Notice to Profession – Toronto Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic. Click here.

 

Notice to Profession – Toronto

Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic

Notice of amendments:

Effective December 1, 2020:

• Part F (Matters Heard by Masters Sitting as Registrars in Bankruptcy) is amended.
• • The hearing request form has been updated.
  • The date in paragraph F.1.1 (regarding resumption of in-person hearings) is now February 1, 2021.

Effective September 28, 2020:

• Paragraphs 6 and 7 of Part B (Family Matters – Resumption of Operations), which address electronic filing for urgent matters and matters that are less than five days away, as well as electronic filing of confirmation forms.
• Part H (Procedures for Actions Governed by the Construction Act) is amended.

Effective September 24, 2020:

• Part B is amended and its title changed from “Family Matters” to “Family Matters – Resumption of Operations”.
• Part C (Civil Matters) is amended.
• Part F (Urgent Matters Heard by Registrars in Bankruptcy) is amended and its title changed to “Matters Heard by Registrars in Bankruptcy”.

Effective August 31, 2020:

• Part A.4 (viii) (Summary Conviction Appeals/Extraordinary Remedies) is amended, and the email address for downtown Crown Attorneys is updated.
• Part C (Civil Matters) is amended, including by adding sections C.1.2 (Additional Civil Matters before a Master) and C.1.3 (Material Filing);
• Part H (Procedures for Actions Governed by the Construction Act) is amended.

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Urgent matters will continue to be heard, as provided in the Chief Justice’s May 13, 2020 Notice to the Profession.

The Toronto Region of the Ontario Superior Court of Justice (SCJ) has further expanded the matters which it will hear virtually in an ongoing effort to facilitate timely access to justice.

This revised Notice to the Profession provides updated guidance to assist justice system participants and the public in navigating available SCJ virtual proceedings in the Toronto Region.

The Toronto Region will continue to monitor the situation and, if possible, will further expand the types of matters and hearings that will be heard during these extraordinary times.

• A. Criminal Matters Upon Resumption of Operations
• B. Family Matters – Resumption of Operations
• C. Civil Matters
• D. Divisional Court Matters
• E. Commercial and Estate List Matters
• F. Matters Heard by Registrars in Bankruptcy
• G. Class Action Matters
• H. Procedures for Actions Governed by the Construction Act
  • H.1 Matters Properly Brought before a Master in Construction Lien Ex Parte Court
  • H.2 Interim procedure for motions brought in writing to vacate liens by payment into court
  • H.3 Other Hearings in Construction Lien Actions
  • H.4 Conduct of Teleconference or Videoconference Hearings
  • H.5 Material Filing for Construction Lien Matters before Masters

A. Criminal Matters Upon Resumption of Operations

A.1 GUIDING PRINCIPLES

In order to ensure the safety of all justice participants, upon the resumption of court operations, every measure possible will be taken to reduce the number of people who physically attend the courthouse each day.

Lawyers and accused persons should not attend the courthouse in person unless their physical presence is required. Generally, no lawyers or accused persons should attend court in person except for a trial or for a pre-trial application or motion in which viva voce evidence is called or for an application that cannot be heard remotely because it is required to be in camera.

No person shall attend the courthouse for any purpose if that person is experiencing symptoms of COVID -19 or if that person has recently been exposed to COVID-19. Any justice participant who would otherwise be required to attend court in person but is unable to do so because of COVID-19 symptoms or exposure shall call 416 327 5558 and leave a voicemail message. The message must provide contact information in order to allow the court to contact the justice participant and to reschedule the appearance.

There will be COVID-19 screening in effect at the entry to the courthouse and physical distancing and other precautionary measures within the courthouse. All persons attending the courthouse should follow the directions regarding physical distancing, masks and hand hygiene as posted in the courthouse.

Water fountains will not be operating. Justice participants should bring a personal water bottle.

A.2- GENERAL

(i) Communication with the trial coordinators

Most communications to arrange dates for trials, judicial pre-trials and applications will occur by email. In e-mail communications with the trial coordinators, Counsel should put, in the subject line, the name of the accused person and the nature of the request (eg. Trial date, JPT, application date).

