Pettle Law is regulated by the Law Society of Ontario and was established in 2019

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civil dispute

Superior Court Remains Open

The Superior Courts remain open for “time sensitive and urgent” matters. What qualifies as time sensitive and urgent is still being determined and will develop over the coming days and weeks. The Court has stated that for civil matters, at minimum, urgent cases are those where “immediate and significant financial repercussions may result if there is no judicial hearing.” Judges retain the discretion to determine whether any particular case is necessary and appropriate to hear on an urgent basis.   

Temporarily suspend normal operations

The Ontario Superior Court and Court of Appeal have temporarily suspended normal operations. All matters in the Superior Court throughout the province that were scheduled to be heard after March 17 have been adjourned until further notice, even if the hearings were scheduled to be heard by videoconference or telephone. The same is true for Ontario tribunals, including the Local Planning Appeal Tribunal, Landlord and Tenant Board and Human Rights Tribunal of Ontario.   

Filings

With respect to filings, registries at the Superior Court and the Court of Appeal are closed for in-person filings. The courts are now temporarily accepting filings over email. Statements of claim can be issued online. For matters in the Superior Court that require affidavits, the Superior Court’s March 15 Notice to the Profession states that an unsworn affidavit may be provided if the affiant is able to participate in the hearing. The Law Society of Ontario has stated that, at least on a temporary basis during the state of emergency, it will interpret the legal requirements for being present to commission an affidavit to allow for “remote commissioning” through means such as video conferencing.    

Ontario

Court of Appeal

Superior Court of Justice

Superior Court of Justice

  • April 6: All hearings will be conducted remotely until further notice
    • Parties will not be required to file hard copies of documents for all matters to be heard on or after April 14, 2020
    • All documents must be filed electronically by e-mail, by online file sharing service, or by USB key delivered by mail or courier
    • Documents may be served electronically
  • March 30: Before the Court of Appeal only, the suspension of filing deadlines does not apply to civil proceedings in which a notice of hearing has been sent and which proceedings have not been adjourned, and civil proceedings that are being case managed
  • March 17: Except as otherwise provided, the Court of Appeal will suspend all scheduled appeals for a period of 3 weeks (until April 3, 2020)
    • During this period, urgent appeals will be heard based on written materials or remotely
    • Parties on non-urgent appeals can request that their appeal be heard in writing
    • Single judge motions will continue to be heard remotely as scheduled for the week of March 16, 2020, and motions may proceed on filed written materials on consent of the parties

Superior Court of Justice

Superior Court of Justice

Superior Court of Justice

  • May 13: Affidavits may be commissioned remotely by videoconference documents may be served by e-mail, and hearings may proceed remotely without consent or a court order
  • May 5: The Court will not resume in-person hearings until July 6, 2020, at the earliest; however, virtual hearings will proceed, and the list of matters which can be heard virtually will soon be expanded
  • March 20: Filings will continue to be accepted at the Court’s Registry offices but filing by email is encouraged. As of Monday March 23, 2020, the list of documents that can be e-filed or issued through the Province of Ontario's e-filing portal is being expanded to include additional documents (Rule 4.05.01 of the Rules of Civil Procedure):
    • A Statement of defence, including a counterclaim or a crossclaim, and a defence to counterclaim or to crossclaim
    • A notice of discontinuance and a consent to discontinuance
    • A third-party claim and a third-party defence
    • A jury notice, and
    • A certificate of action under section 36 of the Construction Act
  • March 15: Limited operations until further notice, and all hearings are adjourned
    • The Court will continue to hear urgent matters during this emergency period; A hearing may be conducted in writing, by teleconference or videoconference, unless the Court determines that an in-person hearing is necessary
    • Parties can expect the Court to grant extensions of time once the Court’s normal operations resume, although as of March 16, 2020, limitation periods and filing deadlines are suspended
    • https://www.ontariocourts.ca/coa/en/notices/covid-19/ochome.htm
    • https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/ 

LITIGATION DURING A PANDEMIC

Minimizing Risk

We have already seen a flurry of COVID-19 related litigation in the US and the ‎beginnings of similar activity across Canada.  As businesses struggle to deal with the ‎significant and complicated health, safety, economic, and operating issues the pandemic ‎presents, it is therefore essential that they also take action to mitigate related litigation ‎risks. Businesses and their counsel would, among other things, be wise to consider the ‎following proactive steps:‎

  • Perform an internal risk analysis, implement measures to curb or minimize flagged ‎risks and develop a consistent pre-litigation strategy for any anticipated or ‎potential areas of risk identified.‎
  • Monitor media and publicity and implement internal and external communication ‎protocols relating to flagged areas of concern.‎
  • Where applicable, ensure compliance with Federal/Provincial Emergency Measures ‎and applicable legislation, orders and regulations.‎
  • Review all relevant or material contracts that may be impacted by COVID-19 related ‎circumstances and identify key rights and obligations. Consider specifically ‎provisions dealing with indemnity, force majeure, representation and warranties, ‎refunds and cancellations, events of default, insurance requirements, material ‎adverse change, notice requirements, dispute resolution provisions (such as ‎mandatory arbitration provisions) and jurisdiction clauses. In Québec, there are ‎force majeure provisions in the Civil Code of Québec that ‎supplement the terms ‎of  contractual agreements, although these provisions ‎can be expressly ‎excluded by the contracting parties. ‎
  • Pay particular attention to consumer-related contracts that may be subject to various ‎provincial consumer protection legislation. For example, the British Columbia ‎Business Practices and Consumer Protection Act, and in Québec, the Civil ‎Code of Québec and the Consumer Protection Act, provides specific rules for ‎the cancellation and refunding of continuing service contracts. ‎
  • Review and update customer service policies and ensure your employees are ‎responding to customer complaints consistently and in a uniform manner. ‎Consider strengthening your organization’s customer service policies where ‎possible to get ahead of anticipated disputes. ‎
  • Examine any product claims, labels and advertisements and, if applicable, conduct ‎appropriate supply chain compliance and/or risk analysis.  Review and consider ‎revising supply chain contracts to address any added risk/exposure as a result ‎of COVID-19 paying particular attention to indemnity provisions.‎
  • Where contractual commercial/business disputes arise such as non-performance or ‎failure to provide services as a result of COVID-19 related issues, consider ‎Alternative Dispute Resolution mechanisms to attempt to resolve matters which ‎may allow for more flexible and practical solutions in the circumstances ‎‎(particularly where business relationships are ongoing).‎
  • Ensure your organization has an appropriate cybersecurity plan that is up to date ‎and responsive to the additional security threats arising from remote-working ‎environments. Properly manage and monitor your cybersecurity plan and ensure ‎appropriate guidance is provided to your organization and its employees, ‎especially those working remotely.‎
  • Monitor your business frequently given the rapidly changing COVID-19 ‎circumstances and ensure timely and adequate disclosure. Carefully consider ‎forward looking statements and consider whether it may be necessary to revise ‎or withdraw such statements as a result of COVID-19 circumstances.‎
  • Review and update employee safety standards and protocols and implement ‎COVID-19 specific policies. Ensure that changes made in respect of ‎employees ‎comply with the law. In Québec, any such change should be compliant with the ‎Act Respecting Labour Standards and the Act Respecting ‎Occupational Health ‎and Safety. ‎

We would be pleased to assist you and your organization in evaluating any of the above ‎or to provide additional advice, including implementation of risk management and pre-‎litigation strategies specific to your organization or business. 
 

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