Ontario Superior Court Issues New Guidelines for Court Procedures

The new Guidelines, which can be found here, are separated into four categories (for Criminal, Civil, Family and Small Claims proceedings). For condominium corporations, the new Guidelines for Civil and Small Claims proceedings are most relevant.

The Guidelines confirm that virtual procedures will continue to be a part of some aspects of Court procedures in Ontario going forward. However, as of April 19, 2022, a return to in person attendance will generally be required for a number of key (and standard) litigation events – including mediations, examinations for discovery, and trials. 

That said, the Guidelines also contain “precautionary” notes about the overriding right of the Court to direct that the procedures be varied where deemed appropriate by the Court, in light of all of the circumstances and in the interests of the administration of justice.

The Guidelines also say that hybrid options (“in which some justice participants are appearing physically in the courtroom and others are participating virtually”) will be considered “where appropriate or necessary”.

There are also new Guidelines for “Virtual Courtroom Etiquette” which can be found here. The Guidelines are nicely summarized in the first sentence, which reads as follows: All participants and members of the public that attend a virtual court proceeding must conduct themselves as if they were physically in the courtroom. The Guidelines go on to provide considerable detail about what is expected, from participants, in terms of decorum. 

While we are heartened that virtual court proceedings are here to stay in some respects, we feel that the new Guidelines could (and we would suggest should) have gone further in terms of creating the opportunity for ongoing virtual participation. Leaving aside the lingering health concerns that some participants in the justice system may have with attending in person events, the introduction of virtual participation in the justice system over the past two years was, in our view, a big, progressive, step forward for an industry that has historically trailed behind most others in its use of technology. 

In our view, virtual procedures – where possible – save a tremendous amount of time and money (for everyone involved in the administration of justice). This helps promote access to effective justice, which is of course the primary goal. Beyond that, it makes the practice of law more reasonable where our profession had pushed the limits of what was realistic to expect from lawyers.

So with the decision to return to in person attendance for some of the more substantial aspects of court proceedings (such as examinations for discovery, and mediation) these advantages will now be lost. Our concern, of course, is that the loss of these advantages will negatively impact the justice system when we had the opportunity to make it a much more effective system for both lawyers and litigants. 

We remain hopeful that there may be further opportunity to provide direct input on amendments that would extend the presumptive virtual attendances to more aspects of the justice system. In our view, this would only continue to benefit the justice system.

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