On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled civil hearings were adjourned until further notice. The Notice to the Profession provides a procedure to schedule urgent and time-sensitive motions and applications where immediate and significant financial repercussions may result without a hearing. When motion or application materials are filed, by email to the appropriate courthouse, seeking an urgent hearing, the triage judge will determine whether or not the matter is urgent and should be scheduled for a hearing.
There have been a few recent endorsements reported in respect to the scheduling of urgent commercial lease matters.
In Oppong v. Desoro Holdings Inc., 2020 ONSC 1697, the applicant sought relief from forfeiture to set aside the landlord’s termination of the lease. Although the application was brought promptly and scheduled to be heard on February 7, 2020, the landlord failed to comply with the agreed timetable and the hearing was adjourned to March 19, 2020.
On March 19, 2020, the landlord requested another adjournment based on: (a) the unavailability of transcripts from the cross-examinations; (b) the pending order to close all non-essential businesses; and (c) the lack of notice to the third party currently in possession of the leased premises.
Although the court found the various adjournments to be frustrating to the applicant, the court granted an adjournment to March 27, 2020, on certain terms, because the current tenant ought to be given notice of the application and the opportunity to respond with further evidence or submissions concerning the issues in the matter. The hearing was peremptory to the landlord and was to be held by teleconference. The current tenant shall be cross-examined by video conference or teleconference. All materials shall be served and filed by email. A formal order was not required for the endorsement to be effective.
In Chu Resto YS Inc. v. Greentower Service Inc., 2020 ONSC 1721, the applicant sought relief from forfeiture and brought a motion for an interim injunction prohibiting the landlord from terminating the lease shortly after the eviction occurred in late February 2020.
Following an attendance at civil practice court, the injunction motion was scheduled to be heard on March 26, 2020. Pursuant to the Notice to the Profession, the applicant requested an urgent hearing of the injunction motion because it appeared the landlord was showing the leased premises to potential tenants. The landlord, thankfully, cooperated and agreed to undertake to maintain the status quo pending the hearing. The court stated the following:
The landlord’s undertaking avoided the need for the court to consider whether to make an urgent interim order or to convene a motion to consider doing so. Now is not the time for unnecessary process.
The court scheduled the application hearing to take place on April 10, 2020 by teleconference and a timetable was set. The cross-examinations shall be held in person or by teleconference, as may be agreed by counsel. Similar to the previous case, all materials shall be served and filed by email, and a formal order was not required for the endorsement to be effective.
If you require legal advice or representation in respect to an urgent matter before the Ontario Superior Court of Justice, including commercial lease disputes and commercial list disputes, please contact us for an initial consultation.