COVID-19: Practical Considerations for Your Litigation, from Coast to Coast

March 31, 2020

This post was originally published March 20, 2020 and was last updated on March 31, 2020 to reflect developments at the Supreme Court of Canada, the Superior Court of Québec, and the British Columbia Court of Appeal.

In response to the COVID-19 outbreak, Courts across Canada have weighed the seriousness of the situation and the importance of prioritizing the health and safety of all court participants, with the principles of open courts and timely access to justice. This balancing exercise resulted in the implementation of a wide range of preventative measures that will help minimizing the spread of the COVID-19 virus across Canada, while allowing the Courts to hear urgent or essential matters during the outbreak. In brief, Canadian Courts have restricted access, suspended or limited their operations, and have consequently suspended prescription or limitation periods, as the case may be.

In this unprecedented period of uncertainty, it has become difficult to easily identify the various exceptional measures implemented in each Canadian province. Therefore, as a recognized leading Canadian litigation law firm and your business partner, Stikeman Elliott offers you the following guide which outlines the measures taken.

We understand that the situation is evolving rapidly, and we will post updates on our website as they become available.

Supreme Court of Canada

  • March 25: Deadlines that are imposed by the Rules of the Supreme Court of Canada or by an order of the Court, a judge, or the Registrar are suspended indefinitely
    • However, all other deadlines are unaffected, including deadlines for filing applications for leave to appeal and notices of appeal
    • The hearings scheduled for March, April, and May 2020 are rescheduled, tentatively, to the month of June 2020
    • Parties are encouraged to file and serve documents by e-mail, with originals to be filed once regular court operations resume
    • The Court building remains open for case-related matters
  • March 16: The hearings scheduled for March 24, 25 and 26, 2020, are rescheduled, tentatively, to the month of June 2020
    • All other currently scheduled hearings remain on the agenda until further notice
    • The Court will continue to issue judgments on applications for leave and on appeal for the time being

https://www.scc-csc.ca/parties/index-eng.aspx  

Federal Courts

  • March 20: Suspension until April 17, 2020, and retroactive to March 16, 2020, of all deadlines under Orders and Directions of the Court of first instance and appeal (unless they are explicitly set on a “peremptory” basis), as well as under the Federal Courts Rules, subsection 18.1(2) of the Federal Courts Act, and paragraph 72(2)(c) of the Immigration and Refugee Protection Act, but all other filing deadlines continue to apply
    • However, applications and appeals filed at the Federal Court of Appeal under sections 27 and 28 of the Federal Courts Act are governed by mandatory deadlines and are therefore excluded from the suspension; parties are required to file appeals and applications within the relevant deadlines

Court of Appeal

  • March 19: Proof of service of any document served during the suspension period may be filed after this period ends
  • March 16: All hearings scheduled to be heard between March 16 and April 17, 2020 are adjourned indefinitely, with the exception of urgent matters, which will be heard by teleconference
    • The Court will remain available to deal with urgent matters by teleconference
    • Filings at any of the Court’s registry offices continue to be accepted, but exceptionally and until April 13, 2020, the Court will accept filing of court documents by e-mail
    • Parties will be able to request an extension of time once normal operations resume if they are unable to meet the filing deadlines

Federal Court

  • March 17: All Court hearings, including teleconference hearings, previously scheduled to be held between March 17 and April 17, 2020 are adjourned indefinitely
    • Exceptions will be made for urgent matters and for non-urgent matters that need to proceed as previously scheduled for exceptional reasons, as determined on a case-by-case basis
    • After April 17, 2020, parties will be able to request an extension of time for deadlines if they are unable to meet the filing deadlines in light of current circumstances
    • Court facilities will remain open, albeit with minimal staffing
    • Filings at the Court’s registry offices remain possible, but parties must telephone the Court first for directions, and parties are encouraged to file documents electronically using the online portral or by e-mail for urgent documents (exemption from any requirement to file paper copies)

https://www.fca-caf.gc.ca/fca-caf_eng.html

https://www.fct-cf.gc.ca/en/home 

Québec

  • March 28: For the duration of the state of emergency, proceedings to be served by bailiff may also be served using technological means, according to the rules laid out in article 133 of the Code of Civil Procedure
    • Self-represented parties may not unreasonably refuse receipt of an electronic document
    • Notaries may close notarial acts remotely using technological means
  • March 15: Limitation periods and filing deadlines for prescription, forfeiture, and civil procedure are suspended until the end of the state of emergency

