December 7th, 2020
When it comes to the courts and COVID-19, necessity has definitely been the mother of invention. Same thing for litigation practice generally.
Over the past nine months the pandemic has forced Ontario courts (and courts across the country) to modernize and implement technology for remote hearings and electronic filing of documents at an unprecedented pace. It was recently announced that more than 50,000 virtual or remote court hearings have been held over the past 9 months across Ontario. Beyond court hearings, litigators have similarly learned to do everything from initial client meetings to discoveries and mediations using remote videoconferencing technology. Most recently, at the end of November the Ontario government has approved sweeping changes to the Rules of Civil Procedure that, when they come into force on January 1st, will modernize the courts of Ontario and likely make many of these changes permanent.
Here are a few highlights of the changes passed in Ontario Reg. 698/20, the full text of which can be found here:
NO MORE FAXES!: It might come as a surprise to many that under the Rules fax machines have, until now, been a primary method of service while electronic mail is only permitted where parties consent or the court makes an order allowing for email service. Under the amendments, Rule 16.05(1)(d) providing for service on a lawyer of record by fax has been revoked and parties no longer need permission to serve by email. Lawyers will no longer need to include an unused fax number on pleadings. Finally, the fax machine joined the pager and the Palm Pilot in the legal dustbin of history.
Method(s) of attendance at hearings: Rule 1.08(1) has been amended to require any party seeking a hearing or other step in a proceeding to specify by which method the party wishes to proceed – in person, by telephone conference, or by video conference. It is then up to the other party to object to the chosen method of hearing or it will proceed that way. Case conferences are, under Rule 1.08(3), always to be held by telephone unless the Court orders otherwise.
Electronic filing of documents: Rule 4.05.3 is being implemented specifically to deal with CaseLines – the new software authorized by the Ministry of the Attorney General for the electronic filing of pleadings and other documents required to be submitted to the court. For many documents, such as transcripts in courts other than the Court of Appeal, no paper copies need to be filed at all.
Electronic signatures: Rule 4.01.1(1) has been amended specifically to provide for the use of electronic signatures by judges and other court officers.
Remote commissioning of affidavits: Rule 4.06(1)(e), and Commissioner for Taking Affidavits Act, RSO 1990, c C.17 have been amended to expressly recognize and provide for the remote commissioning of affidavits.
Electronic issuing and entering of orders: Rules 59.04(2) and 59.05(2) now allow for the issuance and entry of orders electronically by the Registrar, which are then emailed to the parties or their lawyers. No more lining up or sending process servers to line up in the court office waiting for orders!
Once the inevitable confusion subsides, these Rule changes (and others not covered above) are likely to be a positive development for the administration of justice in Ontario. More significantly, these Rule changes are just the tip of the iceberg, as litigators across Ontario have learned to do all steps from initial client meetings to settlement or judgment remotely and (usually) more efficiently by using technology.