The COVID-19 Pandemic Is Not an Excuse

A recent decision of the Ontario Court of Appeal, released on April 2, 2020, highlights the Court’s message to the legal profession that while in-person hearings have been suspended, where it is fair and in the interest of justice to move forward by other means, the parties should do so. To that end, the Court of Appeal sent parties who had an upcoming appeal a notice setting out various options to allow the appeal to move forward.

Due to the suspension of in-person oral hearings across courts in Ontario, the appellant owner in this appeal had requested that the upcoming hearing (initially scheduled to be heard in-person on April 9, 2020) be postponed until September or October. The respondent condominium corporation, however, proposed that the appeal proceed in writing, with an opportunity for the parties to respond to any questions from the panel of Court of Appeal judges by teleconference or video-conference. Due to the failure to reach an agreement, the Court of Appeal scheduled a telephone hearing with the parties.

After the telephone hearing with both parties, Justice Paciocco ruled that it was in the interests of justice to have the appeal proceed in the manner proposed by the respondent condominium corporation (i.e. in-writing with an opportunity to respond to questions from the bench by teleconference, if any, on April 9, 2020).

In his decision, Justice Paciocco underscored that it was not in the interests of justice to overburden the Court by adjourning matters that can be dealt with fairly, as scheduled.

While appellant owner did not argue that the appeal could not be resolved via written submissions, he expressed a preference for in-court oral hearings. The Court’s response to this was simple: “That preference is understandable, but it is not in the interests of justice”.

Due to the pending appeal, the appellant owner has been withholding a significant amount of condominium fees, in addition to other unrelated debts. Consequently, the Court found that it was in the interests of justice to determine, without further delay, whether such a shortfall should continue to be borne by other owners of the condominium.

The appellant owner also argued against proceeding in writing, stating that due to the current COVID-19 crisis, he was unable to attend at his office to obtain his files. He further expressed that he was uncomfortable working with electronic documents, being more accustomed to working with paper. Importantly, while the Court recognized these impediments, it ruled that these challenges could be adequately accommodated by having the respondent condominium corporation provide the appellant owner with electronic copies of all filed documents.

In the end, the Court’s message is clear. Despite the current circumstances, there are alternative methods to resolve legal matters. Where it is fair and in the interests of justice to move a matter forward, parties cannot use the current pandemic as an excuse to delay a proceeding.