Court of Appeal

  • March 25: All hearings that would have been held between April 6 and May 1, 2020 are adjourned indefinitely
    • However, parties may request to have their matter heard in writing
  • March 18: New in-person filings continue to be accepted, but parties are encouraged to delay filing non-urgent appeals
  • March 17: Limited operations until further notice
    • All hearings that would have been held between March 17 and April 3, 2020 are adjourned indefinitely
    • Only urgent matters will be heard, on a case-by-case basis

Superior Court

  • March 30: All trial hearings scheduled until May 1, 2020 are adjourned indefinitely, but urgent hearings will continue to be held
  • March 27: The original copy of any new proceeding must be filed at the courthouse
  • March 25: In the Commercial Division, all non-urgent hearings are adjourned indefinitely, and only strictly urgent matters will be heard, on a case-by-case basis and by teleconference only
    • The Court will hear only urgent applications for which the parties have made serious efforts to settle as many aspects as possible and strictly limit the debate to that which is urgently necessary
  • March 18: Limited operations until further notice
    • Certain designated courtrooms remain open for urgent matters, but the Court encourages parties to use technological means to manage cases remotely
    • New urgent filings at the Court's registry offices remain possible, but the Court encourages parties to make non-urgent filings by mail
    • All uncontested motions for adjournment, regardless of the number of previous adjournments, will be allowed without the need for parties to be present in court
    • Parties may make motions to adjourn by telephone or e-mail on the day before the scheduled hearing date
  • March 13: Regarding hearings, only urgent matters will be heard in all courts during the state of emergency
    • These include, for example: Interlocutory injunctions, safeguard orders, opposition to seizures, or any matter judged urgent by the courts
    • The Attorney General of Québec may be served by e-mail during this period

https://www.barreaudemontreal.qc.ca/autre/dernieres-nouvelles-covid-19

 

Ontario

  • March 20: All limitation periods and filing deadlines, including regarding intended proceedings, are suspended until the end of the state of emergency, and the suspension is retroactive to March 16, 2020.

Court of Appeal

  • March 30: Before the Court of Appeal only, the suspension of filing deadlines does not apply to civil proceedings in which a notice of hearing has been sent and which proceedings have not been adjourned, and civil proceedings that are being case managed
  • March 17: Except as otherwise provided, the Court of Appeal will suspend all scheduled appeals for a period of 3 weeks (until April 3, 2020)
    • During this period, urgent appeals will be heard based on written materials or remotely
    • Parties on non-urgent appeals can request that their appeal be heard in writing
    • Single judge motions will continue to be heard remotely as scheduled for the week of March 16, 2020, and motions may proceed on filed written materials on consent of the parties
    • New filings at the Court’s registry offices remain possible, although filing by mail is encouraged

Superior Court of Justice

  • March 15: Limited operations until further notice, and all hearings are adjourned
    • The Court will continue to hear urgent matters during this emergency period; A hearing may be conducted in writing, by teleconference or videoconference, unless the Court determines that an in-person hearing is necessary
    • Parties can expect the Court to grant extensions of time once the Court’s normal operations resume, although as of March 16, 2020, limitation periods and filing deadlines are suspended
  • March 20: Filings will continue to be accepted at the Court’s Registry offices but filing by email is encouraged. As of Monday March 23, 2020, the list of documents that can be e-filed or issued through the Province of Ontario's e-filing portal is being expanded to include additional documents (Rule 4.05.01 of the Rules of Civil Procedure):
    • A Statement of defence, including a counterclaim or a crossclaim, and a defence to counterclaim or to crossclaim
    • A notice of discontinuance and a consent to discontinuance
    • A third-party claim and a third-party defence
    • A jury notice, and
    • A certificate of action under section 36 of the Construction Act

https://www.ontariocourts.ca/coa/en/notices/notice.htm

https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/  

British Columbia

  • March 26: All limitation periods and filing deadlines, including regarding intended proceedings, are suspended until the end of the state of emergency
  • March 20: Affidavits may be commissioned and filed electronically

