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Feb 2, 2021
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It is hard to believe that more than ten months have passed since the various lock down we have experienced began in March 2020. Despite the passage of time, hastily drafted laws have still left litigators and judges alike scratching their heads in trying to interpret pandemic-related legislation. One significant question has been in relation to how the limitations period is to be interpreted during this lockdown period.

As many readers are already aware, on March 20, 2020, the Government of Ontario temporarily suspended all limitation periods and time periods for proceedings in courts, tribunals and other decision-makers under Regulation 73/20 of the Emergency Management and Civil Protection Act. The suspension was made retroactive to March 16, 2020 and was in effect until September 14, 2020 when Regulation 73/20 was revoked.

While the temporary suspension was in place, deadlines set out in legislation like the Limitations Act, 2002 and Rules of Civil Procedure were put on hold. In other words, the legislation mandated that any timeline set to expire during this emergency period, would be delayed until at least September 14.

It appears that most interpreted this legislation to mean that, for example, if a deadline would have otherwise expired on March 23, 2020 (i.e. 1 week into the suspension period), it should now have expired on September 21, 2020 (i.e. 1 week after the suspension period).

However, it appears that a minority held the view that any deadlines that expired during the suspension period, automatically become expired as of September 21, 2020.

Obviously, this difference in interpretation could be critical for anyone whose limitation period expired or was impacted by this suspension period.

Acknowledging the importance of this question, the Attorney General for Ontario (the "AG") turned to the Courts to request a ruling on the legislation. Interestingly, the Court declined to rule on this question, finding it did not have jurisdiction to do so. However, and despite its refusal to provide a final decision, the Court nonetheless made its views on the proper interpretation clear.

The Superior Court Case

The application was heard on November 10, 2020, and the decision of Justice Myers was released shortly thereafter.

At the hearing, the Attorney General (“AG”) took the position that the 6-month period during which the temporary suspension was in place is still not to be counted in limitation period (and other) calculations going forward. The AG also said that as of September 14, 2020 when the suspension was lifted, all limitation periods resumed running.  In other words, the AG took the dominant view that, if a deadline had been set to expire (for example) one month into the suspension period, then it would expire one month after the suspension period was lifted.

There were two intervenors in the application, and both agreed with the position of the AG. The AG and intervenors asked the Court to make a decision agreeing with their interpretation.

The decision of the Superior Court

Justice Myers of the Superior Court ultimately declined to decide the interpretation issue because it was not the appropriate forum to do so. However, he did not disagree with the AG’s position, and certain comments suggest that he was in agreement with it. The decision is reported as Attorney General for Ontario v. Persons Unknown.

When setting out relevant legislation in the decision, Justice Myers specifically referred to the Legislation Act, 2006, which provides that, “[t]he…revocation of a regulation does not…(a) affect the previous operation of the repealed or revoked…regulation.” He highlighted this again later in the decision when he said, “In other words, some people are saying that the revocation of O. Reg. 73/20 affected the previous operation of the regulation despite s. 51 (1)(a) of the Legislation Act saying the opposite.” [Emphasis added]

Justice Myers also noted that based on the evidence, there did not actually seem to be any confusion or disagreement with the AG’s interpretation in the justice community. He stated, “In fact, I am not satisfied that there is a dispute. I have yet to hear anyone hint at a basis to argue that the repeal of O. Reg. 73/20 undermines the six-month suspension.” He also highlighted that there were many interested parties in the case, and that none expressed a view different from the AG’s: “…there is no admissible evidence of a single person having read the various regulations and statutes and forming a considered legal opinion that is contrary to the interpretation unanimously advance by the Attorney General, the intervenors, and the legal community supporting them.”

Overall, while we do not have a decision from the Court explicitly directing litigants to continue to omit the 6-month temporary suspension when calculating limitation periods and other deadlines, there is reason to believe, based on this decision, that this is the appropriate approach. However, if you have questions about a limitation period or other litigation deadline, you should seek legal advice as soon as possible. Reach out to one of Cavalluzzo’s experienced lawyers who can help.

Background photo created by jcomp - www.freepik.com

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