Fare Thee Well, Fax Machine! An Overview of Changes to the Rules of Civil Procedure

December 10, 2020 76admin Litigation Tags: , , 0 Comments

Like many institutions, Ontario’s justice system was directly impacted by the COVID-19 pandemic. Although the courts did not close, they were required to accommodate the public health measures taken to combat the pandemic. Beginning in March 2020, the Ministry of the Attorney General (the “Ministry”) and the Superior Court of Justice (the “Court”) moved diligently to adopt and normalize the use of technology including video and teleconferencing for hearings, electronic signatures, and online platforms for document sharing.

On November 30, 2020, the Attorney General for Ontario announced amendments to the Rules of Civil Procedure (the Rules) to solidify these changes effective January 1, 2021. This significant step toward modernization has been met with great enthusiasm from many legal professionals and advisory bodies who view the changes as long-overdue. The amendments to the Rules will ensure continued access to the courts, and enable legal professionals to serve their clients with greater efficiency and cost-effectiveness.

I have summarized several noteworthy changes to the Rules below:

Virtual Hearings are Here to Stay…

Given that between March and September 2020, the Court had heard over 50,000 hearings virtually, it should come as no surprise that the Ministry has opted to make virtual hearings a permanent option for litigants.

Rules 1.08 and 1.08.1 are revoked and replaced with Rule 1.08, which requires a party seeking a hearing or step to specify the method of attendance: in person; by telephone conference; or by video conference. This rule does not apply to proceedings at the Ontario Court of Appeal, or in respect of case conferences (which are to be held by teleconference unless the Court specifies an alternative method). The new Rule 1.08 also applies to the rules for mandatory mediations and for oral examinations, with necessary modifications.

If a party objects to the proposed method of attendance, they must do so before the earlier of 10 days or seven days before the hearing. The objection will be dealt with via case conference. When hearing an objection, the Court must consider various factors such as :

  • the availability of telephone conference or video conference facilities;
  • the general principle that evidence and argument should be presented orally in open court;
  • the effect of telephone or video conferencing on the Court’s ability to establish the credibility and observe the demeanor of witnesses; and
  • the balance of convenience between parties for and opposed to a remote attendance.

Rule 57.01(1) of the Rules is amended to allow the Court to consider whether a party unreasonably objected to proceeding by telephone or video conference under Rule 1.08 in determining costs.

Furthermore, the Rules no longer assume that hearings will be heard in the county where the proceeding was commenced (Rules 37.15(1), 38.11(2)(b), 60.17(b), and 62.01(6)) or that parties will participate in person (Rules 37.03, 38.03(1.1), 50.05(1), 50.13(2), 54.05(2), and 76.05(2)).

… As is the Virtual Commissioning of Affidavits

Effective August 1, 2020, section 9 of the Commissioners for Taking Affidavits Act was amended to permit virtual and remote commissioning of affidavits. What was initially enacted as a temporary measure has now become permanent, and Rule 4.06(1)(e) is amended to permit virtual commissioning.

Fare Thee Well, Fax Machine – Service by Email is the New Normal

References to the service and delivery of documents by fax have been struck from Rules 16, 37, and 38. Rule 51.01(c) is also amended to strike the reference to service by telegram – yes, you read that correctly. Rule 16.01(4)(b)(iv) and Rule 16.05(1)(f) are amended to permit the service of documents by email without the consent of the other party/parties or obtaining a court order. Rule 16.09(6), which required a certificate of service to prove service by email, is revoked.

Use of Electronic Signatures

A new rule, Rule 4.01.1, provides that documents that may or must be signed by the court, a registrar, a judge, or an officer under the Rules may be signed with an electronic signature.

Official Guidelines for Using CaseLines

We previously blogged about the Ministry ’s adoption of CaseLines, a cloud-based document sharing and storage e-hearing platform for remote and in person court proceedings.

The new Rule 4.05.3 outlines the requirements for using CaseLines, the deadlines for filing documents through CaseLines, and formatting requirements for documents submitted through CaseLines. Any part who submits a document through CaseLines is required to retain the original document until the 30th day after the expiry of the period for an appeal in the proceeding. On request of the court, registrar, or another party, the party must make the original document available for inspection within five days of such a request.

Inconsistencies between the information provided in a document in the court file and the information provided in a document through CaseLines will be resolved in favour of the information in the court file.  Furthermore, submitting a document through CaseLines does not amount to filing or service of that document.

Rule 4.01 is revoked and substituted with a new Rule 4.01 that specifies document standards for filing in both paper and electronic formats.

Rule 4.05.3(7) requires that documents submitted to CaseLines be in PDF format and include bookmarks and section headings where appropriate.  References to authorities must be hyperlinked to websites they can be viewed free of charge (i.e. CanLII, e-Laws, etc.). If the authority is not publicly available, the relevant excerpt from the cited authority must be included in the document.

Learn More

A discussion of the forthcoming amendments can be heard on this week’s episode of the Hull on Estates podcast. The full text of amendments to the Rules can be read at O. Reg 689/20.

Thank you for reading.

Jennifer Philpott

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