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Bulletin | Covid-19

COVID-19/CORONAVIRUS: Canadian Courts Significantly Restrict Services

Fasken
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Litigation & Dispute Resolution Bulletin

Certain Canadian courts have now severely limited the civil services provided to the public in order to help contain the spread of COVID-19 across Canada. The following is a list of the impacts on Court services in Alberta [1], British Columbia [2], Ontario [3], and Quebec [4] for civil matters.

ALBERTA [1]

Court of Queen’s Bench of Alberta

Court Sittings

The Alberta Court of Queen's Bench is limiting hearings to emergency or urgent matters only. 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.  In the context of civil cases, emergency or urgent matters include (but are not limited to) the following:

  • 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; and
  • Urgent Orders in the nature of habeas corpus, certiorari, mandamus and prohibition.

For civil matters before the Court of Queen’s Bench previously scheduled between March 16 and May 1, 2020:

  • All Justice and Masters Chambers matters, including Half Day Special Chambers hearings and Early Intervention Case Conferences are adjourned sine die;
  • All civil trials that have not yet commenced are adjourned sine die;
  • All civil trials currently in process must be rescheduled in consultation with the trial judge;
  • All JDRs, Pre-trial conferences, Case Management bookings, Case Management Counsel meetings and Review Officer hearings are canceled and must be rescheduled.

Court Filings

Clerk offices at all Court locations remain open to accept filings. However, access to Court locations is limited to those who must be present, and 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.

New Bookings

Between March 16 and May 1, 2020 the Court of Queen’s Bench in Alberta will make no new bookings in any non-emergency or non-urgent matter.

Court of Appeal of Alberta

Court Appearances

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.

Single Judge Duty Matters in the Court of Appeal 

Effective March 23, 2020, the following protocol will apply to matters set down before a single duty judge of the Court of Appeal:

1. 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 Edmonton.Registry@albertacourts.ca or by phone to 780-422-2416. Communications with the Calgary Registry are to be sent by email to Calgary.Registry@albertacourts.ca or by phone to 403-297-2206.

2. Personal attendance in chambers will not be permitted without prior written authorization from a case management officer or a judge.

3. 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.

4. 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. 

Appeal Sittings and Applications Before Three Judge Panels 

Effective March 30, 2020, the following protocol will apply to appeals and applications to be heard by a three judge panel of the Court of Appeal:

1. 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 videoconference 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 Edmonton.Registry@albertacourts.ca or by phone to 780-422-2416. Communications with the Calgary Registry are to be sent by email at Calgary.Registry@albertacourts.ca or by phone to 403-297-2206.

2. 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.

3. Personal attendance in court will not be permitted without prior written authorization from a case management officer or a judge.

4. The parties may consent to adjourn any appeal or application sine die.

5. 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.

Filing Deadlines and Communicating with the Court

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 if they have not already done so. At this time and until notified otherwise, correspondence from and to this Court may be sent by email instead of fax.

As matters unfold, the Court may reduce or suspend Court operations or implement other measures including alternative measures for communication and filing of documents as warranted.

Provincial Court of Alberta (Civil Division)

Court Appearances

As of March 17, 2020, and until at least May 22, 2020, there will be no in-person court appearances in the Civil Division of the Provincial Court of Alberta, other than for urgent matters and with leave of the Court.

All Provincial Court civil matters, including trials, chambers list applications and pre-trial conferences that are scheduled to be heard prior to May 22, 2020 are adjourned sine die.

Matters which are presently scheduled to be heard after May 22, 2020 remain as scheduled for the time being, but this is subject to change as circumstances evolve.

If a party believes that their matter is of an urgent nature, they are to contact the office of the Clerks of the Provincial Court of Alberta (Civil Division), who will refer the matter to a judge to determine the urgency.

Court Filings

Effective immediately, only the following urgent/time-sensitive documents will be accepted for filing:

  • Civil Claims where the limitation period/date is about to expire;
  • Applications and Affidavits for extending time for service of a Civil Claim that will soon expire;
  • Dispute Notes and other time sensitive pleadings;
  • Notices of Appeal; and
  • Applications that are of an emergent nature (such as setting aside a judgment where collection proceedings have commenced, or Landlord/Tenant matters where safety is an issue).

In the case of an Application, the Court will determine if the Application will be filed, and if and when the hearing will be set.

BRITISH COLUMBIA [2]

BC Court of Appeal

Effective March 18, 2020, the Court of Appeal is strictly limiting its operations until further notice.

