for a case to be heard remotely.
- Timelines. In the Notice to the Profession on June 11, 2020, the Court announced that the suspension of timelines under the Federal Court Rules, first announced in March 2020, has been extended indefinitely for all files, except for select matters as outlined above. Time limits set out in federal legislation (other than the Rules) pursuant to which proceedings can be instituted in the Federal Court of Appeal are suspended for the period that starts on March 13, 2020, and that ends on September 13, 2020.
- Filings. Parties are encouraged to file via email. Filing at locations designated for document drop-off at all Registry counters is permitted, but Registry staff will no longer be available to accept in-person filing of paper documents.
- The Court has indicated that while its timelines are suspended, it will accept affidavits sworn or affirmed remotely using methods deemed acceptable in any superior court of any province.
- Measures are underway to gradually increase the onsite presence of Registry personnel as of June 29, 2020.
Supreme Court of Canada
- Hearings. The Court has rescheduled hearings that were scheduled for March, April and May 2020. Select appeals are being heard by videoconference in June and September 2020, as announced by the Court. All other hearings postponed due to COVID-19 will be heard during the Court’s regular fall session, starting October 5, 2020.
- Timelines. The suspension period for deadlines imposed by the Rules of the Supreme Court of Canada expired at the end of the day on September 13, 2020.
- Filings. Filings should be made via email, with original paper copies to be filed subsequently.
- After September 13, 2020, parties will be required to file paper copies of their appeal factum and any volume of the appeal record containing Part I.
Tax Court of Canada
- Hearings. All in-person Court sittings scheduled between November 30, 2020, and February 12, 2021, have been cancelled.
- Parties affected by these cancellations will be contacted directly by the Registry staff.
- Conference calls are not affected by this cancellation and will proceed as scheduled.
- The Court has introduced a fast-track settlement conference process to offer parties an additional avenue for resolving their appeals and alleviating the backlog caused by the COVID-19 pandemic.
- Filings. The Court and its Registry offices remain open, with the exception of the Hamilton office.
- All Notices of Appeal filed during the period beginning on March 13 and ending on September 13, 2020, will be included in the suspension of time limits.
- The period beginning on March 13 and ending on September 13, 2020, will be excluded from the computation of time.
Ontario Securities Commission
- Hearings. The OSC will not be holding in-person hearings until further notice. Hearings are being held via videoconference, teleconference, or in writing.
- Filings. The Commission has not announced changes to its filing practices, but generally accepts electronic filings.
Autorité des marchés financiers and Tribunal administratif des marchés financiers (AMF Tribunal)
- Hearings. In-person hearings are adjourned, except for urgent matters, until the declaration of the public health emergency period expires.
- In its 2019-2020 Enforcement Report published on May 28, 2020, the AMF Tribunal stated it will step up enforcement efforts with respect to emerging risks, especially the potential increased risk of fraud resulting from the COVID-19 pandemic.
- Filings. The Tribunal is accepting electronic submissions.
The International Organization of Securities Commissions (IOSCO) published a statement on May 29, 2020, with guidance on providing investors with high-quality, reliable, timely and transparent financial information during COVID-19.
As a result of COVID-19, Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Saskatchewan and Yukon’s securities regulatory authorities published temporary blanket relief from certain financial statement and information delivery requirements for registrants and unregistered capital markets participants.
- The blanket relief provides a 60-day extension for periodic filings normally required to be made between June 2 and September 30, 2020, by registrants and, in Ontario, unregistered capital markets participants that rely upon certain registration exemptions.
- If prior relief has been sought to extend deadlines for any financial statement or information delivery requirements occurring on or before June 1, 2020, then this cannot be used to seek a further extension.
On July 16, 2020, the Chief Justice of the Québec Court of Appeal and the Minister of Justice and Attorney General of Québec announced the lifting of the suspension time limits in civil and criminal matters beginning September 1, 2020. This announcement effectively replaces previous announcements made on March 15 and on March 23, 2020, which suspended the time limits for civil and criminal matters due to the public health emergency. Time limits will therefore start running again as of September 1, 2020. This decision is in line with the May 28, 2020, announcement by the Government of Québec that Québec’s courts will gradually reopen as of June 1, 2020.
The Government of Ontario has announced that all limitation and procedural time periods that were previously suspended have resumed running as of Monday, September 14, 2020. On March 16, 2020, all limitation periods in Ontario had been suspended until further notice. Further, any timelines created by the Government of Ontario requiring steps to be taken in a current or intended proceeding were suspended, subject to the ultimate discretion of the court, tribunal or other decision-maker responsible for the proceeding.
Commissioning of Affidavits
As of January 1, 2021, remotely commissioned affidavits are generally acceptable in Ontario. Prior to this official amendment to the Rules of Civil Procedure, the Law Society of Ontario had advised that lawyers were not required to be in the affiant’s physical presence to commission an affidavit, until further notice. Alternative means of commissioning, such as by video, were permitted provided reasonable and appropriate measures were taken to confirm the identity of the affiant.
The Québec Ministry of Justice has advised that sworn declarations can be made remotely provided that certain form and identification requirements are met.
Remote Hearings and Discoveries
Davies remains committed to providing exceptional client service, and we are equipped to handle your urgent and other litigation matters during this time of disruption. Our team is positioned and prepared to operate remotely for both day-to-day matters as well as hearings, discoveries, witness preparation and other meetings using Webex, Zoom and other technologies.
Reopening of the Courthouses
In Decree 689-2020 adopted on June 25, 2020, the Québec government reinstated free access to courthouses across the province. Lawyers are asked to meet and discuss with their clients outside the courthouse, clear the corridors and continue to maintain social distancing.
Nov. 19, 2020 - In a recent decision, 1 the Court of Québec permanently stayed the prosecution of tax fraud charges made against a corporation and two related individuals after finding "serious, multiple and systemic" 2 violations of constitutional rights. The Court held that the violations revealed "a..."