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Procedural Timelines in Court Orders: Is Covid-19 a Get Out of Jail Free Card?

The civil justice system depends on parties complying with court orders, unless such orders are stayed, varied or successfully appealed. As such, the principle of judicial compliance is a constant theme echoed throughout many decisions.

Despite this principle, there are instances where a court can exercise discretion to provide relief to a party seeking to vary a direction in a court order. This discretion is afforded to courts to help to achieve a just, cost-effective and efficient determination of a matter. In particular, rules 1.04, 2.01, and 3.02 of the Rules of Civil Procedure[1] (the “Rules”) are discretionary tools for courts to use to vary timelines in court orders.

At this time, the difficulties caused by COVID-19 for litigants to adhere to court-ordered timelines have highlighted the utility of these discretionary powers. Unfortunately, some litigants have attempted to use COVID-19 as a “get out of jail free card” to avoid complying with court-ordered timelines without any valid justification. This was just the case in Lima v Ventura (Estate of) [2] (“Ventura Estate”).

In Ventura Estate, an applicant sought, amongst other things, an order to vary timelines set out in a court order with which he failed to comply. This order was sought on the basis that the applicant could not carry out his obligations under the court order due to the effects of COVID-19 on the housing market, government offices and banking institutions.

While the effects of COVID-19 are indeed real and pervasive, the decision in Ventura Estate demonstrates that this pandemic is by no means a free pass. In his decision, Emery J. explained the following about the court’s willingness to use its discretionary powers to assist litigants who seek an extension due to COVID-19:

[29] That said, any motion to adjust timelines previously ordered by the court must be supported by persuasive evidence. The moving party must convince the court that his or her ability to perform obligations within those timelines has been frustrated or prevented for COVID-19 related reasons. The evidence must show that those reasons warrant a legitimate exemption from compliance with the order, and are not just an excuse.

[30]   In my view, a moving party seeking an extension in this context must demonstrate that an order to vary the timeline would be in the interest of justice, and would not cause undue prejudice to the opposite party. Factors to consider include:

    1. The steps not taken were necessary to carry out the terms of any order, and no other alternative to taking those steps would have served that purpose; 
    2. The steps were not taken because of the moving party’s inability to access business, professional or institutional offices physically or electronically because of COVID-19 protocols;
    3. An extension of time would not be contrary to any law, or the rights of other person under an order of any court;
    4. A reasonable explanation is provided for not taking the required steps, or why it was difficult or impossible to comply with the order for COVID-19 related reasons;
    5. The moving party has made best efforts to otherwise comply with the order, and all other terms of the order that were not impeded by the COVID-19 protocols have been met; and
    6. The moving party has acted in good faith.

Since a court’s power to vary a timeline in an order is discretionary, this list is not exhaustive and ultimately, each case must be considered on its own facts and circumstances. Nevertheless, as reinforced in Ventura Estate, a plea to vary a court order is a decision that judges do not make lightly. As explained by Emery J., “Where a party seeks relief from complying with an order, by seeking an extension of time or otherwise, that party must essentially show cause why that relief should be granted.”

Given the foregoing, counsel and parties alike may want to be aware of and carefully consider these enumerated factors, along with the Rules, before bringing a motion to vary a timeline in this era of COVID-19.

[1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[2] 2020 ONSC 3278 (CanLII) http://canlii.ca/t/j8290

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