Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media

Re: Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020

May 13, 2020

Notice of amendments:

  • Effective March 18, 2022, paragraph D.7 provides that probate applications emailed to the court must include the new Information Form.
  • Effective April 19, 2022, counsel must be gowned for any virtual proceeding that, if conducted in person, would require gowning. See Part C(2) (Gowning) for more information. (Added March 17, 2022.)
  • Effective November 8, 2021:
    • Part D(3) (Filings) is renamed (Filings and Court Fee Payments) and is amended to:
      • Replace the requirement to file in paper any materials initially filed by email with requirements to maintain documents.
      • Advise that court fees for email filings (past or future) can be paid immediately by phone or cheque, and in accordance with direction made by or on behalf of a Registrar.
  • Effective October 5, 2021, new paragraph 4 in Section D was added to clarify the process for submitting to the court documents that are, or may be, subject of a sealing order.

A. INTRODUCTION

Effective March 17, 2020 and to address the safety of all who use and work in the Ontario Superior Court of Justice (SCJ), the Court suspended its regular operations in courthouses due to public health concerns related to COVID-19. It implemented processes to have ONLY urgent matters heard through virtual means.  Notices to the Profession were issued on March 15, 2020 identifying the urgent matters that would be heard.  On April 2, 2020, further Notices to the Profession were issued expanding the scope of matters that would be heard in each region.

This Notice consolidates previous province-wide direction in a single document so that reference to previous provincial Notices relating to COVID-19 is not required.

While in-court operations were suspended, the SCJ has not closed.  It continues to expand its operations virtually – in writing, or by telephone or video conference hearings.  During this suspension of regular in-court operations, lawyers and parties are expected to take an active role in moving cases forward to final settlement or disposition, including seeking and attending virtual court attendances.

This Notice to the Profession, Litigants, Accused Persons, Public and the Media (“Notice”), effective on May 19, 2020, supersedes previous provincial Notices issued between March 15, 2020 to May 5, 2020 relating to the COVID-19 crisis.

This provincial Notice is supplemented by Regional Notices.  Each region of the Court has similarly issued new Regional Notices on May 13, 2020, which supersede previous Regional Notices.  They are also effective on May 19, 2020.   Regional Notices and the process to follow to have a matter heard may be found at:

This Notice and the Regional Notices, together, further expand the scope of work of the Court, effective May 19, 2020, and the process that will be followed.

The Court is grateful for the tremendous support it has received from the Attorney General and the bar.  It is committed to overcoming this crisis as quickly as possible, and to significantly modernizing its operations for the future.

B. SUSPENSION OF IN-COURT HEARINGS AND JURY TRIALS

Given the on-going public health situation due to COVID-19 and the uncertainty as to when it will be safe to return to courthouses, the SCJ:

  1. Will not resume in-person hearings of any court matters until July 6, 2020, at the earliest.  It will, however, continue to hear matters virtually, and expects to shortly further expand the scope of matters that will be heard virtually.
  2. Will not recommence criminal or civil jury selection or jury trials until September, 2020, at the earliest.

For civil jury matters, each region of the Court will consider how it can best reschedule civil jury trials that were to have been heard during this suspension of regular operations.  Details will be provided in Regional Notices as they become available.

C. PROCEDURES GOVERNING ALL SCJ PROCEEDINGS DURING SUSPENSION OF IN-COURT OPERATIONS

1. Responsibilities of Lawyers and Parties During Suspension of In-Court Operations, including Mediation

During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means.  This guidance also applies to self-represented parties.

For example, where it is possible through virtual means to comply with procedural timelines, produce documents, engage in discoveries, attend pre-trials, case conferences and hearings, and respond to undertakings, those steps should be pursued.  Where COVID-19 has prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 has rendered compliance not feasible.

The Court also calls upon the cooperation of counsel and parties to engage in every effort to resolve matters. For civil proceedings, this includes attendance at mediation – whether prescribed or not – where a mediator is willing to engage in a virtual mediation.  Family mediation services are discussed in section E below.

In criminal matters, the Court encourages judicial pre-trials on matters that have been adjourned and is open to suggestions from counsel on creative ways to resolve, streamline or move matters forward by remote or alternate processes. This includes applications in writing, oral submissions made remotely and the possibility of evidentiary hearings by remote processes in the appropriate circumstances.

2. Gowning

The requirement to gown for an appearance in the SCJ is suspended. Counsel, parties and others participating in video hearings are expected to dress in appropriate business attire.  Judges will similarly dress in business attire.

