Urgent motions in the COVID-19 framework

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Urgent motions in the COVID-19 framework

Urgent motions in the COVID-19 framework

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June 16, 2020

In response to the COVID-19 pandemic, on March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice issued a Notice to the Profession, modifying the courts’ operations in order to ensure enforcement of social distancing guidelines. The modifications noted that a hearing may be conducted in writing, by teleconference or videoconference, unless the Court determines that an in-person hearing is necessary (Notice).¹

On May 19, 2020, the list of matters to be heard, in addition to urgent matters, was expanded, and the Chief Justice issued specific practice directions for each region in Ontario detailing the additional limited matters, including select pre-trial conferences.²

We have compiled recent decisions from the Ontario courts that highlight the matters – and types of matters – that have been accepted as urgent, most of which have not yet been decided on their merits, but have been scheduled for virtual hearings to take place over the next two to three months. While not exhaustive, the following provides guidance as to what the courts consider to be urgent and the process for scheduling an urgent motion.

Matters accepted as urgent

Although the Ontario courts have not expressly set out the factors they consider to determine urgency, based on what has been decided to date, or scheduled to be heard through a virtual hearing, the following matters have been determined to be urgent by the courts:

Public health matters directly relating to COVID-19;³
Termination of commercial tenancies or evictions relating to residential tenancies;⁴
Enforcement of court orders, including repayment of funds;⁵
Confidentiality orders affecting the privacy interests of children;⁶
National political processes and participation in elections;⁷
Issuance or removal of writs allowing a transaction to close;⁸
Certificates of pending litigation;⁹
Circumstances where significant financial harm may occur (including employment matters);¹⁰ and
The protection of public safety, such as an injunction preventing entry by a third-party into a condo unit during the pandemic or risk of harm to third parties.¹¹

The process for scheduling an urgent motion

The moving party must file urgent motion and application materials by email to the courthouse in accordance with the Notice. Unless the matter is proceeding on an ex parte basis, the moving party must indicate how and when service on the responding party was made;
The trial coordinator will contact the designated triage judge who has been appointed to determine whether or not the matter is urgent and should be scheduled for a hearing. The triage judge will determine a schedule for the service and filing of materials, if needed;
Once all written submissions have been received, the triage judge will determine the manner of hearing (for example, teleconference or videoconference); and
The trial coordinator will advise the parties of the particulars for the hearing, including any time limits.¹²

A hearing may be conducted in writing, by teleconference or videoconference, unless the court determines that an in-person hearing is necessary. If an in-person hearing is needed, coordination will occur between the Ministry of the Attorney General, the trial coordinator, and the parties and/or their counsel in order to find a safe and appropriate physical facility for the hearing.

We have set out below an appendix summarizing urgent matters that have been scheduled to date. The Dentons Litigation and Dispute Resolution group is available to answer any questions and address concerns as the situation evolves. We are closely monitoring the COVID-19 situation and will continue to keep our clients updated as the courts continue to decide what is deemed urgent. If you require any assistance regarding specific legal issues with respect to urgent motions, please contact Marina Sampson, Matthew Fleming, Elinor Izmaylov, or another member of Dentons’ Litigation and Dispute Resolution group.

Appendix of decisions heard to date

The following decisions are current to June 16 , 2020, and exclude criminal and family matters.

