COVID-19 & THE PRACTICE OF LAW

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WONDERING WHAT TO EXPECT WHEN VISITING A COURTHOUSE? 

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  As you know, many of MAG services are considered essential in Ontario. For those continuing to attend MAG facilities, the ministry has put a suite of overlapping preventative measures in place within their facilities which include (but are not limited to): entrance screening, physical distancing, enhanced cleaning protocols, and appropriate masking (which could include wearing PPE where necessary).

The Chief Medical Officer of Health’s Office continues to assure the Recovery Secretariat that the measures and protocols in place within the courts are among the best in Ontario. They have also confirmed that, when properly adhered to, their measures are effective at mitigating the spread of all known COVID-19 variants. 

It is therefore critical that you continue to diligently follow all of the protocols in place within MAG facilities. And, importantly, if you’re feeling sick – stay home. 

On April 8th, the Superior Court of Justice and Ontario Court of Justice also issued Notices to the Profession with further information and guidance regarding the pandemic and court operations. 

Finally, you are reminded that the planning and distribution of vaccines in Ontario remains fluid and is expected to evolve over the coming weeks and months. For example, increased access to vaccines has recently been announced in some locations. To make sure you have the most up-to-date information about your vaccine eligibility, you are encouraged to monitor your local Public Health Unit for details about when and how to get a vaccine.  Everyone is encouraged to access their vaccination at the earliest opportunity that is offered to them, by their local public health unit.  

The government has released details of its Phase 2 COVID-19 vaccination distribution plan which will start on March 15, 2021.  For those interested, you may wish to review the announcement and information on the population eligible for Phase 2 COVID-19 vaccination.

 Vaccination Sector Information – courts and justice system workers (including probation and parole) - MAG Recovery Secretariat (March 31)

The ministry has encouraged their staff to monitor the Getting a COVID-19 vaccine in Ontario webpage and to access their local public health unit websites for details about vaccination rollout. 

You are also encouraged to continue to monitor the Getting a COVID-19 vaccine in Ontario webpage and to connect with your local public health unit for details about when and how you, or your staff, could get a vaccine. 

Also, the Ministry of Health (MOH) recently issued a document called COVID-19: Guidance for Prioritization of Phase 2 Populations for COVID-19 Vaccination which provides additional clarity that we wanted to share, to help you communicate with your staff/members, and make determinations for your own organizations. The document provides helpful information about roles and responsibilities, approach to sequencing of vaccine distribution, and the province’s ethical framework. 

If you have any questions please email: MAGRecoverySecretariat@ontario.ca. 

MAG GUIDEBOOK-PRECAUTIONARY MEASURES FOR REOPENING COURTS

Version 6 of the Guidebook is available on Ontario.ca in both English and French

(the Guidebook is a living document and may continue to be updated over time)

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CASELINES

 SCJ Revised Notice to the Profession RE: use of CaseLines

CaseLines Hearings – Tips for the Bar

Recording of the November 18, 2020 CaseLines Information Session (1 hour): https://vimeo.com/480936668

CASELINES FAQ

On June 19, 2020, Ontario's Recovery Secretariat hosted a virtual town halls on COVID-19 safety and the reopening of Ontario's Courts. 

The town hall offered an overview of MAG's phased, gradual and responsive plan for court recovery, which aligns with the Framework for Reopening Our Province.

Here are materials from the town hall and information session:

• Town hall presentation
• COVID-19 safety seminar presentations from Dr. Michelle Murti
• COVID-19 safety seminar presentations from Ron Kelusky
• Overview of the Public Services Health and Safety Association’s role in court recovery

CURRENT WEEKLY UPDATE: APRIL 14, 2021

PAST WEEKLY UPDATES

CLICK HERE FOR ALL COURT NOTICES

RESOURCES FOR YOUR PRACTICE

INFORMATION FOR REAL ESTATE LAWYERS

INFORMATION ABOUT LEGAL AID

CRIMINAL LAW UPDATES

FAMILY LAW UPDATES

RETURN TO WORK PLAYBOOK

LSO COVID-19 RESPONSE NOTICES

LSO FAMILY LAW REFERRAL LINE

 SMALL ESTATE FORMS

Forms for Small Estates are posted on the Ontario Court Forms site here: Rules of Civil Procedure Forms | Ontario Court Services (ontariocourtforms.on.ca).  There is another section on the court forms site that includes pre-formatted and fillable estates forms (Rules of Civil Procedure Forms / Pre-formatted, Fillable Estates Forms | Ontario Court Services (ontariocourtforms.on.ca). 

