Part I of our blog on the new guidelines discussed the new default method of civil proceedings in the Superior Court of Justice in Ontario. This part will discuss the situations and exceptions when the default guidelines may not apply. The following is a list of these considerations:
- Discretion of the Court:
The Court ultimately retains discretion as to how any individual civil proceeding will move forward. The court can take into account:
- the issues in the proceeding;
- the expected length of the hearing;
- the evidentiary record;
- the status of the parties (e.g. self-represented litigants); and
- access to technology (including virtual capacity at institutions and courthouses).
- Rule 1.08:
As discussed in our previous blog, some proceedings are to proceed virtually or in person unless a party requests otherwise.
Rule 1.08 of the Rules of Civil Procedure establishes the procedure for a party to request a specific preferred method of proceeding.
- Access to justice:
This concern cuts both ways. Some individuals in remote communities may prefer or require, a proceeding to go ahead virtually instead of in person, because of the far distance from a courthouse. Other individuals may face certain disabilities which do not enable them to be able to travel to a courthouse for in-person attendance. On the other hand, some individuals simply do not have the technology to attend virtual proceedings and would require an in-person one. These technological concerns include access to a computer or a phone, access to reliable internet, and/or access to a private space. These considerations can be raised to the Court to change a default method of proceeding.
- Self-represented litigants:
Self-represented parties in litigation may face their own unique barriers to fully utilizing virtual proceedings. For example, many self-represented parties may require the assistance of duty counsel for assistance on their matters. Others may require assistance in using the technology needed for virtual proceedings. These factors can be taken into consideration by the court when requesting a variation of the default method of proceedings.
- In-person hearings are important:
The Court has continued to recognize the value of in-person proceedings. These types of proceedings tend to be more appropriate for substantive hearings, rather than administrative ones.
- Hybrid options:
The Court has allowed for the possibility of mixed virtual and in-person proceedings in certain circumstances. This allows parties to break up a proceeding into parts, conducting some - probably the more routine administrative portions, virtually, and others in-person.
- Impediments to a virtual hearing:
Some cases, by their nature, are better suited to be held in person. These include cases where the subject is significantly serious, such as civil contempt hearings, and cases where privacy is a large concern.
The team at JEWELL RADIMISIS JORGE LLP strongly encourages all Ontarians to be aware of changes in their court proceedings and to be prepared to adapt to the changing guidelines.