Decision	Date and location	Relevant facts and outcome	Topic
Retire-At-Home Limited Partnership v 0900558 B.C. Ltd., 2020 ONSC 3674	June 11, 2020 Toronto (By teleconference)	The plaintiff franchisor sought an injunction against the various defendant franchisees seeking compliance with the franchise agreements. The defendants brought a cross motion for security for costs. The court determined that the matter did not meet the urgency requirements, and did not require immediate scheduling as the plaintiff had threatened to bring the same urgent injunction in September 2019 but did not bring it until months later. The matter was scheduled for a later date.	Franchise/Injunctions
Elias Restaurant v Sheppard-Keele Plaza., 2020 ONSC 3609	June 9, 2020 Toronto	The applicant sought to restrain the respondents from terminating its tenancy on an urgent basis. Due to the respondents requiring time to serve responding materials, this matter was scheduled for a case conference at a later date.	Commercial tenancy
Crawford Packaging Inc. v Dorata, 2020 ONSC 3555	June 8, 2020 Central West (By teleconference)	The plaintiff sought an interlocutory injunction against the former employee defendant to enforce a restrictive covenant of the employment contract. The court found that the plaintiff had lost no business, none of its clients departed, and any future harm is purely speculative. The motion was dismissed with costs.	Employment/ injunction
Attorney General of Ontario v 947014 Ontario Inc. & Michael Norwood (Estate), 2020 ONSC 3510	June 4, 2020 Toronto (By teleconference)	The applicant Attorney General of Ontario, sought the court’s approval under the Civil Remedies Act, for a settlement entered into in a forfeiture proceeding. The court agreed to hear the application on the basis of urgency because the respondent is elderly and resides in a senior citizens residence with some risk to her health and safety. The court approved of the proposed settlement.	Approval of settlement
Harbouredge Commercial Finance v Wong, 2020 ONSC 3540	June 4, 2020 Milton (by teleconference)	The creditor moved, without notice, for an order for substituted service of its notice of motion, seeking a contempt order against the debtor who had demonstrated a pattern of service evasion. The court ordered substitute service but did not discuss urgency.	Creditor/debtor substitute service
1910878 Ontario Inc. v 2551204 Ontario Inc., 2020 ONSC 3415	June 1, 2020 Toronto (In writing)	The plaintiff brought a motion in writing without notice for Mareva injunctive relief against an indemnifier on a lease when the tenant stopped making payments. The motion sought an order restraining the defendant/indemnifier from selling, transferring or encumbering their residential property without the landlord’s approval or further order of the court. The order was dismissed. The court determined that a motion for an injunction without notice requires “extraordinary urgency,” which was not met.	Commercial tenancy/ Mareva Injunction
768211 Ontario Inc. v Mount Elgin Golfers Club Inc. et al, 2020 ONSC 3401	June 1, 2020 Toronto (Heard in Chambers)	The plaintiff was a lender/mortgagor who sought leave to bring a motion for default judgement when the defendants failed to file a Statement of Defence. The court accepted the matter as urgent as the property was a golf course, and the plaintiff was able to retake possession and ready the property for sale and was incurring significant monthly expenses in preserving the property. The court granted leave and scheduled a default judgement.	Default judgement
Maksoud v Canadian Alliance of Physiotherapy Regulators, 2020 ONSC 3175	May 20, 2020 Toronto (In writing)	The applicant sought leave to commence an application on an urgent basis concerning the alleged unconstitutionality of the regulation governing the licensing of physiotherapists in Ontario. The applicant was unable to obtain a stay of proceedings before the administrative tribunal while he brings a Charter challenge. The court deemed this matter to not be urgent stating at para 11 that: “The proceeding proposed does not meet the terms of the Notice to the Profession dated March 15, 2020. It is not a proceeding that the court is able to hear at this time. It is not one that should be accommodated on account of urgency. Even absent the Covid-19 pandemic, the proposed hurried application is fundamentally inapt in face of the existing proceedings before the tribunal and the need for a full evidentiary underpinning for a constitutional challenge.”	Regulated health care profession
Grover v Batra, 2020 ONSC 3089	May 14, 2020 Brampton	The applicant moved for an order that the respondent consent to list their property for sale. As the parties are divorced the claim was brought under the Partition Act. The court found that the applicant demonstrated that her motion was urgent due to dire financial circumstances (small income and large mortgage payments). The court ordered the sale of the property and dispensed with the signature of the respondent on the sale document.	Mortgage