VISIT OUR SPECIAL COVID-19 PRACTICE RESOURCE SECTION!

Contains a selection of online tools and resources to help get you through this epidemic.  

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On April 6, 2021, a regulation was filed to amend court rules and forms for civil proceedings in the Superior Court of Justice: O. Reg. 248/21, amending the Rules of Civil Procedure.

The administrative amendments to the Rules of Civil Procedure achieve consistency with recent civil rule and form amendments establishing electronic processes in civil court proceedings (O. Reg. 689/20), as well as amendments establishing a simplified probate process for small estates (O. Reg. 111/21). 

The amending regulation also makes administrative amendments to introduce consistent French-language terminology and correct discrepancies between the English and French versions of various rules and forms.  

The regulation amends 23 rules and 43 forms. A summary of the regulation is available on Ontario’s Regulatory Registry at: 21-MAG010

The amendments are effective April 6, 2021. 

Notice re: Authentication of electronic civil and estate court documents (Feb 10)

As of January 1, 2021, civil and estates court staff can:

1. electronically issue any court document that requires issuance in a civil proceeding in the Superior Court of Justice and Divisional Court, pursuant to rule 4.05 (1.1) of the Rules of Civil Procedure. Documents that are eligible for electronic issuance include court orders, applications and Certificates of Appointment of Estate Trustee.

2. electronically certify any civil and estates court document that requires certification, pursuant to rule 4.03(2) of the Rules of Civil Procedure.

MAG has filed two regs to establish a small estate process in Ont. (both effective April 1):

1. O. Reg. 110/21, made under the Estates Act establishing a small estate value of up to $150,000.

2. O. Reg. 111/21, made under the Courts of Justice Act amending the Rules of Civil Procedure (RCP) to establish a small estate process.

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 NEW!!  Online tool for searching information about criminal and civil matters in the SCJ

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FULL LIST OF ESSENTIAL SERVICES

On May 8th, 2020, the Attorney General issued a Press Release stating that Ontario will not proceed with the Halton Region Consolidated Courthouse construction project.   You can read the announcement here.

Letter to the AG from the Halton Law Association requesting that the government reconsider their decision.

On February 16, 2021, the Attorney General introduced Bill 245 - Accelerating Access to Justice Act, 2021.  

According to the Ministry's website, the Bill, if passed, would:

· Help fill judicial vacancies faster so people will be able to have their matters heard by a judge more quickly and with fewer delays. These changes would maintain current legislated qualifications to become a judge, as announced in February 2020, and reflect feedback received from justice partners and lawyers. Changes will also support broader efforts to encourage more lawyers to apply by moving the applications process online.

· Permanently allow the virtual witnessing of wills and powers of attorney to make it easier for people to get these important affairs in order, without the limitations of travelling to access these services in-person.

· Promote the interests of children by giving them a greater voice in the court process, and better focus resources of the Office of the Children's Lawyer.

· Increase access to justice in French by expanding and guaranteeing the ability of Francophones to file documents in French at all Ontario courthouses and for all matters, including civil and family law.

The province is also proposing to consolidate Ontario's Land Tribunals by merging the Local Planning Appeal Tribunal, Environmental Review Tribunal, Board of Negotiation, Conservation Review Board and the Mining and Lands Tribunal into a new single tribunal called the Ontario Land Tribunal. The new Ontario Land Tribunal would make the land dispute resolution process more efficient by creating a single forum to resolve disputes faster by eliminating unnecessary overlap between cases.

The Bill can be found here.

Explanatory Note can be found here.

A Backgrounder can be found here.

