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Limitation Periods and Covid-19

You May Still Have Time to Bring Your Claim

When you are involved in a motor vehicle collision, slip and fall injury, or suffer any other civil wrong, the window of time you have to bring your claim against the at-fault party is often limited. This window is called a limitation period and is governed in Ontario by the Limitations Act, 2002. For instance, if you have been involved in a motor vehicle collision, you typically only have two years from the date of your accident to issue your claim against the other driver. Failing to bring a claim within two years means that you will not be able to pursue the at-fault party thereafter. Now with Ontario Regulation 73/20, the window of time you have to bring your claim may have been extended.

It is no secret that the COVID-19 pandemic has wreaked havoc on the global economy and has fundamentally altered our practices and customs. Businesses, industries, and institutions have all been forced to adapt to this public health crisis by adopting new procedures. The courts are no exception to this. In order to balance public health considerations and bolster Ontario’s emergency response efforts, the government of Ontario enacted the Emergency Management and Civil Protection Act (“EMCPA”), and later the Reopening Ontario (A Flexible Response to Covid-19) Act, 2020. This legislation has had many implications; one of which is a pause in limitation periods.

Subsection 7.1(3) of the EMCPA through Ontario Regulation 73/20 retroactively paused limitation periods from running between March 16, 2020 and September 11, 2020. For instance, if you were involved in a motor vehicle accident in January of 2020, the limitation period for bringing your claim would pause on March 16, 2020, and then continue running on September 11, 2020. This would have the effect of extending your limitation period by almost six months and you would have until July of 2022 to bring your claim. If you suffered your loss in the middle of the pandemic in April of 2020, the clock would not start running until September 11, 2020 and you would have until September 11, 2022 to bring your claim.

Ontario Regulation 73/20 also paused prescribed time periods within proceedings and significantly affected litigation. The Rules of Civil Procedure (the “Rules”) establish timelines for the service of many documents within the litigation process such as the Statement of Claim. Regulation 73/20 affected the timelines for service of litigation documents similar to how it affected limitation periods. The window of time to serve a document paused on March 16, 2020 and recommenced on September 11, 2020. For instance, a plaintiff must serve a Statement of Claim on a defendant within six months after it is issued. Based on the operation of Regulation 73/20, if you issued your claim on March 1, 2020, the six-month clock would pause on March 16 and recommence on September 11, 2020, which means you would have almost six additional months to serve that Statement of Claim.

The one caveat is that the suspension of time periods within proceedings is at the discretion of the court or decision-maker overseeing the proceeding. The court could still exercise its discretion not to pause the clock on procedures applicable to its own proceedings and judges may uphold procedural time limits for serving court documents.

Although plaintiffs will likely be able to rely on the pause in limitation periods, the revocation of Ontario Regulation 73/20 on September 14, 2020 has resulted in uncertainty in its application by the courts. On October 1, 2020, the Attorney General of Ontario brought an application before the Ontario Superior Court of Justice to seek clarification on whether the pause in limitation periods still apply for claims brought after the revocation of the regulation on September 14, 2020. On November 16, 2020, Justice Myers released his decision in which he dismissed the application. In his decision, Justice Myers concluded that it is not the Superior Court’s role to offer an opinion on judicial interpretation on a reference issue but rather this is an issue for the Ontario Court of Appeal. Justice Myers further stated that the Government of Ontario can give regulatory responses or a regulatory impact statement to provide clarification for the public on the continued operation of Regulation 73/20.

Despite the lack of judicial interpretation on this issue, it is still very likely that litigants in Ontario can rely on Ontario Regulation 73/20 when deciding to bring their claims before the court. Section 51(1)(a) of the Legislation Act, 2006 states that the revocation of a regulation does not affect the previous operation of the revoked regulation. Therefore, if Ontario Regulation 73/20 had the effect of pausing limitation periods between March 16 and September 11, its revocation on September 14 should have no effect on the operation of this regulation. This however will not stop defendants from asserting that this is not the case and arguing that the period between March and September does count toward limitation periods for claims brought after September 14, 2020.

As a matter of prudence and to avoid any defences raised by the other side, it is necessary for you to bring a claim as soon as possible. However, if you have suffered a loss due to the negligence or wrongful act of another party and you had previously believed that the limitation period for bringing your claim has expired, it may not be too late. Ontario Regulation 730/20 may have provided the relief you need to pursue your claim and recover the damages you need to make you whole again.