Written By: Joseph A. Cescon and Brandon Pedersen, Student-at-Law
On January 1, 2021, significant changes to the Rules of Civil Procedure will take effect, making permanent many of the temporary measures which the Court put in place to accommodate the issues and challenges associated with the COVID-19 pandemic. The amendments modernize the court system in Ontario and allow for a more convenient and accessible justice system. Essentially, these changes signal the Court’s willingness to embrace the virtual world and advance e-litigation by leaps and bounds.
Changes to the Rules allow for the service of documents by email, other than originating processes, without the need for the parties’ consent or court order. The Rules will be amended to remove reference to service or delivery by “fax”, and lawyers will no longer be required to put their fax number on court documents. Why fax has remained in common practice for this long we cannot say.
Further, all documents filed with the court must now contain the email addresses for parties or their representatives to ensure that hearing information (such as Zoom log-in details or CaseLines invitations) can be sent to the necessary parties. If filing is done electronically, only one copy of a motion record, factum, or transcript needs to be filed.
Virtual Commissioning and Electronic Issuing of Documents
The Rules now permit the authentication of documents without the commissioner and deponent being in the physical presence of each other.
New subrules permit any document, including originating processes, to be issued electronically.
Virtual Hearings and CaseLines
Parties seeking a hearing are now provided the option to have it heard in person, by telephone conference, or by video conference. Objections are to be dealt with by case conference (via telephone), and unreasonable objections to a proposed method of hearing may be considered in awarding costs. This also applies to mandatory mediations and oral examinations for discovery.
The Rules have been amended to require the use of CaseLines, the new official electronic document sharing software authorized by the Ministry of the Attorney General.
Further, counsel can receive Orders and Judgments electronically, discontinuing the need to wait for a physical copy at the courthouse. The registrar must enter the issued order by saving a copy of it in electronic format. The new rule allows for the electronic issuance of orders. An issued order can be provided by email, through CaseLines, or by good old fashion in-person pickup.
- The new Rule 1.08 allows a party seeking a hearing or other step in a proceeding to specify the method of the hearing or step (in person, by telephone conference, or by video conference). This doesn’t apply with respect to proceedings in the Court of Appeal, which may be heard as directed by the court, and case conferences, which shall be held by telephone conference unless the court specifies otherwise. Rule 1.08 applies with modifications to mediations and oral examinations for discovery. Objections to a proposed method must be delivered within the earlier of i) 10 days of being served, or ii) 7 days before the hearing or step, and are dealt with through a case conference, where the court takes into consideration factors such as availability of telephone or video conference facilities, the ability to make findings of a witness’ credibility, and the balance of convenience between the parties. The new subrule 57.01 (1) provides that cost consequences may be incurred if a party unreasonably objects to a proceeding by telephone or video conference.
- The new rule 4.01 indicates that the text and character standards for paper documents apply to electronic documents. The new rule 4.01.1 permits electronic signatures on documents to be signed by the court, a registrar, a judge, or an officer.
- Clauses 4.02 (3) (f)-(h) are amended to remove any reference to fax numbers and substituting e-mail addresses.
- The new subrule 4.03 (2) allows the registrar to provide a certified copy of court documents in electronic format.
- The new subrule 4.05 (1.1) permits any document to be issued electronically, with the date of electronic issuance is the date indicated on the document by the registrar or authorized software.
- The amended rule 4.05.3 adds specifications about submitting (not filing) documents to the court through CaseLines, the authorized case management software. Filing documents with the court is still required, albeit electronically. CaseLines will act as an electronic alternative to personally delivering materials to the court on the date of a hearing.
- Clause 4.06 (1) (e) now allows for the electronic commissioning of affidavits in accordance with the Commissioners for Taking Affidavits Act.
- Rule 4.09 is amended, adding that transcripts are to be provided in electronic format unless the court orders otherwise.
- The Rule 4.12 allows the court or registrar to provide documents and to communicate by e-mail.
- Subclause 16.01 (4) (b) (iv) and Clause 16.05 (1) (f) are amended to allow for the service of documents, other than originating processes, by e-mail without the need for the parties’ consent or court order.
- Subrule 16.09 (6) is revoked and no longer requires parties to prove service by email with a certificate of service.
- Rule 16.06.2 is amended by adding details on when service of a document by courier becomes effective, which is the second day following the day the courier was given the document, or, if the second day is a holiday, on the next day that is not a holiday.
- Subrule 37.12.1 (4) is amended to allow a moving party to propose that a motion be heard in writing without the attendance of parties, even if the issues of fact and law are complex.
- Subrule 51.01 (c) is amended no longer defining the authenticity of a document by reference to a copy of a telegram. The clause adds that a copy of an email is an authentic document.
- Subrule 59.02 (2) is amended to provide that if an endorsement of an order is made on a separate document, that document may be in electronic format.
- The new subrules in 59.03 make changes to the preparation, approval, and form of an order.
- The new rule 59.04 allows for the electronic issuance of orders. An issued order can be provided by email, through CaseLines, or by a pickup.
- The new rule 59.05 makes changes to how orders are entered and filed, which requires the registrar to enter the issued order by saving a copy of it in electronic format.
- The new subrules 61.03 (2.1) and 61.03 (3.1) require that if the filing is done electronically, only one copy of a motion record, factum, or transcript needs to be filed.
- Several subrules in rules 16, 37, and 38, which deal with service and delivery by fax, are amended or revoked.
- Several subrules are amended to remove reference to the “place of hearing of motions” and substituting with “where motions to be brought”.
- Several rules no longer assume that participation in person is required.
For a complete list of changes, please review Ontario Regulation 689/20 made under the Courts of Justice Act.