As the province of Ontario slowly emerges from the strict measures in place to prevent the spread of Covid-19, businesses and organizations alike are considering what workplaces will look like moving forward. Modernizing technology in workplaces is a fundamental aspect of these considerations, and Ontario courtrooms are no exception.
On Thursday, May 28, 2020, Chief Justice Geoffrey Morawetz, Senior Family Justice Suzanne Stevenson and Regional Senior Justice Michelle Fuerst answered questions posed by members of the legal profession on the Superior Court’s response to the Covid-19 pandemic and the future of the courtroom as we know it. The overarching message conveyed by Chief Justice Morawetz was that the courts have acknowledged the need to modernize and that great efforts are being made to adapt to new technologies and integrate those technologies into our justice system.
I will briefly highlight some of the key takeaways from the Ontario Bar Association’s (OBA) webinar, although I encourage all those who are interested to watch the full webinar, which is free and accessible to the public on the OBA website. To watch the webinar, click here.
- Currently, the Superior Court of Justice has suspended in-person hearings until July 6, 2020, at the earliest. It is expected that the next phase of modernization will see a hybrid of both in-person and video or telephone conferencing. Courts will likely not return to “normal” operations (i.e. in-person hearings of all matters) until a vaccine is widely available.
- It was acknowledged that the courts moved quickly to allow for remote hearings of matters that were easily suited to a virtual hearing, such as matters that were unopposed, on consent, or in writing. Over the course of the pandemic, the courts have twice expanded the scope of matters it will hear. Moving forward, it is expected that the courts will continue to expand the virtual courtroom to be able to hear contentious matters that require oral advocacy.
- In conjunction with the Minister of the Attorney General’s office, the courts are aiming to increase availability to video conferencing across all regions.
- Given that the courts have not been operating at their full capacity since mid-March, and the backlog that existed prior to Covid-19, it is expected that there will be a significant backlog of matters that will have to be heard. In an effort to resolve this issue, judges from different regions will likely hear matters virtually in order to bring the court system back up to speed.
- We can expect to see an expansion of matters that that are being overseen by a case management judge.
- It is expected that eventually, there will be electronic scheduling platforms in place that will allow counsel to schedule attendances online.
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As a result of the COVID-19 pandemic, pursuant to the Notice to the Profession, the courts are presently restricted to hearing mainly urgent matters. For civil and commercial matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” There is also a broad ability for the court to hear any other matter that it deems necessary and appropriate to be heard on an urgent basis, but these matters will be strictly limited.
In a recent decision, Weidenfeld v Parikh-Shah, 2020 ONSC 2401, the court considered two urgent motions brought by the plaintiff and the defendants, respectively. The defendants sought to have monies that had been paid into court several years ago, paid out from court. The plaintiff sought, among other things, an order prohibiting the payment out of the monies. The decision did not provide details of the background of the litigation between the parties.
The court stated that the parties’ first step is to establish that their respective motions are, in fact, urgent. The court provided some guidance as to what is needed in this regard:
“The obligation is on the moving party to provide cogent, particular and specific evidence to show the court that the relief requested is urgent. Speculative, supposition or theoretical evidence is not good enough. The present environment and limited use of judicial resources mandate that the urgency must be real and immediate.”
Unfortunately for the parties in this case, the court found that their affidavit evidence did not provide cogent evidence to satisfy the court that the relief sought was urgent. The reason for which the defendants had brought the motion seeking to have money paid out of court was not set out in the decision.
The court did consider the category of urgent matters where “immediate and significant financial repercussions may result”, and specifically mentioned (a) matters that may put a person in financial jeopardy; (b) the funding of a business, business venture or construction project, failing which the financial viability of the project is in jeopardy; and (c) the necessity of a person to have resources to pay expenses or an order for the health and safety of a person; as issues that would meet the test of “immediate and significant financial repercussions”.
In the current circumstances, we are continually adjusting to new ways of doing things. This includes bringing court proceedings. Based on the Weidenfeld v Parikh-Shah decision, it is clear that parties will need to provide clear and sufficient evidence to satisfy the court as to the urgency of the matter in order for the court to hear the proceeding while court operations are restricted.
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Mary Kills People is a brand new Canadian television show starring Caroline Dhavernas. Mary Kills People is a fictional show which centers around Dr. Mary Harris, an ER doctor who engages in assisted suicide. The series premier took place on January 25, 2017. According to this Toronto Star interview with the show’s writer, Tara Armstrong, Tara came up with the idea for the show while she was at the University of British Columbia.
As you may be aware from our blog, by reasons dated February 6, 2015, the Supreme Court of Canada found the criminal code prohibitions against physician assisted suicide to be unconstitutional. This landmark decision originated in proceedings before the British Columbia Supreme Court. In 2011, the Plaintiffs in Carter v. Canada (Attorney General), amongst other evidence, put forth 13 affidavits from individuals who wished to have the option of assisted suicide. The Plaintiffs also sought to admit additional witness evidence, on an anonymous basis, from a person called “L.M.” who swore an affidavit which set out the circumstances in which his terminally ill father had ended his own life with the help of his physician and how L.M., his sister, and his sister’s physician assisted L.M.’s terminally ill mother in ending her life. In an order to protect L.M.’s identity the Plaintiffs’ also sought procedural relief which would allow L.M. to be cross-examined and/or testify behind a screen. However, this relief was rejected by the Hon. Madam Justice Smith at first instance and L.M.’s evidence was not a part of the trial record. See Carter v. Canada (Attorney General),  B.C.J. No. 1897, for this particular evidentiary ruling.
