Canada: COVID-19: Practical Considerations For Your Litigation, From Coast To Coast (December 4, 2020)

This post was originally published March 20, 2020 and was last updated on December 4, 2020.

In response to the COVID-19 outbreak, Courts across Canada have weighed the seriousness of the situation and the importance of prioritizing the health and safety of all court participants, with the principles of open courts and timely access to justice. This balancing exercise resulted in the implementation of a wide range of preventative measures that will help minimizing the spread of the COVID-19 virus across Canada, while allowing the Courts to hear urgent or essential matters during the outbreak. In brief, Canadian Courts have restricted access, suspended or limited their operations, and have consequently suspended prescription or limitation periods, as the case may be.

In this unprecedented period of uncertainty, it has become difficult to easily identify the various exceptional measures implemented in each Canadian province. Therefore, as a recognized leading Canadian litigation law firm and your business partner, Stikeman Elliott offers you the following guide which outlines the measures taken.

We understand that the situation is evolving rapidly, and we will post updates on our website as they become available.

• May 8: The Chief Justice of Canada and the Minister of Justice have established an Action Committee on Court Operations in Response to COVID-19 to coordinate the various provincial responses
• April 21: The Attorney-General of Canada may now be served via e-mail or fax to the appropriate regional office

Supreme Court of Canada

• Effective July 27, 2020, and retroactive to March 13, 2020, the Time Limits and Other Periods Act (COVID-19) suspended time limits set out in federal legislation, including the Supreme Court Act and numerous other acts pursuant to which proceedings can be instituted in the Supreme Court, until September 13, 2020
  • All time limits and filing deadlines pursuant to federal legislation and the Rules of the Supreme Court of Canada resumed on September 13, 2020
• October 21: All counsel are to appear via videoconference for hearings in November and December 2020
• August 27: The fall session will begin on September 22, 2020; the Court will first hear all cases previously postponed due to COVID-19 before continuing with the original schedule for the session
• April 24: Starting April 27, the registry will resume taking telephone calls from 12pm to 5pm, but the Court encourages parties to continue correspondence by e-mail when possible

https://www.scc-csc.ca/parties/index-eng.aspx 

Federal Courts

• Effective July 27, 2020, and retroactive to March 13, 2020, the Time Limits and Other Periods Act (COVID-19) suspended time limits set out in federal legislation, including the Federal Courts Act and numerous other acts pursuant to which proceedings can be instituted in the Federal Courts, until September 13, 2020
  • Time limits established by the Federal Courts Rules or by court order are unaffected

Court of Appeal

• September 1: The Court's fall session has begun, and hearings will be held in person, remotely, or as hybrid hearings (with some counsel appearing in person and others remotely)
• June 22: The Court has released its first weekly Selected Files List
• June 15: The Court continues to encourage the filing of court documents electronically, via email, although filing a hard copy remains an available option
  • The requirements and recommendations for filing electronic court documents should be followed to the extent possible
  • Documents containing confidential information must not be filed electronically
• June 11: The suspension period set out in the Notice to the Parties and the Profession dated March 19, 2020 is extended indefinitely, and all matters scheduled to be heard during the extended suspension period are adjourned indefinitely; however, urgent or exceptional matters, case management hearings, and other matters upon direction of the Court or request by the parties may proceed by teleconference, videoconference, or in writing
  • All fees under item 1 of Tariff A of the Federal Courts Rules are waived for paper or electronic documents filed during the suspension period
  • All deadlines under Orders and Directions of the Court of first instance and appeal (unless they are explicitly set on a "peremptory" basis), as well as 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, are suspended until the end of the suspension period and retroactive to March 16, 2020, but all other filing deadlines continue to apply
  • At the end of the suspension period, all deadlines will be extended by 14 days
  • However, applications and appeals filed at the Federal Court of Appeal under sections 27 and 28 of the Federal Courts Act are governed by mandatory deadlines and are therefore excluded from the suspension; parties are required to file appeals and applications within the relevant deadlines
  • While the suspension period has been extended indefinitely, the Court will begin relaxing the suspension by publishing a weekly list of Selected Files that are to proceed
  • Once a file is placed on the Selected Files List, time will begin to run under the Federal Courts Rules, orders and directions from the Monday following the file's appearance on the List, with the Monday on which the running of time resumes excluded from the calculation
  • Parties may make a motion to the Court to have a file placed on, or removed from, the Selected Files List
  • All filing fees shall be payable as of June 29, 2020
• May 12: The Court will accept filings of affidavits which were commissioned remotely using a procedure approved by a superior court
• March 19: Proof of service of any document served during the suspension period may be filed after this period ends

