On April 19, 2022, the Ontario Superior Court of Justice will be implementing three new sets of civil litigation guidelines. These guidelines focus on the presumptive mode of attendance for Superior Court proceedings,1 the presumptive mode of attendance for Small Claims Court proceedings2 and etiquette for those proceedings moving forward.3
Two important highlights stand out in these guidelines: the Court will now be directing that some civil litigation events proceed in person (rather than virtually) and will now be requiring counsel to once again gown for certain attendances.
Below is a breakdown of the protocols that counsel will need to abide by starting April 19, 2022:
| Events in Civil Proceedings | Presumptive Mode of Hearing | Dress Code |
| Superior Court Proceedings | ||
| Appeals to the Divisional Court and applications for judicial review | In person, unless all parties consent to it being heard virtually and the Court agrees or decides that the appeal or application should be conducted virtually. | Gowned |
| Assessment hearings | Virtual (by videoconference). | Business attire, subject to region-specific practice directions |
| Case conferences | Virtual (by videoconference, audioconference or teleconference), unless the Court specifies a different method of attendance. | Business attire, subject to region-specific practice directions |
| Consent motions, without notice motions and unopposed motions | In writing, unless the Court specifies a different mode of proceeding. | |
| Contested motions and applications | Virtual, unless a party requests that it be held in person and the Court agrees or directs that it will be held in person. The Court will take into account: (a) the positions of the parties; (b) the complexity of the legal or factual issue; (c) whether the outcome of the motion or application is legally or practically dispositive of a material issue in the case (e.g. summary judgement); (d) whether viva voce evidence will be heard; and (e) any other factor bearing on the administration of justice. | Gowned |
| Examinations for discovery | In person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding. | |
| Mandatory mediations | In person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding. | |
| Motions for costs | In writing, or as the Court directs. | |
| Motions for leave to appeal to the Divisional Court | In writing, unless the Court specifies a different mode of proceeding. | |
| Pre-trial conferences (trial management and scheduling issues only) | Virtual (by videoconference, audioconference or teleconference), unless the Court specifies a different method of attendance. | Business attire, subject to region-specific practice directions |
| Pre-trial conferences (settlement and trial management conferences) | Virtual (by videoconference, audioconference or teleconference), unless the Court directs that an in-person pre-trial conference is required. | Business attire, subject to region-specific practice directions |
| Trial and motion scheduling court | Virtual (by videoconference, audioconference or teleconference), unless the Court specifies a different method of attendance. | Business attire, subject to region-specific practice directions |
| Trials (judge alone) | In person, unless all parties consent to a virtual trial and the Court approves. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference. | Gowned |
| Trials (jury) | In person. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference | Gowned |
| Small Claims Court Proceedings4 | ||
| Assessment hearings | Virtual (by videoconference), unless the Court specifies otherwise. | Business attire, subject to region-specific practice directions |
| Contempt hearings | In person, unless the Court specifies otherwise. | Business attire, subject to region-specific practice directions |
| Garnishment hearings | Virtual (by videoconference), unless the Court specifies otherwise. | Business attire, subject to region-specific practice directions |
| Motions (except motions in writing for assessment of damages) | Virtual, unless the Court decides otherwise. | Business attire, subject to region-specific practice directions |
| Motions in writing for assessment of damages | In writing | |
| Proceedings under subrules 12.02(3) or 12.02(7) of the Rules of Small Claims Court (to stay or dismiss an action or motion) | In writing, unless the Court orders otherwise. | |
| Proceedings under subrules 12.02(3) or 12.02(7) of the Rules of Small Claims Court (to stay or dismiss an action or motion) | In writing, unless the Court orders otherwise. | |
| Settlement conferences | Virtual, unless the Court specifies otherwise. | Business attire, subject to region-specific practice directions |
| Terns of payment hearings | Virtual, unless the Court specifies otherwise. | Business attire, subject to region-specific practice directions |
| Trials | In person, unless the Court specifies otherwise. Virtual trials will be held by videoconference. | Business attire, subject to region-specific practice directions |
After over two years of largely-virtual litigation, the Court is directing in-person attendances once again, while still encouraging remote litigation. With the significant impact on efficiency and costs-saving opportunities for clients, the continuing emphasis on virtual proceedings should come as no surprise. Moving forward, counsel should remain flexible and ready to proceed through a myriad of avenues for civil litigation. However, the ability to navigate both physical and virtual courtrooms seems to have become an essential and permanent part of every advocate’s toolbox.
1 Ontario Superior Court of Justice, “Guidelines to Determine Mode of Proceeding in Civil“.
2 Ontario Superior Court of Justice, “Guidelines to Determine Hearing Method in the Small Claims Court“.
3 Ontario Superior Court of Justice, “Virtual Courtroom Etiquette“.
4 The Small Claims Court Guidelines also provide flexibility for requesting different method of hearing. Specifically, if a party seeks a different method than what the Court has scheduled, they should contact the local Court office and provide reasons for their request in writing. If all parties agree on a different mode than what the Court has scheduled, the Small Claims Court Guidelines note that the Court should generally accommodate that.
This publication is intended for general information purposes only and should not be relied upon as legal advice.
