Written by Ranjan Agarwal
On Friday, March 20, 2020, the Ontario government suspended all limitation periods and litigation and other dispute-oriented time periods for at least 90 days.
The Emergency Order
On March 17, 2020, the Premier declared that an emergency existed throughout Ontario under the Emergency Management and Civil Protection Act, to try to contain the spread of the coronavirus that causes COVID-19. Under the Act, the Ontario government can suspend the operation of “a provision of a statute, regulation, rule, by-law or order of the Government of Ontario” if certain conditions are met, including: (a) the declaration of an emergency; (b) the provision “establishes a limitation period or a period of time within which a step must be taken in a proceeding”; and (c) the order “would facilitate providing assistance to victims of the emergency or would otherwise help victims or other persons to deal with the emergency and its aftermath” (section 7.1(2), (3)).
The emergency Order suspends both limitation periods and time limits for proceedings in court, tribunals and other decision-makers retroactive to March 16, 2020:
- Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.
- 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, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.
The duration of the emergency declaration rests with the provincial Cabinet. The maximum duration of the existing Order under the Act is 90 days. If the period of temporary suspension under the Order is presumed to run from March 16, 2020, it would expire, unless extended, on June 14, 2020. If the state of emergency is deemed to be continuing, the Cabinet can renew the Order for a further period not to exceed 90 days. The government could also terminate the Order sooner it deemed that the emergency was no longer continuing.
What Does This Mean for Proceedings and Intended Proceedings in Ontario?
Most limitation periods in Ontario are governed by the Limitations Act, 2002. The court will dismiss a lawsuit if the limitation period has expired before the action is commenced. The basic limitation period is two years, meaning that a claim must be commenced within two years from the date on which the claim is “discovered”. The Limitations Act, 2002, also includes an ultimate 15-year limitation period.
Example: If an employee was dismissed on September 16, 2018, the limitation period for their wrongful dismissal claim would likely expire on September 16, 2020. If the Order expired on June 14, 2020, the employee’s limitation period would expire on December 15, 2020 (because the 90 days between March 16, 2020, and June 14, 2020, are excluded from the calculation of the limitation period).
The emergency Order also suspends time limits under the Rules of Civil Procedure (which are a regulation made under the Courts of Justice Act) and time limits for administrative tribunals.
Example: Under rule 18.01, a statement of defence shall be delivered within 20 days after service of the statement of claim, where the defendant is served in Ontario. If the defendant was served on March 2, 2020, its statement of defence would ordinarily be due on March 23, 2020. If the Order expired on June 14, 2020, the statement of defence would now be due on June 22, 2020 (because June 21st is a Sunday).
Example: Under rule 48.14, the registrar shall dismiss an action for delay if the action has not been set down for trial by the fifth anniversary of the commencement of the action. If an action were commenced on March 31, 2015, it would not be dismissed for delay as the five-year time limit falls during the suspension. If the Order expired on June 14, 2020, the registrar may dismiss the action for delay on June 29, 2020.
Example: Under Rule 8 of the Human Rights Tribunal of Ontario’s Rules of Procedure, a Respondent must file a complete Response in Form 2 not later than 35 days after the Tribunal sent a copy of the Application to the Respondent. If the Tribunal sent the Application to the Respondent on March 20, 2020, and if the Order expired on June 14, 2020, no Response would be due until 35 days after the Order expired.
The emergency Order expressly provides that it is “subject to the discretion of the court, tribunal or other decision-maker” and, as such, a court or tribunal may order that a party comply with a time limit or timetable.
The intention of the emergency Order appears to be to pause the running of time limits for all legal proceedings in Ontario. The Order likely applies to appeals and, although it is not precisely clear at this moment (depending on the meaning of “proceeding” in the Order), may also apply to arbitrations conducted under the Arbitration Act, 1991, or International Commercial Arbitration Act, 2017. That being said, in some cases, courts and decision-makers are continuing to hold hearings and case management conferences, although by telephone or video, which may create guidance about the circumstances which a decision-maker will exercise its discretion under the Order.
Suspension of Court Proceedings Pursuant to the Chief Justice's Notice
On March 15, 2020, prior to the Cabinet`s emergency Order, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that, because of the global COVID-19 pandemic, the court had adjourned all scheduled civil hearings. The Notice to the Profession allows for the hearing of matters deemed urgent and scheduled by a triage judge. Similar notices have been issued by the courts in other provinces. Bennett Jones is reporting on the suspension of court operations across Canada in this blog, COVID-19: How the Suspension of Court Operations is Affecting Civil Litigation.
Bennett Jones is committed to protecting the rights of its clients during these unprecedented times. If you have any questions regarding the information in this article, please contact a member of the Bennett Jones Commercial Litigation team. In addition, please visit our COVID-19 Resource Centre for other COVID-19-related materials.