Federal Court

• November 4: Hearings are proceeding in person and by videoconference, upon request of the parties; hybrid hearings may also be held, with some parties appearing by videoconference and others in person
• September 8: Notwithstanding the Time Limits and Other Periods Act (COVID-19), the Court's COVID-19 Orders and COVID-19 practice directions, as well as its intervening judgments, orders and directions, remain in full force; Court-ordered time limits, including those relating to legislation enumerated in the Act, are not affected by the Act
  • Parties are encouraged to file non-confidential documents using the Court's online portal; documents that cannot be filed using the portal may be filed in person at the Court Registry
  • Documents may be served electronically, and parties who have provided an e-mail address on a document filed in Court shall be deemed to have consented to electronic service
  • Affidavits may be commissioned remotely during the suspension period

https://www.fca-caf.gc.ca/fca-caf_eng.html

https://www.fct-cf.gc.ca/en/pages/law-and-practice/notices 

Québec

• September 1: The suspension of limitation periods and filing deadlines has now been lifted
• • In matters where the originating application was filed before September 1, 2020, the deadline for filing a case protocol, deadlines established in case protocols, and the deadline for making cases ready for trial have all been extended by 45 days as of September 1
• May 5: The Québec Ministry of Justice now offers a virtual courtroom familiarization service where lawyers may connect to a virtual courtroom to troubleshoot issues and speak to a technician

Court of Appeal

• August 31: The Court now offers litigants (counsel or parties) the choice of appearing in Court in person or by videoconference for appeals
  • Motions will continue to be heard by videoconference

Superior Court

• November 16: Beginning November 16 in Montreal, hearings of roll calls and applications not requiring testimonial evidence will proceed by videoconference
• November 2: In the Commercial Division, effective November 16, 2020, all matters before a judge or registrar will be heard by videoconference; in-person attendance is only permitted with preapproval from the Court
  • Certain uncontested insolvency matters before the registrar may be decided on the basis of written materials, without the need for parties to appear virtually or in person
• June 15: Implementation of the Digital Court Office of Québec which allows any person to file a pleading with the Superior Court and the Court of Québec. It also allows for judicial fees to be paid online
• June 2: In the Commercial Division, the Court is resuming the hearing of all matters, including those that were adjourned and non-urgent matters, by teleconference, videoconference, or virtual courtroom hearing
  • The Court encourages the parties to make serious efforts to settle as many aspects as possible and strictly limit the debate to that which is necessary; the hearing schedule will be tight and will be strictly enforced
  • All commercial applications must be filed in person at the registry, with an electronic copy filed by email along with electronic versions of any draft order and applicable exhibits

https://courdappelduquebec.ca/en/covid-19-pandemic-update/

http://www.tribunaux.qc.ca/c-superieure/avis/covid-19mtl.html (French only)

https://gnjq.justice.gouv.qc.ca/en/Accueil

Ontario

• All limitation periods and filing deadlines resumed running on September 14, 2020

Court of Appeal

• November 16: Until further notice, the Court will no longer be holding in-person appeals
• April 6: 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

