Government regulation, particularly under emergency legislation, often requires interpretation to properly ascertain its purpose and effect. This came to light as of late when Ontario Regulation 73/20 under the Emergency Management and Civil Protection Act (the “Regulation”) became the subject of debate. The Regulation suspended all limitation periods in Ontario during the COVID-19 pandemic from March 16 to September 14, 2020, when it was revoked.
In a recent case, assistance of the Superior Court of Justice was sought to interpret some confusion over the revocation of the Regulation and its effect on limitation periods. In dealing with the Application, Justice Myers held that the Superior Court of Justice was the incorrect forum in which to bring an application to interpret emergency legislation.
In Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6974, the Attorney General of Ontario and a number of intervenors brought an application seeking a declaration of right, interpreting the revocation of the Regulation. Counsel for the Attorney General argued that all limitation periods resumed on the date the legislation was revoked and that the period of suspension should not be counted in calculating limitation periods going forward. Other voices in the justice community argued that the period of temporary suspension should be counted in limitation periods going forward, despite language in the Regulation which stated that the temporary suspension was not to be counted.
The Court noted that also at issue was a worry by Lawyers’ Professional Indemnity Company (LAWPRO) that, because of the revocation, lawyers may find themselves targeted by future lawsuits for miscalculating limitation periods.
In deciding the application, Justice Myers took issue with the fact that the application asked the Court to render an opinion without any existing dispute. It was also noted that the Attorney General came to court without notice to anyone advancing a contrary view. The Attorney General was inviting the Court to make a declaration as to the correctness of his view of the law with no public hearing, no live case before it and no adversarial parties with a dispute, seeking resolution of the facts or law by an independent judicial arbiter.
Justice Myers held that it was not the court’s place to endorse the executive branch’s view of its conduct without any live dispute in which opposing views could be fairly heard and issues dispassionately decided.
Additionally, it was held that such an interpretation of the law and subsequent declaration would cross the line separating the independent judiciary and the executive and legislative branches of government. The Attorney General is not permitted to seek ex parte interpretations of the laws to restrict unnamed respondents from suing others in the future, nor was it appropriate for the Attorney General to seek the court’s legal opinion on a hypothetical question of interpretation. Justice Myers noted that such an exercise would engage the Court in acting for the executive branch in a manner that was constitutionally inappropriate. Accordingly, the Court declined to weigh in on such an interpretative process.
In his decision, Justice Myers stated that there were other alternatives available to the Attorney General to obtain the outcome sought. For example, the government could pass regulations or legislative responses, or it could seek a legal opinion from the Court of Appeal for Ontario in a reference process. In this regard, the Superior Court is not permitted to usurp the role of the Court of Appeal in a reference, nor could it supplant the regulatory role of the Attorney General or the legislative role of the Legislature.
As such, the application was dismissed on the basis that it was neither efficacious nor appropriate for the reasons previously explained.
This decision illuminates that questions of legislative interpretation, especially those without an adversarial component, are not to be brought before the Ontario Superior Court of Justice. Rather, there are other means to clarify or interpret such legislative ambiguity without the risk of a constitutionally inappropriate outcome.
The author would like to thank Lucas Morini, Student-at-Law, for his assistance with this article.