As the COVID-19 pandemic rages on, Ontario’s justice system continues to take steps to adapt to these challenging times by embracing technological advances and encouraging new practices. Over the past year, courthouses and reporting services were quick to adapt to this new reality by embracing video-based hearings and electronic filings. Not only did these changes allow us to continue practicing law under lockdown, they were also the means by which the justice system was finally forced to adapt to the 21st century.
Thankfully, as of January 1, 2021, the Ontario Rules of Civil Procedure (the “Rules”) will be amended to reflect these changes in meaningful ways. Not only will the updated Rules allow (and encourage) increased use of technology, they will also do away with certain practices that are seen as archaic and seldom used anymore.
First, some important changes are being made to accommodate and encourage hearings by telephone or video conference. In particular, a number of Rules will be amended to remove the assumptions that hearings will occur in a particular location or that personal attendance will be required. Rules 1.08 and 1.08.1 will be revoked and replaced with a new Rule 1.08, which gives a party seeking a hearing the option to have it heard in person, by telephone conference, or by video conference. If a party objects to the proposed method of hearing, a court will make an order at a case conference to determine the issue. Rule 57.01(1) will be amended to state that unreasonable objections to a proposed method of hearing may be considered in awarding costs. In other words, if a party objects to a hearing by video or telephone conference without good reason, a costs award could be levied against them as a result.
The amended Rule 1.08 will also apply to mandatory mediations and oral examinations for discovery (but the responsibility will be on one party to make arrangements and give notice to the other parties). However, the Rule will not apply to hearings before the Ontario Court of Appeal, which may be heard as directed by the court. Nor will it apply to case conferences, which will be heard by telephone conference unless the court specifies otherwise.
A number of amendments will accommodate electronic signatures and virtual commissioning of documents. For instance, Rule 4.01 will now state that the requirements applicable for paper documents will also apply to electronic documents and electronic signatures will be permitted by the court, a registrar or a judge. Rules 59.02 and 59.04 will be amended to allow for orders to be endorsed and delivered electronically. Additionally, Rule 4.06(1)(e) will be amended to remove references to affidavits being taken in person in order to facilitate virtual commissioning of documents.
Finally, the changes to the Rules which are being heralded most by the legal profession permit electronic service of documents and do away with what many see as outdated and obsolete practices. For instance, a number of Rules will be amended to remove references to service or delivery by fax or “telegrams”. Lawyers will no longer have to put their fax numbers on court documents, which is a change that is long overdue. On top of this, Rules 4.09 and 34 will be amended to state that transcripts should be “typed” rather than typewritten and that they should be in electronic format as a default rule, except for proceedings before the Court of Appeal.
Additionally, Rule 4.05 will be extensively amended to require the use of CaseLines, the new official case management software for electronic filings with the court. New procedures for the registrar to enter and file orders, including for the use of electronic documents will be provided under the amended Rule 59.05.
Most significantly, Rule 16 will be amended to allow for service of documents by email without need for consent or a court order. The new Rule 16 will do away with the requirement to provide a certificate of service when documents are served by email. Although originating processes such as statements of claim will still need to be served personally, the amendments to Rule 16 allow some long overdue changes which will make the civil litigation process less cumbersome and more cost-effective.
These amendments to the Rules are rightfully welcomed as positive changes to Ontario’s justice system. Not only do they allow for the long overdue introduction of more advanced technology to the civil litigation process, but they also encourage litigants to adapt to modern times while eliminating old practices which no longer have a place in the 21st century. Although it is unfortunate that it took an international pandemic to bring about these changes, we should nonetheless be grateful that they have finally arrived.
Author: Daniel Waldman, Lawyer
The author would like to thank Allan Tung, Student-at-Law, for his assistance with this article.