While I have not seen the show (yet), and I am not aware of the inspiration or research behind the show, it will be fascinating to see if and how the role of the Courts and judicial reform will be featured on Mary Kills People.
Click here for the Season 1 teaser of Mary Kills People.
Happy reading (and watching)!
Following the theme of my last blog, a very colourful Endorsement was recently rendered by the Honourable Justice Skarica, in a matter unrelated to estates, in which the opening sentence of was as follows,
“This is a costs order that is essentially meaningless”.
Ms. De Cruz Lee was the Applicant in De Cruz Lee v. Lee. Ms. De Cruz Lee was at one time married to the Respondent Mr. Lee. Ms. De Cruz Lee went through two different lawyers before representing herself at trial. Although the trial was originally scheduled for 1-2 days, it went on for 9 days in total. The claims at issue before Justice Skarica were so extreme that this case was even covered by the Toronto Star here.
Ultimately, Justice Skarica concluded that he could not find any evidence to substantiate Ms. De Cruz Lee’s allegations of fraud, conspiracy and human trafficking against Mr. Lee and he was awarded with $53,000.00 from the proceeds of the sale of the home that he shared with the Applicant.
Notwithstanding the fact that Ms. De Cruz Lee was judgment proof, Justice Skarica ordered full indemnity costs against the Applicant in the amount of $34,674.05. According to Justice Skarica, this was a case for full indemnity costs because of Ms. De Cruz Lee’s unsubstantiated allegations of dishonesty, illegality and conspiracy which were advanced without merit.
In particular, Justice Skarica was passionate about the role of costs in civil proceedings,
“Self-represented litigants whose aim it is to protract court proceedings to force the other side to expend significant resources on legal costs due to scurrilous allegations that are without any evidentiary foundation and are entirely irrelevant to the issue before the Court will meet the hammer of a cost’s award. In our resource strapped court system, there must be deterrence against such conduct that not only penalises the opposing party but also penalises those litigants who have genuine claims to bring before a court but must have their justice delayed due to Court time being spent on this type of litigation.”
Have a great day everyone and thanks for reading!
With summer almost over it is time to look forward to the new beginnings of fall. On September 13, 2011 the courts will open for the new session. To mark the Opening of the Courts, there are a number of special events to which all members of the judiciary, lawyers and paralegals are invited.
The schedule of events is as follows:
- At 10:00 a.m. there is a Special Divine Interfaith Service at the Church of the Holy Trinity at 10 Trinity Square (Near the Eaton Centre);
- At 3:30 p.m. the Opening of the Courts of Ontario ceremony will take place in Courtroom No. 6-1 at the Toronto Court House, 361 University Avenue; and
- At 4:30 p.m, following the ceremony, the Law Society of Upper Canada will host a reception at Convocation Hall, 130 Queen Street West, Toronto.
It is a very special opportunity to be a part of tradition and to mingle with many esteemed colleagues, members of the bench and government officials. Come be a part of the celebration of the accomplishments of our legal system.
Hope to see you there!
Sharon Davis – Click here for more information on Sharon Davis.
Listen to the Health Care Consent Act.
This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.
Listen to Compensation for work done by estate trustees and solicitors.
This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss compensation for work done by estate trustees and estate solicitors.
Rooney Estate v. Stewart Estate 2007 WL3019262 (Ont. S.C.J.), 2007 CarswellOnt 650
Section 131 of the Courts of Justice Act establishes the authority for the Court to award costs. Section 131 states that the Court has absolute discretion in awarding costs, subject to the provisions of an Act or the rules of court.
Before July 2005, the Rules of Civil Procedure provided some sense of certainty to the Court’s broad discretion in awarding costs as the Rules provided a costs grid. The costs grid suggested that costs were to be determined by an hourly rate multiplied by the time spent. In 2004, the Court of Appeal in Boucher v. Public Accountants Council set forth the general principle as to the fixing of costs pursuant to Rule 57.01 and the costs grid. With respect to costs, the Court stated that the overall “objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. Subsequently, in July 2005, the Rules were amended.
The amendment to the Rules abolished the costs grid and expanded on the list of factors, set out in Rule 57.01, which the Court may consider before making a cost award. Rule 57.01 was now expanded to include the principle of full indemnity and the reasonable expectations of an unsuccessful party to pay a cost award.
The principle of the reasonable expectations of an unsuccessful party to pay a cost award appears to provide the parties with some flexibility in obtaining the maximum cost award by permitting the successful party to establish the reasonable expectations of the unsuccessful party.
Thanks for reading, and have a great day!