Two years ago, all Ontario Superior Court of Justice in-person hearings were suspended due to increasing public concern over the emergence of COVID-19. Since that time, the profession has made remarkable strides to respond and adapt to the constantly changing landscape of the practice of law.

On March 17, 2022, just over two years since the first COVID-19 lockdown, Chief Justice Morawetz of the Ontario Superior Court of Justice virtually announced new Superior Court of Justice Guidelines which will direct how we handle legal matters moving forward.

Salient features of the changes coming into effect include:

• Continued virtual hearings as a permanent feature in Superior Court of Justice Proceedings (Criminal, Civil, Family, and Small Claims);
• Continued upholding of Virtual Courtroom Etiquette Rules; and
• A return to gowning for in-person hearings.

These changes are to take effect on April 19, 2022 and are discussed in more detail below.

Chief Justice Morawetz reminds us that these Guidelines are a living document which will continue to be reviewed and adapted to address the reality of our changing circumstances.

Guidelines to Determine Mode of Proceeding in Civil Matters

Guidelines for Modes of Proceedings in Criminal, Civil, Family and Small Claims matters are now live on the Ontario Courts website here. These guidelines set out presumptive methods of attendance for events in Superior Court of Justice proceedings.

In their application, the Court will continue to take account of the discretion of the court, Rule 1.08 of the Rules of Civil Procedure (procedure for moving party to specify the proposed method of attendance), access to justice, circumstances unique to self-represented litigants, the importance of an in-person interaction/hearing for more substantive attendances, hybrid options available whereby some participants appear physically in the courtroom and others participate virtually, and impediments to a proposed virtual hearing (whether that is by the sensitive nature of the matter or a participant’s personal circumstances).

The following sets out the Court’s expectations for the default method of appearance for all Civil events that will be applied across the province.  However, the Court also recognizes that some Regions, in particular the Northwest, Northeast and those with circuiting judges, will require greater flexibility in hearing more cases virtually. Here, “virtual” means by videoconference (e.g., Zoom), audioconference, or teleconference.

1. Case conferences: Virtual, unless the Court specifies otherwise.
2. Pre-Trial conferences involving trial management and scheduling issues only: Virtual, unless the Court specifies otherwise.
3. Pre-trial conferences: settlement and trial management conferences: Virtual, unless the Court specifies otherwise.
4. Trial and long motion scheduling court: Virtual, unless the Court specifies otherwise.
5. Consent motions and applications: All motions on consent of both parties, all motions without notice and all motions that are unopposed will be held in writing, unless the Court specifies otherwise.
6. Contested motions (short or long) and applications: Virtual, unless a party requests it be held in person and the Court agrees, or the Court directs it to be held in person.

In directing that the contested motion or contested application be held in person, the Court will take into account the positions of the parties; the complexity of the legal or factual issue; whether the outcome of the motion or application is legally or practically dispositive of a material issue in the case (e.g. summary judgement); whether viva voce evidence will be heard; and any other factor bearing on the administration of justice.

7. Examinations for discovery: In person, unless the parties consent to it being conducted virtually or unless the Court specifies otherwise.
8. Mandatory mediations: In person, unless the parties consent to it being conducted virtually or unless the Court specifies otherwise.
9. Judge-alone trials: In person, unless all parties consent to a virtual trial and the Court approves. The Court may consider a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually, by videoconference.
10. Civil Jury trials: In person. The Court may consider a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually, by videoconference.
11. Assessment hearings: All assessments for solicitor fees or judge-referred orders for assessment of costs will be held virtually (by videoconference).
12. Costs: All motions for costs will be held in writing or as the Court directs.
13. Motions for leave to appeal to the Divisional Court: In writing, unless the Court specifies otherwise.
14. Appeals to the Divisional Court and applications for judicial review: In person, unless all parties consent to it being heard virtually and the Court agrees, or the Court decides the appeal or application should be virtual.

Guidelines for Virtual Courtroom Etiquette Rules

Guidelines for Virtual Courtroom Etiquette Rules are found on the Ontario Courts website here.

As has been the case, all participants and members of the public attending a virtual court proceeding must continue to conduct themselves as if they were physically in the courtroom, observing the well-established rules of court decorum. In particular, virtual (video and/or audio) participants should:

1. Eliminate distractions, prepare and arrive on time;
2. Identify themselves by signing in with their correct name and disclosing their identity immediately upon inquiry;
3. Dress appropriately, including removing hats or headwear (worn for non-religious reasons), and sunglasses from the eyes or top of the head;
4. Behave courteously and respectfully, minding when they can be heard and how they are acting in front of the camera; and
5. Not record any part of the proceedings or take photos or screen captures unless explicitly authorized by a judge to do so.

In addition, counsel are also directed by the Guidelines for Virtual Courtroom Etiquette Rules to:

1. Prepare ahead of the hearing, ensuring their Internet connection is stable, that they are at least 15 minutes early, that their background is neutral and the setting is professional and appropriate for a court hearing (specifically does not include the interior of a vehicle), and that they are in a private space free of distractions (including people and pets);
2. Identify themselves correctly by ensuring their screen name reads surname, then given name, unless otherwise directed by the Court;
3. Gown themselves when necessary (see below section on “Gowning” for further details); and
4. Uphold in-court etiquette, including addressing the judge and counsel as if they were in the physical courtroom. Unless directed otherwise by the Court, it is not necessary to stand when a judge joins the hearing or when addressing a judge.  In lieu of bowing to the judge, counsel may nod or bow their heads when the judge enters the video.

Additional information on best practices and etiquette for virtual hearings can be found at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/remote-hearings/.

Gowning

In addition to the above, the Court set out further direction regarding gowning in the Notice to the Profession and Public Regarding Court Proceedings.

Effective April 19, 2022, counsel must be gowned for any virtual proceeding that, if conducted in person, would require gowning. For greater clarity, unless a region-specific Practice Direction states otherwise, counsel are not required to gown for the following court attendances:

• Trial scheduling court (also known as assignment court, “speak to” court or “purge court”) in family, criminal or civil proceedings;
• Case conferences, settlement conferences, trial management conferences, or pre-trials; and
• Small Claims Court proceedings.

Counsel must be gowned for all other in-person or virtual proceedings. They must do so regardless of whether the presiding judicial official is a judge or an associate judge.