Court of Appeal

  • March 30: Deadlines mandated by Court order or direction are unaffected by the March 26 suspension, but parties may seek extensions
  • March 17: Limited operations until further notice
    • Filings at the Court’s registry offices remain possible, but parties are encouraged to file their documents electronically
    • All hearings and other matters currently scheduled to occur between March 18, 2020 and May 1, 2020 are adjourned, unless otherwise directed
    • Matters that “must proceed” (e.g. urgent criminal, family law or child protection matters) will be heard remotely by teleconference or in writing
    • Parties in matters not designated as matters that must proceed may request in writing to the Chief Justice that the matter proceed by teleconference or in writing

Supreme Court

  • March 25: Registry offices will no longer offer in-person services, and filings will only be accepted by fax, mail, online portal, or secure drop box
  • March 18: Limited operations until further notice, and the Court will only hear essential and urgent matters
    • Presumptively urgent matters include, for example: Preservation orders, urgent injunction applications, and urgent orders in the nature of habeas corpus, certiorari, mandamus and prohibition
    • Parties will appear by telephone or video, where appropriate and available
    • The Court encourages parties to file urgent documents electronically, whenever possible

https://www.lawsociety.bc.ca/about-us/covid-19-faqs/

Alberta

  • Limitation periods are unaffected; certain filing deadlines are affected, as explained below

Court of Appeal

  • March 23: Matters will continue to be heard by videoconference or teleconference, but in-person hearings will no longer be held
    • Documents may be filed in-person via a secure drop box, but parties are encouraged to file by e-mail or fax
    • Where an appeal (fast track, standard or criminal appeal) has not yet been set for hearing, and the deadline to order or commence preparation of the appeal record and transcripts or for the filing of appeal records, transcripts, factums, extracts of key evidence and books of authorities falls on or prior to May 4, 2020, the deadline is extended by 2 months; all other deadlines are unaffected
  • March 16: Effective March 23, 2020, any matters set down before a single duty judge of the Court of Appeal will be heard by telephone conference unless otherwise directed
    • Appeals and applications to be heard by a three judge panel of the Court of Appeal will be heard electronically (via videoconference or telephone) unless otherwise directed
    • Case Management Officers remain available to consider any requests for extensions, fiats or other administrative directions

Court of Queen's Bench

  • March 26: Requests for emergency or urgent hearings should be made using the online form
    • The following Commercial matters will likely be considered urgent:
      • Initial Orders under the CCAA;
      • CCAA stay extensions (if parties agree, a draft Order on consent can be forwarded to the Justice);
      • Receivership Applications;
      • Plans of Arrangements;
      • Injunctions;
      • Approval and Vesting Orders;
      • Sales Orders, which have been pre-scheduled;
      • Urgent bankruptcy applications
    • March 25: Affidavits may be commissioned electronically by videoconference
      • All filing deadlines under the Alberta Rules of Court, including Rule 13.41(4) are suspended until May 1, 2020, with the exception of those Rules applicable to the commencement of proceedings, including originating applications
    • March 20: The Court will not make any new bookings for non-emergency or non-urgent matters between March 16 and May 1, 2020, and all previously scheduled civil matters during this period, including Justice or Masters Chambers matters, Special Chambers hearings, and civil trials that have not been commenced will be adjourned indefinitely
    • March 15: Limited operations until further notice, and the Court is limiting hearings to emergency or urgent matters only
      • Emergency matters, defined as those in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order, include orders relating to the pandemic, injunctions where there is prima facie urgency, and preservation orders
      • Urgent matters that will continue to be heard by the Court of Queen’s Bench include receivership/CCAA stay extensions, Anton Piller or Mareva-type injunctions, and freezing orders
      • The filing process is unaffected, and filings continue to be accepted in person or by fax