MCC Mortgage Holdings Inc. v Mundulai, 2020 ONCA 312	May 12, 2020 (By teleconference)	The defendant mortgagor brought an urgent motion to prevent the proposed sale of real property that was scheduled to close on the date the motion was heard. The responding party, the mortgagee, wanted to sell the property, as the mortgage was in default. The defendant sought a stay pending the appeal of the enforcement of a writ of possession, a stay which was refused by the Superior Court. The motion was dismissed.	Mortgages/ enforcement/ stay pending appeal
Campbell v 1493951 Ontario Inc., 2020 ONSC 2942	May 11, 2020 Toronto	The applicant is a commercial subtenant who claims that her cannabis store has been shut down by the landlord. She sought an order for relief from forfeiture. This case was accepted as urgent and was scheduled for a case conference to determine interim measures.	Commercial tenancy
2261358 Ont. Inc. v Kompter, 2020 ONSC 2931	May 8, 2020 Central South (By videoconference)	This was an application for immediate access to the leased premises and to register the lease on title after the tenant was locked out of the premises. It was deemed to be urgent and the court granted an injunction finding that the applicant would suffer irreparable harm if the injunction was not granted.	Commercial tenancy
Khan v MCF Mortgage Investment Group, 2020 ONSC 2783	May 4, 2020 Hamilton (By teleconference)	The mortgage went into default, and the parties disagreed over the propriety of mortgage enforcement proceedings and as to the appropriate amount required to bring the mortgage back into good standing. The urgency was related to the intention of the respondents to list the property for sale at the end of April. The applicant argued he would suffer irreparable harm if sold. The motion was dismissed by the court finding that the balance of convenience did not justify granting the relief sought.	Mortgage / interlocutory injunction
MCC Mortgage Holdings Inc. v Mundulai, 2020 ONSC 2722	May 1, 2020 Central East (In writing)	The plaintiff is a mortgage lender, the loan went into default. The plaintiff sued and obtained a default judgment for payment and possession of the premises. The defendants were evicted. The plaintiff sold the property. The defendant re-entered the premises and refused to leave. The plaintiff sought a writ for possession, while the defendant sought an order to stay. The plaintiff’s motion was granted.	Mortgage / writ of possession
Carter v Carter, 2020 ONSC 2683	April 29, 2020 Newmarket	The respondent wife sought an urgent motion to annul the husband’s bankruptcy due to recent information that the husband’s Trustee in Bankruptcy was proposing to hold a Meeting of the Creditors that could lead to the distribution of the bankrupt’s estate and a discharge of the bankruptcy. The court ordered that the Trustee shall not distribute any of the assets of the bankrupt until a further order, and provide a complete and detailed accounting of assets.	Matrimonial/Bankruptcy
Ontario Nurses Association v Eatonville/Henley Place, 2020 ONSC 2467	April 22, 2020 Toronto	The applicants represent Registered Nurses employed by long-term care homes experiencing outbreaks of COVID-19. They sought injunctions requiring the respondents to refrain from breaching directives issued by the Chief Medical Officer of Health for Ontario, particularly, supplying personal protective equipment. The court ordered that the respondents provide nurses with access to appropriate PPE.	Public health
Powers v Webb (estate of), 2020 ONSC 2359	April 17, 2020 Toronto (In writing)	The plaintiff brought a motion, without notice, in writing for a certificate of pending litigation to be registered on the title to the home in which she resides. Title was in the name of the deceased only; the two were cohabiting prior to his death. The estate trustee intends on selling the property. The claim was for an interest in the land on the basis of a constructive trust. The court ordered that the property may not be sold without consent of the plaintiff or a further order of the court. The motion for a certificate of pending litigation was deemed urgent and was scheduled for an oral hearing with notice.	Certificate of pending litigation
Felton Brushes Limited v Atlantis Properties Hamilton Inc., 2020 ONSC 2315	April 16, 2020 Hamilton	The applicant is a commercial tenant who received notice of distress on March 16, 2020, by the landlord. The determination of damages will proceed to trial after the COVID-19 suspension is lifted.	Commercial tenancy
Volk v Volk, 2020 ONCA 256	April 14, 2020 Toronto	This appeal involved litigation of real property owned by an individual who lacked capacity. The parties previously brought an interlocutory application for an order freezing assets and an order for the sale of the property on consent. The applicants were seeking to set the consent order aside, as they were not properly served. A refusals motion on this matter was scheduled to be heard on April 14, 2020. It proceeded by videoconference. A stay of the sale order was sought pending the appeal and scheduled for a subsequent date in May 2020.	Stay order
