Courts Closed? Try a Motion in Writing
Yesterday, Arielle Di Iulio blogged on COVID-19 and the response by the Ontario Superior Court of Justice.
In a Notice dated March 15, 2020, the Chief Justice of Ontario advised that the Superior Court of Justice is suspending all regular operations until further notice. All criminal, family and civil matters scheduled to be heard after March 17, 2020 are adjourned.
There is an exception for “urgent matters”. as defined in the Notice, and a procedure is set out for dealing with such urgent matters.
For the most part, the court is still accepting filings. Where an application is to be issued, it is issued without a fixed return date.
How can parties obtain relief if a matter is not urgent? Consider a motion in writing.
Rule 37.12.1(1) of Ontario’s Rules of Civil Procedure allows a motion to be brought in writing without the attendance of the parties (unless the court orders otherwise), where the motion is on consent, unopposed or without notice.
Further, under Rule 37.12.1(4), a party may propose that the motion be “heard in writing” without the attendance of the parties where the “issues of fact and law are not complex”. In response, the responding party may agree to have the motion “heard and determined in writing”, or serve a notice that the responding party intends to make oral argument.
As serving a notice of intention to make oral argument will essentially, for now, prevent the motion from proceeding, now more than ever parties and their counsel must practice the “three C’s” of the commercial court: co-operation, communication and common sense.
Stay safe. Have a great, but isolated weekend.