The Impact of Covid-19 on Limitation Periods – Can the Suspension be Applied?
Last March 2020, after Ontario was placed in an emergency lock down due to the global pandemic, the Ontario legislature passed O. Reg. 73/20, which suspended limitation periods effective March 16, 2020, for civil matters, except those under the Construction Act, RSO 1990, c. C30. The suspension was subsequently lifted, and limitation periods began to run again on September 14, 2020. In total, the suspension lasted for 26 weeks.
O. Reg. 73/20, provided that “the temporary suspension period shall not be counted” toward the limitation period. Therefore, it could be interpreted that any limitation period that started running before March 16, 2020, should be extended by exactly 26 weeks.
However, O. Reg. 73/20 has since been revoked causing much confusion amongst the legal community regarding the implication of the suspension and how to apply it, if at all.
In response, the Attorney General for Ontario brought an Application for a declaration that the six-month period of the temporary suspension not be counted in the calculation of the limitation periods. LAWPRO, the lawyers’ insurance company, intervened. To ensure a fulsome view of the issues were before the Court, Justice Myers appointed counsel to act as amicus curiae, or “friend of the court.” Amicus are counsel who will argue a position to help the court ensure that the issues before the court are fully canvassed in a variety of situations.
On November 16, 2020, Justice Myers heard the Application but declined to intervene. In the decision, which is reported at, Attorney General for Ontario v Persons Unknown, 2020 ONSC 6974, Justice Myers noted,
“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.”
In dismissing the Application, Justice Myers granted deference to the Court of Appeal (in a Reference), the regulatory role of the Attorney General, or the legislative role of the Legislature, as the more appropriate avenue(s) to resolve this issue.
With this decision, the confusion as to whether the suspension period can be applied to limitation periods, remains. Until there is clarification by the legislation or the Court of Appeal in a Reference, it would be prudent to err on the side of caution and abide by the original limitation period, thus ignoring the suspension.