On October 3, 2022, the Chief Justices of the Ontario Court of Justice, Superior Court, and Court of Appeal provided their remarks during the Opening of the Courts. This annual ceremony brings the legal community together to mark the beginning of a new year for the courthouse and includes speeches from the courts’ top judges.
This year, the Chief Justices’ remarks covered their vision for the future of the Ontario courthouses, including the future of remote hearings – something many have been wondering about as the COVID-19 pandemic winds down. We’ve previously covered the Ontario courts’ limitations on in-person attendance at courthouses during the COVID-19 pandemic. In this blog post, we will cover the Chief Justices’ remarks and the current Ontario court guidelines for determining whether virtual court hearings are appropriate.
What Are Virtual Court Hearings?
A virtual court hearing is one heard over teleconference or videoconference rather than in a courtroom. Prior to the COVID-19 pandemic, virtual court hearings were used sparingly. However, to keep the public safe while ensuring ongoing access to justice, Ontario courts moved many of their in-person hearings virtual throughout 2020 and 2021.
What Did the Court Say About Virtual Court Hearings?
As Chief Justice Maisonneuve noted, the 2022 Opening of the Court was the first in-person Opening of the Courts since 2019. She noted that, despite the joy of bringing the legal community together in person, the pandemic provided an opportunity to reconsider the way cases are handled in Ontario.
Chief Justice Maisonneuve then noted four key areas the courts were looking at to plan for a longer-term vision for the Ontario courts: modernization, backlog, increased accessibility, and enhanced attention to diversity, equity, and inclusion.
Chief Justice Maisonneuve highlighted the following Ontario court initiatives to support the ongoing use of virtual court hearings:
- CaseLines: CaseLines is available in all Ontario Court of Justice locations that hear family law cases. CaseLines is a cloud-based document sharing e-hearing platform created by Thomson Reuters. It allows parties to upload, share, and present documents virtually.
- E-Intake: the Ontario courts have fully launched an e-Intake digital platform. This platform allows police officers to file criminal charges electronically and simplifies other electronic processes.
- Digital Case Management: the Ontario Court of Justice has unveiled a new, end-to-end digital case management system to increase accessibility in the courts.
Notably, Chief Justice Maisonneuve stated that a hybrid model – one where proceedings can be held virtually and in person – will be essential for the modernization of Ontario’s courts, suggesting that virtual court hearings will continue to be used in some capacity.
Chief Justice Morawetz of the Ontario Superior Court of Justice also discussed ongoing virtual hearings in his remarks. He noted that “there is no going back: virtual hearings have become a permanent fixture for court proceedings.”
In Ontario, both in-person and virtual court hearings are being conducted.
Guidelines to Determine Mode of Proceeding
The Ontario Superior Court of Justice released a set of guidelines to help court participants determine whether their case is appropriate for a virtual hearing.
Notably, these guidelines outline several presumptions about the types of hearings that will be held virtually. Unless the court directs the parties to appear in person, the following types of hearings will be held virtually:
- Case conferences
- Pre-trial conferences (note: this presumption applies to pre-trial conferences that only involve trial scheduling issues)
- Pre-trial conferences (note: this presumption applies to pre-trial conferences addressing settlement and trial management issues)
- Contested motions and applications
- Assessments of solicitor fees or judge-referred assessment of costs hearings
When are parties required to attend a hearing in person?
The guidelines also identify several presumptions about hearings that will be held in person. Note, however, that these types of hearings can be held virtually if all the parties involved consent or the court specifies that the hearing should be held virtually:
- Examinations for discovery
- Mandatory mediations
- Trials without a jury (“judge-alone”)
Civil jury trials will be held in person. However, the court has the authority to proceed with a hybrid (both in-person and virtual) proceeding if it chooses to do so.
Principles for determining whether a virtual court hearing is appropriate
In addition to the type of proceeding, certain principles will help court attendees determine whether a virtual hearing is appropriate, even where the parties consent to a virtual hearing:
- Court discretion: ultimately, the court will make the final determination regarding whether a virtual hearing is appropriate. This determination will involve looking at the issues in the case, the length of the case, the parties’ resources, and the parties’ ability to access the technology needed for a virtual hearing.
- Self-represented parties: if any of the parties involved are self-represented, the court may be more inclined to hold the hearing in person. Doing so ensures that self-represented parties have access to support and resources, such as court staff and duty counsel.
- Legal or security impediments: virtual court hearings may be inappropriate for certain types of cases, such as criminal cases, civil contempt hearings, or child protection cases, due to legal or security impediments.
- Personal circumstances: certain parties’ personal circumstances may make virtual court hearings inappropriate. For example, if the party has disabilities or caregiver responsibilities, it may be more appropriate to hold the hearing in person.
- Technological limitations: if any of the parties do not have the appropriate technology available to participate in a virtual court hearing, or to be placed on an equal footing with the other parties, the court will prefer an in-person hearing.
The court also notes that, when looking at whether a hearing should be held virtually or in person, they will also consider the use of hybrid proceedings, if appropriate.
Skilled Litigation Lawyers Serving Eastern Ontario and North Bay
At Tierney Stauffer LLP, our experienced litigation lawyers have the advocacy skills and resources to adapt to the changing legal landscape. Our lawyers are diligently following changes to courtroom protocol and are well-positioned to tackle your claim in court – wherever “court” might be.
We understand that litigation – whether virtual or in person – can be a daunting prospect. Whether you require assistance with a litigation matter or have questions about the changing courtroom landscape, reach out to our experienced litigation lawyers at 1-888-799-8057 or contact us online.