Calculations of the Pandemic Limitations in Ontario

When the COVID-19 pandemic first hit Ontario, the provincial government made a special order on March 20, 2020 under s. 7.1(2) of the Emergency Management and Civil Protection Act, creating a suspension of limitations under O. Reg. 73/20,

Limitation periods

Period of time, steps in a proceeding

This suspension of limitations continued until Sept. 14, 2020, which was approximately 6 months. The most significant provision that this applied to was the Limitations Act, 2002, and was subject to much litigation by parties who wanted to insist on matters proceeding as usual.

In some circumstances, legal bodies exercised their discretion to insist that matters move forward despite the special order, and in other cases they declined to do so. This appeared to occur on a case by case basis, but significant factors that courts appear to rely on was an urgency in the matter, and prejudice to the parties.

In Elson v. Polyethics Industries Inc., Justice Cassullo exercised her discretion under the regulation to point to a party’s ability to maintain business operations as a reason to decline the suspension of limitations,

[9] These are challenging times, and we are all adapting to our new normal… While access to our courts has been circumscribed, the wheels of justice have not ground to a halt. Litigation is not “on hold,” and litigants are expected to move their matters forward, ideally in the spirit of cooperation.

[10] Justice Pentney of the Federal Court has effectively captured the current zeitgeist:

The simple reality is that until the risks associated with the pandemic diminish and public health restrictions are lifted, it is necessary to adapt to the new reality. Access to justice is simply too important to wait. It is also a “public good,” which must be considered in light of the interests of the litigants to the matter, other litigants waiting for their cases to be heard, and the wider public who also seek access to the court.

In dire circumstances in Harbouredge Commercial Finance Corp. v. Jet Express Transportation Group Ltd. where there was immediate financial risk to a party, the court found it urgent for the matter to proceed.

Where one matter before the Local Planning Appeal Tribunal had already been dragging on for 8 years, discretion was exercised to continue without any suspension. Conversely, in other contexts the Human Rights Tribunal of Ontario has found it appropriate in some circumstances to allow for an extension of time for pleadings,

Although these enactments do not apply to criminal proceedings, the court in R. v. Salvati pointed to these civil suspension of limitations as a basis for concluding that the Crown made reasonable efforts to ensure all documentation was provided, in light of court offices operating on a limited basis.

For those civil matters that did proceed under the suspension of limitations, there has always been a question as to how long this suspension applied exactly. A recent decision in McAuley v. Canada Post Corporation appears to provide the answer.

The action involved a slip and fall on an icy sidewalk on Dec. 20, 2017. The limitations issue arose due to an attempt by the plaintiff to amend the Statement of Claim on March 13, 2020, when the plaintiff received documents involving third and fourth parties. They initiated a motion to amend on Jan. 28, 2021.

The Ontario Court of Appeal has made it clear in Arcari v. Dawson that the suspension of a limitations is an absolute bar to amending a claim,

[7] Pursuant to s. 21 of the Limitations ActS.O. 2002, c. 24, Schedule B, the clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing action: Joseph v. Paramount Canada’s Wonderland, 2008 ONCS 469, at paras. 26-28. Subject to the statutory exceptions from the general rule, none of which are at issue in this case, that bar arises immediately after the second anniversary of the day the claim was discovered (s. 4).

Although Justice Boswell denied the plaintiff’s motion, as the identities and roles of the third and fourth parties were discoverable at an earlier date through the exercise of reasonable diligence, he concluded that the suspension of any running limitation period would be calculated to 183 days.

This number will be useful for any party who is calculating the time involved for a step, stage or limitations in a proceeding, and where a court or tribunal has not exercised its discretion to abridge that suspension. However, parties should still be aware that existing rules of discoverability and due diligence are still required, especially where earlier dates calculated prior to 183 days are made on the record.

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