March 31st, 2020
The COVID-19 pandemic has impacted the Canadian justice system in an unprecedented way.
On March 15, 2020, a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings in the Ontario Superior Court of Justice advised that all regular operations were suspended, except for the hearing of urgent matters, until further notice.
On March 17, 2020, the Ontario government declared a province-wide state of emergency under the Emergency Management and Civil Protection Act (the “Act”). A few days later, on March 20, 2020, the Ontario government also ordered the suspension of all limitation periods and procedural deadlines for the duration of the emergency, retroactive to March 16, 2020 (the “Order”). Under section 7.1(4) of the Act, the suspension of limitation periods may not exceed 90 days. The Act permits the government to either extend the suspension, if the state of emergency continues or terminate the Order prior to the 90-day deadline, if the state of emergency no longer exists. As of March 30, 2020, it is expected that the suspension will last until June 14, 2020 and may be renewed if the COVID-19 pandemic continues to substantially affect the province at that time.
The Limitations Act, 2002 governs almost all limitation periods in Ontario. Generally, anyone who suffers a loss may bring a claim within two years of the date on which s/he discovers the claim and recognizes that a legal proceeding is the appropriate means to remedy his/her loss. The Order, if not renewed or terminated early, extends the two-year limitation period by 90 days. For example, a business that issued an invoice with a deadline for payment that expired on January 1, 2019 will ordinarily have until January 1, 2021 to commence a lawsuit to collect the amount owing. Assuming the Order will expire on June 14, 2020, the January 1, 2021 date will be extended to April 1, 2021 because the 90 days between March 16, 2020 and June 14, 2020 are excluded from the calculation of the two year limitation period.
The Order also suspends procedural timelines applicable to both courts and tribunals alike, retroactive to March 16, 2020. These would include any timelines mandated by the Rules of Civil Procedure or the Rules of the Small Claims Court, but same are subject to the discretion of the court or tribunal overseeing the proceeding. For example, the 20-day timeline to deliver a Statement of Defence upon being served with a Statement of Claim is suspended for the duration of the state of emergency, but the court technically has the authority under the Order to extend or shorten this timeline. How this might be applied in practice remains to be seen, but will likely play out in the context of the hearing of urgent matters as defined in the March 15, 2020 Notice to the Profession.
As with everything else related to COVID-19, the suspension of limitation periods brings with it significant uncertainty. Parties and their lawyers should remain vigilant, as plaintiffs’ right to sue is now dependent on how long the state of emergency in Ontario will continue. In spite of the suspension, and with the availability of electronic issuing of claims (with an expansion of online court services expected to be available on April 6, 2020), it may be prudent for litigants to adhere to their original limitation dates. And in these extraordinary times, all counsel and parties are well-advised to follow the court’s direction “to engage in every effort to resolve matters”.