All appeal hearings, chambers applications and other matters currently scheduled to occur between 18 March 2020 and 1 May 2020 are adjourned unless designated by the Chief Justice as matters that must proceed.

The Court is examining its docket and creating a list on an ongoing basis of matters that must proceed (for example, urgent criminal, family law or child protection matters). Litigants to an appeal designated as a matter that must proceed will be contacted by the registry and the matter will be presumptively heard remotely by teleconference or in writing.

For matters that are not designated as matters that must proceed, parties who consent to have their appeal, chambers application, or other matter heard by teleconference or in writing may contact the registrar in writing to request the permission of the Chief Justice, or his delegate, to proceed by alternative means.

Parties should continue to file and serve notices of appeal or applications for leave to appeal within required time periods.

The Court of Appeal registry will continue to accept filings. However, the registry counter will close and as such, new appeals and applications for leave to appeal should be filed electronically (for civil appeals), by fax, by mail (filing date to be backdated to the post-mark date), or, if none of those options is available, you may contact the registry by phone.  For mail filings please attach a cheque or instructions regarding whom to contact for payment of court filing fees.

After filing and serving new notices of appeal or applications for leave to appeal, all subsequent filing and service deadlines will be suspended and will start to run again beginning 4 May 2020, unless otherwise directed.

The filing and service deadlines for all existing appeals, existing applications for leave to appeal, or other existing matters before the Court are suspended and will start to run again beginning 4 May 2020, except for those matters designated by the Chief Justice as matters that must proceed, or unless otherwise directed.

For further information click here.

BC Supreme Court

Effective March 19, 2020, the BC Supreme Court has ordered the closure of all courthouses and suspension of all regular operations until further notice.

All civil and family matters scheduled for hearing between March 19, 2020 and May 1, 2020 are adjourned, unless directed otherwise by the Court. This automatic adjournment extends to all trials, conferences and chambers applications or other hearings currently scheduled for hearing before May 1, 2020.

While regular operations are suspended the Court will hear only essential and urgent matters. Essential and urgent matters in civil proceedings include:

  • matters related to public health and safety and COVID-19;
  • matters where there is a prima facie urgency, including:
    • refusal of treatment and end of life matters, including applications under the Health Care (Consent) and Care Facility (Admission) Act;
    • detention of individuals, including under the Mental Health Act and the Adult Guardianship Act;
    • emergency adult guardianship and committeeship orders, including under the Adult Guardianship Act and Patients Property Act
    • housing evictions, including interim stays of orders of possession under the Residential Tenancy Act
    • civil restraining orders;
    • preservation orders;
    • urgent injunction applications; and
    • urgent orders in the nature of habeas corpus, certiorari, mandamus and prohibition

The Court has discretion to hear urgent matters other than those listed, and to decline to hear a matter listed.

The Court has established the following two-part procedure to facilitate the hearing of essential and urgent matters. First, the applicant will submit a request to the Court for an urgent hearing using an online form. Parties will then submit unfiled materials in order that the Court can assess the urgency of the matter. Second, if the Court determines that the matter is essential and urgent and a hearing is required, the Court will set a date and direct the parties to file their materials electronically in accordance with a modified process.

Filing deadlines under the Supreme Court Civil Rules and the Supreme Court Family Rules are suspended until May 1, 2020.

Other statutory filing deadlines and limitation periods continue to apply. When the Court resumes regular operations, parties may request an extension of time for deadlines set out in other statutes, which the Court will determine on a case-by-case basis.

The Court will not hear applications for extensions of time until regular operations resume.

For further information click here.

BC Provincial Court

The Provincial Court is reducing Court operations while ensuring meaningful access to the Court for those with urgent matters until further notice.

Effective March 18, 2020, small claims case conferences scheduled between March 16 and May 4, 2020 will not proceed so the parties should not attend Court. The parties will receive notification by May 4, 2020 regarding the next date they must attend Court. Only urgent small claims matters as determined by a judge will be heard, including applications:

  • regarding outstanding warrants;
  • to preserve limitation periods;
  • to extend the time for filing pleadings where permitted under the Small Claims Rules; and
  • to renew notices of claim.

Urgent small claims filings will only be accepted:

Applications to a judge for determining if a matter is urgent can be sent by fax to fax filing registries (see GEN 01 Practice Direction) or by mail to the applicable court registry.

No new non-urgent small claims filings will be accepted by the Provincial Court registries between March 18, 2020 and May 15, 2020.