Superior Court of Justice

• October 29: The Court is expanding its CaseLines pilot project; parties in selected matters will be required to upload their case documents online after they have been duly filed with the Court
• October 9: Hearings may proceed in person, but virtual hearings are preferred
• August 6: The Court will accept filings by email at the specific email addresses indicated in a Region's Notice to the Profession only for matters that are urgent or have been directed to file by email in a Court notice; all other electronic filings should be made through the appropriate portal
• 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
• 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

https://www.ontariocourts.ca/coa/en/notices/covid-19/ochome.htm

https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/ 

British Columbia

• Filing deadlines are unaffected, with some exceptions detailed below; all limitation periods, except those established under the Builders Lien Act and Division 5 of Part 5 of the Strata Property Act, will end 90 days after the date the state of emergency expires or is cancelled
• March 20: Affidavits may be commissioned and filed electronically

Court of Appeal

• August 19: The suspension of service and filing deadlines for existing appeals and chambers applications which began on March 18, 2020 has been extended to September 14, 2020, and will not be further extended
• July 7: Parties may now request that their appeal hearing proceed in a courtroom or by videoconference
  • Beginning on July 14, 2020, parties will be required to use follow the modified filing directions, which make electronic filing using the online portal mandatory, with some exceptions

Supreme Court

• July 27: Parties must now schedule Trial Management Conferences and file and serve trial briefs, trial records, and trial certificates pursuant to the Supreme Court Civil Rules, as the temporary amendments to these requirements under the Rules no longer apply
• July 10: Parties may now book Case Planning Conferences, which will proceed by teleconference
• July 7: Effective July 13, 2020, in-person registry services will resume at all Court registries, and the interim process that the Court established for requesting a hearing of an urgent or essential matter will no longer be available
  • While in-person filing is available, parties are strongly encouraged to use electronic filing
  • To increase the number of non-urgent matters that may be heard, the Court will begin holding virtual hearings by videoconference, upon consent of the parties
• June 30: Bankruptcy hearings before a master or registrar have resumed, both in-person and by teleconference; all hearing materials must be submitted in hard copy
  • Other registrar hearings have also resumed by teleconference; materials should be filed electronically using the online portal
• June 5: Applications made under Rule 8-1 of the Supreme Court Civil Rules that are two hours or less will be heard by teleconference

https://www.bccourts.ca/Court_of_Appeal/

https://www.bccourts.ca/supreme_court/ 

Alberta

• Limitation periods are currently unaffected; certain filing deadlines are affected, as explained below

Court of Appeal

• August 27: The Court will continue to use electronic hearings for all Court proceedings until at least November 1, 2020
• August 14: The Court will launch a one-year Judicial Dispute Resolution (JDR) pilot project on October 1, 2020 to expand binding and non-binding JDR hearings
  • JDRs will be available on the first and third Tuesday of each month and will be conducted electronically until further notice
• July 6: The suspension of appellate Judicial Dispute Resolution sessions has been lifted; sessions will be held by videoconference
• June 30: The Court will launch a public portal for its e-filing system on August 31, 2020
  • Parties will be able to file and access case materials online
• April 1: Affidavits may be commissioned remotely by videoconference
• March 23: Matters will continue to be heard by videoconference or teleconference, but in-person hearings will no longer be held
  • Documents may be filed in-person via a secure drop box, but parties are encouraged to file by e-mail or fax
  • Where an appeal (fast track, standard or criminal appeal) has not yet been set for hearing, and the deadline to order or commence preparation of the appeal record and transcripts or for the filing of appeal records, transcripts, factums, extracts of key evidence and books of authorities falls on or prior to May 4, 2020, the deadline is extended by 2 months; all other deadlines are unaffected
• March 16: Effective March 23, 2020, any matters set down before a single duty judge of the Court of Appeal will be heard by telephone conference unless otherwise directed
  • Appeals and applications to be heard by a three judge panel of the Court of Appeal will be heard electronically (via videoconference or telephone) unless otherwise directed
  • Case Management Officers remain available to consider any requests for extensions, fiats or other administrative directions