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.

3. Manner of Hearing

During the suspension of in-court operations, matters will only be heard in-writing, or by telephone or video conference. Counsel and parties will be advised by trial coordination staff on how to connect to telephone and video conference hearings.  Information on how to prepare for virtual hearings can be found in the At-A-Glance Guide to Virtual Hearings.

4. Etiquette During Virtual Hearings

Hearing participants should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. Some guidance on these points can be found on the Remote Hearings Best Practices and Etiquette page.

5. Public and media access to SCJ Virtual Hearings

The SCJ remains committed to the open court principle throughout the COVID-19 pandemic.

Any member of the media or the public who wishes to hear/observe a remote proceeding may email their request to the local courthouse staff in advance of the hearing. The person requesting access should advise of the hearing they wish to hear/observe, and their contact information.

Every effort will be made to provide the requestor with information on how they may hear/observe the proceeding.

Certain proceedings are closed to the media and public by legislation or court order.

The Court posts matters scheduled to be heard by the Court at ontariocourtdates.ca so that the media can know what matters are being heard and can contact the court to learn how to hear or observe a proceeding.

In addition, section 136 of the Courts of Justice Act restricts the recording by a member of the public of a court hearing.

6. Recording of SCJ Virtual Hearings

Due to resource constraints during the COVID-19 pandemic, some SCJ proceedings are being recorded on devices other than Digital Recording Devices. This should not be a barrier to accessing recordings.

Under this Notice, section C of Part VI of the Consolidated Provincial Practice Direction (Release of Digital Court Recordings) also applies to all digital court recordings that meet all of the following criteria:

  • the recording is of a Superior Court of Justice hearing that took place remotely after March 17, 2020;
  • the recording was made by the presiding judicial official, by another person at the direction of the presiding judicial official or by staff of the Court Services Division of the Ministry of the Attorney General; and
  • the recording is in the possession of the Court Services Division.

Also under this Notice, digital court recordings made on a device other than a Digital Recording Device will not have annotations.

7. Communicating with Court, Staff and Trial Coordinators

Counsel and self-represented persons shall not communicate directly with a judge, unless the court directs otherwise. Counsel and self-represented persons will communicate with court staff and trial coordinators by email pursuant to a Region’s Notice.

The below direction should be followed when communicating by email with court staff and trial coordinators.

  1. To ensure the email is received and processed by the appropriate court office, the subject line should include the following information:
    • LEVEL OF COURT (SCJ)
    • TYPE OF MATTER (Criminal, Family, Civil, Commercial List, Estates)
    • FILE NUMBER (indicate NEW if no court file number exists)
    • TYPE OF DOCUMENT (e.g., Motion, Conference Brief, Other Request)
  2. The body of the email should include the following information if applicable:
    1. court file number (if it is an existing file)
    2. short title of proceeding
    3. list of documents attached (note: attachments cannot exceed 35 MB)
    4. type of request
    5. name, role (i.e. lawyer, representative, party, etc.,) and contact information of person submitting the request (LSO #, email and phone number)

8. Standard document naming protocol

Effective January 11, 2021, when documents are submitted to the court in electronic format, the document name must indicate the following information:

  1. Document type (including the form number in family cases),
  2. Type of party submitting the document,
  3. Name of the party submitting the document (including initials if the name is not unique to the case), and
  4. Date on which the document was created or signed, in the format DD-MMM-YYYY (e.g. 12-JAN-2021).

Below are sample document names:

Expert Report – Defendant – Loblaws Inc. – 13-MAR-2021
Financial Statement Form 13.1 – Respondent – A. Wong – 21-NOV-2021
11b Application – Defence – Nathanson – 12-JAN-2021

Document names shall not include firm-specific naming conventions, abbreviations, or file numbers. Form numbers are only to be included in the names of documents submitted in family cases.

9. Filings

The Court expects parties will only submit brief materials to allow for a fair, timely and summary disposition. Emailed filings cannot exceed 35MB.  If the size of electronically filed material exceeds 35MB, further emails may be sent within the 35MB maximum.  Every effort must be made, however, to limit filed materials to only those necessary for the hearing.

Filings must also comply with restrictions that have been placed on the length of material that can be submitted in connection with each event, such as limits on the number of pages for an affidavit or conference brief.  Refer to the relevant regional Notice for these requirements.