Sibyl Investment Holdings Inc. v Vlachich, 2020 ONSC 2191	April 14, 2020 Central East	The defendant brought an urgent injunction to prevent the sale of its property after default proceedings. The defendant argued the matter was urgent because he was going to lose the property, which he viewed as unique. The injunction was denied. Setting aside of the noting in default must not be brought until after the courts resume normal operation.	Injunction
Karahalios v Conservative Party of Canada, 2020 ONSC 1820 Karahalios v Conservative Party of Canada, 2020 ONSC 1947	March 24, 2020 Toronto April 13, 2020 Toronto	The applicant moved to challenge his disqualification as a candidate for the leadership of the Conservative Party of Canada, and sought a variety of other relief, including inclusion in leadership debates. The court determined that this was time-sensitive and had implications for the political process. The application was converted into an action and scheduled for a summary judgment motion.	Political process
Almeida v Morgan, 2020 ONSC 2192	April 9, 2020 Toronto	The appellant was found to be incapable of consenting or refusing treatment by the Consent and Capacity Board; he appeals the decision. The treating doctor brought a motion authorizing him to administer antipsychotic medication pending the final resolution of the appeal. This matter was previously scheduled for March 26, 2020. The court deemed this motion urgent, because of the risk that the appellant would continue to deteriorate if untreated. The motion was granted.	Consent and capacity
Slimmon-Weber v Racco, 2020 ONSC 2169	April 8, 2020 Toronto	The applicant is a commercial tenant who brought a motion seeking an interim injunction to restrain the property owner from evicting her. The applicant would face significant financial harm due to an eviction. In light of an agreement not to evict, the matter was scheduled to be heard after June 1, 2020.	Commercial tenancy
Morguard Corporation v Corredor, 2020 ONSC 2166	April 8, 2020 Toronto	By order of the Landlord and Tenant Board, the appellant was ordered to vacate his unit by April 6, 2020, as result of committing a sexual assault in the building complex. The landlord seeks the enforcement of the order by the sheriff. The matter was scheduled to be heard on April 15, 2020. The court deemed the motion urgent as it is both time-sensitive and appropriate to be heard urgently, as important interests of vulnerable third parties may be at stake.	Residential tenancy
Somwar v Fly Jamaica, 2020 ONSC2140	April 7, 2020 Toronto	A class member was permitted to opt out and proceed with an individual action. No reasons regarding urgency were provided.	Class proceedings opt out
Saine v Niagara Escarpement Commission, 2020 ONSC 2151	April 7, 2020 Central South	The dispute between the parties in this matter relates to the intended construction of a driveway by the applicant in an area of developmental control. The applicant sought an order staying the expiry of a permit set to expire on April 13, 2020. The motion was scheduled to proceed, due to the time sensitive nature and significant expenses that may be incurred if the permit expires.	Development permit
Hamed v Al-Rewashdy, 2020 ONSC 2093	April 3, 2020 Ottawa	This was a leave motion for an urgent ex parte certificate of pending litigation arising from a matrimonial dispute. A motion for a certificate of pending litigation was denied where there was no interest in the land.	Certificate of pending litigation
2676547 Ontario Inc. v Elle Mortgage Corporation, 2020 ONSC 2041	April 3, 2020 Toronto	The plaintiff brought a motion to stay pending an appeal of a master’s motion discharging a certificate of pending litigation. Certificate of pending litigation was deemed not urgent when there was an agreement by the defendants not to sell or transfer the property.	Certificate of pending litigation
York Condominium Corporation No. 419 v Black, 2020 ONSC 2066	April 3, 2020 Toronto	A condominium corporation sought an urgent injunction preventing the respondent from having third-party painters attend her unit to carry out renovations during the COVID-19 pandemic, as most of the residents are seniors. The injunction application was adjourned, and no entry will be allowed in the interim.	Public health (COVID-19)
Wang v 2426483 Ontario Limited, 2020 ONSC 2040	April 2, 2020 Toronto	Counsel sent a draft application record raising concerns about an upcoming closing of a real estate transaction and the possibility of a residential eviction. The respondent argued there was no urgency due to the moratorium on evictions. The court stated that submissions on the merits of urgency should not be sent to the court unless invited. The matter met the urgency standard and was scheduled for a case conference.	Commercial tenancy
Corfinancial Corp v Amazon Land Development Corp., 2020 ONSC 1879	March 31, 2020 Ottawa	The court dealt with various orders pertaining to a sale transaction of a property, which had been sold and included an outstanding mortgage. The court made an interim order requiring a property to be sold in accordance with an agreement of purchase and sale in order to preserve the value of the equity in the property.	Terms of agreement and enforcing a sale
