Canada: What's My Limitation Period Again? Update On The Suspension Of Limitation And Time Periods During The COVID-19 Crisis

The outbreak of a global health emergency has brought significant procedural changes to the legal system in Ontario. The province's courts were among the first facilities to close amid the COVID-19 pandemic, hearing only the most "urgent" matters, and a provincial order made under the Emergency Management and Civil Protection Act¹  ("EMCPA") has suspended the operation of certain limitation periods and procedural timelines imposed by Ontario law. As the province considers the appropriate framework to gradually reopen the economy, however, some may be left wondering "what's my limitation period again?" This article is intended to provide a practical summary of which limitation and time periods are affected by the province's emergency measures and how litigants can prepare themselves for the post-pandemic legal system.

The Order

As detailed in our firm's earlier article on the subject, on March 20, 2020, the province made an order under subsection 7.1(3) of the EMCPA through O. Reg. 73/20 ("the Order"). The original version of the Order had two aspects: it provided that any provision of any statute, regulation, rule, by-law or order of the province establishing either 1) any limitation period or 2) any period of time within which any step must be taken in any current or intended proceeding in Ontario was suspended for the duration of the declared emergency. The latter however is notably subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding. The suspension of limitation and time periods under the Order was made retroactive to March 16, 2020.

Duration of the Order

The default rules in the EMCPA cap the effective period of the Order at 90 days.² This means that unless it is extended or renewed, the Order is set to expire on June 14, 2020.

The province may renew the Order before it expires, or it may make a new order for a further period of 90 days. To date, the province has not yet indicated how it will deal with renewal of the Order.

Subsequent Amendments to the Order

The Order has been subject to further amendments since its introduction. On April 9, 2020, the province made an emergency order through O. Reg 137/20, declaring that the provisions of the Order did not apply to the provisions of the Niagara Escarpment Planning and Development Act³ and the Construction Act.⁴

On May 1, 2020, the province made a further emergency order through O. Reg 194/20, clarifying that section 2 of the Order applied to the by-laws made by boards of hospitals relating to the hospital's credentialing process for appointing medical staff.

"So, What Is My Limitation Period Again?": Implications of the Order

Limitation Periods in Ontario

The most pronounced impact of the Order is the suspension of the basic two-year limitation period stipulated by the Limitations Act, 2002.⁵ Ordinarily, a person has two years from the date a claim is or ought to have been "discovered" to commence a legal proceeding.

The Order effectively stops the limitation clock from ticking during the course of the declared emergency. Parties can generally rely on two simple rules for determining the applicable limitation period under the Order:

• For claims discoverable before March 16, 2020, the remaining number of days left to run in the limitation period before March 16, 2020 will pause and recommence once the declared emergency has ended or the Order has expired. For example, if a party had 60 days remaining to commence a proceeding when the Order came into force, it will have this same amount of time to do once the Order is no longer in force.

An analogy can be drawn to a tolling agreement used to halt a limitation period while parties attempt to resolve a claim through an alternative dispute resolution process. A tolling agreement pauses the limitation clock for a period of time between the making of the agreement and either the resolution of the dispute or termination of the dispute resolution process.⁶

• For claims discoverable on or after March 16, 2020; the applicable limitation period will not commence to run until after the declared emergency has ended or the Order has expired.

An analogy can be drawn to a person who is a minor and does not have a litigation guardian. The limitation period will only commence to run when either a) the person turns 18 years old, or b) a litigation guardian is appointed.⁷

In addition to the basic two-year limitation period for claims, the Order applies to many other statutory provisions that impose limitation periods, such as the one-year limitation period on claims for injurious affection established by section 22 of the Expropriations Act.⁸ The above references to the "discovery" of a claim can be substituted for the more general crystallization of a right to bring any other proceeding.

Procedural Time Periods

The Order also suspends a number of procedural time periods. The time period must relate to a "proceeding" or "intended proceeding," but those words are not defined by the Order. While the Order will obviously apply to proceedings in court, the phrase "proceeding" could also be interpreted to include other adjudicative or administrative matters, depending on the context.

The Order will largely affect various procedural steps in litigation based on the rules of the applicable court or adjudicative tribunal. For example, the Rules of Civil Procedure⁹ (the "Rules") impose numerous timelines, from service of a Statement of Claim to the obligation on parties to agree on a discovery plan.

The practical effect of the Order on these time periods is similar to its impact on limitation periods as outlined above. Namely, the remaining number of days left to run in a time period that began before March 16, 2020 will pause and recommence once the declared emergency has ended or the Order has expired. Likewise, if a time period would ordinarily begin running based on an event or condition that occurred on or after March 16, 2020, the time period will not commence to run until the declared emergency has ended or the Order has expired.

For instance, the Rules provide that a Statement of Claim must be served on a defendant within six months after it is issued.¹⁰ Based on this rule, a Statement of Claim issued on January 16, 2020 would normally have to be served by July 16, 2020. On March 16, 2020, the plaintiff would still have four months to serve that Statement of Claim. As a result of the Order, the plaintiff will have four additional months after the declared emergency ends or the Order expires to serve the Statement of Claim, irrespective of the original July 16, 2020 deadline.

The Order's suspension of time periods in proceedings is of course subject to the discretion of the court, tribunal or decision-maker responsible for the proceeding. For instance, the Ontario Labour Relations Board in a Notice to Community indicated that it would exercise its discretion not to suspend the time periods applicable to its own proceedings. Likewise, a judge seized of a matter may require a party to adhere to a procedural time limit.