Unless a matter is proceeding ex parte (i.e. without notice to responding parties), filed materials must indicate when and how service on responding parties was made.

Filed materials should also include any prior orders or endorsements that were issued and that are relevant to the request(s) being made.

Caselaw and other source materials referenced in factum should be hyperlinked. Where hyperlinks are provided, it will not be necessary to file Books of Authorities.

Responding material shall be filed in the same manner as a moving party/applicant. The trial coordinator will provide to the parties the triage judge’s schedule for the service and filing of any responding material.

10. Commissioning of Affidavits

Pursuant to section 9 of the Commissioners for taking Affidavits Act, R.S.O. 1990, c. C.17, when an affidavit is sworn, every oath and declaration “shall be taken by the deponent in the presence of” the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration.

The Law Society of Ontario has interpreted the requirement to be “in the presence of” the deponent, found in section 9 of the Commissioners for Taking Affidavits Act, as not requiring the lawyer or paralegal to be in the physical presence of the client.  Rather, alternative means of commissioning such as commissioning via video conference will be sufficient.

Accordingly, where it is not possible to administer an oath in the physical presence of the deponent, a lawyer or paralegal may commission an affidavit by video.  The affidavit should state that it was commissioned by video conference.

Where it is not possible to commission an affidavit by video conference, an unsworn affidavit may be delivered to the Court, but the deponent must be able to participate in any telephone or videoconference hearing to swear or affirm the affidavit.

D. PROCEDURES GOVERNING CIVIL AND FAMILY MATTERS

1. Urgent Civil and Family Proceedings

The following urgent civil and family matters shall be heard by the Court.  Please refer to each Region’s Notice for the process to bring an urgent matter, as well as a list of non-urgent matters that may be heard in each region.

a. The following matters related to PUBLIC HEALTH AND SAFETY and COVID-19:

    1. applications by the Chief Medical Officer of Health for orders in relation to COVID-19;
    2. applications to restrain the contravention or continued contravention of an order made under the Health Protection and Promotion Act;
    3. applications to enforce orders requiring the seizure of premises, medications or supplies under the Health Protection and Promotion Act;
    4. appeals under subsection 35(16) of the Health Protection and Promotion Act;
    5. urgent requests for injunctions related to COVID-19; and
    6. urgent Divisional Court appeals and requests for judicial review related to COVID-19.

b. The following FAMILY AND CHILD PROTECTION matters:

    1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
    2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
    3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
    4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

c. The following CIVIL and COMMERCIAL LIST (Toronto) matters:

    1. 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.
    2. outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.

d. Any other matter that the Court deems necessary and appropriate to hear on an urgent basis.

The Court has discretion to decline to schedule for immediate hearing any particular matter described in the above list, if appropriate.

2. Service by Email During the Suspension of Regular Operations

Notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules and subject to an order of the Court directing otherwise, it is not necessary to obtain consent or a court order to serve a document by e-mail where e-mail service is permitted.

3. Filings and court fee payments

During the suspension of the Court’s in-court operations, the Court will accept filings by email at the specific email addresses indicated in a Region’s Notice only for those matters that are “urgent” or have been identified to be dealt with in this document or a Region’s Notice.

When filing court documents, counsel and parties are encouraged to file a draft order stating the result they are seeking from the court. The effective date of the court order is the date it was made, unless the judicial official states otherwise.

For matters that are not “urgent” or have not been identified to be dealt with in a Region’s Notice, counsel and parties are discouraged from physically attending courthouses to file documents in person. Civil and family court documents can be filed, fees paid and fee waivers requested online. To file family court documents online, click here. To file civil documents under the Rules of Civil Procedure, click here.

Direction on filing and court fee payments in the Small Claims Court can be found in the Consolidated Notice to the Profession and Public Regarding the Small Claims Court (April 12, 2021).

Unless the court directs otherwise, where counsel and parties deliver materials for filing to the court by email, they must:

For civil matters:

  1. maintain any documents that were originally signed, certified or commissioned in paper format until the thirtieth day after the appeal period expires.
  2. on the request of the court, a Registrar or another party, make the original document available for inspection no later than five days after the request is made.

For family matters:

  1. retain any documents that were originally signed, certified or commissioned in paper format until the day on which the case is finally disposed of or, if no notice of appeal is served in the case, the time for serving the notice has expired, subject to any requirement in the Family Law Rules to give the document to the clerk before that day; and
  2. promptly make the original document available for inspection and copying on the request of the court or of any party to the case.