All non-urgent small claims matters, including trials and simplified trials, scheduled to proceed between March 18 and May 15, 2020 are adjourned without the parties having to attend Court and will be rescheduled to a later date. There will be notification regarding the next appearance date.

For further information click here.

Court Libraries

All branches will be closed effective March 18, 2020 until further notice. Shipping through Canada Post will not be available at this time.

Staff will have access to electronic resources and are available to assist you by phone or email inquiries: librarian@courthouselibrary.ca

ONTARIO [3]

Effective March 16, 2020, limitation periods and procedural time periods have been suspended in Ontario by government regulation, for the duration of the state of emergency that has been declared in the province.
 
The suspensions apply to the following:

  • any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period; and
  • any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, subject to the discretion of the court, tribunal or other decision-maker.

A. Superior Court of Justice

i. Non-Urgent Matters

The Superior Court of Justice (SCJ) suspended all regular operations, effective March 17, 2020, until further notice.  All non-urgent criminal, family and civil matters scheduled to be heard on or after Tuesday March 17, 2020 have been adjourned. The SCJ will continue to hear urgent matters (see below).

Self-represented litigants are expected to comply with the new procedures.

In the weeks ahead, the SCJ intends to finalize a plan to resume regular operations. The SCJ anticipates the establishment of a Return to Operations (RO) Scheduling Court, where matters that have been adjourned will be rescheduled. The SCJ is strongly encouraging counsel and parties to consent to future hearing dates. Should an appearance before the RO Scheduling Court be required, matters will likely be heard by teleconference.

For regular (non-urgent) filings, courthouses currently remain open.

Parties can file Claims or Statements of Claim through the Small Claims Court online filing service (https://www.ontario.ca/page/file-small-claims-online), or the Civil Claims Online Portal (https://www.ontario.ca/page/file-civil-claim-online) for Superior Court civil matters.  Certain family proceedings can also be filed electronically through the Ministry of the Attorney General’s website for filing divorce applications (https://www.ontario.ca/page/file-divorce-application-online).

ii. Urgent Matters

Until further notice, the SCJ will only hear the urgent and emergency civil and family matters listed below. The procedure to bring an urgent matter is set out at Part B of the SCJ online bulletin: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

Urgent and Emergency Matters that may be heard by the SCJ:

1. The following matters related to PUBLIC HEALTH AND SAFETY and COVID-19:

  • applications by the Chief Medical Officer of Health for orders in relation to COVID-19;
  • applications to restrain the contravention or continued contravention of an order made under the Health Protection and Promotion Act;
  • applications to enforce orders requiring the seizure of premises, medications or supplies under the Health Protection and Promotion Act;
  • appeals under subsection 35(16) of the Health Protection and Promotion Act;
  • urgent requests for injunctions related to COVID-19; and
  • urgent Divisional Court appeals and requests for judicial review related to COVID-19.

2. The following FAMILY AND CHILD PROTECTION matters:

Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:

  • requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  • urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  • dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
  • in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

3. The following CIVIL and COMMERCIAL LIST (Toronto) matters:

  • urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing;
  • outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.

4. Any other matter that the SCJ deems necessary and appropriate to hear on an urgent basis. The Bar and the public are advised that these matters will be strictly limited.

The SCJ has discretion to decline to schedule for immediate hearing any particular matter described in the above list, if appropriate.

A hearing may be conducted in writing, by teleconference or videoconference, unless the SCJ determines that an in-person hearing is necessary. If an in-person hearing is needed, coordination will occur between the Ministry of the Attorney General, the trial coordinator and the parties/counsel to find a safe and appropriate physical facility for the hearing.

iii. Toronto Commercial List Operations

The Toronto Commercial List Users Committee has published the following operational protocol dated March 16, 2020 for Commercial List matters: https://commerciallist.com/pdf/changes-to-commercial-list-operations-in-light-of-covid-19.pdf.

Among other things, the protocol indicates that the Commercial List will likely consider matters that fall into the following categories to be urgent or time sensitive matters that will be heard:

  • Initial Orders under the CCAA
  • CCAA stay extensions (if parties agree, a draft order on consent can be forwarded to the Judge)
  • Receivership Applications
  • Plans of Arrangements
  • Injunctions
  • Approval and Vesting Orders

The Court will also continue to hear urgent bankruptcy applications.

iv. Jury Duty and Jury Trials

Jury panels for upcoming civil and criminal trials in the SCJ are cancelled for the time being. Persons who have received a summons for jury duty for an upcoming trial, or have been called for jury duty, are instructed not to attend court and advised that the courthouse or jury office will contact them if they need to attend in the future.