(ii) Interpreters

1. If an interpreter is required for any scheduled remote appearance, Crown Counsel/the Federal Crown or Counsel for the defendant shall advise the trial coordinator.
2. Counsel requiring the interpreter shall advise of the language, time and date of the proceeding.
3. The trial coordinator shall advise the Registrar’s Office so that arrangements can be made for the interpreter to be available.

(iii) Serving and filing documents

The protocols in place from March to June 2020 will continue apply upon resumption of in person proceedings. See the following link for filing in criminal matters: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/#2_Filings_in_Criminal_Matters

(iv) Reference to ‘Admin Crown’.

Wherever reference is made to the ‘Admin Crown’ this term is to be interpreted as the Admin Crown or their designate.

(v) Judges Signing documents

Pursuant to s.3.1(2) of the Criminal Code, the clerk of the court may sign orders or other writings on behalf of the presiding judge.

A.3 MATTERS TO BE HEARD IN PERSON

(i) Trials – Presumptively in-person

Counsel, accused persons and witnesses shall attend in person for all scheduled trial dates on and after July 6th 2020, unless otherwise directed by the Court. If the matter must proceed as a jury trial it will be adjourned until after September 1st, 2020.

(ii) Pre-trial Applications

Counsel, accused persons and witnesses shall attend in person for all scheduled pre-trial application dates on and after July 6th 2020, unless otherwise directed by the court. As set out in paragraphs A.4 (iv) and (v) below, if agreed between counsel, an in person pretrial application may be converted to a remote hearing.

A.4 MATTERS THAT WILL CONTINUE TO BE HEARD REMOTELY

(i) Judicial Pre-trials (JPTs)

All JPTs will continue to be heard remotely, by audioconference or videoconference.

(a) Where the accused person is represented by counsel, the following procedure applies:

For Matters prosecuted by the Provincial Crown:

1. Within 2 business days following committal, after consultation with defence, the Crown, through the administrative Crown or their designate, will book a JPT using the shared Microsoft Outlook calendar.
2. Crowns should prepare a Form 17 at least 10 days before the JPT and send it to all defence counsel in Word Format.
3. Defence counsel should complete the Form 17 and return it to the Crown at least 5 days before the JPT in Word and PDF format.
4. The Administrative Crown will post the Form 17 in Word and PDF and other relevant documents to the Shared Outlook File for the JPT.
5. The judge conducting the JPT may annotate the Form 17 or prepare a Form 18.

For matters prosecuted by PPSC:

1. Within 2 business days following committal, the prosecutor or their designate, after consultation with the defence will book a JPT and advise the trial co-ordinators by telephone or email[1]. Federal judicial pre-trials will be scheduled on Wednesdays.
2. Crowns should prepare a Form 17 at least 10 days before the JPT and send it to all defence counsel in Word Format.
3. Defence counsel should complete the Form 17 and return it to the Crown at least five days before the JPT in Word and PDF format. The Crown will send the Form 17 in Word and PDF by email to the trial coordinator.
4. The judge conducting the JPT may annotate the Form 17 or prepare a Form 18.

(b) Where the accused person is self-represented the following procedure applies:

1. Where an accused person is self-represented, the judicial pre-trial will be scheduled at the first appearance of the accused in Superior Court. The JPT will be conducted on the record by audioconference or videoconference on the date agreed upon.

(ii) Administrative Pre-trial Appearances in the Superior Court – “Practice Court”[2]) – On and after July 13th 2020

(a) Scheduling First Appearances

1. The first appearance of an accused person in the Superior Court should be scheduled for the fourth week after committal.
2. If the case is prosecuted by the Downtown Crown’s office, the matter should be scheduled for a Monday at 9 am.
3. If the matter is prosecuted by the Scarborough Crown’s office or Guns and Gangs, it should be scheduled for a Tuesday at 9 am.
4. If the matter is prosecuted by the PPSC or DOJ it should be scheduled for a Wednesday at 9 am.
5. If the matter is prosecuted by North York or Etobicoke, it should be scheduled for a Friday at 9 am.
6. If there is a statutory holiday on the day when a matter would normally be scheduled for a first appearance, it may be scheduled two weeks after the JPT or it may be scheduled on the Thursday of the week after the JPT.
7. Where cases have already been scheduled before this Notice took effect, the matter will be addressed on the scheduled date by way of audio or video conference and adjourned to the next available date after the JPT and on the day of the week assigned to the relevant Crown’s office.

(b) Remote Attendance

1. All administrative attendances are presumptively remote.
2. Accused persons shall attend court by audioconference, videoconference or by designation of counsel.
3. Persons in custody at the Toronto South Detention Centre, who are not appearing through counsel by designation, will attend at 9 am. Persons in custody at the Toronto East Detention Center, who are not appearing through counsel by designation, will attend at 11 am.
4. The attendance of persons detained in other institutions will be arranged as needed.
5. In addition to remand dates , the endorsement on the warrant of remand will also indicate the manner in which the accused person will re-attend: “by audioconference” or “by videoconference” or “in person” (in person appearances should be used only if the accused is required to attend for an application, case management, guilty plea or trial).
6. Counsel for the Crown and counsel for the accused shall attend Practice Court by audioconference or videoconference.[3]

(c) Duty Counsel/Amicus

1. There will be a duty counsel or amicus present to assist self-represented accused persons in joining the audio or videoconference[4] and to assist is addressing their matters.
2. In order to increase efficiency, duty counsel/amicus will also be available to address matters on behalf of counsel. The contact details of the assigned duty counsel will be posted with the daily court list.
3. Self-represented accused persons must contact the duty counsel/amicus before court and provide a telephone number where they can be reached for the hearing.

(d) Subsequent Administrative Appearances

1. All subsequent administrative appearances, after the first appearance will be conducted in the same way: remotely, on the day designated for the particular Crown’s office.
2. If there is a reason that the appearance must be in person, the case will be adjourned to 9 am in a courtroom that has been opened for trial matters.

(e) Designations

1. Counsel are encouraged to file designations for accused persons both in and out of custody. If, because of the COVID-19 pandemic, counsel are unable to meet in person with a client to have a designation signed, the designation can be signed by counsel on behalf of the client if the client has so directed.
2. A designation may provide for unlimited appearances by counsel or it may indicate that the lawyer is authorized to appear for limited purposes or for a limited time.
3. Designations may be filed electronically with the court.

(f) Setting Trial Dates

1. Trial dates should be arranged by all counsel with the trial co-ordinators following the JPT and before the appearance in court.
2. Where a trial date is to be set, counsel will complete a trial confirmation form that will be filed electronically with the court. The trial confirmation form will set out the first available dates for trial for the court and counsel as well as the trial date agreed upon. A trial confirmation form must be completed for all cases including long trials.
3. A trial confirmation date should also be agreed upon.
4. Counsel should continue to contact the trial co-ordinators through the generic email.

(g) Re-elections and Short Applications (For example, Remove counsel, release exhibits)

1. An accused person may re-elect their mode of trial at the Practice Court appearance.
2. Short applications or matters that are on consent can be scheduled for Practice Court. Longer applications should be scheduled through the trial co-ordinators.

(h) Case Management

1. Where a case requires case management, the matter may be held down until the end of the set dates or adjourned to another court, to a JPT, or to the afternoon session (2 pm) of Practice Court.

(iii) Guilty Pleas

If an accused person who has an appearance in Practice Court to set a date wishes on that appearance to enter a guilty plea, the matter may be dealt with by the presiding judge or held down until all of the dates have been set or sent to another court or to the afternoon session (2 pm) of Practice Court.

Guilty pleas will continue to be scheduled in other courts on any day. For scheduled guilty pleas, the following protocol continues to apply:

1. Counsel will contact the Admin Crown or their designate who will send an email to the Trial Coordinator’s Office using the generic email address CriminalTrialOffice-SCJ-Toronto@ontario.ca and provide all the necessary documentation for the plea. The Admin Crown/designate will also file the documentation with the Criminal Intake Office at Toronto.SCJ.CRIMINALINTAKE@ontario.ca.
2. The trial coordinator will schedule a date and time for the plea and advise all parties.
3. If the accused is in custody, the Admin Crown/ designate will advise the institution so that the inmate can be available to participate in the teleconference or videoconference.
4. The trial coordinator will provide the parties with the teleconference or videoconference information for the hearing.

(iv) Pre-trial Applications in which no viva voce evidence is to be heard and which are not to be held in camera

Pre-trial applications in which no viva voce evidence is to be heard and which are not required to be held in camera will continue to be heard remotely. These applications can be booked through the trial coordinators’ office. No Judicial Pre-trial is required unless counsel request it. A date for the application can be arranged by contacting the trial coordinator through the generic email. The email should indicate that no viva voce evidence is to be called and that a remote hearing is sought.

(v) Pre-trial applications in which viva voce evidence is to be heard or which are to be held in camera

Pre-trial applications in which viva voce evidence is to be heard or which are to be held in camera may be heard remotely if the parties consent and agree on a procedure and a judicial pre-trial is held before the hearing is scheduled.

All materials are to be filed with the Trial Coordinator’s Office at CriminalTrialOffice-SCJ-Toronto@ontario.ca and with the Criminal Intake Office at TORONTO.SCJ.CRIMINALINTAKE@ontario.ca.

(vi) Extradition Matters

All extradition matters will be heard remotely unless otherwise ordered.

(vii) Bail Reviews (including 90 day reviews)

All bail reviews will continue to be heard remotely. The following protocols will continue to apply:

(a) Consent releases

1. Counsel will fill out the conditions of release and surety declaration (if applicable). These will be forwarded to the Admin Crown who will forward it to the registrar’s office at Toronto.SCJ.CriminalCourtSupport@ontario.ca and to the Criminal Intake Office at Toronto.SCJ.CRIMINALINTAKE@ontario.ca.
2. The trial coordinator will assign a judge and a registrar.
3. The registrar will complete the paperwork and provide it to the parties for their signature. A written confirmation from counsel that they have ‘witnessed’ the sureties’ signatures will be accepted (whether it be over the phone, via Facetime, Skype, etc.).
4. The release order will be sent to an available judge for approval and execution.
5. The signed release order will be returned to the registrar who will provide it to the relevant institution and to the parties.

(b) Contested Hearings

1. Counsel are to consult each other about the necessity of booking a time for a contested bail/90-day review. Self-represented defendants should be directed to Ms. Maija Martin of the Criminal Lawyers Association (Maija@martincriminaldefence.ca). If a self-represented defendant is identified by Mr. Hank Goody (A.C.A.) during the 90-day set date court on Thursdays, he will advise the Crown from that borough who will then advise Ms. Martin.
2. Defence counsel will email materials to the Admin Crown to effect service. Defence counsel will include their availability and the time estimate for the hearing when serving the Crown.
3. The Admin Crown will file all materials with the Trial Coordinator’s Office at CriminalTrialOffice-SCJ-Toronto@ontario.ca and with the Criminal Intake Office at SCJ.CRIMINALINTAKE@ontario.ca. The Admin Crown will ensure any response materials are filed and copied to the defence.
4. In the case of 90-day reviews, the trial coordinator will email Ms. Maria Ranaudo (Maria.Ranaudo@Ontario.ca) to determine if a bail hearing has been conducted. If there was no bail hearing, the trial coordinator will provide a date for the review hearing. If there was a bail hearing, Ms. Ranaudo will order the transcript by email copying the trial coordinator. An available judge will authorize the transcript order.
5. The trial coordinator will provide a date and time for the hearing once defence materials have been served on the Admin Crown and filed (or fifteen (15) days after the transcript has been ordered in the case of 90-day reviews). Counsel must file all materials by 10:00 a.m. on Thursday if they wish to conduct the bail / bail review / 90-day review the following week.
6. To avoid any unnecessary adjournments of scheduled hearing dates, the applicant is not permitted to file additional materials after the 10:00 a.m. deadline on Thursday unless the responding party consents. If possible, the responding party should file their materials at least two clear days prior to the scheduled hearing.
7. The bail / bail review / 90-day reviews can be heard each day at 10:00 a.m. (four (4) possible slots) and 2:00 p.m. (four possible slots).
8. The trial coordinator will provide the interested parties with the videoconference or teleconference information.
9. Counsel should complete the “terms of release” form and circulate it to the other parties in advance of the hearing.
10. Counsel should ensure they have a copy of the photo identification from the proposed sureties.
11. The defendant need not be present for a bail review. A defendant is likely required to be present for a 90-day detention review (by audio or video) pursuant to s. 502.1(1) of the Criminal Code.
12. If counsel wish for their client to be present, they must make arrangements with the appropriate Admin Crown who will contact the institution and make the request. The contact information is set out in above.
13. If released, the registrar will complete the paper work, scan it and forward it to the parties for signature. As stated above, during this time, we are willing to accept a written confirmation from counsel that they have ‘witnessed’ the sureties’ signatures (whether it be over the phone via Facetime, Skype, etc.).
14. The release documents will then be scanned and sent to the judge for signature and returned to the registrar. The paperwork will then be forwarded to the institution.

