COVID-19: Recent Decisions Emphasize Cooperation and Civility Amongst Litigants and Lawyers

 In Commercial Litigation, Litigation

Two recent Superior Court decisions illustrate that Courts and Judges in Ontario have the expectation that lawyers and litigants will be civil and cooperative during this time, particularly with respect to procedural or scheduling matters or issues.

First, in Wang v 2426483 Ontario Limited (2020 ONSC 2040), Justice Myers released an endorsement pertaining to the scheduling of a matter that was deemed to meet the threshold for urgency. At issue was the fact that after the matter was found to have met the urgency standard and a Judge was assigned to hear it, counsel for one of the parties sent submissions to the Court arguing that the matter was not urgent and should not be scheduled for a hearing.

Justice Myers noted that the Court was routinely receiving submissions on the merits and the issue of “urgency” both before and even after the Court scheduled a matter for hearing. Justice Myers explained that the Notice to the Profession asked everyone, including litigants and lawyers, “to recognize the exceptional times and to try to cooperate to avoid the need for court proceedings where possible”.

Justice Myers’ endorsement makes clear that while Counsel may be invited to make submissions on the timing of a proposed hearing, submissions on the merits and “emails arguing back and forth among counsel about urgency” should not be sent to the Court unless invited. It is noted that they are not required, znot helpful, and must stop.

This decision illustrates the Court’s expectation that litigators and counsel be cooperative and civil during these exceptional times, particularly with respect to issues such as scheduling.

However, that does not mean parties cannot raise legitimate scheduling issues, as Justice Myers notes that parties are still free to seek adjournments and appropriate scheduling terms before a Judge presiding at the hearing, however Justice Myers makes clear that the parties should not be challenging the scheduling of the hearing itself.

Similarly, Add-Vance Service Centre Ltd and Abdalrahman Alhazmy v. Triloq Corp. and Edgar Bray (2020 ONSC 2105), a recent decision on costs arising from a motion in a landlord-tenant dispute, further illustrates the Court’s expectation that litigants and lawyers cooperate during this time.

In finding that the defendants shall pay $8,200 in partial indemnity costs, Justice Williams noted that she typically would order that amount to be paid within 30 days, in accordance with Rule 57.03(1)(a). However, Justice Williams noted that “in light of the COVID-19 pandemic, and without evidence of the current circumstances of the parties”, rather than ordering that deadline for payment, she instead urged counsel to negotiate a fair arrangement for the payment of the $8,200.00.

While Justice Williams did also note that if the matter could not be negotiated among counsel, she would make a ruling if requested to do so, her decision made clear that there is an expectation that Counsel would be cooperative and able to resolve this issue on their own, in consideration of the potential effects of COVID-19 on the parties.

This blog post was written by Alexander Bissonnette, a member of the Commercial Litigation team.  He can be reached at 613-369-0358 or at Alexander.Bissonnette@mannlawyers.com.

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