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Ali v. Tariq – Case Comment

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In light of the global pandemic and suspension of the courts, very few civil matters have been heard since March 12, 2020. The courts have advised that only urgent civil matters will be heard until the courts re-open. In one of the only civil matters heard since the courts have been suspended, on March 19, 2020, Justice Myers heard an urgent application. The name of the matter is in Ali v Tariq, 2020 ONSC 1695, and a copy of Justice Myers’ endorsement is found below.

In this matter, the defendant was noted in default in small claims court and default judgement was secured by the plaintiff. A writ of execution was also filed by the plaintiff on the defendant’s home to try to take any equity the defendant had in the property in order to pay a judgment. The defendant in the action brought an application to set aside the default judgment and writ of execution. The applicant argued that the matter was urgent due to the fact that the property was scheduled to be sold – pursuant to an agreement of purchase and sale – on the following day. The respondent was concerned that the writ was impeding their ability to sell the property and the seller feared the sale would be lost. The Respondent stated that she was unaware of the default judgment or of the writ having been registered, and only became aware of same through the sale process of her property.

Justice Myers’ urged the parties to settle and try resolve the dispute in a manner that did not prejudice either party. However if the matter could not be resolved, Justice Myers laid out the following procedure (paras. 9-12):

[9] Service of any materials for this application may be made by email … and shall be deemed effective on the date the email is sent or, if sent after 4:00pm, on the next day. No acknowledgement of receipt for email service is required for this motion.

[10] All evidence, motion records, and factums shall be filed with the court by delivering them as attachments to an email to the other parties and the Motions Coordinator in searchable PDF format. No Books of Authority or statutory materials are to be sent to the other parties or the Motions Coordinator. References to case law or statutory material shall be made by hyperlinks to CanLII contained in the parties’ factums or in a separate list of authorities.

[11] The hearing will be held by telephone case conference to be held on a line arranged by the Motions Coordinator. The parties and the presiding judge may use videoconference technology (whether Skype or Microsoft Teams or otherwise) as may be available to them all and acceptable to the presiding judge.

[12] Upon the courthouse reopening to the public, each party shall file with the Civil Motions Office a copy of all the material he, she, or it delivered electronically for this motion, with proof of service, and pay the appropriate fees therefor.

The importance of this endorsement is that is paragraph 10 lays out the groundwork for the filing of motion materials on urgent matters during the suspension of the courts. Of particular note, parties are not to file Books of Authorities. Instead, Justice Myers notes that all references to case law and statutes should be done via hyperlinks to Canlii in a party’s factum or separate list of authority document. This may be a preview of what is to come with respect to the filing of motion materials. However, Justice Myers notes that paper copies of the materials will have to be filed with the court once the courts reopen.

In his March 15, 2020 Notice to the Profession, Chief Justice Morawetz, noted that Civil matters that were deemed to be urgent could still be heard by a judge. In order to determine if a Civil matter is urgent, Chief Justice Morawetz noted that a matter will be considered to be urgent where immediate and significant financial repercussions may result if there is no judicial hearing. In Ali v. Tariq, it appears that Justice Myers was content that the nature of the dispute for which the application was brought was sufficient to meet the urgency criteria. It appears that the immediacy of the sale of the house played a crucial roles in his decision in this regard.

The endorsement of Justice Myers in also interesting as it touches on a jurisdictional issue; Justice Myers technically did not have standing to overturn a Small Claims Court decision, as these appeals are usually heard by the Divisional Court. However, due to the current situation, he heard the matter – suggesting that there is some leeway with the Rules based upon the unprecedented nature of the suspension of the courts.

If there is a necessity to bring a motion during the suspension of the courts, it is of crucial important to demonstrate why the matter is urgent and be sure to follow the new material filing rules if the matter is deemed to be urgent. Please feel free to contact any of our lawyers if you need further advice regarding urgent motions.