Urgent Motions during COVID-19 (Civil)

Matters accepted as urgent

• Public health matters directly relating to COVID-19
• Termination of commercial tenancies or evictions relating to residential tenancies
• Enforcement of court orders, including repayment of funds
• Confidentiality orders affecting the privacy interests of children
• National political processes and participation in elections
• Issuance or removal of writs allowing a transaction to close
• Certificates of pending litigation
• Circumstances where significant financial harm may occur (including employment matters)
• The protection of public safety, such as an injunction preventing entry by a third-party into a condo unit during the pandemic or risk of harm to third parties

Notices to the Professional

• Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media
• Court Location Information

Maksoud v Canadian Alliance of Physiotherapy Regulators, 2020 ONSC 3175 (CanLII)

[1] Mr. Maksoud seeks leave to commence an application on an urgent basis pursuant to the Notice to the Profession dated March 15, 2020 as amended. The applicant seeks Charter remedies concerning the alleged unconstitutionality of the regulation governing licensing of physiotherapists in Ontario.

[2] The court has had to restrict its services due personnel limitations caused by the Covid-19 pandemic. Although processes have been instituted to allow many categories of civil proceedings to be heard in Toronto at this time, the proposed application raises substantial constitutional questions. It requires a long hearing at best assuming there are no material facts in dispute. If the factual matrix is not complete or is contested, then a trial is likely required.

[4] In other words, the applicant has been unable to obtain a stay of a proceeding before an administrative tribunal while he brings a Charter challenge. Counsel asserts baldly that there will be “substantial prejudice” to his client if this proposed application is not filed with the court prior to the pre-hearing conference before the tribunal. He does not explain how the relative timing of the filing of originating process in this court and the hearing of a pre-hearing conference at the tribunal matters at all.

[5] Neither does he explain his entitlement to characterize a tribunal declining a stay as “substantial prejudice.” If a party is unhappy with a ruling by an administrative tribunal, he or she can appeal if the statutory scheme allows an appeal. Otherwise he or she can seek judicial review. Unless and until either process is successful, the tribunal’s ruling is in effect and is respected as a subsisting ruling. It is disrespectful to the tribunal and to the rule of law to undermine a subsisting ruling with epithets.

[11] The proceeding proposed does not meet the terms of the Notice to the Profession dated March 15, 2020. It is not a proceeding that the court is able to hear at this time. It is not one that should be accommodated on account of urgency. Even absent the Covid-19 pandemic, the proposed hurried application is fundamentally inapt in face of the existing proceedings before the tribunal and the need for a full evidentiary underpinning for a constitutional challenge.

[12] The registrar is therefore directed to refrain from issuing the proposed notice of application or scheduling it for hearing at this time.