However, jurors who have already been selected and are sitting on current jury trials must continue to attend those trials, subject to any decision otherwise by the presiding judge.

v. Public and Media Access

The SCJ remains open to the public and the media. However, those who

  • experience COVID-19 symptoms (cough, fever, difficulty breathing), or
  • who have been advised to self-isolate, or
  • who have travelled from an area under a travel health advisory in the past 14 days, or
  • fall into any other category that may be set out on the Ministry of Health website at: Ontario.ca/coronavirus

should not attend any SCJ courthouse.

B. Ontario Court of Justice

As of Monday March 16, parties to a Provincial Offences Act, family or criminal court appearance in the Ontario Court of Justice do not need to attend court, unless the matter is an in-custody or urgent criminal matter or an urgent family matter.

i. Family Matters

Family courts remain open.

Urgent family matters will proceed on a prioritized basis. These matters include:

  • Child, Youth and Family Services Act: place of safety hearings (s. 90); temporary care and custody hearings (s. 94), restraining orders (s. 137), status review hearings (s. 113), and secure treatment orders (s. 161);
  • Domestic matters: urgent custody/access motions; motions for restraining orders; Hague applications and non-Hague abduction cases; and
  • Family Responsibility and Support Arrears Enforcement Act: refraining motions (s. 35).

The Family Law Rules permit conferences and/or motions to be heard by telephone and/or video conferencing. Where necessary and/or appropriate, these matters can be heard using one of these methods.

All non-urgent matters, including trials, will be adjourned for 8-12 weeks. Parties to a non-urgent family matter do not need to attend court. Adjournments requests can be made to the local Trial Co-ordinator’s office, preferably by 17F confirmation forms forwarded to a fax number or by telephone.

ii. Provincial Offences Act Matters

Provincial Offences Act matters scheduled from Monday, March 16, 2020 through and including and Friday, April 3, 2020 will be adjourned without parties being present and rescheduled to a later date. Parties who have a matter scheduled during this time do not need to attend.

A notice of the new court date will be sent to parties by mail to the address on file with the court.

C. Ontario Court of Appeal

Effective Tuesday, March 17, 2020, the Court of Appeal suspended all scheduled appeals until April 3, 2020, except as provided below. During this period, urgent appeals will be heard based on either the written materials or remotely.

Parties to non-urgent appeals that were scheduled between March 17 and April 3, 2020 can request that their appeal be heard in writing.

Effective March 23, 2020 and until further notice, public counter services will be closed. All filings can be mailed, sent via email to coa.e-file@ontario.ca or dropped off outside the Intake Office.

i. Appeals

Urgent Appeals

Anyone wishing to have their matter heard on an urgent basis should send a request to the attention of the Senior Legal Officer at COA.SeniorLegalOfficer@ontario.ca.

The request should provide the following information:

  • why the matter is urgent;
  • whether all parties consent to the hearing of the appeal on an urgent basis;
  • whether the parties consent to having the decision rendered based on the written materials already filed or whether they want the appeal heard remotely.

Non-urgent Appeals

Parties on non-urgent matters can request that their appeal be heard based on the written materials already filed. Such a request should be addressed to the attention of the Senior Legal Officer at COA.SeniorLegalOfficer@ontario.ca.

Such requests should only be made if all parties consent to having the matter heard in writing.

The court encourages parties to appeals that are scheduled to proceed between April 3 and April 30, 2020 to consider and consent to adjournments.

ii. Single Judge Motions

During the week of March 16, 2020

Single judge motions will continue to be heard as scheduled for the week of March 16, 2020. The motion judge will preside remotely. Alternatively, on consent, a motion may proceed based on the written materials that the parties have filed.

The court encourages all parties to non-urgent motions that are scheduled to proceed the week of March 16, 2020 to request and consent to adjournments. Parties should contact the motions office at coa.e-file@ontario.ca to advise of consent adjournments or consent to motions proceeding in writing.

After March 20, 2020

Pending further notice, the same procedures will apply as for the week of March 16, 2020. The court encourages parties not to bring non-urgent motions and to request and consent to adjournments of motions that have been scheduled.

iii. New Filings

Osgoode Hall will remain open to receive dropped off court materials only. Public service counters are closed until further notice. The court encourages parties to send filings by mail or to drop them off below the digital display within the Court's Intake Office. Cheque or instructions regarding whom to contact for payment of court filing fees should be attached. For filings by mail or that have been dropped off, parties will be notified by phone, email, or regular mail when the filing has been accepted. Factums can continue to be filed electronically.

