In light of the recent developments regarding COVID-19, many people are wondering about how their day-to-day lives, including the performance of contracts, will be affected. Further, mid-litigation or needed to commence litigation wonder how to deal with litigation impacted by Covid-19. Facing these issues, email (see note below) the litigation lawyers at Kahane Law Office in Calgary.
Contractual Obligations To Avoid Litigation Impacted By Covid-19
The following includes some contractual related issues coming up do to the Covid-19 Corona Virus.
Force Majeure
Some contracts will include express provision for circumstances such as these. Such clauses are generally referred as “force majeure” clauses, and provide that the parties are not to be held responsible for a failure to perform any obligations under the contract where they are prevented from doing so by an event of “force majeure”. Force majeure is a broad category, and generally includes anything that is beyond the reasonable control of the parties and which they could not overcome or prevent, including, but not limited to: acts of war, epidemic (or pandemic), acts of terror, blockades, civil disturbances, riots, or the decree or order of government. Depending on the circumstances, contracts entered into in advance of the current pandemic may be governed by such a clause.
Frustration
Other contracts call for actions that may be impossible to perform. In such circumstances, the contractual doctrine of “frustration” may apply to effectively terminate the contract, in which case the law will seek to put the parties back into the position they would have occupied prior to entering into the contract.
While it is unclear whether many residential rental contracts do not contain a force majeure clause, many commercial leases do. Where such a clause is present it may give the tenant relief from their obligations under the lease – even if only a deferral of the obligation, rather than absolute relief.
Further, a pandemic may render the performance of a contract “impossible” in the sense required for frustration of the contract. However, in the case of rental contract (for example) even were that the case, it could very well mean that the tenant would have to give up possession of the rented property). What frustration of another contract may entail as a result will turn on the particular terms of that contract.
Court Litigation impacted by Covid-19
Provincial And Federal Legislation
Other statutes, such as the Public Health Act, may impose additional restrictions, or obligations, and yet others may provide for practical work-arounds (such as holding condominium meetings electronically).
In the meantime, the courts have instituted a series of restrictions on access in response to the directions in respect of social distancing.
The Provincial Court Of Alberta
The Provincial Court of Alberta has directed as follows in respect of civil matters:
- No members of the public will be permitted in court rooms unless they are required for a court matter. For example, this includes parties, witnesses and the media. Legal counsel are permitted access to the Court house for urgent court-related business.
- Do not come into a courthouse in person if you have been advised to self-isolate by public health officials, your doctor or the Alberta Health Services website; or you are self-isolating as a result of travel or contact with individuals with COVID-19.
- Civil matters, with the exception of pretrial conferences and case management that are set to proceed before May 22, 2020 will be adjourned indefinitely and parties will be contacted by the local trial coordinator or the Court about rescheduled dates.
- Urgent landlord and tenant matters and other urgent matters will proceed with leave of the Court.
- Civil Pre-Trial Conferences and Case Management will be conducted by telephone.
- Filing of documents will be permitted only for time-sensitive documents, as follows:
- Civil Claims where the limitation period is about to expire;
- Applications and affidavits for extending the time for service of a Civil Claim where that time will soon expire;
- Dispute Notes;
- Notices of Appeal;
- Applications of an emergent nature (e.g., setting aside a judgment where collection proceedings have been commenced, and landlord/tenant matters where safety is an issue);
- The Court reserves discretion to determine whether any document will be filed, and if and when a hearing will be set;
- Desk assessments and desk applications will continue.
- Parties may contact the Civil Division regarding scheduling by calling their local courthouse, or in Edmonton at 780-644-7638; and in Calgary at 403 297-7219.
The Court of Queen’s Bench
In respect of civil matters, with regards to litigation impacted by Covid-19, the Court of Queen’s Bench has directed:
- Clerk offices at all Court locations remain open to accept filings. However, access to Court locations is limited to those who must be present. In addition, the Court has suspended all filing deadlines under the Alberta Rules of Court, with the exception of those Rules applicable to the commencement of proceedings, including originating applications.
Emergency Matters
- The Court will limit hearings to emergency or urgent matters only when dealing with Litigation impacted by Covid-19. No new bookings in any non-emergency or non-urgent matters between March 16, 2020 and May 1, 2020.
- Emergency matters are those in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order, including but not limited to:
- Orders relating to the pandemic, including quarantine orders.
- Injunctions, where there is prima facie urgency, including refusal of treatment/end of life matters.
- Civil Restraining Orders.
- Preservation Orders.
- Urgent Orders in the nature of habeas corpus, certiorari, mandamus and prohibition.
- Emergency Adult Guardianship and Trusteeship Orders, where there is a risk of harm to an individual or their property.
