Suspension of Limitation Periods and Procedural Deadlines in Ontario: An Update

Background

As has been widely discussed, in light of the unprecedented impact of the novel coronavirus (COVID-19), on March 20, 2020, the Lieutenant Governor made an Order in Council under section 7.1(2) of the Emergency Management and Civil Protection Act, RSO 1990, c E.9 (the “Act”) suspending limitation periods for the duration of the emergency (the “Suspension Order”). The Suspension Order also suspends procedural time periods, subject to the discretion of the court, tribunal, or other decision-maker responsible for the proceeding. The suspensions are retroactive to March 16, 2020. A copy of the Suspension Order, filed with the Registrar of Regulations (as O. Reg. 73/20), is accessible online at this link. Such an order is possible when the conditions of subsection 7.1(3) of the Act are satisfied, which include, among other things, a declaration of emergency having been made under section 7.0.1 of the Act. By Order in Council 518/2020, the Lieutenant Governor of Ontario ordered this declaration of emergency on March 17, 2020 (the “Emergency Order”).

Limitations and Exclusions of the Suspension Order: Scope and Duration

Practitioners should be aware of the scope and duration of the Suspension Order:

1. Scope. As noted in a Law Pro note dated March 23, 2020,[1] the Suspension Order applies to limitation periods and procedural deadlines that are established by Ontario statutes, regulations, rules, by-laws and orders of the Government of Ontario. The limitation period suspension appears to be absolute as there is no discretion to the court set out in the Suspension Order, while procedural timelines will be subject to the discretion of decision makers.[2] The Suspension Order does not apply to: (a) deadlines or limitation periods set out in contract; and (b) federal law or the laws of other provinces.
   
2. Duration. The period of suspension is temporary. Subject to possible extensions, renewals and/or early termination, the period of suspension established under the initial Suspension Order will terminate at 11:59 p.m. on March 31, 2020. The period of suspension and its possible extension is described below.

As recommended in the Law Pro note, practitioners should continue to monitor the situation for updates and be ready to quickly commence proceedings and take procedural steps as necessary once the period of suspension under the Suspension Order has ended (although it remains possible to commence proceedings, and in some cases, take procedural steps, during the period of suspension).

Duration: Initial Period of Suspension and Extension

Initial period of suspension: 14 days unless terminated earlier

By its terms, the period of suspension under the Suspension Order is tied to the “duration of the emergency”. Under the Act, a period of emergency is terminated at the end of the 14^th day following its declaration (i.e., March 31, 2020 in the case of the Emergency Order) unless terminated earlier by an order of the Lieutenant Governor in Council.[3] As of March 27, 2020, there has been no such termination of the period of emergency and there is no likelihood of early termination.[4] It seems very likely that there will be an extension of the initial period of emergency, and practitioners should monitor for such extension because that will impact the duration of the Suspension Order. This period of suspension may be extended as follows.

Possible extensions of period of suspension

Under the Act, the initial period of suspension under the Suspension Order may be extended in three ways (or a combination thereof): (1) by extending the duration of the emergency prior to the termination of the period of emergency; (2) by renewal of the Suspension Order itself for a period not exceeding 90 days; or (3) by a new order for a further period of temporary suspension not exceeding 90 days.

1. Extension of the duration of emergency. The Lieutenant Governor in Council may by order extend an emergency before it is terminated for one further period of no more than 14 days.[5] Alternatively, the Legislative Assembly of Ontario, on the recommendation of the Premier of Ontario, may by resolution extend the period of an emergency for additional periods of no more than 28 days.[6] If there is a resolution before the Legislative Assembly of Ontario to extend the period of emergency, the declaration of emergency shall continue until the resolution is voted on.[7] Ultimately, the period of suspension under the Suspension Order, if extended in this manner, shall not exceed 90 days, subject to renewal or a new order under s. 7.1(4) of the Act as described below.
   
2. Renewal of original Suspension Order for a maximum of 90 days. The Lieutenant Governor in Council may, before the end of the period of temporary suspension, renew the original Suspension Order for a further period of temporary suspension not exceeding 90 days.[8]
   
3. New suspension order for a maximum of 90 days. At any time, and not necessarily before the termination of the period of temporary suspension under the Suspension Order, the Lieutenant Governor in Council may make a new order for temporary suspension.[9] The period of suspension under such an order shall not exceed 90 days.[10]

[1] Juda Strawczynski, Avoid a Claim, The March 20^th Order Suspending Limitations Periods. Web: https://avoidaclaim.com/2020/the-march-20th-order-suspending-limitations-periods/. Accessed March 26, 2020.

[2] Different tribunals have exercised their discretion in different ways. As of March 26, 2020, the LPAT has interpreted the emergency order to suspend deadlines in its procedural orders, while the OEB has taken the opposite position. See also a summary of the varied responses of provincial tribunals at: https://www.oba.org/COVID-19-Action-Plan/Status-Tribunals.

[3] Act, s. 7.0.7(1).

[4] Orders in Council are available by web at: https://www.ontario.ca/search/orders-in-council.

[5] Act, s. 7.0.7(2).

[6] Act, s. 7.0.7(3).

[7] Act, s. 7.0.7(4).

[8] Act, s. 7.1(4)(a).

[9] Act, s. 7.1(4)(b).

[10] Act, s. 7.1(4).