In response to the COVID-19 pandemic, regular court operations have been suspended as of March 16, 2020. Exceptions are made for select pre-trial conferences, urgent motions which can proceed by way of teleconference, motions in writing that are proceeding on consent of all parties, motions without notice and certain short motions on notice.
Consent and ex-parte motions in writing
In the event that a motion can proceed in writing on consent of all parties or without notice, motion materials must be delivered electronically to the court office at the courthouse where the file is located. Any consent motions which were filed with the court prior to March 17, 2020 should be re-submitted in electronic format. If a party is re-filing the materials electronically, it must be indicated in the draft Order that the “motion material previously filed is being withdrawn”.
All consent/without notice motion materials must be submitted electronically to the generic email addresses set out in the Notice to Profession published on April 2, 2020 (https://www.ontariocourts.ca/scj/notice-to-the-profession-the-public-and-the-media-regarding-civil-and-family-proceedings-update/). Upon resumption of normal court operations, parties must undertake to file all materials and pay any applicable fees.
In order to ensure that a motion is reviewed and processed by a judge/construction lien master, the subject line should include the following information:
- Level of Court (Superior Court of Justice);
- Type of Matter (Construction Lien);
- Court File Number; and
- Type of Document.
The body of the email should include the following information:
- Short title of proceeding;
- List of documents attached;
- Order requested; and
- Contact information of person submitting the request (email and phone number).
The electronic materials must include:
- The motion materials (notice of motion, affidavit and draft order);
- Consent of all parties;
- Authorization to execute the consent if one was provided by opposing counsel; and
- Draft order in Word format.
Judges and masters do not have access to court files. As a result, parties should include as part of the motion record all court documents which are relevant to the motion. It is important to note that electronic motion materials should not exceed 10MB in size. All materials being submitted must be in searchable PDF format.
Motions that are being brought on consent and in writing in the Northeast Region cannon exceed 10 pages in length. Any attachments must be made available via hyperlink.
Once materials are submitted electronically, they will be re-directed to the construction lien master or a judge. The construction lien master/judge will review the motion materials and will determine whether or not the relief sought is to be granted. If the relief is granted, the order will be signed and returned to the moving party via email. The moving party is responsible for providing a copy of the signed order to all responding parties within 7 days of its receipt.
In the event that there are issues or concerns with the materials or the proposed order, the parties will receive an endorsement by email setting out the deficiencies or reasons for denial of the order.
If parties are seeking an order for payment of security out of court, the original issued and entered Order will be required so that it can be submitted to the Office of the Accountant of the Superior Court of Justice. Typically, the original signed orders are delivered to the civil intake unit. Parties will have to make arrangements with the process server to attend at the civil intake unit during their special business hours and have the original order entered.
To identify the proper location of the original order, parties will have to make enquiries with the trial-coordinator or the judicial secretary who provided them with a copy of the signed order.
Motions to vacate Construction Liens
The vacating process is slightly different. During remote operations, the ordinary procedures for vacating motions do not apply. In addition to the above-mentioned documents, the moving party will have to submit a revised form of order that is currently being used under the remote protocol (https://www.ontariocourts.ca/scj/files/notices/vacating-order-form.pdf), a draft fiat for payment into court (https://www.ontariocourts.ca/scj/files/notices/fiat.pdf) as well as a copy of the security being posted (lien bond/letter or credit/certified cheque). If the lien is being vacated by a lien bond, counsel must ensure that the seal is visible on the scanned copy of the lien bond. The seal may not be visible, even on a high-resolution scan. Under such circumstances counsel must attest, in the body of the e-mail, that the seal is present on the lien bond.
If the lien is being vacated in an intended lien action with no court file number, the court will assign a court file number to the case. Once materials are reviewed and approved, parties will receive a copy of the signed order, an endorsement, a signed fiat, and an approved copy of the lien bond.
The order does not need to be entered unless it has to be registered on title. Should a party require to register the order on title, specific instructions will be provided by the registrar with respect to the internal entry of the order.
In order to post security, parties must print in colour all the materials received from the Master’s Office, being the issued order, the endorsement, the signed fiat and the approved security. The said documents are to be combined with the original form of security and delivered to the accountant’s office. Parties are reminded that they will be required to enter the Order if it is to be registered on title.
Once payment into court is made, counsel for the lien claimant must be served with copy of the order and copy of the receipt from the accountant’s office to evidence compliance with the order. If the lien attaches to the premises, the issued and entered order must be registered on title.
Urgent Motions
Prior to bringing an urgent motion, counsel must assert that there is a valid reason for urgency and be prepared to provide documents evidencing the urgency along with the motion materials. Upcoming expiry of limitations, financing or any other transaction that could be disrupted, would usually be classified urgent.
Parties are strongly encouraged to bring urgent motions in a jurisdiction where the action was commenced. Although there is an option to bring ex parte motions in Toronto, counsel must be reminded that in the event that the order is to be registered on title (such as vacating order), it must be entered in the jurisdiction where the action was commenced. If the motion is heard in the same jurisdiction, arrangement may be made internally to have the order entered and returned to counsel via email for registration.
Once motion materials are submitted to the designated e-mail address for urgent motions (https://www.ontariocourts.ca/scj/files/Courthouse-contact-information%2025-Mar-2020.pdf), the trial coordinator will schedule a teleconference with the judge/master. Counsel should be prepared to appear via teleconference on the same or the following day.
Once the motion is heard, the judge/master will sign the order. The signed order will be emailed to counsel.
Counsel are expected to make enquiries with the trial coordinator concerning the entry of the order at the civil intake office of the said jurisdiction.
Short Motions on Notice in Toronto
As per the newly published Notice to Profession, effective May 19, 2020, parties will be able to schedule opposed short motions to a judge or a master. Such motions will be subject to review in writing before being scheduled. Parties wishing to bring a short motion or an application to a judge or a master may submit a short motion request form (https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-to/#C_Civil_Matters) to Toronto.SCJ.CIVILINTAKE@ontario.ca. The judge or master reviewing the short motion request form may issue directions for the disposition of the motion or convene a case conference for that purpose.
Parties should refer to the regional practice directions for instructions concerning short motions on notice in other regions on the Superior Court of Justice website at: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/.