https://www.lawsociety.ab.ca/about-us/key-initiatives/covid-19-updates/

Manitoba

  • Limitation periods and filing deadlines are unaffected

Court of Appeal

  • March 18: In-person filings continue to be accepted
    • Judges will take these exceptional circumstances into account when considering extensions
    • The Court will be flexible regarding the filing of documents with formal requirements, with counsel undertaking to file the originals respecting all formal requirements prior to the heading date
    • Counsel will be notified by phone of judgements ready for pickup at the registry office, and judgements will be sent to the parties by e-mail
  • March 16: All appeal and chamber matters, up to April 17, 2020, are adjourned indefinitely
    • The Court may hear urgent matters by teleconference; it may also hear appeal or chamber matters by writing upon consent of the parties

Court of Queen's Bench

  • March 23: New filings continue to be accepted by mail, courier, fax, e-mail, or in person via a secure drop box
  • March 17: All matters are adjourned indefinitely, but urgent or emergency matters continue to be heard, on a case-by-case basis
  • March 16: Limited operations until April 17, 2020

http://www.manitobacourts.mb.ca/news/covid-19-updates-and-notices/

Saskatchewan

  • Limitation periods and filing deadlines are unaffected

Court of Appeal

  • March 23: All appeals and applications to be heard by a three-judge panel, as well as all chambers matters to be heard by a single judge, will be heard by teleconference or videoconference
    • Parties may consent to have their matter proceed in writing or to have it adjourned indefinitely
    • Filings of documents to the registry office are accepted by regular mail, email, fax, or through the web portal, but they will no longer be accepted in person
  • March 17: All lawyers and self-represented individuals slated to appear before the Court may make their submissions by telephone

Court of Queen's Bench

  • March 19: Limited operations until further notice
    • Regarding hearings, only urgent and emergency matters will be heard by the Court, and most of those will be heard by phone or video conference; All civil trials currently scheduled to commence prior to May 31, 2020, and that have not yet commenced, are adjourned indefinitely
    • Chambers will be held by telephone on the regularly scheduled civil chambers dates for each respective judicial centre, to deal with urgent matters; Non-urgent matters scheduled for chambers are adjourned indefinitely
    • All pre-trial conferences are cancelled and must be re-scheduled
    • Filings continue to be accepted in person via a drop box, and they will also be accepted by mail; documents which cannot conveniently be dropped off in person or sent by mail will also be accepted by e-mail

https://sasklawcourts.ca/index.php/home/court-of-appeal/covid-19

https://sasklawcourts.ca/index.php/home/court-of-queen-s-bench/covid-19-update

Nova Scotia

  • Counsel in all matters are encouraged to cooperate to determine what matters can be dealt with through alternative measures, such as telephone and video conferencing
  • Limitation periods are unaffected; certain filing deadlines are affected, as explained below

Court of Appeal

  • March 27: All hearings scheduled for the May/June 2020 term are adjourned and will be rescheduled for the fall, and all filing deadlines related to those matters are suspended
    • The time periods for commencing appeals under Rules 90.13(3) and 90.14 of the Civil Procedure Rules will be suspended for the period from March 26 to June 26, 2020; this does not apply to appeal periods set out in other legislation
    • The deadline for making the motion for date and directions in Rule 90.25(2) will also be suspended for this period
  • March 16: All appeals scheduled for the March/April term will be adjourned; The Court will review the docket for exceptional matters that must proceed and will contact the parties
    • All Chambers matters will proceed as scheduled and will be heard by telephone only
    • Regarding filings, parties may make a written request to the Registrar to file documents electronically