Further, the Chief Justice of Ontario's Superior Court, Geoffrey Morawetz, has published a provincial Consolidated Notice to the Profession effective May 19, 2020, which directs counsel and parties to bring cases closer to resolution to the extent they can safely do so through virtual means. This includes complying with procedural timelines, producing documents, conducting examinations for discovery, attending pre-trials, case conferences and hearings, and responding to undertakings. Lawyers and parties who fail to do so should be prepared to explain to the court why COVID-19 has prevented them from fulfilling their obligations.

What Is Not Affected by the Order

Non-application of Order by Implication

The Order does not appear to apply to limitation periods and procedural time periods specified in contracts or those agreed to by parties in litigation. This may include a contractual payment deadline or a discovery timetable agreed to by the parties. Nonetheless, there are practical hurdles in enforcing these timelines given the suspension of normal court operations. Where possible, it may be advisable for a party to seek guidance from a judge or other person seized of the proceeding. Although Ontario's Superior Court has begun hearing more matters remotely, based on the region, these matters are typically limited to consent motions, basket motions and motions that the parties agree can be heard in writing. Though getting an opposing party to agree might prove difficult, hearings in writing may be the only effective way to enforce mutually agreed upon timelines in advance of a gradual reopening of the courts, outside of case-managed proceedings where the parties may more easily seek direction from the presiding judge through a teleconference.

The Order also does not apply to the provisions of any federal laws imposing limitation periods or procedural time periods. These will continue to run. It is interesting to note that the federal Emergencies Act¹¹ does not contain a similar power to suspend time periods. Despite this, both the Federal Court and Federal Court of Appeal have issued practice directions to this effect. In substance, both practice directions suspend the timelines in orders and directions of the federal courts, the Federal Court Rules¹² and the applicable limitation periods for judicial review proceedings and appeals. Both practice directions note that all other statutory timelines will continue to apply.

Specific Carveouts

Since our firm first wrote on this subject, there have been a number of specific carveouts to the application of the Order.

First, the Order does not apply to the provisions of the Niagara Escarpment Planning and Development Act, a statute that deals with land use planning and development permits within the Niagara Escarpment area. This was made effective as of April 9, 2020. Notably, only two days prior to this date, a Triage Judge of the Superior Court of Justice in the Niagara Region determined it was "urgent" under the court's COVID-19 Protocol to hear a motion for interim relief related to a soon-to-expire development permit issued under that statute.¹³

Second, as our firm has previously written, the Order does not apply to the provisions of the Construction Act that establish limitation periods and procedural time periods for such matters as construction liens and holdback deadlines, effective April 16, 2020. As of that date, all limitation periods and deadlines in the Construction Act recommenced running. Parties will have the same amount of time to meet any deadline set by the statute that was remaining before the suspension began on March 16, 2020.

This carveout was generally viewed as beneficial to contractors who are still working on "essential" construction projects during the declared emergency. However, there are concerns for individuals who are or may become involved in construction lien court proceedings. Given that courts are still operating at a reduced capacity, it may be difficult for parties to meet procedural and substantive deadlines set out in the statute.

Lastly, there is a specific carveout for timelines under the Planning Act.¹⁴ This carveout was not made by amending the Order. Rather, the legislature enacted Bill 189, the Coronavirus (COVID-19) Support and Protection Act, 2020,¹⁵ which amended the Planning Act to permit the Minister of Municipal Affairs and Housing to make regulations governing timelines during the declared emergency. The Minister exercised this power by making O. Reg. 149/20, which provides that the Order does not apply and is deemed never to have applied to the provisions of the Planning Act. Instead, it sets out special rules for calculating time periods pertaining to municipal decision-making on planning applications and related appeals. Our firm has written extensively on the topic, and further information can be gleaned from a Bulletin posted by the Ministry of Municipal Affairs and Housing on the Environmental Registry of Ontario.

Conclusion

Lawyers and parties involved in court or administrative proceedings should make reasonable efforts to resolve, streamline or push matters forward in anticipation of the return to regular court and tribunal operations. Issuing claims online through the Ontario Superior Court's electronic filing system or conducting hearings by remote or alternative processes, for example, can preserve a party's rights and avoid unnecessary delay.

Footnotes

1  Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9.

2 EMCPA, s. 7.1 (4).

3 Niagara Escarpment Planning and Development Act R.S.O. 1990, c. N.2.

4 Construction Act, R.S.O. 1990, c. C.30 ["Construction Act"].

5 Limitations Act, 2002, S.O. 2002, c. 24, Sched. B ["Limitations Act"].

6 Limitations Act, s. 11.

7 Limitations Act, s. 6.

8 Expropriations Act, R.S.O. 1990, c. E.26.

9 Rules of Civil Procedure, R.R.O. 1990, Reg.194 ["Rules"].

10 Rules, r. 14.08(1).

11 Emergencies Act, R.S.C., 1985, c. 22 (4th Supp.)

12 Federal Court Rules, S.O.R./98-106.

13 See Saine v. Niagara Escarpment Commission, 2020 ONSC 2151.

14 Planning Act, R.S.O. 1990, c. P.13.

15 Coronavirus (COVID-19) Support and Protection Act, 2020, S.O. 2020, c. 6.

Originally published May 29, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.