Cautiously inching toward the new normal in Atlantic Courts
Nancy G. Rubin, QC and Erin McSorley
In response to the immense public health and safety challenges posed by the COVID-19 pandemic, Courts across the country have modified their practices and procedures. This article provides an overview of current COVID-19 restrictions and practices implemented by Courts in Atlantic Canada, focused on civil matters. Measures relating specifically to family courts and criminal courts are not considered here.
Essential services model – the first reaction
In response to COVID-19, the Supreme Courts in the Atlantic Provinces each began operating under an “essential services” model in March. Effectively, under such model, the Courts only hear urgent or essential matters. All non-urgent matters are being adjourned. Urgent matters are proceeding primarily by way of telephone or video conference.
Individual judges determine what is urgent or essential based on the facts of the case before them. According to a directive from the Nova Scotia Supreme Court “urgent” includes an emergency or a situation requiring immediate action or attention, while “essential” means “absolutely necessary”, such as documents that must be filed to preserve a limitation period.
In the immediate aftermath, Judges narrowly interpreted “urgent or essential” even if it proceeds electronically. Justice Keith clarified that an “emergency” proceeding “must involve a present or imminent peril which is sufficiently distinct and serious as to merit immediate judicial intervention.” A reasonable apprehension of peril will not suffice.1
A cautious expansion of essential services
There is promising evidence that Courts are expanding the current essential services model.
Nova Scotia now accepts select motions by correspondence, applications that can be dealt with solely in writing, and Consent Orders. The Nova Scotia Probate Court is also now accepting new applications for Grants of Probate and Administration.
In the past week, the Nova Scotia Supreme Court implemented a pilot project to conduct motions and applications via video conference. During the pilot phase, matters will be heard only if all parties are represented by counsel, the hearing is less than four hours, and there is no viva voce evidence or cross-examination on affidavits. It is anticipated these criteria will be relaxed. The Court has successfully heard some virtual proceedings to date.
Further, as of May 4, the Nova Scotia Supreme Court is allowing General Chambers and Appearance Day matters in Halifax to proceed by telephone, with the plan to expand Telechambers to the other districts.
There is also the possibility of some judicial settlement conferences proceeding by way of telephone or video conference at the discretion of the presiding judge and with agreement of the parties.
The Newfoundland and Labrador Supreme Court has similarly expanded its essential services model to allow filing of the following non-urgent matters: Petitions of Probate, Administration and Guardianship of Estates; bankruptcy and insolvency matters that can be dealt with ex parte or by consent; interlocutory applications that can be dealt with solely in writing; and Consent Orders.
In Prince Edward Island, Courts will accept Consent Orders or Notices of Discontinuance and documents necessary to meet filing deadlines but otherwise, the Courts have asked parties to exercise judgment and file only necessary documents.
All filings continue to be accepted in New Brunswick.
New Brunswick resuming in-person hearings
The New Brunswick Court of Queen’s Bench recently announced plans to return to a full docket and resume in-person hearings as of June 1, pending any developments in the pandemic. New Brunswick was the first (and only) province to report zero cases of COVID-19 for two weeks. The plan is that, for now, only the Judge, court staff, the immediate parties and their counsel will be permitted to attend, along with members of the media who serve as proxy for the public. Mock trials are being held to determine how to maintain safe distancing in the courtroom.
The impact of COVID-19 on Court of Appeal procedures varies across the Atlantic Provinces. The Nova Scotia Court of Appeal has adjourned all hearings scheduled for the May/June term with the exception of cases determined to be urgent. All non-urgent Chambers matters will also be adjourned.
The Newfoundland and Labrador Court of Appeal is prepared to hear appeals scheduled for May and June via video conference. All previously scheduled applications are proceeding by telephone or video conference, but only new urgent applications will be scheduled.
In Prince Edward Island, the Court of Appeal is exploring telephone or video conference hearings, or decisions based on written facts alone, for appeals scheduled to be heard before the end of May for which pre-hearing filings were completed before March 13. No new, non-urgent appeals will be scheduled.
The New Brunswick Court of Appeal is scheduling perfected appeals to be heard in the usual manner by telephone or video conference. All scheduled motions and status hearings are also being heard by telephone or video conference.
Filing procedures and deadlines
In light of the essential services model, some Courts have suspended procedural filing deadlines. The Nova Scotia Supreme Court has suspended filing deadlines in the Civil Procedure Rules, including deadlines for filing Notices of Defence, Contest, and Judicial Review. The Nova Scotia Court of Appeal has suspended periods for commencing appeals and for making a motion for date and directions under the Civil Procedure Rules. The Newfoundland and Labrador Supreme Court has extended all time periods in the Rules of Court, including filing, service, or amendment of documents. The New Brunswick Court of Appeal has suspended all time periods under the Rules of Court, with the exception of respondent submissions for perfected appeals or documents regarding scheduled motions or status hearings.
To be clear, these procedural suspensions issued by Courts do not impact deadlines or limitation periods set out in other legislation, unless otherwise varied.
The Newfoundland and Labrador House of Assembly passed the Temporary Variation of Statutory Deadlines Act, SNL 2020, c T-4.02 (the “Act”) and on April 24th, the Lieutenant-Governor in Council made an order under the Act extending most of the limitation periods in the Limitations Act, SNL 1995, c L-16.1. More information is available here.
Further, on April 24th, the New Brunswick Minister of Public Safety issued a renewed and revised Mandatory Order, which suspends limitation periods related to the commencement of proceedings and time limits relating to the conduct of ongoing proceedings. More information is available here.
With limited staffing, courts are finding new ways to deal with the usual paper flow. Courts in all four Atlantic Provinces have made electronic filing available in the current circumstances. Parties are advised to consult the filing directions of the particular Court for instructions on filing procedures.
Courts have also relaxed requirements around swearing affidavits. In Nova Scotia and New Brunswick, Courts are accepting affidavits sworn using video technology. Courts in Nova Scotia, Prince Edward Island, and Newfoundland and Labrador will accept unsworn affidavits provided that a sworn copy is filed prior to the hearing or the individual affirms the affidavit evidence at the hearing.
Public access to Court files has been suspended except in urgent situations. Members of the media may request access to files relating to urgent or essential matters. Members of the media are also permitted to attend matters that are proceeding before the Court.
Please visit the following links for more information on Court restrictions and procedures in light of COVID-19:
1 R v Swinamer, 2020 NSSC 133
This update is intended for general information only. If you have questions about the above, please contact a member of our Litigation & Alternative Dispute Resolution Group.
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