Notice to Profession – Divisional Court – For Court Hearings During COVID-19 Pandemic (May 13, 2020)

IMPORTANT NOTICE This notice has been superseded.  Please see the June 29, 2020 Notice to the Profession – Divisional Court for current information.

Urgent matters will continue to be heard under the Notice to the Profession dated May 13, 2020. The prior Divisional Court Notice to Profession dated April 2, 2020, effective April 6, 2020, is replaced by this Notice to the profession, effective May 19, 2020.

D.1. Provincewide Protocol applies to all Divisional Court matters

Please note that this direction applies to all matters in Divisional Court. The court’s schedule of cases as of the suspension of ordinary court operations is, itself, entirely suspended, and matters will not be heard according to that schedule so long as in-person hearings are suspended.  Only matters scheduled in accordance with this Direction will be heard.  Therefore, a party in a matter that has been scheduled previously for hearing in the coming weeks will have to obtain a new date for hearing following the process set out below, if the party wishes the case to proceed during the suspension of in-person hearings.

All previously scheduled in-person matters that are now cancelled may be rescheduled for hearing by videoconference or other means directed by the court pursuant to this Notice to the Profession.

Any previously scheduled in-person matters that are now cancelled, and which are not rescheduled for hearing by videoconference, will not be scheduled for in-person hearings until further Notice to the Profession, and will be scheduled thereafter in accordance with a scheduling protocol that will be provided by way of Notice to the Profession at a future date.

All Divisional Court matters (in all Regions of Ontario) scheduled for in-person hearings on a date after August 31, 2020 are still scheduled for those dates for now.  Parties need do nothing to preserve these hearings dates for now.  However, parties should be aware that those dates may be cancelled and, therefore, any party to a matter scheduled for an in-person hearing date after August 31, 2020 may request that the case proceed earlier, by videoconference or other electronic means, by making a request in accordance with this Notice to Profession.

D.2. Scheduling Divisional Court Matters

1. Any party wishing to schedule a Divisional Court matter shall contact the court through the following email address (with a copy sent to all other parties):  scj-csj.divcourtmail@ontario.ca. Other parties should not respond to the request for scheduling until requested to do so by the court.
2. Scheduling requests should contain the following information:
   1. Title of Proceedings, file number, and jurisdiction (judicial region) from which the case originates.
   2. The names and email addresses of representatives of the parties (counsel, or self-represented persons).
   3. The nature of the matter to be scheduled (motion, application or appeal) and some brief particulars (for example, “appeal from the final order of Doe J. of the Superior Court of Justice (2019 ONSC 123456) granting judgment of $25,000 in a defamation action” or “judicial review from the Ontario Labour Board decision granting / denying certification”).  The explanation should not be more than a sentence or two in length.  Where the decision below has been reported on CanLII, a citation to that decision should be included.
   4. The estimated time required for the hearing.
   5. A brief explanation of any urgency, time sensitivity, or other factor the party wishes the court to take into account in scheduling.
   6. Whether some or all parties consent to scheduling the matter (consent is not required).
   7. Whether the matter was already scheduled to proceed before the suspension of court operations or whether this is a request to schedule a new matter.
3. Matters will be scheduled at the direction and in the discretion of one of the Divisional Court Administrative Judges or a designate. Court staff will then contact the parties to confirm arrangements for providing file documents to the court in electronic format, and to provide details of the hearing.
4. Hearings will all be conducted electronically, either by teleconference or by videoconference. Teleconferences will be conducted on court teleconference lines. Videoconferences will be conducted using the application ZOOM. Parties will be required to confirm in advance that they will be able to participate in the hearing using the selected technology.
5. This direction applies to all Divisional Court matters in Ontario, including panel matters and matters ordinarily heard by single judges in Regions outside Toronto.
6. For the moment, the Divisional Court is able to hear more than urgent matters, but, given technological and staffing constraints, it is not able to hear a full docket of cases.  Scheduling preference will generally be given as follows:
   1. Where a matter is considered urgent by the Administrative Judge or designate, the matter will be scheduled to proceed as soon as reasonably possible on a schedule to be fixed by the court.
   2. Where a matter is not urgent, but is time sensitive, in the opinion of the Administrative Judge or designate, the matter will proceed on a schedule to be fixed by the court, taking account the time sensitivity.
   3. Other matters will be scheduled to be heard in due course, bearing in mind the demand for urgent and time-sensitive matters and the technological and staffing limitations under which the court is operating.  To the extent that it is possible to do so, the length of time the matter has been awaiting a hearing, and the likely delay if the matter is not heard until in-person hearings resume, will be taken into account in prioritizing hearings.