Court of Queen's Bench

• September 10: All matters with viva voce evidence will be heard entirely in person, while matters without viva voce evidence will continue to be heard by videoconference
  • If any remote witnesses or video conference testimony is required at an in-person hearing, the exact date and times of the testimony must be scheduled with the appropriate Court Coordinator at least two weeks in advance
• August 31: Matters that are not required to be under case management pursuant to the Class Proceedings Act or that are to be tried before a jury will be removed from case management effective on February 28, 2021 or 12 months following a period of case management litigation inactivity, whichever occurs first
• August 10: Until December 17, 2020, parties requiring 5 days or less for the hearing of their trial may request an in-person or videoconference trial hearing by completing the Family, Civil and Commercial Triage Form
• July 10: As chambers hearings have resumed, the Emergency/Urgent Hearing Request process is now suspended
• June 29: The filing deadline for original copies of affidavits filed electronically under Rule 13.41(4) of the Alberta Rules of Court is suspended until September 30, 2020
• June 19: Beginning on June 24, 2020, the Court will schedule half-day Civil Special Justice and Masters Chambers application hearings remotely by videoconference and teleconference in Edmonton and Calgary, exclusively for parties who are unable to use the electronic with notice desk processes
• June 4: There may be limited availability for Judicial Dispute Resolution hearings in Fall 2020
• May 28: Beginning June 3, 2020, the Court will resume regular hearings of Masters Chambers and Justice Chambers applications with an anticipated length of 20 minutes or less by videoconferences held at 10am every Court sitting day
• May 25: Upon consent of the parties, which must be represented, With-Notice Applications that would otherwise be heard in Masters Chambers or Justice Chambers (including Special Chambers) may be submitted to the Court by desk application with written argument;
  • Priority will be given to adjourned Special Chambers applications that were scheduled between March 16 and June 26, 2020
  • The following non-exhaustive list sets out the matters that may not be heard by this process:
    • Restraining Orders;
    • Landlord and Tenant stays/appeals; and
    • Contempt applications
  • May 21: The Court is now processing electronic Without-Notice Applications before a Master or Justice in Chambers
  • May 5: The Court will begin hearing summary dispositions by videoconference
  • March 31: The Court encourages parties to access alternative dispute resolution mechanisms, including mediation and arbitration, to reduce delays in resolving disputes
    • Effective March 30, 2020, the Court will process all Consent Orders resolving any matter over which the Court has jurisdiction, including non-urgent matters and Consent Orders to enforce Mediation or Arbitration Awards, by email or fax
  • March 25: Affidavits may be commissioned remotely by videoconference

https://www.lawsociety.ab.ca/about-us/key-initiatives/covid-19-updates/

Manitoba

• Limitation periods and filing deadlines are unaffected

Court of Appeal

• November 2: Beginning on November 3, 2020, all hearings will be conducted remotely until further notice, with appeals being heard by videoconference and motions and applications being heard by teleconference
  • The registry remains open for filings
• March 18: In-person filings continue to be accepted
  • Judges will take these exceptional circumstances into account when considering extensions
  • The Court will be flexible regarding the filing of documents with formal requirements, with counsel undertaking to file the originals respecting all formal requirements prior to the heading date
  • Counsel will be notified by phone of judgements ready for pickup at the registry office, and judgements will be sent to the parties by e-mail

Court of Queen's Bench

• November 2: All Court services are presently operating, with most matters being heard remotely; matters requiring testimonial evidence will usually proceed in person
• May 22: All judgements and endorsements will be released electronically
• May 11: All currently scheduled motions and references set to proceed before the masters on or after May 25, 2020, will proceed remotely when possible
  • Bankruptcy dockets will resume after May 25, 2020, proceeding remotely every Tuesday and on scheduled Wednesdays; trustees' representatives may appear in person
  • All adjourned hearings before masters which were scheduled for on or before May 24, 2020 and which do not require an in-person hearing may be rescheduled to proceed remotely
  • The above measures apply to the Winnipeg Centre, and to other Centres with some modifications
• March 23: New filings continue to be accepted by mail, courier, fax, e-mail, or in person via a secure drop box

http://www.manitobacourts.mb.ca/covid-19/ 

Saskatchewan

• Limitation periods and filing deadlines are unaffected

Court of Appeal

• March 23: All appeals and applications to be heard by a three-judge panel, as well as all chambers matters to be heard by a single judge, will be heard by teleconference or videoconference
  • Parties may consent to have their matter proceed in writing or to have it adjourned indefinitely
  • Filings of documents to the registry office are accepted by regular mail, email, fax, or through the web portal, but they will no longer be accepted in person
• March 17: All lawyers and self-represented individuals slated to appear before the Court may make their submissions by telephone

