In March 2020, the Superior Court of Justice (SCJ) suspended all in-person hearings in response to the COVID-19 pandemic. For the past two years, the Courts have continuously adapted to the reality posed by the pandemic by expanding virtual hearings and hybrid options through the use of technology. Virtual hearings, discoveries, and trials have now become a staple of civil litigation in Ontario. These much needed changes will now become a permanent part of litigation. On Thursday, March 17, 2022, Chief Justice Morawetz released a video announcement which outlined the Court’s guidelines for the mode of proceeding.

On April 19, 2022, the Guidelines To Determine Mode of Proceeding in Civil (the Guidelines) will come into effect. The Guidelines set out the presumptive methods of attendance for events in civil, family, criminal, and small claims court proceedings. While these Guidelines are not rules, they reflect the Court’s expectations for how steps should proceed, while allowing judges to retain discretion with respect to how matters are heard. In short, the Guidelines recognize that one size does not fit all, leaving sufficient flexibility for parties and the Court to determine the best mode of hearing, depending on the circumstances of each case.

The Guidelines also contain overarching principles to assist the Court in determining when to deviate from the presumptive modes of hearing. For example, instances of self-represented litigants or issues with access to technology may tip the scales in favour of one mode of hearing over another. While the Guidelines reflect an intended direction, the Courts will ultimately have final discretion to adapt the mode of hearing to the matter in front of them.

The following chart outlines events in civil proceedings and their presumptive modes of hearing. There are separate guidelines for criminal, family and small claims court matters.

The Guidelines look to strike a balance between expediency and access to justice through virtual hearings with the importance of in-person hearings for more substantive attendances. Litigators and clients alike will likely welcome the time and cost savings virtual attendances provide particularly for administrative matters. However, the Court explicitly notes that in-person advocacy and participation will remain an essential feature of the justice system. As such, litigators and their clients should be prepared to adapt to different modes of hearing throughout various stages in their matters.

With the virtual courtroom here to stay, the Court also reminds participants of virtual court proceedings that they must observe the rules of court decorum as would be required at an in-person hearing. On April 19, 2022, the Virtual Courtroom Etiquette guidelines (Etiquette Guide) also come into effect, outlining rules and best practices for attending and participating in virtual hearings. Of particular note in the Etiquette Guide is that counsel will be required to gown for any virtual proceedings that if conducted in person would require gowning.

It is clear from the Guidelines that the Court is focused on the future and has recognized the value virtual hearings have brought to judicial system participants in the last two years. Reinforcing these transformational changes through the Guidelines signals an innovative, technology-driven direction for the Court – a development that is both welcomed and perhaps, long overdue.

If you have any questions about this insight, please reach out to Dragana Bukejlovic.

We wish to thank Karin Kazakevich, articling student in Toronto, for her assistance with this summary.

¹ The Court will take into account the positions of the parties; the complexity of the legal or factual issue; whether the outcome of the motion or application is legally or practically dispositive of a material issue in the case (e.g. summary judgement); whether viva voce evidence will be heard; and any other factor bearing on the administration of justice.
² The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.
³ The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference