Modernization of civil litigation processes in Ontario

Amendments to the Ontario Rules of Civil Procedure, RRO 1990, Reg 194  (the “Rules”) came into force on January 1, 2021. Many of these changes, spurred on by the COVID-19 pandemic, improve the Rules and will allow courts and litigants to make better use of modern technology. If used correctly, these revised Rules may also expedite the life cycles of actions in the province.

One of the key changes is increased permissibility of video and telephone technology. With some exceptions, parties can now propose attendance by telephone or video conference when seeking a hearing or another appearance in a proceeding. Another welcome change, courts can now provide directions that any oral examination proceed by video conference if an action is proceeding to trial. This will allow individuals living outside of major cities to participate in court processes without incurring expenses and missing work to travel for a brief appearance.

Unreasonable objections to proceeding by telephone or video conference should decrease in the face of the potential costs awards outlined in the updated Rules (and in the Ontario Court of Appeal’s decision in Arconti v Smith). This amendment appears to reflect the legislature’s genuine intent to create a more accessible and modern legal infrastructure.

The downside? Fans of the fax machine — stop reading. All Rules that allowed service by fax have now been amended by striking out the word “fax” and replacing it with the word “email.” Not only have all references to “fax” been adjusted, but the legislature has also seen fit to take out the only remaining reference in the statute to “telegram”. While some of us might come to miss the hiss of an incoming facsimile on our telephone lines when we try to place a call, lawyers in Ontario should now remove their fax numbers from court documents and replace them with an email address.

Below is a summary containing some, but not all, of the more significant amendments that are now in force.

Proceeding by video or telephone conference

Parties seeking a hearing or other step in a proceeding can now specify that the parties attend the hearing or step in person, by telephone conference, or by video conference. If another party wishes to oppose the proposed method, they must deliver an objection and a case conference will be held to deal with the objection (Rule 1.08). While legitimate reasons exist for preferring evidence to be given in person, this change should lessen the burden of obtaining consent or a court order in cases where there are no such genuine considerations.

• All case conferences will be held by telephone conference unless the court specifies a different method of attendance (Rule 1.08(3)).
• The court may give a direction, if an action is to proceed to trial, that any oral examination proceed by video conference (Rule 20.05(2)(j.1)).
• On costs awards, courts may now take into account whether a party unreasonably objected to proceeding by telephone or video conference (Rule 57.01(h.1)).

Electronic documents and signatures

• Any document that may or must be signed by the court, a registrar, a judge, or an officer may be signed with an electronic signature (Rule 4.01.1(2)).
• Certified copies of court documents may be provided by the registrar in electronic format (Rule 4.03).
• The court may require parties to submit documents using CaseLines, the new electronic document sharing software authorized by the Ministry of the Attorney General available on the internet. Rule 4.05.3 contains requirements, deadlines, and other information for using this software. Notably, the Alberta Court of Appeal transitioned seamlessly to remote work during the early days of the pandemic, in large part due to the fact that it had already implemented a similar system.

No listing of fax numbers

• The backsheet of every document in a proceeding should no longer list the fax number of the lawyer or self-represented person. Instead, the backsheet must contain the email address of the lawyer or the self-represented party (if they have one) (Rule 4.02(3)).

Virtual commissioning of affidavits

• There is no longer a requirement that affidavits must be sworn “before a person authorized to administer oaths or affirmations.” Instead, they must be sworn “in accordance with the Commissioners for Taking Affidavits Act.” This allows for the virtual commissioning of affidavits to continue (Rule 4.06(1)(e)).

Service by email

• Any document that is not required to be served personally, or by an alternative to personal service, can be served to the lawyer of record and the party by email, without first obtaining consent (Rule 16.01(4)(b)(iv) and Rule 16.05(1)(f)).

Motions in writing expanded

•  Moving parties may now propose that any opposed motions be heard in writing. There is no longer a requirement that a moving party can only make this proposition where the issues of fact and law are not complex (Rule 37.12.1(4)).

More powers for the registrar

•  In making a determination on whether to issue a certificate of appointment of estate trustee, the registrar may now make requests of the applicant to provide any required information, and may also refuse to issue the certificate. If the registrar refuses to issue the certificate, the registrar must send notice to the applicant and may do so by email. (Rule 74.14).

With these amendments, emails and electronic delivery of documents will now be the gold standard, just as widely accepted as physical documents and delivery. For example, all documents will now be servable by email without having to first seek consent from the opposing party, other than originating documents which must still be served personally. If the court makes an order for substituted service of an originating process, then this too may be emailed to a lawyer’s office without consent. 

These amendments will hopefully have a positive impact on the legal system and increase accessibility for those with good access to stable internet connection. These amendments to the Rules may also provide fodder for the establishment of a right to internet access. Lawyers must be cognizant of how these new Rules can be applied to save time and money. Articling students and new calls can relax knowing they may never be required to use the dusty office fax machine. 

O. Reg. 689/20 and all of its amendments can be found here.

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.