Rogerson v Havargal College, 2020 ONSC 1940	March 30, 2020 Toronto	The defendant alleged that affidavit materials filed by the plaintiff disclosed private information dealing with minor children, in breach of a prior court order. This matter was deemed urgent due to the nature of the privacy interests of children, and the need for immediate inquiry and resolution, and was scheduled for a hearing.	Privacy rights
Baijnauth v Baijnauth, 2020 ONSC 1974	March 30, 2020 Brampton	The applicant obtained judgment in a family law trial; she sought a motion to enforce a vesting order so she could re-finance a high-interest mortgage coming due the next day. Enforcement of judgment was deemed urgent, as the applicant could suffer significant financial hardship, including the loss of her home. The matter was scheduled for a teleconference.	Enforcement of judgment
Young v CRC Self-Help, 2020 ONSC 1874	March 26, 2020 Toronto (Divisional Court)	The appellant brought a motion to reinstate his tenancy pending the hearing of his appeal from an eviction order made by the Landlord and Tenant Board; he had resorted to living in a homeless shelter in the interim. The court ordered the reinstatement pending the hearing of the appeal.	Residential tenancy
Ali v Tariq, 2020 ONSC 1740	March 23, 2020 Toronto	Motion to discharge a writ and set aside default judgment. The motion to set aside the default was adjourned pending the resumption of the Small Claims Court’s operations, and the order lifting a writ was granted by the Divisional Court. The court agreed to hear this matter due to the closure of the Small Claims Court and the urgent closing scheduled. Inability to bring a motion to set aside default in Small Claims Court due to the shutdown and urgent closing scheduled were the basis for hearing this motion.	Default judgment
Chu Resto YS Inc. v Greentower Service Inc., 2020 ONSC 1721	March 23, 2020 Toronto	New hearing date was scheduled for a pre-existing motion for an interlocutory injunction preventing the landlord from terminating the restaurant’s lease. The landlord was unwilling to give an undertaking to preserve the status quo pending the motion without a new hearing date. The court scheduled a case conference where the landlord agreed to provide the undertaking. The landlord’s undertaking avoided the need for the court to consider whether to make an urgent interim order.	Commercial tenancy -interlocutory injunction
Morris v Onca, 2020 ONSC 1805	March 23, 2020 Toronto	The judgment creditor moved for urgent relief to prevent the debtors from continuing to ignore orders and repay funds. There was alleged evidence that the debtor was actively moving assets abroad in order to avoid enforcement. The creditor was at risk of defaulting on a real estate transaction and urgently needed her funds. The court agreed to schedule a case conference, as the matter was deemed to be time-sensitive and urgent.	Judgment-creditor
Gharib v Mohos, 2020 ONSC 1872	March 23, 2020 Toronto (Divisional Court)	The landlord had terminated the tenancy of a renter. The Landlord and Tenant Board ordered an eviction. The tenant appealed the decision, but failed to perfect it in time. His appeal was dismissed. The tenant brought a motion to set aside the dismissal. The motion was originally scheduled to be heard on March 17, 2020. The court dismissed the motion to set aside the dismissal. The eviction may proceed when the province recommences enforcements of evictions.	Residential tenancy
Hrvoic v Hrvoic, 2020 ONSC 1711 and Hrvoic v. Hrvoic, 2020 ONSC 1703	March 19, 2020 Toronto	The parties were engaged in a matrimonial dispute. The application was commenced to force a buyout of the respondent’s shares in the family company after the respondent withdrew significant funds from a line of credit secured against the applicant’s house. The applicant was ordered to repay funds by March 19, 2020. She sought a stay pending her motion for leave to appeal. The stay was found to be time-sensitive and important because the respondent had not complied with a previous order to return the funds. The matter was scheduled for a hearing.	Matrimonial-stay order
Ali v Tariq, 2020 ONSC 1695	March 19, 2020 Toronto	This was an application to set aside a default judgment and writ of execution issued by the Small Claims Court pursuant to a default judgment. The writ was registered against a property that was scheduled to close the following day. The court found that it had jurisdiction to deal with a Small Claims Court matter. A writ of execution to allow a sale to close was deemed urgent. A hearing date was scheduled.	Setting aside a writ and default judgment
Oppong v Desoro Holdings Inc., 2020 ONSC 1689	March 18, 2020 Toronto	The applicant was a commercial tenant who had been dispossessed of her leased hair salon. The applicant moved for relief from forfeiture, which was scheduled prior to the suspension. The matter was rescheduled for March 27, 2020, and was ultimately adjourned. The matter was accepted as urgent due to the applicant being dispossessed.	Commercial tenancy

