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Estates List: Moving Beyond the ‘New Norm’

On March 17, 2020, Ontario Premier Doug Ford declared a Provincial state of emergency, in order to try to contain the spread of the 2019 novel coronavirus (COVID-19).  As of April 7, 2021, Ontarians find themselves in a third State of Emergency resulting from the issues and complications in combating COVID-19.  We are now in a second stay-at-home Order as stress and fatigue continues to escalate within the Province.

It has been over one year since the Honourable Chief Justice Morawetz of the Superior Court of Justice (SCJ) issued a Notice to the Profession on March 15, 2020, focused on the protection and the health and safety of all Court users, including steps to contain the spread of COVID-19 within the Courts.

The March 15, 2020 the Notice to the Profession suspended all regular operations effective March 17, 2020.  Following this suspension from the SCJ, there have been many changes and adaptations that our Commercial List and Estates List Courts have strived to overcome, all while in a very uncertain, and unprecedented environment.  The efforts that the Courts have made given the resources at their disposal has been admirable and necessary to allow Ontarians to obtain safe and continued access to justice.

As a result of the March 15, 2020 Notice to the Profession, urgent matters on the Civil and Commercial List were heard on an ‘as needed’ basis, in circumstances where there was an immediate need, and where there were significant financial implications to parties. These hearings were mostly heard through videoconference or telephone, where strict time limits were imposed for oral submissions.

On March 16, 2020, Ontario suspended all limitation periods until further notice to ensure claimants were not prejudiced unjustly for not being able adhere to deadlines imposed by Ontario statutes.  On September 14, 2020, the Government of Ontario announced that all limitation periods that were previously suspended were to be resumed.

For regular Court and Estates List matters, parties were encouraged to file their pleadings electronically through the Civil Claims Online Portal regarding Superior Court civil matters.[1]  The Courts have found that there has been a significant increase in electronic filings and matters in writing over the past year.

Further updates from the SCJ were released on April 2, 2020 that sought to expand Court operations beyond urgent matters, as caseloads were continuing to mount in the SCJ.  The Court needed to ensure access to judicial resources were available so as to maintain the effective administration of justice, which is consistent with its constitutional responsibility.[2]  As a result, all matters were to be heard remotely.  Underscoring these changes were increased responsibilities placed on parties and their lawyers to act in a cooperative and creative manner, while maintaining flexibility in order to obtain a timely, fair and just hearing for their clients.

The SCJ relied on the inherit jurisdiction entrenched in section 96 of the Constitution Act, 1867 and confirmed in section 11 (2) of the Courts of Justice Act in times of emergency.

The SCJ made it clear that these provisions should be used, “sparingly and with caution to relieve compliance with procedural rules, regulations, and statutes when it is:

  • just or equitable to do so,
  • reasonable or necessary to control the Court’s own process during this time of emergency,
  • required to render justice between litigants,
  • essential to prevent obstruction and abuse of the Court, or
  • necessary to secure convenience, expeditiousness and efficiency in the administration of justice.”[3]

With the SCJ’s reliance on its’ inherit jurisdiction, Chief Justice Morawetz issued a Consolidated Notice to the Profession that placed an expectation on lawyers to take positive steps to move a case forward, including participation in virtual mediations, addressing etiquette during virtual hearings, and commissioning affidavits remotely.[4]

On August 17, 2020, the SCJ issued a filing direction for Commercial List and Estates List matters.  As a result, all materials were to be filed on the Civil Submissions Online Portal and uploaded to sync.com as a temporary measure, until the Court moved all files to CaseLines [5].

On January 1, 2021, Ontario Regulation 689/20 came into force.  This Regulation amended the Rules of Civil Procedure which formally allowed parties greater flexibility resulting from the COVID-19 pandemic, and government restrictions by permitting the use of electronic signatures, teleconference and videoconference hearings, electronic issuance of Court documents, electronic document sharing, remote commissioning, as well as other electronic processes[6]

On March 15, 2021, CaseLines was implemented on the Commercial List and Estates List, and has received mostly positive feedback from the legal community.[7]  For example, when making oral submissions in Court through ZOOM, CaseLines has made the process more user friendly for counsel and judges to navigate through a document with several exhibits.