Court of Queen's Bench

• May 15: Starting on June 8, 2020, the Court will implement a three-week intensive chambers hearing period to hear all chambers applications for a maximum of 30 minutes on dates and times assigned by the Court
  • The Court has also set aside a substantial number of dates in July and August 2020 for pre-trial conferences, and parties may contact their local registrar for scheduling
• April 23: The Court will consider non-urgent consent orders
  • Affidavits may be commissioned remotely by electronic means; unsworn affidavits may still be filed, but they may not be sufficient for a matter to proceed
  • As of May 1, case management matters will be heard by teleconference
  • As of June 1, the hearing of pre-trial conferences will resume by teleconference or in person
  • As of June 1, the Court will resume hearing non-urgent chambers applications by teleconference
• March 19: All civil trials currently scheduled to commence prior to May 31, 2020, and that have not yet commenced, are adjourned indefinitely
  • Filings continue to be accepted in person via a drop box, and they will also be accepted by mail; documents which cannot conveniently be dropped off in person or sent by mail will also be accepted by e-mail

https://sasklawcourts.ca/index.php/home/court-of-appeal/covid-19

https://sasklawcourts.ca/index.php/home/court-of-queen-s-bench/covid-19-update

Nova Scotia

• Counsel in all matters are encouraged to cooperate to determine what matters can be dealt with through alternative measures, such as telephone and video conferencing
• Limitation periods are unaffected; certain filing deadlines are affected, as explained below

Court of Appeal

• June 19: Appeal and motion hearings will be held in writing, by teleconference, or by videoconference
  • Parties may file paper documents but are encouraged to file electronically by email or delivery of a USB flash drive
• June 5: The Court will now accept non-urgent motions in Chambers, by teleconference or videoconference
  • Chambers hearings will be held remotely on Wednesdays and in person on Thursdays
  • The suspension of filing deadlines will not be renewed after June 26, 2020
• April 28: Only urgent and essential chambers matters will proceed as scheduled and will be heard by telephone
  • The Court registry continues to accept filings of new notices of appeal
• March 27: All hearings scheduled for the May/June 2020 term are adjourned and will be rescheduled for the fall, and all filing deadlines related to those matters are suspended
  • The time periods for commencing appeals under Rules 90.13(3) and 90.14 of the Civil Procedure Rules will be suspended for the period from March 26 to June 26, 2020; this does not apply to appeal periods set out in other legislation
  • The deadline for making the motion for date and directions in Rule 90.25(2) will also be suspended for this period

Supreme Court

• November 4: Effective November 16, 2020, all Motions for Directions scheduled at the Law Courts in Halifax will be held in-person, unless otherwise noted by the presiding judge
  • All other matters continue to be heard remotely, by videoconference or teleconference

https://www.courts.ns.ca/News_of_Courts/COVID19_Preventative_Measures.htm

New Brunswick

• June 9: Most New Brunswick courts are now operating at full capacity with regard to dockets and document processing
• Limitation periods and filing deadlines resumed running on September 19, 2020
• March 23: Affidavits may be commissioned remotely by videoconference
• March 15: Access to the courthouses in New Brunswick is restricted to only those persons who are necessary to the proceedings before the courts

Court of Appeal

• October 13: Appeals are being heard in person
  • Motions and status hearings are being heard by teleconference, but may also proceed in person
• April 6: Parties should file documents by email or fax; documents that cannot be filed electronically will be accepted by mail, courier, or secure drop box
  • Affidavits may be commissioned remotely by videoconference

