Ontario Regulation 73/20 (the “Suspension Order”) made under the Emergency Management and Civil Protection Act, RSO 1990, c E.9 (the “EMCPA”) temporarily suspended limitation periods and procedural deadlines in Ontario effective March 16, 2020. The Suspension Order was “revoked” on September 14, 2020 pursuant to Ontario Regulation 457/20 made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c 17. Under the Suspension Order, limitation periods and procedural timelines were suspended for 182 days (i.e., 26 weeks).
In Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6974 (“Persons Unknown”), the Ontario Superior Court of Justice dismissed an application by the Attorney General for Ontario (“Attorney General”) seeking a declaration that the temporary suspension period (i.e., March 16, 2020 to September 13, 2020) shall not be counted against any applicable limitation period. Justice Myers held that “an application in this court against ‘Persons Unknown’ for an abstract ruling to support the government’s desired interpretation of its regulatory efforts, while convenient, is neither efficacious nor appropriate.” Accordingly, the application was dismissed on the “gating” issue that Justice Myers had himself raised and in respect of which he had appointed amicus curiae.
By way of background, the Attorney General apparently received inquiries from lawyers in Ontario who are concerned that because the Suspension Order was “revoked,” it is of no effect and therefore the revocation has produced an unintended consequence that the suspension period must now be counted against all applicable limitation periods. However, despite notice to the legal community no one came forward to oppose the application and argue an interpretation opposite to that advanced by the Attorney General.
As noted in our blog post dated October 20, 2020, this issue seems to be much ado about nothing. Section 6 of the Suspension Order and section 7.1(6) of the EMCPA expressly state that when the suspension ends “the temporary suspension period shall not be counted.” In addition, under section 51(a) and (b) of the Legislation Act, 2006, SO 2006, c 21, Sch F, the revocation of a regulation (such as the Suspension Order) does not affect its previous operation or any right, privilege, obligation, or liability that came into existence under it. Justice Myers noted that there was no evidence adduced before him of (i) any case in which there is an actual issue in which someone asserts that the revocation of the suspension regulation has resulted in the temporary suspension period no longer being treated as effective, or (ii) of any lawyer having actually read and considered the relevant statutes, regulations, and legal principles of interpretation and come to a bona fide opinion that there is uncertainty as to the ongoing efficacy of the suspension of limitation periods.
Declaratory relief is a discretionary remedy and may be granted where (a) the court has jurisdiction to hear the issue; (b) the dispute is real and not theoretical; (c) the party raising the issue has a genuine interest in its resolution; and (d) the responding party has an interest in opposing the declaration being sought. Justice Myers held that (a) had been satisfied but (b), (c), and (d) were not satisfied.
In the circumstances, Justice Myers determined that the relief sought by the Attorney General invited the court to operate outside the scope of its constitutional authority:
[82] […] A declaration would not have any real-world effect or serve any practical purpose. There is no one here with an interest in the issue brought and no one before the court with an interest in opposing. There are no facts in issue and no real dispute. There are many ways that the Attorney General can avoid the confusion which LAWPRO and others have raised with it. The Government has the ability to give regulatory or legislative responses. It routinely makes regulatory impact statements when it regulates. If the Government would like an opinion of the judicial branch on an interpretation issue, it can refer the question to the Court of Appeal. It is not for me to usurp the role of the Court of Appeal in a reference, the regulatory role of the Attorney General, or the legislative role of the Legislature.
The decision in Persons Unknown is notable as a good review of the procedural law of declaratory relief and the fact that, save for the exception of references under section 8 of the Courts of Justice Act, RSO 1990, c C.43, courts do not give abstract legal opinions based on hypotheticals but rather they resolve existing disputes with a factual underpinning, among interested adversarial parties.