The CaseLines platform was designed to modernize and reduce the number of in-person court proceedings.  The platform accepts large Court documents, and allows for counsel, judges and self represented parties efficient access and sharing features to be used at Court hearings and conferences.  It should be noted that Caselines does not replace the filing of Court documents and does not constitute the Court Record, as Court documents must still be filed with the Court office in accordance with the Rules of Civil Procedure and Notices to the Profession.[8]  Once counsel become more familiar with the CaseLines, it is presumed that it will lead to a more efficient process for hearings.

With respect to contested estates matters in the Toronto Region, effective March 9, 2021 the SCJ has amended its Consolidated Practice Direction to instruct users to use draft orders approved by the Estate List Users’ Committee.[9]  These draft orders provide both the parties and the Court with greater clarity, predictability, and efficiency.

As the numbers of COVID-19 cases increase in Ontario, together with the COVID-19 variant illnesses, the Province issued a declaration of emergency and a Province wide stay-at-home order set to stay in place until May 6, 2021, at minimum.  The Honourable Chief Justice Morawetz on April 8, 2021 released a Notice to the Profession and Public Regarding Court Proceedings, stating that “the Court will continue to hear as many matters as possible virtually.”

On April 20, 2021, the latest Notice to the Profession and Public Regarding Court Proceedings was released in response to the current State of Emergency informing legal professionals and the public that the Courts will be short staffed and will need to defer as many items as possible, including virtual hearings.[10]

Over the past year, Ontarians have been through a lot of change and subsequent adaptation to what we refer to as “the new norm.”  The Courts are no different and have adapted to the current environment.  Every citizen of Ontario has been forced to make changes not only within their immediate family, but also to their lifestyles, and work.  The list of personal and professional changes continues to grow.

In the judiciary, the Courts have done their best to adapt and change to a model that allows people access to the Court in a safe manner.  Gone are the days of the 9:30 Estates List appointments at the Toronto Courts waiting for your matter to be called to speak in chambers with opposing counsel and a judge for 10 minutes.  The Courts are now, more than ever, moving toward a model that supports these changes, and benefits clients and the administration of justice.

Lawyers will no doubt miss the person to person contact and interaction with other friends, colleagues, and adversaries particularly as these parties wait for their appointments.  However, the efficiency and cost saving measures that can be gained through speaking to these matters at the comfort of your office desk, kitchen, or family room, is only the start in a long overdue change to modernize our Courts and embrace the technology that continues to evolve.  While we embrace the new technology, there are still intangible benefits to getting back to Court which cannot be replaced by technological innovation.

Even though we will surely be back in a courtroom for contested matters one day, it is essential that the Ontario Courts, continue to build upon the changes that have been implemented in 2020, and early 2021.  Our Courts require more support and funding directed at technology that will allow the judiciary to build upon the momentum and growth that has been gained through the responses resulting from COVID-19.

There is no doubt we will get through this pandemic.  Hopefully, the Courts will receive more government support to continue this growth and modernize, all while respecting the traditions and history of our judiciary.

[1] https://www.ontario.ca/page/file-civil-claim-online

[2] Morawetz, Geoffery B. Chief Justice, OSCJ, Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Update. April 2, 2020.

[3] Morawetz, Geoffery B. Chief Justice, OSCJ, Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Update. April 2, 2020.

[4] Ontario Bar Association, COVID-19 Response and Recovery, April 8, 2021

[5] CaseLines is a cloud-based document sharing platform for remote and in-person court proceedings developed by Netmaster Solutions Ltd and is used in courts in the United Kingdom, South Africa and the United States.

[6] Ministry of the Attorney General. Ontario Regulatory Registry.

[7] Commercial List and Estates List Filing Direction, March 15, 2021.

[8] Ontario Bar Association, COVID-19 Response and Recovery, April 8, 2021.

[9] Consolidated Practice Direction Concerning the Estates List in the Toronto Region.

[10]Morawetz, Geoffery B. Chief Justice, OSCJ, Notice to the Profession and Public Regarding Court Proceedings – UPDATE, April 20, 2021.

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