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 Ontario begins to witness a glimmer of relief from the ongoing COVID-19 pandemic, one cannot help but notice how the outbreak has forced the hand of many industries towards modernization, and law is no exception. Our firm has blogged extensively over the past two months on the multitude of changes to estate planning practices, litigation, and the practice of law in the province, more generally, the implementation of which is directly attributable to the new business reality. Wills may be executed in identical counterparts, rather than as a single a document, by way of audiovisual communication. Motions and other court hearings are being conducted virtually, and materials to be filed in respect of those hearings can be filed with the court registrar electronically.
Most recently, Bill 190, the COVID-19 Response and Reforms to Modernize Ontario Act, 2020, received royal assent on May 12, 2020 and implements modest, but impactful, changes to numerous statutes. These changes continue the trend of modernizing the practice of law to match the business realities of the circumstances by, for example, specifically authorizing or validating the electronic signature of certain documents, providing mechanisms for the filing of such documents, if need be, by electronic means, or generally allowing for certain practice components to proceed in a virtual capacity. The legislative goals of Bill 190 fit with the province’s broader mandate, in the words of the attorney general, to have “modernize[d] the justice system 25 years in 25 days.”
The Bill also includes a formal amendment to the Commissioners for Taking Affidavits Act to authorize a commissioner of oaths to administer an oath or declaration, generally in the form of an affidavit, without being in the physical presence of the deponent, provided the commissioner can “satisfy himself or herself of the genuineness of the signature.” In other words, this amendment authorizes a commissioner to administer an oath or commission an affidavit by audiovisual means provided the signature, and the act of signing, are made visible to the commissioner.
This amendment reflects an interpretive directive issued by the Law Society of Ontario in March. The prior version of this statute required both commissioner and deponent to be in the presence of one another for the oath to be validly administered. Though physical presence was not a strict requirement under the prior version, it was considered to be an element of best practice. In light of the recent restrictions in having a commissioner and a deponent meet together for the purposes of commissioning an oath, the Law Society issued this directive to ensure that the requirement could be satisfied in the absence of physical presence, thus authorizing the commissioning of oaths to proceed virtually. The amendments to this act set out in Bill 190 simply serve as a more permanent statutory codification of the directive issued by the Law Society.
Please feel free to review our other blogs dealing with the practice of law in a post COVID-19 reality:
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