Please note that the information provided in this article does not constitute legal or professional advice, or a legal opinion of any kind.

https://www.ontariocourts.ca/scj/covid-19-suspension-fam/↩
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/↩
Ontario Nurses Association v Eatonville/Henley Place, 2020 ONSC 2467↩
Oppong v Desoro Holdings Inc., 2020 ONSC 1689, Gharib v Mohos, 2020 ONSC 1872, Young v CRC Self-Help, 2020 ONSC 1874, Gharib v Mohos, 2020 ONSC 1872, Slimmon-Weber v Racco, 2020 ONSC 2169, Campbell v 1493951 Ontario Inc., 2020 ONSC 2942, 2261358 Ont. Inc. v Kompter, 2020 ONSC 2931↩
Hrvoic v Hrvoic, 2020 ONSC 1711, Morris v Onca, 2020 ONSC 1805↩
Rogerson v Havargal College, 2020 ONSC 1940↩
Karahalios v Conservative Party of Canada, 2020 ONSC 1820, Karahalios v Conservative Party of Canada, 2020 ONSC 1947↩
Ali v Tariq, 2020 ONSC 1695, MCC Mortgage Holdings Inc. v Mundulai, 2020 ONSC 2722↩
Powers v Webb (estate of), 2020 ONSC 2359↩
Baijnauth v Baijnauth, 2020 ONSC 1974, Khan v MCF Mortgage Investment Group, 2020 ONSC 2783, Grover v Batra, 2020 ONSC 3089, Crawford Packaging Inc. v Dorata, 2020 ONSC 3555↩
York Condominium Corporation No. 419 v Black, 2020 ONSC 2066↩
https://www.ontariocourts.ca/scj/covid-19-suspension-fam/↩

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