My experience is that in the first two months or so, the COVID-19 pandemic brought litigation to a virtual halt (no pun intended) as counsel and parties adjusted to court closures, new technologies, and the many other effects. While limitation periods were suspended in mid-March, notices from the courts have indicated that parties are expected to continue to adhere to court orders and timetables, and the timelines set out in the Rules of Civil Procedure.
But what if that proves impossible? A recent case sets out the test that courts will apply to forgive non-compliance. It sets the bar high – the party seeking relief from compliance must show that it was difficult or impossible to comply. Therefore, it appears that courts will not be sympathetic to pleas that COVID-19 has prevented them from moving their litigation forward and meeting deadlines, without a good explanation supported by sufficient evidence.
Failure to comply with a court order: Lima v Ventura (Estate of), 2020 ONSC 3278
This issue came squarely before the court in an estate litigation matter, but the principles are applicable to any litigation. The late Maria Eduarda de Oliviera Bernardo Ventura died on December 27, 2018. Her daughters, Carmelinda Ventura De Jesus (“Linda”) and Eduarda Ventura Lima (“Eddy”), and her son Antonio Manuel Oliviera Lima (“Antonio”) were named jointly as estate trustees under her will. She owned a home, in which Antonio and his family had resided since 2012. Linda and Eddy brought an application on behalf of the estate to sell the house.
On February 6, 2020, the court made an order on consent of the parties that the home would be listed for sale on April 15, 2020. The order also contained an option for Antonio to purchase the house by no later than April 14, 2020. Then the COVID-19 pandemic hit. Antonio claimed that the pandemic prevented him from meeting the court prescribed deadline. He brought a motion to extend the time in which he must exercise his option, and for the sale and listing of the house if he did not.
The evidence supporting the motion to vary the order
The motion judge found that there was no dispute that Antonio had expressed an intention to purchase the house from the estate. He listed all of the reasons why Antonio claimed that he was not able to meet the court imposed of April 14, 2020:
- At the time of the February, 2020 consent order, he was in Portugal and, when he returned on February 26, 2020, he was required to self-quarantine for 14 days;
- The real estate person Antonio had hired to carry out a Comparative Market Evaluation, which he required to apply for financing, would not make a site visit to the house because of COVID-19; and
- The offices of banks and municipal departments were closed in March and April.
Linda and Eddy argued that Antonio had made no more than bald assertions that COVID-19 had frustrated his ability to purchase the home when, in fact, he had made no attempt to purchase the home at all. For example, he had produced no evidence to support his claim that municipal departments and banks were not operating. They brought a cross-motion for an order allowing them to list the property for sale.
These motions were heard in writing.
The motion judge denied Antonio’s request for an extension of time on the following grounds:
- The civil justice system requires strict observance of the requirement that parties comply with court orders unless they are stayed, varied, or successfully appealed. Court orders are not “suggestions” or “frameworks” or “guidelines” but are mandatory and must be obeyed.
- Despite the precautionary measures that society has taken to protect individuals from exposure to COVID-19, parties are still expected to obey court orders.
- This expectation is clear in the Consolidated Notice to the Profession issued by Chief Justice Morawetz and effective as of May 19, 2020, which says:
During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means.
- The court has the discretionary power to extend the time specified in a court order if it will “secure a just, cost effective, and efficient” determination of the case.
- Such a request must be supported by persuasive evidence that a party’s ability to perform obligations under the timelines set out in the court order have been “frustrated” or “prevented” by COVID-19, that those reasons warrant a legitimate exemption from compliance with the order, and are not just an excuse.
The evidence required
The motion judge found that the factors to be considered in the exercise of his discretion included:
- The steps not taken were necessary to carry out the terms of the order and that no other alternative would have served that purpose.
- The steps were not taken because of the moving party’s inability to access business, professional, or institutional offices physically or electronically because of COVID-19 protocols.
- An extension of time would not be contrary to any law, or the rights of any other person under any order of any court.
- A reasonable explanation has been provided for failure to take the required steps or why it was difficult or impossible to comply with the order because of COVID-19.
- The moving party has otherwise made best efforts to otherwise comply.
- The moving party has acted in good faith.
The motion judge found that Antonio had provided no evidence to support his claim that COVID-19 prevented him from complying with the court order. For example, those in municipal governments and financial institutions are working remotely and Antonio had provided no evidence that he had contacted them or that he had encountered difficulty in obtaining information or approvals. Further, Antonio had agreed to the February 6, 2020 order and offered no explanation as to why he had taken no steps to purchase the home before the COVID-19 lockdown. In short, Antonio had failed to meet his evidentiary burden to have the order varied – he had not persuaded the motion judge that it was difficult or impossible for him to comply with the court order.
The motion judge dismissed Antonio’s motion and ordered the house listed for sale.