Court of Queen's Bench

• August 11: The filing of documents will resume in accordance with the New Brunswick Rules of Court effective August 15, 2020
  • Originals, required copies, and filing fees may be left in a secure drop box; electronic filing by email will only be accepted in extenuating circumstances with the approval of the Clerk's office
• May 14: All matters currently scheduled for the period beginning June 1, 2020 will proceed as scheduled
  • In-person case management hearings will resume starting June 1, 2020
  • Judges will schedule case management teleconferences prior to the hearing of in-person matters
  • Parties may request to appear remotely by videoconference
• April 3: Documents may be filed in person via a secure drop-box, and the Court will also accept documents filed by mail, courier, e-mail, or fax

http://lawsociety-barreau.nb.ca/en/for-lawyers/covid-19/ 

Newfoundland and Labrador

• Limitation periods under the Limitations Act were retroactively suspended from March 14 to September 14, 2020 and have now resumed; certain filing deadlines are affected, as explained below
• Service of documents on Her Majesty in right of Newfoundland and Labrador can be arranged by contacting either Philip Osborne at philiposborne@gov.nl.ca or Justin Mellor at jmellor@gov.nl.ca

Court of Appeal

• September 16: The Court Registry is open to the public, and all regular filing requirements are in effect
  • Appeals and applications will be heard in-person or by videoconference

Supreme Court

• October 30: Effective November 9, 2020, All short-cause civil applications in the St. John's General Division that are expected to take 5 minutes or less will by heard by teleconference between 10-11AM on designated days
  • Short-cause applications longer than 5 minutes and long-cause applications will be heard in person; remote attendance may be authorized upon request
• September 10: In-person access to the St. John's Court Registry will be available by appointment only beginning September 16, 2020
• August 24: The suspension of filing deadlines contained in the Rules of the Supreme Court has been lifted and the running of time limits has resumed
• June 3: Effective June 8, 2020, the Court will no longer accept filings by email; documents will need to be filed via secure drop-box or by regular mail
• May 13: Beginning on May 19, 2020, the Court will resume hearing settlement conferences and applications by teleconference or videoconference, and the registry will accept all new filings for processing
• April 28: The Court will accept filings for petitions for probate, administration and guardianship of estates, bankruptcy and insolvency matters that can be dealt with ex parte or by consent, interlocutory applications that can be dealt with solely in writing, and consent orders
  • Only matters that can be heard remotely will proceed
  • Filings will be accepted by email, fax, mail, and in person via secure drop boxes
  • The Court will accept unsworn affidavits but may require the affiant to swear to the facts by teleconference or videoconference
• March 20: The Court will be flexible regarding the filing of sworn documents
  • The Court will accept filings of where a statutory deadline or limitation period is imminent

https://www.court.nl.ca/appeal/wp-content/uploads/COVID-19-Notice-to-the-Profession-and-General-Public.pdf

https://court.nl.ca/supreme/covid-19-information.html

Prince Edward Island

• Limitation periods and filing deadlines are unaffected
• March 24: Only urgent filings, including those necessary to meet a deadline, continue to be accepted in person via a secure drop box; all other filings must be made by e-mail
• March 20: While new in-person filings continue to be accepted, the Courts will also temporarily accept filings be e-mail or fax, with originals to be filed later
  • Documents filed by e-mail or fax may be served to the other parties as a photocopy or printed copy, using regular service procedures
• March 18: Limited operations until further notice
  • All non-essential matters are adjourned indefinitely, but urgent or emergency matters will continue to be heard in a manner determined by the Courts

Supreme Court

• June 3: Effective June 15, 2020, the Court will gradually resume regular operations, and all matters (including non-urgent matters) will be heard
  • In-person hearings will be scheduled for some matters, although remote hearings will continue to be held
  • Filings continue to be accepted by secure drop-box, by email, or by fax
• May 13: Case management conference calls will resume starting the week of May 19; the Court is beginning to reschedule pre-trial and settlement conferences that were adjourned

https://www.courts.pe.ca/court-of-appeal (see "Resources" in the lower right-hand corner of the page)

https://www.courts.pe.ca/supreme-court (see "Resources" in the lower right-hand corner of the page)

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Please monitor our website for additional updates to follow as the situation evolves.

Stay safe everyone.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.