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Limitations to Limitation Periods during COVID

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With 2020 in the rearview mirror, COVID-19 continues to create ripple effects for litigators in Ontario. 

On November 10, 2020, the Superior Court of Ontario heard an Application brought in Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6974 (CanLII)

The purpose: to seek judicially binding interpretation of how the revocation of O. Reg. 73/20: Reopening Ontario (A Flexible Response to COVID-19) Act, on September 14, 2020, which temporarily suspended all limitation periods in Ontario, affected how limitation periods would be counted going forward.

Section 2(1) of the Reopening Act is a legislative extension of the limitation period suspension, beginning on March 16, 2020, established within s. 7.1(6) of the Limitation Periods, O Reg 73/20:

Effect of temporary suspension:  time period

(6) If a provision establishing a limitation period or a period of time within which a step must be taken in a proceeding is temporarily suspended by the order and the order does not provide for a replacement limitation period or period of time, the limitation period or period of time resumes running on the date on which the temporary suspension ends and the temporary suspension period shall not be counted.

(emphasis added)

The Ontario government legislated that no limitation periods would expire from March 16, 2020 to September 14, 2020. Rather, these limitation periods would be “suspended”. 

The question before the Court was whether the six-month suspension still counts now that the Regulation has been revoked

An example is often helpful: if there was a motor vehicle accident on September 15, 2018, does that mean that the limitation period for bringing an action expired on September 15, 2020, as though the suspension never occurred? Or does it mean that an additional six-months is added to the limitation and the action actually expires on March 15, 2021?

This is the issue the Attorney General brought before the Court, in the hopes of confirming how the legislation was to be interpreted. Disappointingly, the Court declined to comment as there was no judicial basis for it to hear the Application – no parties had standing and there was no existing legal action requiring an interpretation by the courts. However, dear reader, not all hope is lost. In somewhat obiter commentary the Court did confirm the following, which I have summarized into a more manageable chunk:

[T]he Attorney General say that as a result of the revocation of the suspension regulation, all limitations periods resumed running on September 14, 2020. In addition, she submits that the six-month period of the temporary suspension is not to be counted in limitation period calculations going forward.

[S]uffice it to say at this stage, that 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 advanced by the Attorney General, the intervenors, and the legal community supporting them. 

Okay, so what does this mean? 

1) There is no case law to confirm how the implementation and subsequent revocation of the legislative suspension of the limitation periods presently applies;

2) The Court recommends that the Attorney General’s interpretation of the law be taken as the correct interpretation unless or until there is a case before the court that warrants its judicial interpretation; and

3) The Attorney General’s position is that the limitation period suspension is not to be counted going forward.

Using the example above, the Court has suggested that the action would have expired on September 15, 2020, as it expired after the relevant limitation period. This would also suggest that any causes of action that would have expired during the period of suspension effectively expired on September 14, 2020, when the legislation was revoked.

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