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New Normal: Part 3 Estate Litigation - Essential and Urgent Civil Matters

On June 3, the Honourable Chief Justice Christopher E. Hinkson made directions regarding the resumption of further court operations, subsequent to the suspension of regular operations on March 19, 2020. In COVID-19 Notice No. 25, Chief Justice Hinkson outlines procedure for some of the court operations that will start to resume, but cautions that "[d]ue to the fluidity of the situation, the Court will continue to be guided by public health recommendations, and further adjustments to Court processes may be required" (para 2).

While more court processes are scheduled to resume over the coming weeks, there are procedures for matters to be heard during the suspension period, which remains in effect. In this post, we will refer you to one of the procedures that litigators have been employing during the suspension period.

Essential and Urgent Civil Matters

The Court's instructions for Essential and Urgent Civil Matters can be found in COVID-19 Notice No. 8, which was revised on April 16, 2020. In Notice No. 8, the following civil matters qualify as essential or urgent:

  • matters related to public health and safety and COVID-19, including:
    • orders under the Quarantine Act; and
    • orders under the Public Health Act;
  •  matters where there is a prima facie urgency, including:
    • refusal of treatment and end of life matters, including matters under the Health Care (Consent) and Care Facility (Admission) Act;
    • o detention of individuals, including under the Mental Health Act and the Adult Guardianship Act;
    • emergency adult guardianship and committeeship orders, including under the Adult Guardianship Act and Patients Property Act;
    • housing evictions, including interim stays of orders of possession under the Residential Tenancy Act;
    • civil restraining orders;
    • preservation orders;
    • urgent injunction applications; and
    • urgent orders in the nature of habeas corpus, certiorari, mandamus and prohibition.

Procedure for Essential and Urgent Civil Matters

If your matter is considered urgent, and a hearing is necessary, the following procedure must be followed

1. Urgent Hearing Request Form

Submit the Request Form for an Urgent Hearing online (the "Request Form").

2. Receipt of Acknowledgement Email

The Court will confirm receipt of the Request Form and notify all parties of the request (the "Acknowledgement Email").

3. Reply to Acknowledgement Email

The party who submitted the Request Form must then reply to the Acknowledgement Email, attaching:

  • an unfiled draft form of application which identifies the orders sought; and
  • an unfiled draft affidavit which sets out key facts and the nature of the urgency (set out concrete details).

Additional information you might also consider including could be:

  • whether the hearing must be before a Judge, or whether it may be before a Master;
  • opposing counsel's position on whether the hearing should proceed; and/or
  • whether the hearing is on an ex parte basis.

Note that you do not add your Application Response and Affidavit to this email if you are the Respondent. If the reviewing judge determines that the hearing will go ahead, you will then attach your materials as per the judge's instructions.

4. Judge's Determination Regarding Urgency

Once the reviewing judge has reviewed the Request Form, the draft application, and the draft affidavit, the parties will receive an email notifying them that either the Urgent Hearing will proceed or not.

5. Instructions for Filing Materials

If the reviewing judge determines that an Urgent Hearing is necessary, the Court will schedule a date for the hearing and will provide directions to all parties about filing and service of materials.

6. Conduct of Hearing

The Urgent Hearing will take place via telephone or by videoconference where appropriate and available.

Examples of Approved Urgent Hearing Requests: probate applications where there is a closing date pertaining to real property or access to equity is immediately required; committeeship proceedings where a decision must be made for the safety of the adult or to secure their accommodation; proceedings under the Mental Health Act; or proceedings under the Adult Guardianship Act.

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