In the last two weeks, the Ontario Court of Appeal issued a decision, followed by a practice direction, stating that during the Covid-19 pandemic appeals will proceed by remote appearance or in writing.

What Happened?

The appeal was scheduled to be heard on April 9, 2020.

However, oral in-person appeal hearings were suspended for the week of April 6, 2020 as a result of the Covid-19 health crisis.

The parties were canvassed as to whether they would agree to have the appeal heard without an in-person hearing, or to have the matter adjourned to a date in September or early October, but the parties could not agree.

Parties’ Positions

 The appellant sought an adjournment until September or early October, while the respondent requested that the appeal proceed in writing, with an opportunity for the parties to respond to panel questions either by teleconference or videoconference on April 9, 2020.

Procedure Followed

The Court of Appeal conducted a teleconference hearing on April 2, 2020, to rule on the appellant’s adjournment request and to decide how the appeal would proceed.

Court of Appeal Decision

 Following the teleconference, the court denied the adjournment request and decided that it was in the interests of justice to have the appeal proceed in writing based on the materials filed.

In coming to its decision, the court found that, by its nature, the appeal could be fairly adjudicated in writing. It also found that the issues presented were capable of being adequately addressed in writing and could be determined on the record with the assistance of the written argument.

Additionally, the court noted that appellant had not take the position during the teleconference that the appeal could not be resolved on the written record. Rather, the appellant expressed a preference for taking the panel through the arguments during an in-court oral hearing at a future date. While the court acknowledged that this preference was understandable, it found that it was not in the interests of justice to adjourn. Instead, it accepted the respondent’s position that the delay of the appeal would be prejudicial.

The court then stated:

“Moreover, it is not in the interests of justice to overburden the court by adjourning matters that can be dealt with fairly, as scheduled. The backlog that will be created by cases that must be adjourned to protect the public and ensure fair hearings will be imposing and it should not be unnecessarily aggravated.”

In determining the procedure to be followed, the court explained:

“I have decided to order that the appeal proceed in writing rather than by remote oral hearing to ameliorate any litigation advantage that the respondents might have if a full, remote oral hearing is ordered. Although the appellant has not requested that the appeal be determined in writing, the appellant has taken the position that he cannot prepare adequately for an oral hearing because his materials are at his law firm and contain post-its and other endorsements that he would rely upon. He has made the personal choice, that I respect, that he will not risk the health of his employees by sending them into the office to assemble and retrieve this material, and he himself is not capable of doing so without help. He is uncomfortable working with electronic documents because he is accustomed to working with paper and is only slowly building up the technical capacity for his law firm employees to work remotely. In these circumstances, it would give the respondent a litigation advantage to conduct a full oral hearing, even by teleconference, since the respondent is not affected by similar limitations.”

As a result, the court denied the appellant’s adjournment request and ordered the appeal to proceed in writing. The parties would be given an opportunity to respond, by teleconference, to any questions they may have, on the date set for the appeal, April 9, 2020.

Further Court of Appeal Directives

Following the above decision, the Court of Appeal released a practice direction on April 6, 2020, that states:

“No in-person hearings will be conducted during the COVID-19 emergency. All matters (appeals and motions) will proceed by remote appearance, or in writing, as set out below.”

For Help

Our firm remains committed to supporting our clients during the COVID-19 pandemic. Petker Campbell Postnikoff is working remotely where possible and making an attempt to limit the need for in-person attendance at our office. We have made this decision to protect the health and safety of our clients, staff and their families. We are not currently accepting unscheduled in-person meetings. As a precautionary measure, if you feel sick or unwell and have an in-office meeting scheduled, please contact our office immediately to make alternate arrangements. We remain fully accessible by email and will continue to respond to voicemail messages. If you have any questions, please contact us at 519-886-1204, or by email to info@petkerlaw.com.

At Petker Campbell Postnikoff in Waterloo, we rely on our significant trial experience to effectively represent our clients at all levels of appeal and judicial review including at the Ontario Court of Appeal and the Ontario Divisional Court. Our clients can be confident knowing that their matter is in the hands of skilled advocates with an in-depth understanding of the unique nature of the appeal process and the appellate system. We offer our clients effective, high-quality legal representation throughout the appeal and review process and enjoy a reputation for excellent service.

Contact the experienced appeal lawyers at Petker Campbell Postnikoff for dedicated and proficient representation of your appeal or judicial review. We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call us 519-886-1204 or contact us online for a consultation.