Ontario's Attorney General is considering making amendments to the Courts of Justice Act regarding the availability of civil juries.

Read FOLA's Submission here

Simcoe County Law Association's Submission

Middlesex Law Association's Submission

Toronto Lawyers' Association

Carleton County Law Association's Submission

* Accompanying docs for CCLA submission

Report on the Use of Jury Trials in Civil Cases

Report to the Canadian Judicial Council on Jury Selection in Ontario

The Advocates' Society's Submission

Canadian Defence Lawyers Submission

Ontario Trial Lawyers Assn. Submission

BACKGROUND

Currently, section 108 of the Courts of Justice Act permits a jury of six persons to assess damages and/or decide issues of fact in civil actions, except where prohibited by statute. Certain other statutes provide a judge with authority to direct that an action be brought, or an issue be tried, with a jury in a trial under the act, or set out the responsibilities of the jury where a jury trial is held under the act. (See Appendix A for further details.) 

The AG is considering an amendment to the Courts of Justice Act to eliminate some or all civil jury trials. To that end, Minster Downey is seeking your views on the following related questions: 

1. Should civil juries be eliminated altogether? or 

2. If civil jury trials were to be eliminated, are there certain action types that should be exempt? 

In summary, the legislative amendments made to the above two acts now make it possible for the: commissioning of a document to be remote and virtual; and notarization of a document to be remote, virtual, and notarized by a paralegal. These changes echo a similar directive issued by the Law Society of Ontario in March and are permanent as of May 12th, 2020. 

Notaries Public and Commissioners for Taking Affidavits - MAG Consultation

READ FOLA'S SUBMISSION HERE (JUNE 2020)

CCLA SUBMISSION (JUNE 2020)

OTHER ACTS AFFECTED 

Schedule 1

Alternative Filing Methods for Business Act, 2020

Schedule 2

Business Corporations Act

Schedule 3

Business Names Act

Schedule 4

Commissioners for Taking Affidavits Act

Schedule 5

Condominium Act, 1998

Schedule 6

Co-operative Corporations Act

Schedule 7

Corporations Act

Schedule 8

Corporations Information Act

Schedule 9

Education Act

Schedule 10

Extra-Provincial Corporations Act

Schedule 11

Limited Partnerships Act

Schedule 12

Métis Nation of Ontario Secretariat Act, 2015

Schedule 13

Notaries Act

Schedule 14

Not-for-Profit Corporations Act, 2010

Schedule 15

Succession Law Reform Act

On September 24, 2020, the Attorney General introduced Bill 207, the Moving Ontario Family Law Forward Act, 2020.

The bill aims to relieve stress, strain, and burden for Ontarians by providing more clarity for families involved in family law matters. These changes will allow parents and guardians to spend less time on paperwork and court appearances and more time caring for their children and focused on their future.

Bill 197 – The COVID-19 Economic Recovery Act, 2020. 

Among a raft of other things, the PC’s new 176-page omnibus Bill 197: 

• Overhauls how justices of the peace are appointed, such as allowing the AG to reject candidates vetted and suggested by an advisory committee and requiring a new short list (Schedule 8);
• Gives the municipal affairs minister of the day "enhanced" zoning order-making powers under the Planning Act and regulation-making authority under the Building Code Act (Schedule 17);
• Establishes the “Provincial Land and Development Facilitator” who will advise the municipal affairs minister on land use and growth, and make recommendations (Schedule 10);
• Changes to the Marriage Act (Schedule 9); and
• Changes to the provincial Offenses Act (Schedule 18);  

 SMARTER & STRONGER JUSTICE ACT 

On July 8, 2020, Bill 161, the Smarter and Stronger Justice Act 2019  received Royal Assent.  - a Bill that proposes over 20 Statutory and Regulatory changes.

Read the TLA's submission regarding the Smarter and Stronger Justice 

FOLA had concerns with the changes to the Notaries Act and to the Commissioners for Taking Affidavits Act but due to COVID-19 and the passing of Bill 190, these concerns were expressed in meetings with MAG in relation to that Act (which superseded Bill 161 with respect to Notaries and Commissioning).