(c) Consent Bail Variations

1. Counsel should fill out and sign the 10b Form available on the SCJ website under “Forms under the Criminal Proceeding Rules” and forward it to the appropriate Crown.
2. The Crown will review and sign the form.
3. Sureties sign the form either in the presence of counsel or counsel should provide written confirmation that they have “witnessed” the sureties’ signatures by video.
4. The Crown will send the variation to an available judge for approval.
5. The Registrars will be copied by emailing SCJ.CriminalCourtSupport@ontario.ca and the criminal intake office at Toronto.SCJ.Criminalintake@ontario.ca.
6. Once approved, the paperwork will be completed and provided to counsel.

(viii) Summary Conviction Appeals/Extraordinary Remedies

(a) The Hearings

1. Hearings will proceed remotely through secure telephone lines unless counsel request a video hearing. Requests for video hearings are to be made to the Court at the time hearing dates are scheduled by the Court. For hearings that were scheduled prior to September 1, 2020, counsel are to make the request in writing through the SCA/Special Motions Registrar at Toronto.SCJ.CriminalIntake@ontario.ca as soon as practicable and no later than one week prior to their scheduled hearing date or September 22, 2020 whichever is the earlier.
2. Any appellant currently required, by the terms of their current bail, to surrender into custody prior to the appeal hearing is not required to do so. That condition is varied to one which only requires a surrender into custody if their appeal is dismissed and they are subject to a custodial sentence.
3. All judgments in appeals where the appellant/respondent is potentially liable to be returned to custody will be reserved until the autumn or such time as it is deemed safe to enter incarceration.
4. All out of custody appellants required to attend the hearings in person are no longer required to do so, unless self-represented. Hearings for self-represented appellants/applicants shall be conducted in person, unless in custody, in which case they will be conducted remotely.
5. Hearings with Counsel will be conducted either by video using Zoom or telephone conferencing depending on the wishes of Counsel. If the hearing is one in which Counsel elects to proceed by video, their client will not be allowed to participate. However, if the hearings are held by teleconference, arrangements will be made by the defence to permit their client to attend through a conference line, but Counsel shall not provide the secure number of the Court to their client.
6. There may be cases where Counsel wish to proceed by video and have their client present for the hearing. Counsel shall not share the video link with their client. In these cases, Counsel should contact the court by email through the criminal intake office to request arrangements for co-ordinated video and audio hearings. Due to limited capacity, these types of dual hearings should be conducted sparingly and may not be possible in all cases.