Urgent Matters
- Urgent matters are those that do not rise to the level of the first priority, but must nevertheless be addressed in a timely way in the context of a reduction in Court services, including, but not limited to:
- Arraignments, including for in-custody accused.
- Urgent Adult Guardianship and Trusteeship Orders.
- Receivership/CCAA stay extensions.
- Urgent Surrogate Orders.
- Anton Piller or Mareva-type injunctions.
- Freezing Orders.
Immediate Matters
- For matters before the Court of Queen’s Bench previously scheduled between March 16 and May 1, 2020, all:
- Family, Justice and Masters Chambers matters, including Family Law Special hearings, Half Day Special Chambers hearings and Early Intervention Case Conferences are adjourned sine die;
- Civil trials that have not yet commenced are adjourned sine die;
- JDRs, Pre-trial conferences, Case Management bookings, Case Management Counsel meetings and Review Officer hearings are canceled and must be rescheduled; and lastly
- Civil trials currently in process must be rescheduled in consultation with the trial judge.
The Alberta Court of Appeal: Litigation Impacted By Covid-19
Finally, due to litigation impacted by Covid-19, the Court of Appeal has directed:
- Effective Tuesday, March 17, 2020, it is recommended that only those persons necessary to the proceedings attend before the Court. This will include counsel, litigants and members of the media. No one who is ill or experiencing any COVID-19 related symptoms should attend.
- Filing deadlines have not changed. The Court’s Case Management Officers remain available to consider requests for extensions, fiats and other administrative directions.
- For cases involving the Court of Appeal, parties and counsel are encouraged to provide the Registry with an email address. Please ignore this if you have already done so. At this time and until notified otherwise, correspondence from and to this Court may be sent by email instead of fax.
- The Court of Appeal Registry is operating on social distancing guidelines that are posted at the Court of Appeal Registry counters. Please respect these guidelines.
Hearings Before A Single Judge
- With respect to hearings before a single judge:
- Unless otherwise directed by a case management officer or a judge, all duty matters set down before a single judge will be heard by telephone conference. The participants must provide the Registry with contact telephone numbers for that purpose in advance of the hearing date. Communications with the Edmonton Registry are to be sent by email to [email protected] or by phone to 780-422-2416. Communications with the Calgary Registry are to be sent by email to [email protected] or by phone to 403-297-2206.
- Personal attendance in chambers will not be permitted without prior written authorization from a case management officer or a judge.
- The parties may consent to adjourn any matter sine die, although the parties are reminded that under R. 14.44(2), applications for permission to appeal must be heard within six months or they are deemed abandoned. Further, under R. 14.52, all other applications (including applications to a three judge panel) must be heard within three months or they are deemed abandoned. Applications for a fiat to extend the time may be made to a case management officer.
- The parties may consent to having applications decided on the paper record only without oral argument: R. 14.51. If the parties consent to proceed in that manner, the Registry should be advised in writing before the scheduled hearing date.
- Any further inquiries can be directed to the Case Management Officers.
Hearings Before A Panel Of Judges
- With respect to hearings before a panel of justices:
- Unless otherwise directed by a case management officer or a judge, all appeals and applications before a three judge panel will be heard electronically (by video-conference or by telephone). The participants must provide the Registry with contact videoconference or telephone numbers for that purpose in advance of the hearing date. Communications with the Edmonton Registry are to be sent by email to [email protected] or by phone to 780-422-2416. Communications with the Calgary Registry are to be sent by email at [email protected] or by phone to 403-297-2206.
- If anyone feels that an in person oral hearing is required (whether by reason of s 688 of the Criminal Code or otherwise), they are directed to contact a case management officer to explain why the appeal or application requires an in person oral argument and the Court will issue a direction.
- Personal attendance in court will not be permitted without prior written authorization from a case management officer or a judge.
- The parties may consent to adjourn any appeal or application sine die.
- The parties may consent to having the appeal or application decided on the paper record only without oral argument: R. 14.32(2) for appeals and R. 14.51 for applications. If the parties consent to proceed in that manner, the Registry should be advised in writing in advance of the hearing date.
- Any further inquiries can be directed to the Case Management Officers.
Litigation Assistance For Litigation Impacted By Covid-19
If you need litigation or have Litigation impacted by Covid-19, we help where we can. Even if required to lock the front doors, our team is set up to work from home. During the course of the Pandemic, we ask that people with contractual concerns, disputes between parties or any other litigation related matter, connect via Email. The most effective way to connect with the litigation is to use this email to directly connect. You can also call us at403-225-8810however, at this time, we do not know if or when our ability to attend phone calls will be affected. That said, we are happy to speak to you directly as long as we have the ability to do so.