Since the World Health Organization declared the Covid-19 a pandemic, there has been a dramatic shift in our day-to-day lives, and how we conduct business. The situation remains fluid and thus has resulted in many industries having to adapt rapidly to changing circumstances, and the legal profession is no exception. Most of the work we undertake is done face-to-face with clients or in the courthouse. Although “legal services” have been classified as “essential work”, many law firms are now meeting with clients virtually, and working from home.
In response to Covid-19, courts have essentially ceased many operations, save and except for “urgent matters”, leaving many to wonder what impact this temporary pause may have on their matter. Each jurisdiction has published dates for which matters are being adjourned forward to. But what impact will this have on ‘unreasonable delay’ arguments?
Delays resulting from the novel Covid-19 virus will likely be considered an “exceptional circumstance” by the courts, and thus not impact the presumptive ceilings set out in R. v Jordan. The Supreme Court of Canada in R. v Jordan put forth a new framework for evaluating the net time it takes for a case to proceed through the courts. Net time is calculated from the date the information is sworn (start date) to the anticipated completion of the matter. Cases that exceed the presumptive ceiling without justification result in unreasonable delay and a violation of an individual’s section 11(b) rights. However, delays that result from unforeseen or unavoidable circumstances, where no remedy is available, will meet the threshold of an exceptional circumstance. This means that the delay resulting from this unprecedented event will likely not be justification for a matter to be stayed on the grounds of unreasonable delay.
In some jurisdictions, there already were considerable wait times for trial dates before the impact of Covid-19. Once normal operations recommence, courts will have to adjust and re-evaluate the way in which matters proceed. Ultimately, delays resulting from the novel Covid-19 virus will likely be considered an “exceptional circumstance”, and thus not impact the net time delay of a case.
On another note, Covid-19 has brought rapid evolution to the way in which legal services are delivered. Many practitioners have advocated for an increased use of technology within the legal system. In recent weeks we have seen lawyers utilizing technology to “meet” with clients remotely through Zoom, Skype, or Facetime. Maintaining connections with our clients remains a top priority for us. The Law Society has introduced new policies to facilitate the social distancing mandate such as: virtual commissioning, the witnessing of wills and documents, remote verification of client identity, teleconferences for pre-trials, etc. Recently, in the United Kingdom an entire trial was conducted via Skype. <https://www.judiciary.uk/announcements/trial-by-skype/>
We at Passi & Patel, understand legal issues can be stressful. We are asking all of our clients and future clients to follow Federal and Provincial guidelines and remain at home.