On October 1st, the following amendments will come into effect (having been passed as part of the Smarter and Stronger Justice Act, 2020, which received Royal Assent on July 8, 2020. 

The amendments to the CPA will, subject to specified exceptions, only apply to class proceedings commenced on or after October 1, 2020.

The CPA, as amended, can be accessed at the following link: https://www.ontario.ca/laws/statute/92c06

Regulations and Regulatory Amendments

The following new regulations and regulatory amendments have been made to support the amendments to the CPA:

• A new General regulation under the CPA, which includes:
  • Details regarding the registration of proceedings commenced under the CPA; and
  • Technical rules related to the timing of the commencement of a proposed class proceeding that includes a claim under s. 138.3 of the Securities Act (Liability for secondary market disclosure);
• A new Subrogated Claims regulation under the CPA, containing details necessary to implement s.27.3 of the CPA, as amended;
• Consequential amendments to O. Reg. 771/92 (Class Proceedings) under the Law Society Act; and 
• Minor amendments to R.R.O. 1990, Reg. 194 (Rules of Civil Procedure) under the Courts of Justice Act.

On February 27, 2020, Attorney General Doug Downey announced that he plans to change appointment processes for the JAAC and the JPAAC. 

MEDIA, FOLA & JAAC/JPAAC AMENDMENTS

March 2, 2020 letter from FOLA to the Attorney General Doug Downey following a JAAC/JPAAC meeting at MAG.  And here is a letter from The Advocates’ Society. 

February 28, 2020 article in the Globe & Mail quoting FOLA Chair Michael Winward expressing concerns over the amendments.

The Attorney General first started discussing possible amendments to judicial appointments at FOLA's November Plenary.  Below are some relevant documents and media clippings.

SPEECH BY HON. DOUG DOWNEY, ATTORNEY GENERAL

LETTER TO THE AG BY FOLA CHAIR MIKE WINWARD FOLLOWING THE TALK

PAST MEDIA COVERAGE

Globe & Mail, Toronto Star affiliate QP Briefing (an inside Queen’s Park daily), the Law Times,  Lawyers Daily, and CBC Radio

On January 1, 2020, important civil justice reforms came into effect. The reforms were introduced through: 

1. A regulation filed on October 23, 2019 to increase the Small Claims Court monetary jurisdiction (O. Reg 343-19   amending O. Reg. 626/00 pursuant to the Courts of Justice Act, s.53(1)).
2. A regulation filed on October 23, 2019 to amend civil court rules relating to Simplified Procedure (O. Reg 344-19  amending the Rules of Civil Procedure pursuant to the Courts of Justice Act).
3. Bill 100, the Protecting what Matters Most Act (Budget Measures) 2019, which passed on May 29, 2019 (amends s.108 of the Courts of Justice Act by eliminating civil jury trials in Simplified Procedure actions)

Please also note that a regulation filed on October 23, 2019 amends the Rules of the Small Claims Court court forms relating to garnishment proceedings (O. Reg 345-19). 

Amendments to the Courts of Justice Act and its regulations:

• · Increased the maximum amount of a claim in Small Claims Court from $25,000 to $35,000.
• · Increased the minimum amount of a claim that may be appealed to the Divisional Court from $2,500 to $3,500.
• Expanded access to the Simplified Procedure in civil court to simplify complex processes and reduce the legal costs associated with cases involving modest values :
• People and businesses with civil court claims up to $200,000 will be able to use the Simplified Procedure process, up from the previous claim amount of $100,000.
• Improve efficiency in the Divisional Court by clarifying court document filing requirements.
• Limit factums (documents) on motions for leave to appeal to facts, issues, statements of law, and authorities that are relevant to a ground on which leave to appeal may be granted.
• Limit motion records to documents which are referred to in the party’s factum and which are relevant to a ground on which leave to appeal may be granted.

Amendments to a regulation under the Law Society Act relate to the Law Society Tribunal processes of the Hearing Division:

· For certain types of motions, eliminating the requirement for the same members who will hear the merits of the proceeding to also hear the motion.

