In order to respond to the COVID-19 pandemic, the government suspended limitation periods and other statutory deadlines between March and September. However, due to concerns about the manner in which the suspension was lifted, the government is currently seeking a declaration that the limitation period was, in fact, validly suspended during this time (as a contrary holding would invite chaos).

As I previously blogged, in order to respond to the COVID-19 pandemic, the government suspended all limitation periods and other statutory deadlines as at March 16, 2020 pursuant to a regulation made under sections 7.01 and 7.1 of the Emergency Management and Civil Protection Act. The various COVID-19 related regulations made under this act were transferred to the new Reopening Ontario (A Flexible Response to COVID-19) Act. Most of these transferred regulations are still intact but as at September 14, 2020 the regulation regarding limitation periods was repealed.

The clear intent of these actions was to suspend the proverbial ticking of the limitations clock between March 16 and September 14, 2020 (the regulation notes that when the limitation period resumes “the temporary suspension period shall not be counted”). The Legislation Act (the name for the provincial interpretations statute) is also quite clear that repealing a regulation does not “affect the previous operation of the repealed or revoked Act or regulation.” Nevertheless, concerns were raised that the repeal of the regulation could have the effect of undoing the suspension of the limitation period. So, for example, if a limitation period was to have expired in June (but did not because of the suspension) the potential claimant would not have a few more months to commence the claim but would be barred from commencing it.

The Attorney General thus commenced an application seeking a declaration that this temporary suspension period shall not be counted against any applicable limitation period on a without notice basis. The matter was heard initially on October 6 by Justice Myers who raised concerns as to whether it was appropriate to give a declaration that requires an interpretation of the law without notice to anyone. Justice Myers also raised the issue that there was a lack of factual underpinning and why reference to the Court of Appeal had not been sought (or why the government had not simply promulgated a clarifying regulation or passed legislation). As such, his Honour ordered that various stakeholders (such as The Advocates Society and the Law Society) be served with the application.

On October 15, Justice Myers noted that LawPRO (the lawyer’s insurance company) and a lawyer applied to intervene, both supporting the government’s position. No one sought to argue the contrary position. So that the court could fulfill its gatekeeping role in unopposed proceedings, his Honour appointed Lax O’Sullivan Lisus Gottlieb LLP as amicus curiae under rule 13.02.

While a case conference has been conducted, nothing has been uploaded to CanLII regarding next steps. However, my understanding is that the parties will appear on November 10 to discuss procedural issues (including the status of the proposed intervenors).

While there are potentially other steps the government could have taken to cure this potential issue, it is good that the matter is on the government’s radar. If the limitation period did, in fact, continue to run between March and September, there would be widespread chaos in the litigation world. There are enough problems during COVID-19 without adding anything else.