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May 19, 2020

Regional Court Availability and Arbitration as an Alternative

LAST UPDATED May 19, 2020

The closure of courts in response to the COVID-19 pandemic will have significant ramifications for commercial dispute resolution. Court time is an increasingly scarce resource in normal times. Even with significant accommodations by courts after they re-open, delays could be experienced for many months afterward.

Making use of arbitration – even for existing litigation before the Courts – could be an important and useful tool for avoiding significant delay.

This resource describes the availability of arbitration, and sets out the current status of the Courts in our region (Manitoba, Saskatchewan, and Northwestern Ontario).

Arbitration as an Option

Parties should consider whether arbitration may be a viable option not only for future commercial disputes, but also existing court proceedings.

Arbitration is a private and confidential form of dispute resolution in which the parties consent to have a third party make a binding decision on matters in dispute following a process agreed to by the parties. As arbitration procedures are flexible and can be adjusted by agreement by the parties, this method of dispute resolution offers significant advantages during the present time. For example, arbitration hearings can be conducted over videoconferencing to allow for social distancing.

In addition, in contrast to court litigation, case conferences, motions and applications in arbitration are often determined through written submissions or by way of teleconference or videoconference. Arbitration rarely involves oral examinations for discovery, and direct evidence from witnesses is usually received in writing. Furthermore, arbitration typically resolves a commercial dispute in a much shorter time than traditional court litigation, and is likely to be even more efficient than usual given the current situation.

Arbitration Is Available Even Where Court Proceedings Have Already Been Commenced

Parties can agree to arbitrate at any time, even after commencing a court proceeding. If parties wish to have their disputes ultimately determined by a court, parties should consider whether interim applications or motions could be adjudicated through arbitration until courts resume normal operations.

Status of the Courts: Northwestern Ontario

Ontario Superior Court (Northwest)

  • The Ontario Superior Court (Northwest) has suspended regular operations until further notice. All scheduled criminal, family and civil matters are adjourned. The Court will continue to hear urgent matters during the suspension period. The Court recently announced that it will also consider requests for the following non-urgent civil matters: Rule 7 and consent motions, motions in writing and pre-trial conferences.
  • With respect to civil matters, a list of matters the Court considers urgent is at the following link: www.ontariocourts.ca/scj/covid-19-suspension-fam/
  • Parties must file urgent motion or application materials by email to the appropriate courthouse. A triage judge will determine whether or not the matter is urgent and should be scheduled for a hearing.
  • Parties are discouraged from physically attending courthouses to file documents in person. Parties should file electronically instead.

In Ontario, all limitation periods are suspended for the duration of the COVID-19 emergency, retroactively to March 16, 2020. Any period of time within which any step must be taken in any proceeding in Ontario is suspended for the duration of the COVID-19 emergency, retroactively to March 16, 2020.

Status of the Courts: Saskatchewan

Saskatchewan Court of Queen’s Bench

  • The regular operations of the Saskatchewan Court of Queen’s Bench have been restricted. Urgent or emergency matters will be heard by the Court in chambers. The Court has provided a list of civil matters it deems urgent at the following link: sasklawcourts.ca/index.php/home/court-of-queen-s-bench/covid-19-update
  • The Court will also hear Appearance Day applications and case conferences by telephone. Consent orders can now also be submitted.
  • Commencing June 1, 2020, the Court will hear pre-trial conferences by telephone or person, as well as non-urgent chambers applications by telephone.  
  • All civil trials scheduled to commence prior to May 31, 2020, have been adjourned indefinitely. Once regular operations resume, alternate dates will be arranged with the registrar.
  • All jury trials scheduled to commence in June 2020 will be postponed until fall 2020.
  • Parties who seek permission from the Court to hear an urgent matter during this period must file materials setting forth the urgent nature of the application.
  • The registry remains open for filings.

Saskatchewan Court of Appeal

All appeals and applications will be heard by teleconference, or videoconference if available. If a party believes an in-person hearing is necessary, the party must submit a letter or email outlining the reasons for so believing to the Registrar, and the Chief Justice or his designate will make a ruling.
The parties may consent to having an appeal or application decided on the basis of written materials only. In addition, the parties may consent to adjourn an appeal or application indefinitely.
All matters heard by a single judge in Chambers will be heard by teleconference or videoconference.
Notices of appeal and applications for leave to appeal must be filed within the applicable timelines.

Status of the Courts: Manitoba

Manitoba Court of Queen’s Bench

  • All civil trials currently scheduled for the period from May 26 to the end of June 2020 will proceed.
  • As of May 26, 2020, all scheduled civil matters will proceed, except for jury trials. Jury trials will commence in September 2020.
  • Effective May 11, 2020, the Uncontested Civil List will operate daily by teleconference.
  • For civil trials scheduled up until May 25, 2020, three options are available for rescheduling: a one-day Judicially Assisted Dispute Resolution (“JADR”), a two week trial in July or August 2020 or a trial of any length approximately two years away.
  • The Court will provide civil pre-trial and case management conferences by teleconferencing or videoconferencing for new and ongoing matters if certain criteria are met.  A conference may be used to discuss, prepare and adjudicate motions. JADRs will be made available in the context of conferences.

The Court requests that parties refrain from filing any non-essential court documents. Examples of essential court documents include documents that must be filed because of an applicable limitation date or documents that are required for an upcoming court hearing.

Manitoba Court of Queen’s Bench Regional Service

Various judicial centres in Manitoba have adjourned General Division matters to assignment lists on specific dates. A complete list is found at the following link: www.manitobacourts.mb.ca/covid-19/ 

Manitoba Court of Appeal

  • All appeals will be heard remotely by videoconferencing and all motions or applications will be heard remotely by teleconferencing.
  • The registry remains open for filings and filing deadlines remain in place. 

Manitoba: Quick Reference Chart

Manitoba Court of Queen’s Bench Civil Matter

Status

Civil trials

All civil trials scheduled between April 20 and May 25, 2020, have been adjourned to a special assignment list scheduled for May 21, 2020.

All civil trials scheduled between May 26 and the end of June 2020 will proceed.

Contested civil motions and applications

All those scheduled between April 20 and May 25, 2020 are adjourned indefinitely. After May 22, 2020, new hearing dates can be scheduled with the civil motion coordinator.

Uncontested civil motions

Effective May 11, 2020, the Uncontested Civil List will operate daily by teleconference. 

During the summer court recess from June 29, 2020, to September 7, 2020, the Uncontested Civil List will operate twice a week by teleconference.

All matters scheduled before a master, including the masters’ uncontested list, contested motions and bankruptcy dockets

All currently scheduled civil motions and references set to proceed before a master on or after May 25, 2020, will proceed remotely.

Commencing May 11, 2020, all matters on the masters’ uncontested list that were previously adjourned can be rescheduled. The masters’ uncontested list will resume May 19, 2020, by teleconference.

Bankruptcy dockets will resume after May 25, 2020.

All other adjourned matters may be rescheduled by contacting the masters’ coordinator after May 22, 2020.

Small Claims Court

Small Claims Court hearings will resume June 8, 2020. Trials will proceed in person. All other Small Claims Court matters will proceed by teleconference.

We are available.

We recognize the significant economic and personal consequences facing our clients at this time. All our lawyers are available and we’ll do everything we can to help.

Resource first posted March 27, 2020, with a report from Kate Hart.

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