Apr 8, 2020

Appeal Hearing Cancelled Due to COVID-19. What’s Next?

Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244 (CanLII)

What happens to your appeal if written materials are filed and an oral hearing was scheduled, but then cancelled because of the COVID-19 health crisis? Ontario’s top court addressed this question last week in Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244 (CanLII).

The appeal was scheduled to be heard April 9, 2020. As all Court of Appeal hearings for that period were suspended, the parties were canvassed as to whether they would agree to the appeal being heard without an in-person hearing, or whether they preferred to have the matter adjourned to a date in the fall. The parties could not agree.

Justice Paciocco determined it is “in the interests of justice to have the appeal proceed in writing based on the materials filed.” (para. 2) The Court also provided the parties an opportunity to respond, by teleconference, to any questions the panel may have on a specified date.

Factors to Consider

In denying the adjournment request and ordering that the appeal proceed in writing, Justice Paciocco considering the following:

  1. Whether the appeal could be resolved on the written record – the appellant did not oppose it being done in writing, but his preference was an oral hearing at a future date.
  2. Whether the delay of the appeal would be prejudicial – condo fees are being withheld pending appeal and the resulting shortfall is borne by other members of the condo corporation.
  3. Nature of the case and interests of justice – the issues are amenable to be dealt with in writing and there will be a large number of other cases that will require an oral hearing to be fairly adjudicated.
  4. Quality of the written materials – even though one party was self-represented, they are a lawyer and their materials were professionally prepared.

Like for so many other resources at the moment, it is clear from Justice Paciocco’s comment at para. 7 that the Court is mindful of the need to carefully manage resources and prioritize matters:

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.

Interestingly, Justice Paciocco also considered the option of ordering a remote oral hearing rather than proceeding in writing. He declined this option because he found that proceeding in writing would result in a more even playing field. The respondent might have a litigation advantage if a full, remote oral hearing is ordered because the appellant is not comfortable working with electronic documents and is slowly building up the technical capacity for his law firm employees to work remotely.

We are likely to see many more of these types of issues arise as parties come to the realization that their oral hearings will be delayed indefinitely. This decision provides parties some insight into how the Court of Appeal is likely to be triaging appeals for the foreseeable future.

Note: After writing this post, the Ontario Court of Appeal released a practice direction regarding the electronic conduct of matters during the COVID-19 emergency (April 6, 2020). It states that, “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.”

-Thomas Slade & Cory Giordano