· Allow a single member panel, rather than a three-member panel, to exclude the public and/or witnesses from all or part of a hearing.

MAG has filed two regulations to establish a small estate process in Ontario. (both effective April 1):

1. O. Reg. 110/21, made under the Estates Act establishing a small estate value of up to $150,000.

2. O. Reg. 111/21, made under the Courts of Justice Act amending the Rules of Civil Procedure (RCP) to establish a small estate process.

The regulations are described in Ontario Regulatory Registry notices at: 21-MAG005 and 21-MAG006.

The RCP amendment regulation establishes a simplified probate process for estates valued at up to $150,000 as an alternative to the existing probate system. 

New rule 74.1 allows for a court issued Small Estate Certificate with the equivalent legal effect to a Certificate of Appointment of Estate Trustee, except that authority is limited to the estate assets specifically listed in the application. The rule specifies the requirements for applications for a Small Estate Certificate, including the requirements for filing, for notice to persons entitled to share in the estate and for applying to seek authority for estate assets that are discovered after the issuance of a Small Estate Certificate. 

The RCP amendments are expected to reduce costs and simplify the process to apply for probate of small estates through:

- a new, simpler application form;

- the removal of certain requirements in the existing probate process (for example, it is not necessary to obtain a commissioned affidavit of service); and 

- estate court user guidance on the process to apply for probate of a small estate. 

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The simplified rules in the RCP and the Estates Act amendments also allow for expeditious processing by court staff by: 

• reducing  the number of documents that are required to be reviewed;
• allowing missing information and documentation to be identified quickly through a new form to request filing of documents and the streamlined format of the application forms; and
• removing the need for a bond for small estates, with a few exceptions, thereby reducing the volume of motions to dispense with a bond.

Please note: The small estates limit of $150,000 will apply for the purpose of determining eligibility to apply to the court for a Small Estate Certificate. It does not impact the Estate Administration Tax Act exemption limit of $50,000. 

Additional information is available in ENGLISH 

and FRENCH 

Amendments to the Solicitors Act in regards to contingency fees have been approved to come into force on July 1, 2021.  

 Order In Council regarding the Solicitors Act 

In addition, there is a new regulation on contingency fees, which you can find on elaws

The standard form agreement can be found on the Law Society website.

English: https://lso.ca/about-lso/initiatives/contingency-fee-reform

French: https://lso.ca/a-propos-du-barreau/initiatives/reforme-des-honoraires-conditionnels

Following an EY Canada line-by-line review of Government Expenditures, the Ontario Government identified opportunities to move toward full cost recovery for court and transactional services.

After a public and stakeholder consultation period, the new fees were introduced in April 2019.  

NEW GUIDE TO FEE SCHEDULE

On March 26, 2019, Doug Downey, MPP (Barrie—Springwater—Oro-Medonte) and then Parliamentary Assistant to the Minister of Finance (currently AG), filed his Private Member's Bill for first reading in the Legislature.  Bill 88 proposed several changes to the Planning Act, which FOLA enthusiastically supported.  

Bill 88, Planning Amendment Act, 2019

FOLA's endorsement letter

FOLA's endorsement letter of LawPro's support of this Bill

While the Bill died following Doug's appointment to AG, FOLA is hopeful that it will be reintroduced as a Government Bill in the near future.

Beginning January 1, 2020, the maximum claim filed in Small Claims Court will increase to $35,000. Currently, all claims over $25,000 must proceed in the Superior Court of Justice — one of the busiest courts in Canada — where litigation can take years and can involve expensive legal representation. 

Read Press Release

 On December 4th, Ontario's Auditor General released a damning report highlighting the slow pace of modernization and how that is contributing to growing delays in Ontario courts and creating serious deficiencies in transparency.  

Also problematic, was the fact that the Auditor General’s Office was blocked from fully examining the reasons for those delays. 

The Auditor General examined three aspects of Ontario’s court system—Court Operations, the Criminal Court System, and Family Court Services and offered some welcome conclusions.