Recent Changes to Civil and Commercial List Appearances in the Toronto Region
The Ontario Superior Court of Justice publishes and maintains provincial and regional practice directions and policies, which govern how court proceedings are to be conducted in Ontario. Recently, in an effort to consolidate and streamline its official guidance to counsel, parties, media and the public, the Office of the Chief Justice overhauled and updated its Consolidated Provincial Practice Directions for each area of the court’s responsibility (namely, civil, family, criminal and divisional) as well as the Practice Direction for the Toronto Commercial List (collectively, the “Provincial Practice Directions”) and the Regional Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region (the “Toronto Region Civil Direction”).
The Provincial Practice Directions for civil proceedings came into effect on June 15, 2023. The Toronto Region Civil Direction came into effect on September 4, 2023.
Following publication of the Provincial Practice Directions, it is no longer necessary for parties to cross-reference any other practice directions with provincial application, though parties are cautioned that they may still be required to refer to regional notices and practice directions. For example, in the case of civil proceedings commenced or maintained in Toronto, parties should refer to the Toronto Region Civil Direction in addition to the Provincial Civil Practice Direction.
This bulletin summarizes the key changes affecting Commercial List proceedings and civil proceedings in Toronto.
Changes to Civil Proceedings in the Toronto Region
1. Toronto Region Civil Direction
1.1 Introduction of Calendly
The Toronto region will begin using the online scheduling tool Calendly to request an appearance before the court for the following matters:
- Civil Practice Court;
- To Be Spoken to Court;
- Long Trial Scheduling Court;
- Case conference before a judge;
- Short motions before an associate judge;
- Construction Lien First Trial Management Conferences; and
- Construction Lien Short Motions before an associate judge.
After canvassing their respective availability and making best efforts to consent to a date and time, parties must designate one party in the action to follow the prompts and complete the Calendly process. The requestor will receive an automated email confirming their request and outlining next steps to secure their date, and bears the responsibility for forwarding all scheduling-related emails to the other parties in the action.
1.2 Elimination of ‘Placeholder’ Motions
The court will strictly enforce the requirement that any date scheduled for a short or long motion before an associate judge will be vacated if the Notice of Motion and payment of the motion fee are not submitted within 10 business days after the date is scheduled.
1.3 Express Court for Short Motions Before an Associate Judge
Short motions that do not fall within the requirements for in-writing motions and which require more than a 15-minute hearing may be scheduled for a 15-minute hearing in an express court.
1.4 Mandatory Case Conference for Short Motions for Which an Oral Hearing Is Required
All opposed short motions and short applications, with the exception of summary judgment motions, appeals from associate judges and appeals from the Consent and Capacity Board, must proceed to a case conference before the motion or application is scheduled for an oral hearing. Applications and motions before a judge or associate judge that require two hours or less for all parties to argue are considered short applications and short motions.
On the case conference, the judge may identify the issues that are contested and explore methods to resolve the contested issues. If the contested issues cannot be resolved and if the case conference judge is satisfied that an oral hearing is required, the judge may schedule a hearing date for the motion or application and establish a timetable.
2. Provincial Civil Practice Direction
2.1 Electronic Facta, Books of Authorities and Hyperlinking Requirements
Parties must ensure that their facta contain hyperlinks to any and all cases that parties intend to refer to in oral arguments. Where possible, the hyperlinks must link to publishers that are free and publicly available, such as CanLII, and parties must include hyperlinks to specific paragraph references each time a case is cited in the factum. The date on which a copy of any decision was obtained from an electronic database must be included as part of a citation.
Where hyperlinks to publicly available authorities are provided in the factum, it will not be necessary to file a book of authorities.
Authorities that are not available on a free public website, such as unreported decisions, decisions only available on approved private electronic databases (namely, LexisNexis Quicklaw, and Westlaw) and excerpts from textbooks, shall be included in an abbreviated book of authorities and filed electronically in PDF format. The abbreviated book of authorities shall include a table of contents that has internal hyperlinks to the cases and textbook excerpts contained within it. Parties must not include the full text of all authorities to be relied on, unless the court orders otherwise.
2.2 CaseLines Procedures
At least one day before the hearing, the parties must upload a Participant Information Form setting out the name(s) of counsel and self-represented parties, how they wish to be addressed and the estimated time for oral submissions. This document must be uploaded to CaseLines, not filed with the court.
When uploading documents to CaseLines, parties must follow the following sequence:
- Motion Record/Application Record/Trial Record and Compendium;
- Transcripts, if any;
- Exhibit Books, if any;
- Abbreviated Book of Authorities, if any;
- Bill of Costs/Costs Outline, if any;
- Participant Information Form;
- Other documents, if any and if permitted under the Rules of Civil Procedure.
During the hearing, parties must be prepared to use CaseLines-generated page numbers when referring to documents as well as the “Direct Others to Page” function.
Parties must ensure that all materials they upload to CaseLines comply with the Rules of Civil Procedure and are properly before the court. Parties may only depart from the rules if a judge grants them leave to do so.
Changes to Commercial Proceedings in the Toronto Region
1. Toronto Commercial List Practice Direction
1.1 Zoom vs. In-Person Attendances
The court has provided clarity on whether a matter will be heard virtually over Zoom, or in person. Short matters, including scheduling appointments and case conferences, and matters scheduled for a hearing of less than 90 minutes, will continue to be conducted via Zoom. Matters scheduled for a hearing of 90 minutes or more will continue to proceed in-person at 330 University Avenue, unless the presiding judge orders otherwise.
1.2 Estimates of Required Time
The court schedules matters based on the parties’ time estimates, and expects counsel to adhere to those estimates. Failure to adhere to the time allotted for a matter may, in the presiding judge’s discretion, result in the adjournment of all or part of the matter.
1.3 Requirement to File a Factum or Aide Memoire
Even where a factum is not required by the rules, parties appearing on the Commercial List are expected to file a factum with their materials on any matter that is, or might be, contested.
Even in uncontested motions or applications, parties should file an outline of argument or Aide Memoire.
Reply facta of up to five pages are permitted but shall be restricted to new matters not previously addressed in the factum of the responding party or parties.
The court’s updated directions provide useful insight into the ways that the legal practice has evolved to accommodate the realities of modern technology in an effort to encourage efficient resolutions, increased accessibility and streamlined procedures.