These requirements to maintain and produce documents for inspection replace the previous requirement to file a paper copy of a document at the court upon the resumption of normal court operations. Lawyers and parties should not file a paper copy of a document that was filed by email, unless the court directs otherwise.

Court fees for documents that were filed by email between March 16, 2020 to date, can now be paid to the Ministry of the Attorney General over the phone through a secure credit card transaction. Phone fee payments can also be made for documents that are filed by email pursuant to this Notice and Regional Notices. Court office phone numbers can be found on the Ministry of the Attorney General’s website.

Court fee payments may also be sent by mail or courier to the court office or provided at the court office. Cheque payments must be accompanied by a covering letter that indicates the court file number and title of proceeding, identifies the document that was filed by email, date of the email filing, party who filed the document by email and the name of the representative of the party (if any).

Information about requesting a fee waiver can be found in the Ministry of the Attorney General’s Court Fee Waiver Guide and Forms.

Court fees must be paid in accordance with a direction made by or on behalf of the Registrar.

4. Sealed Documents

Parties must not upload into the Case Center document sharing platform any unredacted documents that are, or are proposed to be, the subject of a sealing order. Although the notice of motion for the sealing order can be uploaded into Case Center, the unredacted document proposed to be sealed must be sent to the Trial Coordination Office by email with the case name, court file number, and hearing date (if assigned), together with a request that the document be forwarded to the presiding judge or associate judge as a sealing order is being sought. If the hearing takes place by telephone or videoconference, immediately following the granting of the sealing order, the moving party must enclose an unredacted version of the document in a sealed envelope, append the court order/endorsement to the envelope, and file it in hardcopy at the court office for inclusion in the court file.

5. Virtual hearings permitted without consent or court order

Notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules, it is not necessary to obtain consent, or a court order, for a hearing to proceed by virtual means.

6. Orders

Judgments, endorsements and orders of the Court are effective as of the date they are made, unless the judgment, endorsement or order states otherwise.

Where a draft order is filed online, the registrar can electronically issue the order and email it to the requestor. Attending the courthouse to have an order issued and entered is not recommended at this time, unless it is time-sensitive, such as a family law restraining order, or an issued order is needed to commence an appeal.

Please note that an issued and entered order is required for the purpose of an appeal to the Court of Appeal for Ontario or an appeal to the Divisional Court Branch of the Superior Court of Justice.

7. Email Processes for Estate Certificates (Probate)

Effective October 6, 2020, applications for probate certificates, including an application for a certificate of appointment of estate trustee or an application for a small estate certificate or amended small estate certificate, and supporting and responding documents, may be filed electronically by email to the Superior Court of Justice at the email address for the court location set out at the following link: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/email-probate/.

Where email is used to file documents in probate applications:

  • The application form and supporting documents (affidavits, consents, proof of death, renunciations, draft certificates, motions) should be submitted by email only.
  • Original documents filed in support of the application (e.g. wills, codicils, bonds, ancillary certificates) and certified copies must be filed in hard copy by mail or courier to the Superior Court of Justice location where the application was filed or provided at the court office.
  • Estate administration tax payments must also be sent by mail or courier to the court office or provided at the court office. Filing fees, if any, may be paid by mail, courier or secure credit card transaction over the phone. Contact information for court locations can be found on the Ministry of the Attorney General’s website.
  • Probate certificates will be electronically issued and delivered by email to the address provided by the applicant.

NEW: Applicants must complete a new Information Form and email it to the court together with the probate application.

When emailing probate documents to the court, the following requirements must be met:

  1. The subject line of the email sent to the court must indicate the acronym for the court, the area of law, court file number (if any), and type of document, as set out in the examples below:
    SCJ – ESTATES – ES-1234567 – Application for Certificate of Appointment of Estate Trustee
    SCJ – ESTATES – new file – Application for Certificate of Appointment of Estate Trustee
  2. Each email sent to the court, including attachments, must not exceed 35 MB.
  3. Document attachments must be in PDF format.
  4. Each PDF attachment must contain only one court form and must be saved with name that specifies the court form number and type of document (e.g. Form 74.10 Affidavit of Condition of Will)

If court staff advise that documents emailed to the court require correction, the corrected versions can be sent to the court by email. If additional documents are needed to complete the application, then court staff will advise which ones can be emailed and which ones need to be provided in hard copy.

