Court File and Parties
COURT FILE NO.: CV-20-TBD DATE: 20200402 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jinning Wang, Applicant
– and –
2426483 Ontario Limited, Respondent
BEFORE: F.L. Myers J.
COUNSEL: Peter Neufeld, for the Applicant Stephen C. Nadler, for the Respondent
READ: April 2, 2020
Endorsement
[1] An issue has arisen multiple times under the Notice to the Profession issued by the Chief Justice of the Ontario Superior Court of Justice dated March 15, 2020. It is necessary to provide clarity in order to protect the court’s ability to offer services in this urgent time.
[2] By letter dated April 2, 2020, counsel for the applicant sent a draft application record to the court in a proceeding to be commenced. The cover letter and draft application material raised concerns about the upcoming closing of a pending real estate transaction and the possibility of a residential eviction.
[3] Knowing of the Chief Justice’s Order dated March 19, 2020 suspending residential evictions in Ontario, the eviction threat, while colour, is not a significant concern at this time.
[4] The issue was whether under the Notice to the Profession, the proposed application was one that ought to be scheduled for hearing now. In light of the global COVID-19 pandemic, the Chief Justice gave notice to the public of the need to curtail normal court services and of the terms under which the court would endeavour to provide urgent services. For civil lawsuits, the Notice to the Profession provides for the hearing of:
The following CIVIL and COMMERCIAL LIST (Toronto) matters: a. urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing. b. Outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.
Any other matter that the Court deems necessary and appropriate to hear on an urgent basis. The Bar and the public are advised that these matters will be strictly limited.
[5] In a handwritten Endorsement dated April 2, 2020, I scheduled this proposed matter for a case conference as follows:
This matter meets the urgency standard in the Notice to the Profession dated March 15 2020. As delegate of the RSJ, I have assigned Gans J. to hear it. The terms set out in schedule “A” apply. [Schedule “A” to that endorsement is appended to this endorsement for completeness.]
[6] Approximately one hour after the endorsement had been emailed to counsel for the parties, the court received a letter from the respondent’s counsel containing submissions as to why the matter was not urgent and should not be scheduled for hearing. The letter referred to the moratorium on evictions and then argued about the lack of merit in the proposed proceeding. In doing so, counsel confirmed the applicant’s concern that the respondent would not voluntarily agree to refrain from selling the property while the parties work through their issues.
[7] The court is now routinely receiving submissions on the merits and ostensibly on the issue of “urgency” both before and even after the court has scheduled a matter for hearing.
[8] It seems that there may be a misunderstanding of the nature of the scheduling process.
[9] The Notice to the Profession is not a statute passed by the Legislature of Ontario. It is a notice to the public that,
“[t]o protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice (SCJ) is suspending all regular operations, effective Tuesday, March 17, 2020, and until further notice.”
[10] The Notice to the Profession asked everyone – litigants and lawyers alike – to recognize the exceptional times and to try to cooperate to avoid the need for court proceedings where possible. It provides:
During this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters.
[11] The Notice to the Profession provides guidelines for those who nevertheless need to access the courts while they are not in full operation. People needed to be told the kinds of matters that could be accommodated, the types of materials that they should file, and the email addresses to contact to reach court personnel. This is all important information for the purposes of explaining to the public and the legal profession the processes put in place to maintain operations by the extraordinary efforts of the Superior Court of Justice.
[12] However, none of this affects the court’s jurisdiction or the applicable rules of law. All court proceedings continue although only a very few are being scheduled for hearing at this time. Scheduling is an administrative function of the court. Normally, in the civil division in Toronto, hearings are scheduled by administrators over the telephone or by email and by judges in Civil Practice Court. Many factors go into scheduling that are not the subject of discussion with or among the litigants. The availability of judges for the type of hearing proposed, the availability of courtrooms, of staff, and numerous other administrative inputs may be brought to bear.
[13] Counsel may be invited to make submissions on the timing of a proposed hearing including whether there is a degree of urgency. Or not.
[14] But it is not a legal determination. There is no need or call for detailed submissions. There is no need for submissions on the merits of the proposed proceeding before and certainly not after the scheduling determination has been made.
[15] The court has very limited access to staff with full computer capabilities at present. Much back and forth about urgency, the merits, and parsing of the terms of the Notice of Profession are literally clogging up the Motion Coordinator’s email. This is not required. In the main it is not helpful. And it must stop.
[16] The court has jurisdiction to schedule and hear a proceeding that is brought before it. If a matter appears to be one that should be scheduled, a case conference is frequently convened. In that way, the presiding judge can quickly contact the parties and determine an appropriate schedule for the exchange of materials and hearing, if any.
[17] Submissions on the merits and emails arguing back and forth among counsel about urgency should not be sent to the court unless invited. Once a civil proceeding is booked in Toronto under the Notice to the Profession, there is no basis for further submissions to be delivered on the issue of urgency. Nor is the issue before the motion judge. Parties are always free to seek adjournments and appropriate scheduling terms before a judge presiding at a hearing. But they do not challenge the scheduling of the hearing itself. The court’s administrative process is not part of the lis or the dispute between the parties.
[18] It is not the intention of the Notice to the Profession that hearings will become bogged down by arguments over the applicability of its terms. It is not a new front for parties to battle. Once a hearing is scheduled by the triage judge(s) the Notice to the Profession is spent and the presiding judge will deal with the parties in the manner she or he determines is appropriate.
F.L. Myers J.
Date: April 2, 2020
Schedule "A" Terms
COURT FILE NO: CV-20-TBD
[1] An urgent case conference will be heard by Justice Gans on April 3, 2020 at 10:15 a.m.
[2] Service of motion materials in this contemplated proceeding may be made by email and shall be deemed effective on the date the email is sent or, if sent after 4:00 p.m., on the next day. No acknowledgement of receipt for email service is required for this motion.
[3] All evidence, motion records, and factums shall be filed with the court by delivering them as attachments to an email to the other parties and the Motions Coordinator in searchable PDF format. No Books of Authority or statutory materials are to be sent to the other parties or the Motions Coordinator. References to case law or statutory material shall be made by hyperlinks to contained in the parties’ factums or in a separate list of authorities.
[4] The case conference and all motion hearings will be held by telephone conference on a line arranged by the Motions Coordinator. The parties and the presiding judge may use videoconference technology (whether Skype or Microsoft Teams or otherwise) as may be available to them all and acceptable to the presiding judge.
[5] Upon the courthouse reopening to the public, each party shall file with the Civil Motions Office a copy of all the material he, she, or it delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefor.
[6] Counsel for the applicant is to file a written undertaking to commence this proceeding as soon as practicable under Ruel 37.17.
[7] This endorsement is effective when signed. No formal order is required.
[8] All parties are given notice that: a. The presiding judge may convene one or more case conferences and make all orders as he deems appropriate under Rule 50.13(6) to ensure the efficient hearing of the urgent motion that is the subject of this endorsement; and b. The outcome of the motion whether conveyed in typed or handwritten format is an order of the court enforceable by law from the moment it is released. Despite Rule 59.05 of the Rules of Civil Procedure, no formal order need be entered in respect of the court’s resolution of this matter except if required for use on an appeal or a motion for leave to appeal; c. All of the provisions of this order may be varied by the presiding judge on such terms and he or she deems just; and d. The hearing may be recorded for the court’s purposes.