The fallout from the global spread of COVID-19 has had a major impact on every industry and profession throughout the country, including the legal profession. With Ontario courts closing to all but the most urgent criminal and family matters in recent weeks, those facing civil disputes classified as “non-urgent” have been left wondering when they will be able to move forward with their matters.
Suspension of Limitation Periods and Procedural Deadlines
In an effort to limit the prejudicial effect of the courts becoming inaccessible for the time being, the province of Ontario suspended all limitation periods and procedural deadlines retroactive to March 16th. The basic limitation period for the commencement of a civil claim is two years from the date the claim was discovered, or reasonably ought to have been. The suspension created pursuant to the Emergency Management and Civil Protection Act mandates that this period will be suspended for the “duration of the emergency”. This means that the limitation period, and civil procedure deadlines, will cease to run from March 16th until the period of emergency in the province is complete.
Courts Expand Functionality
On April 2nd, the Ontario Superior Court of Justice announced that it would begin to expand on the services available for criminal, civil and family matters effective April 6th. However, these expanded services are still rather limited. With respect to civil matters, the court will begin to hear the following:
1. Pre-Trial Conferences – Pre-trial conferences that were cancelled between March 16 and May 31, 2020 due to the court closure can be rescheduled at the request of the parties. The objective of the pre-trials will be settlement of the action. Parties must certify that case is capable of settlement with the assistance of a pre-trial judge.
2. Rule 7 motions or applications for approval of settlement, in writing.
3. Consent motions, in writing.
These matters will be heard remotely by phone or video conference to facilitate the ongoing practice of social distancing. However, the services offered are still quite limited, meaning civil matters will continue to face extensive delays.
Arbitration as a Trial Alternative During COVID-19
This does not mean, however, that disputes have to remain unresolved for the time being. While the courts continue to be extremely limited in their current capabilities, there are alternative options available to litigants to keep an action moving along and to seek resolution during this unprecedented time. In particular, arbitration remains an excellent option for parties to resolve a matter expeditiously while exercising all necessary due diligence with respect to precautions put into place due to COVID-19.
Arbitration offers a number of advantages to civil parties in addition to the fact that it can help to avoid further delays in resolution. Unlike court, arbitration allows parties to choose a decision-maker with relevant expertise, who can bring a high level of technical understanding to even very complex matters. This can provide a real time-savings when all parties are familiar with industry-specific matters and language.
In addition to the consensual selection of a qualified arbitrator, this process allows for a high level of customization with respect to the process itself. Parties can determine the rules that will apply, and even the method by which the arbitration takes place. Unlike courts, alternative dispute resolution methods commonly took place via alternative arrangements such as video conferencing even before COVID-19. The tools are already in place, and arbitrators are already experienced in running a matter remotely.
Further, arbitration offers a level of confidentiality that courts cannot provide. Owing to the private nature of this process, parties do not have to worry about sensitive information that may be introduced in the course of a proceeding becoming public knowledge.
Litigants need to be aware that even once the courts are fully open again, they will face delays due to the backlog created by the temporary closures. An already overloaded system will likely see unprecedented wait times. Looking into alternative methods of dispute resolution will allow parties to move ahead with their matter on their own terms, and reach resolution now, enabling them to put these matters behind them much more quickly than if they had waited to proceed with traditional litigation.
If you are involved in litigation and facing delays due to court closures resulting from COVID-19, the exceptionally skilled corporate litigation lawyers at Milosevic Fiske LLP in Toronto can help. Over the years, our team of lawyers has successfully fought for our clients’ rights and our impressive track record speaks for itself. We have considerable experience representing clients in alternative dispute resolution options such as arbitration and can provide skilled advocacy throughout the process. Please contact us by calling 416-916-1387 or connect online for a consultation.