The above process for emailing documents to the court does not apply to documents filed in estate litigation cases. Estate litigation documents should continue to be filed through the Civil Submissions Online portal, which launched on August 5, 2020.

E. OTHER PROCEDURES GOVERNING FAMILY LAW AND CHILD PROTECTION MATTERS

The court does not have access to the continuing record.  Parties should therefore include a copy of all relevant orders and endorsements with the materials that are filed for each hearing in accordance with section C.7. above.

Parties are encouraged to be concise in the material filed for each family event.  Regional Notices include limits on the number of pages for certain filings (e.g., conference briefs and affidavits).  Material that exceeds these page limit may not be considered by the presiding judicial officer.

By order dated May 6, 2020, child protection lists (often referred to as “to be spoken to events”) have been adjourned until a date to be scheduled in July, 2020 in accordance with Regional Notices.

Parties are encouraged to consider using Ministry-funded family mediation services to attempt to resolve their family law disputes during the period of reduced court operations, which services are now available virtually.  Information about these services and whether they may be appropriate in the circumstances is available by contacting local mediation service providers.  Contact information for those services is available at:  https://www.attorneygeneral.jus.gov.on.ca/english/family/mediation.php

F. PROCEDURES GOVERNING CRIMINAL MATTERS

1. Criminal Matters Suspended Effective March 17, 2020 and further by Order of May 5, 2020

By my Order, dated May 5, 2020, and unless the court orders otherwise, criminal appearances have been adjourned as follows:

a. Matters originally scheduled for appearances in March 2020 (after March 17) that had been adjourned to June 2, 2020 are further adjourned to July 6, 2020.

  1. Accused persons subject to this Order must now appear on July 6, 2020 at 10:00 a.m. at the court location at which they were to appear in March 2020,
  2. the bench warrant with discretion (s. 597(4)) issued to return on June 2, 2020, is extended to July 6, 2020,
  3. if the person fails to appear on July 6, 2020, a warrant will be issued for their arrest, and
  4. the bench warrant with discretion is extended as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

b. Matters originally scheduled in April 2020 that had been adjourned to June 3, 2020 are further adjourned to July 7, 2020.

  1. Accused persons subject to this Order must now appear on July 7, 2020 at 10:00 a.m. at the court location at which they were to appear in April 2020,
  2. the bench warrant with discretion (s. 597(4)) issued to return on June 3, 2020 is extended to July 7, 2020,
  3. if the person fails to appear in this Court on July 7, 2020, a warrant will be issued for their arrest, and
  4. the bench warrant with discretion is extended as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

c. Matters originally scheduled in May 2020 that had been adjourned to June 4, 2020 are further adjourned to July 8, 2020.

  1. Accused persons subject to this Order must now appear on July 8, 2020 at 10:00 a.m. at the court location at which they were to appear in May 2020,
  2. the bench warrant with discretion (s. 597(4)) issued to return on June 4, 2020 is extended to July 8, 2020,
  3. if the person fails to appear in this Court on July 8, 2020, a warrant will be issued for their arrest, and
  4. the bench warrant with discretion is extended as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

d. Accused persons with matters scheduled in the SCJ in the month of June 2020 and on July 2 and 3, 2020 must now appear on July 9, 2020 at 10:00 a.m. at the court location at which they were to appear in June, 2020.

  1. A bench warrant with discretion (s. 597(4)) is issued as of the date in June on which the person was scheduled to appear,
  2. if the person fails to appear in this Court on July 9, 2020, a warrant will be issued for their arrest, and
  3. the bench warrant with discretion is issued as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.

Persons scheduled to appear in the SCJ on July 6, 7, 8 and 9 should do so as scheduled.

The Order extends, as necessary, all warrants of remand for accused persons in custody to whom the Order applies.

At a future date, Notice will be given of an orderly process for the re-booking of trial and motions dates affected by this Notice and that of March 15, 2020.

2. Filings in Criminal Matters

Please refer to section IX, X, and XI in the Provincial Practice Direction /Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings.

3. Sureties

Defence counsel are responsible for arranging to confirm sureties’ identification and to assist them to sign bail by signing an electronic bail release and scanning it back to the court registrar to be forwarded to the institution, or as otherwise directed by the Court.

Geoffrey B. Morawetz,
Chief Justice.

Amended: October 6, 2020; November 24, 2020, December 22, 2020, January 14, 2021, April 1, 2021, October 5, 2021; November 8, 2021; March 18, 2022.