(b) Service and Filing

7. Notices of appeal/application and supporting materials by a defendant that is not an inmate appeal/application shall be served on the Attorney General for Ontario electronically at Toronto.Crown.SCA.SpecialMotions@ontario.ca or the Attorney General for Canada at OntarioFedProsecutionServices@ppsc-sppc.gc.ca, or SignifierOntarioPoursuitesFedS@ppsc-sppc.gc.ca, depending on who had/has carriage of the matter giving rise to the impugned order.
8. The Crown shall provide email confirmation of acceptance of service or rejection of service as soon as practicable.
9. The Notice and a copy of the email confirmation of acceptance of service shall be filed electronically with the court through the criminal intake office at Toronto.SCJ.CriminalIntake@ontario.ca along with any documents/materials required under the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).
10. Where the appellant/applicant is the Attorney General, his or her agent, or was the informant or any party other than the defendant (the accused) in proceedings before the court/preliminary inquiry court, the notice of appeal/application shall be served by mail on each person in respect of whom the appeal/application is brought against unless there is counsel of record, in which case service will be effected by sending the notice electronically to counsel. The appellant/applicant shall send a courtesy copy of the notice mailed to the respondent electronically to counsel of record in the proceedings the appeal/application relates to, if there was counsel of record. Filing the notice with the court shall be done electronically by sending it to the criminal intake office.
11. The parties shall electronically serve the opposing party and shall electronically file with the criminal intake office copies of all factums, appeal books/application records and any other material being relied upon. These materials shall be sent to the opposing party and to the court in the same email. This does not preclude a party or the court from rejecting the documents for non compliance with the rules.
12. The appellant/applicant shall serve transcripts electronically by email to the opposing party and file transcripts electronically by email to the criminal intake office.
13. The subject line of all emails should clearly identify the name of the case, court fie number (if known), date of hearing (if known), nature of the proceedings (e.g. conviction appeal) and for PPSC matters the court location, and be prefaced by” SCA” if an appeal or “Special Motion” if an extraordinary remedy application.
14. Cases and other source materials referenced in factums shall be hyperlinked and it will not be necessary to file a Book of Authorities unless requested by the judge.
15. E-service and e-filing documents and materials replaces the requirement to serve and file a paper/hard copy.
16. Where the appellant/applicant is self-represented and does not have access to electronic means for e-service and e-filing, documents and materials may be served and filed in paper/hard copy.

(c) Facta Filing Timelines

17. For summary conviction appeals, the Appellant shall serve and file their factum not later than sixty (60) days before the day first scheduled for the hearing and the Respondent shall serve and file their factum not later than twenty (20) days before the day first scheduled for the hearing.
18. For extraordinary remedy applications, the Applicant shall serve and file their factum not later than thirty (30) days before the day first scheduled for the hearing and the Respondent shall serve and file their factum not later than ten (10) days before the day first scheduled for the hearing.

(d) Bail Pending Appeal/Stays

19. Applications for bail pending appeal and stays of driving prohibition, fine, forfeiture, restitution, victim fine surcharge, probation or conditional sentence orders are subject to the same procedure outlined in this protocol for bail reviews, with the following modifications:
    1. Applications shall be served electronically on the Crown at Toronto.Crown.SCA.SpecialMotions@ontario.ca, or OntarioFedProsecutionServices@ppsc-sppc.gc.ca / SignifierOntarioPoursuitesFedS@ppsc-sppc.gc.ca. depending on who had carriage of the trial. The subject line of the email should clearly identify the name of the case, nature of the proceedings (e.g. bail pending appeal) and for PPSC matters the court location, and be prefaced by” SCA”;
    2. The Crown shall provide email confirmation of acceptance of service or rejection of service as soon as practicable;
    3. The applicant shall contact the Crown to ascertain the Crown’s position, and canvass available dates if the application is being contested, prior to electronically filing their application with the Court through the criminal intake office at Toronto.SCJ.CriminalIntake@ontario.ca. Dates for a contested hearing shall be set out on the email at the time of e-filing contested applications;
    4. The criminal intake office will arrange for a contested hearing to be held remotely and notify the parties;
    5. A draft order shall accompany applications on consent, including a Form 10A (if applicable) signed by all parties, and e-filed with the criminal intake office by the applicant, unless self represented, in which case the crown shall electronically file the application and materials with the court;
    6. Draft orders should be e-filed in the Microsoft Word format (.docx) rather than a PDF version;
    7. The paperwork will be completed by the criminal intake office and provided to the parties for their signature. The applicant shall return the signed paperwork to the criminal intake office by email, and the criminal intake office will distribute the court order(s) to all interested parties and to the institution, if applicable;

If the Applicant indicates that they wish to be present, arrangements will be made for them to have access to the teleconference call. If in custody, the Crown will contact the institution to provide the applicant with telephone access. If out of custody, Defence Counsel will make the necessary arrangements but shall not provide the secure number of the Court to their client.