As the COVID-19 pandemic continues to push us into an uncertain future, we are left wondering what will happen to the Ontario justice system during these turbulent times. In particular, since the Ontario courts shut down on March 17, 2020, commencing lawsuits has proven difficult.
Although claims can be filed electronically, the need to engage in social distancing makes it difficult for people to meet with their lawyers and serve pleadings and other materials on other parties. Not all clients have the technology available to meet with their counsel electronically and it must be admitted that many of us are distracted by the immense changes we are seeing as a result of COVID -19.
As such, one issue that has been top of mind for many lawyers (and would-be litigants) is missing a limitation period.
For most civil proceedings, the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B requires that a claim be commenced within two years after the cause of action has been discovered. People are concerned that they may have trouble commencing a lawsuit within this timeframe while the province is in a state of emergency, with nonessential businesses encouraged to close and social distancing mandated.
Thankfully, the Ontario Ministry of the Attorney General has recognized this problem and stepped in to provide some reliefs. On March 19, 2020, an order was made suspending all limitation periods in Ontario retroactive to March 16, 2020 (the “Order”).
The Order was made pursuant to section 7.1 of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (the “Act”). This section authorizes the Lieutenant Governor in Council “to make appropriate orders when, in the opinion of the Lieutenant Governor in Council, victims of an emergency or other persons affected by an emergency need greater services, benefits or compensation than the law of Ontario provides or may be prejudiced by the operation of the law of Ontario”.
According to section 7.1(2)(a) of the Act, provisions of Ontario statutes, regulations, rules, by-laws or orders of the Government of Ontario can be temporarily suspended in case of emergency.
The Act was first introduced as the “Emergency Management Act” in 2002, following the “Y2K” scare and the events of September 11, 2001. The Act was then amended in 2006 to become the Emergency Management and Civil Protection Act. The amendments were borne out of the Ontario government’s experience with the SARS outbreak that occurred in 2003. The Act is therefore the guiding legislation that the Ontario government will use to deal with the current COVID-19 pandemic. This is the first time that the Act has been used to suspend limitation periods in Ontario.
With the current Order in place, would-be litigants need not be concerned about missing a limitation period pursuant to the Limitations Act (or any other statute), provided the applicable limitation period did not expire before March 16, 2020.
At this time, it is not clear how long the suspension will last and if other provinces will follow suit. Also, litigants may still file claims electronically if they wish to commence lawsuits while the courts remain closed.
Although this measure does not even come close to a viable long-term solution to the lack of access to justice in this province, it is definitely a positive step to protect causes of action for the time being.