QUÉBEC [4]

The Suspension of Delays

In accordance with section 27 of the Code of Civil Procedure, the Chief Justice of Quebec and the Minister of Justice issued, on March 15, 2020, ministerial order number 2020-4521. This order provides for the suspension of all limitation periods, all periods of possible forfeiture of rights, and all time limits under the Civil Code of Procedure until the Government of Quebec announces the end of the current state of public health emergency. The order is for a duration of 10 days. In light of the current circumstances, it is susceptible to be renewed.

As such, this order provides for the suspension of procedural time limits, such as the time limit for a case that has already been brought before the courts to be ready for trial or for filing a particular civil proceeding. It also provides for the suspension of statutory time limits for asserting a right by commencing a civil action, such as limitation or forfeiture periods.

Hearings held in camera

With some exceptions, justice is normally accessible to the public. However, given the current state of health emergency, the Minister of Justice announced that hearings would be held in camera. Only those persons whose presence is deemed necessary by the decision-maker will be permitted. This measure applies to the Quebec Court of Appeal, Superior Court, Court of Quebec, municipal courts and administrative tribunals in Quebec.

Québec Court of Appeal

The Québec Court of Appeal announced the suspension of its activities, except for urgent matters.

All non-urgent hearings that were to be held between March 17th and April 3rd will be rescheduled.

For the duration of the ministerial order number 2020-4521, several deadlines in civil matters are suspended, for example: (i) deadlines for filing notices of appeal or applications for leave to appeal, and (ii) time limits for filing briefs, memoranda and books of authorities.

Since March 18th, the filing of proceedings at the Court of Appeal’s offices is allowed only if it is deemed urgent.

Superior Court of Québec and Court of Québec

The Superior Court of Quebec and Court of Quebec have, among other things, announced the suspension of the majority of their activities.

For the following days, (Superior Court: until April 10th and Court of Québec: until March 27th), ongoing trials or trials set to begin in the next few days will not take place and will have to be postponed. As a result of this exceptional measure brought about by circumstances that are just as exceptional, Quebec courts will not hold hearings on the merits of the civil, commercial and administrative disputes that are before them. No settlement conferences will be held. In addition, the courts and judges will not sit for incidental and interlocutory issues.

For the time being, certain exceptions are also maintained for civil and commercial litigation for urgent matters. The courts will therefore continue to hear (i) applications for interim injunctions and safeguard orders, (ii) applications for seizures before judgment, (iii) applications for eviction orders, and (iv) orders for release from seizure, annulment of seizures before judgment, and contested eviction orders. In addition to the specifically listed exceptions, the Court maintains its discretion to deal with matters that are deemed urgent.

In addition to the list above-mentioned, the Court of Québec will continue to hear (i) motions to extend the time limit to file a request for setting down for trial and judgment, and (ii) motions to be relieved of failure to file a request for setting down for trial and judgment on time.

Also, in some matters and on a case-by-case basis, measures may proceed by way of telephone conferences rather than in-person hearings. For example, the Commercial Division of the Superior Court announced that only urgent cases will be heard and that they will proceed by conference calls. The Court of Québec will also continue to hold all case management, pre‑trial and incidental conferences already set to be held by conference call.

Furthermore, the Superior Court reminds parties that non-contentious matters that do not require hearing time (for example: non-contentious requests for extension of safeguard orders) may still be filed by email, without having to prove their urgency.

Filing and production of procedures at the Court offices

Since Tuesday, March 17th, it is no longer possible the file or produce new proceedings at the court offices unless said procedure is deemed urgent. As of now, each court house has adopted their own administrative procedure to manage the filings of the urgent procedures. Parties are invited to consult the court offices before filing urgent procedural acts.

The Court of Québec announced that it will continue to examine all first case protocols.

Also, applications for leave to appeal of decisions rendered by the following administrative tribunals can still be notified and filed at the Court of Québec’s offices in conformity with the rules of each district:

  • Régie du logement;
  • Tribunal administratif des marchés financiers;
  • Tribunal administratif du Québec;
  • Commission d’accès à l’information; and
  • Comité  de discipline de l’Organisme d’autoréglementation du courtage immobilier.

However, if the hearing date of an application for leave to appeal is set during the suspension period of the Court’s activities, it will be postponed.

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