D.3. Filing Electronic Documents for Hearings

1. Any matters heard by the court pending resumption of in-person hearings will be heard remotely, and therefore all documents required for the hearing must be available to the court electronically. The requirement of electronic documents applies to all matters, including cases where parties filed paper documents prior to the suspension of ordinary court operations. Divisional Court staff will provide directions to the parties about what will be required and, if necessary, a teleconference may be arranged with one of the Administrative Judges or designate for directions respecting what materials are required and how they are to be filed.  In general, the following guidelines will apply:
   1. Where possible, all documents should be uploaded by the parties to a drop box with a link and instructions on how to access the documents delivered to the court by email at the following address: scj-csj.divcourtmail@ontario.ca. The uploaded documents are to be provided as follows:
      1. All documents other than factums are to be uploaded to a drop box in pdf format.
      2. Documents should be labelled in a manner that identifies them clearly for the panel so that it is not necessary to open the document to understand what it is. Pages should be numbered sequentially within each pdf.  If this is not practical, given the current state of the documents, then individual documents should be uploaded to a drop box in pdf form, so that each document is clearly labelled, enabling the panel to find document quickly.
      3. Factums are to be filed in Word and pdf version. Where possible, the factums should contain hyperlinks for authorities and, if possible, hyperlinks to a “Factum Compendium”, described below. Factums can be unsigned.
      4. Books of authorities containing the full text of authorities should not be uploaded to the drop box. However, citations to cases in the factums are to provide, if possible, a hyperlink to the CanLII version of cases.  The only exceptions to this principle are authorities not available on CanLII, such as excerpts from textbooks, foreign law, or Canadian decisions not reported on CanLII: these should be collected in a small brief of unreported authorities and filed electronically.
      5. Parties are encouraged to file a “Factum Compendium” containing single pages or brief portions of cases cited, and brief portions of evidence from the record referenced in the factum, hyperlinked in the factum.
      6. Parties are also encouraged to file a compendium for oral argument in advance of the hearing, containing excerpts of evidence and authorities to which counsel will refer in oral argument.
      7. Where portions of cases are included in a compendium, the title of proceedings and headnote should be included as well. Where portions of the record are included in a compendium, the first page of the document and identification of where it may be found in the record should also be provided.
      8. In cases involving documents protected by, or which are sought to be protected by, a protective order (such as a sealing order or a publication ban), counsel should seek tailored directions during a case management conference.
   2. Where it is not possible for parties to file documents through a drop box, documents are to be delivered to the Court as attachments by email at the following address: scj-csj.divcourtmail@ontario.ca. No individual email can be larger than 35 MB.  Specific directions on how documents are to be filed by email will be provided by the Court before they are to be filed.
   3. At least one day before the hearing, the parties are to file a counsel sheet setting out the name(s) of counsel and the estimated time for counsel’s submissions.
   4. At least one day before the hearing, the parties are to advise that they have reached agreement on costs or are to file costs outlines by email with the Court.
   5. After the end of the suspension of ordinary court operations, parties will be required to file paper copies of documents provided to the court electronically pursuant to this Direction, and to pay any applicable court fees for steps that have taken place pursuant to this Direction.

D.4. Motions in Writing for Leave to Appeal to the Divisional Court

1. The Divisional Court will accept requests that the Court proceed with in writing motions for leave to appeal.
2. Any request made by a party that the Court consider a motion for leave to appeal should include the information detailed at paragraph D.2.2 above.
3. Materials on motions for leave to appeal shall be filed electronically in accordance with paragraph D.3 above, with necessary modifications to reflect that the motions are read in writing and will not be heard by videoconference.
4. Motions for leave to appeal will be scheduled at the direction and in the discretion of one of the Divisional Court Administrative Judges or a designate. Court staff will then contact the parties to confirm arrangements for filing documents in electronic format or to convene a case management conference.
5. This direction applies both to motions for leave to appeal that were initiated prior to the suspension of ordinary court operations, and to motions for leave to appeal initiated after the suspension of ordinary court operations.

D.5. Filing of Materials with the Court

1. During the suspension of normal Court operations, no documents will be issued by the Divisional Court or are to be filed with the Court except in accordance with this protocol or in accordance with a direction from one of the Divisional Court Administrative Judges or a designate. For example, originating processes (notices of appeal, applications for judicial review) will not be issued by or accepted by the court unless they have been authorized by one of the Divisional Court Administrative Judges or a designate.
2. Where paper copies of case materials have been filed with the court previously, and those materials are made available to the court electronically pursuant to this Direction and/or any case management order made in the case, parties will not need to refile those materials in paper form, even if those materials have been altered to include hyperlinks.
3. Where parties file electronically compendiums, counsel sheets, bills of costs, or any other documents not previously filed in paper form pursuant to this Direction and/or any case management order made in the case, one paper copy of each such document must be filed with the applicable court office upon the resumption of ordinary court operations.
4. Where parties file electronically any documents required to be filed by the Rules of Civil Procedure (such as, for example, Records, transcripts, factums), and where these documents have not previously been filed in paper copy with the applicable court office, the parties must file one paper copy of each such document, and pay any applicable court fees upon the filing of such a document, upon the resumption of ordinary court operations.

D.6. Self-Represented Litigants

This direction applies to all matters in Divisional Court, whether parties are represented by counsel or are self-represented.  If a self-represented litigant is unable to conduct a case in accordance with all of the requirements set out in this Notice to the Profession, then, during a case management conference held with one of the Divisional Court Administrative Judges or designate, the self-represented litigant may explain the difficulty and request variation in the requirements to enable that litigant to file documents and participate in the hearing by some alternative means.

D.L. Corbett and Favreau JJ.
Divisional Court Administrative Judges

May 13, 2020