Supreme Court

  • March 28: Filing deadlines outlined in the Civil Procedure Rules, for civil and family matters in the General Division only, are suspended until further notice; the suspension period is retroactive to March 19, 2020
    • Filing deadlines established by legislation, such as the deadlines contained in the Limitations of Action Act or the Probate Act, are unaffected
  • March 26: All filings must be made by e-mail or fax, and physical copies will no longer be accepted
    • Only urgent or essential documents should be filed
    • Unsworn affidavits will be accepted, with a sworn copy to be filed at the hearing
  • March 19: Limited operations until further notice
    • Any trials that are currently underway will continue until they conclude
    • All other proceedings will be limited to those deemed urgent or essential Judges will consider alternative measures for the remote hearing of urgent or essential matters

https://www.courts.ns.ca/News_of_Courts/COVID19_Preventative_Measures.htm

New Brunswick

  • March 15: Access to the courthouses in New Brunswick is restricted to only those persons who are necessary to the proceedings before the courts
  • Limitation periods and filing deadlines are unaffected

Court of Appeal

  • March 15: All motions and status hearings will be heard as scheduled, but by telephone conference; if this measure is not possible, hearings will be adjourned
    • Any party claiming that the hearing of an appeal is urgent will be allowed to make a request to be heard by a single judge to determine if the appeal is indeed urgent

Court of Queen's Bench

  • March 15: Limited operations until further notice, and all non-essential or non-urgent matters are being adjourned indefinitely
    • Matters that may be considered in Chambers will continue uninterrupted
    • In-person filings continue to be accepted, but the ability to file documents electronically is an option being considered urgently and further directives will follow

https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/NB-Courts.pdf

Newfoundland and Labrador

  • Limitation periods and filing deadlines are unaffected
  • Service of documents on Her Majesty in right of Newfoundland and Labrador can be arranged by contacting either Philip Osborne at [email protected] or Justin Mellor at [email protected]

Court of Appeal

  • March 26: Unsworn affidavits will be accepted, with a sworn original to be filed as soon as possible
  • March 18: Limited operations until further notice
    • New filings will only be accepted by fax or e-mail, with the payment of filing fees postponed until further notice
    • All appeals are adjourned indefinitely, but urgent matters will continue to be heard remotely, on a case-by-case basis
    • All scheduled applications will be heard by teleconference or videoconference, and new applications will only be heard remotely if they are urgent
    • Service of documents is unaffected, but parties are encouraged to agree on alternative means of service or contact the Court for further direction

Supreme Court

  • March 20: The Court will be flexible regarding the filing of sworn documents
    • The Court will accept filings of where a statutory deadline or limitation period is imminent
  • March 18: Limited operations until further notice
    • All hearings are adjourned indefinitely, but urgent matters will continue to be heard in writing or by teleconference or videoconference, on a case-by-case basis
    • Exceptionally, in-person hearings may be held if the Court determines that they are necessary
    • For all non-urgent matters, the Court will grant extensions of time for filing when normal operations resume
    • Only urgent filings are accepted, by e-mail or fax, with the payment of filing fees postponed until further notice
    • Original documents may be required before an order is granted

https://lsnl.ca/covid-19-updates/

Prince Edward Island

  • Limitation periods and filing deadlines are unaffected

Court of Appeal and Supreme Court

  • March 24: Only urgent filings, including those necessary to meet a deadline, continue to be accepted in person via a secure drop box; all other filings must be made by e-mail
  • March 20: While new in-person filings continue to be accepted, the Courts will also temporarily accept filings be e-mail or fax, with originals to be filed later
    • Documents filed by e-mail or fax may be served to the other parties as a photocopy or printed copy, using regular service procedures
  • March 18: Limited operations until further notice
    • All non-essential matters are adjourned indefinitely, but urgent or emergency matters will continue to be heard in a manner determined by the Courts

https://www.courts.pe.ca/court-of-appeal (see "Resources" in the lower right-hand corner of the page)

https://www.courts.pe.ca/supreme-court (see "Resources" in the lower right-hand corner of the page)

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Please monitor our website for additional updates to follow as the situation evolves.

Stay safe everyone.

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

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