Adapting litigation rules to COVID-19: Suspension of limitation periods and deadlines and other temporary changes to processes and access to redress

Last Updated: March 26, 2020

Governments have announced the suspension of non-urgent hearings, and the closure of courts across Canada. Measures are being implemented that impact companies, litigants, their counsel and beyond.

Limitation periods and procedural deadlines suspended

Ontario has suspended limitation periods until the COVID-19 emergency wanes by an Order in Council dated March 20, 2020, retroactive to March 16, 2020. This means, for example, that the normal deadlines to commence claims, serve them and defend them, have been extended. Claims and other court documents still may be filed electronically in Ontario, and some parties might want to take advantage of that option if they are able to do so.

The basic two-year limitation period for issuing claims in Ontario is suspended, in addition to all litigation deadlines mandated by the Rules of Civil Procedure (or equivalent for administrative tribunals). This includes the six-month deadline to serve claims once they have been issued – parties with claims issued but not served prior to March 16 need not act urgently to find a way to serve parties dealing with business closures and social distancing. However, the suspension of procedural deadlines is subject to the discretion of the court, tribunal or decision-maker responsible for the proceeding. In the coming days and weeks, certain decision-makers may opt to exercise that discretion to keep proceedings moving to the extent possible.

The conduct of private commercial arbitrations will be varied – while deadlines in statutes such as the Ontario Arbitration Act are suspended, parties will have to discuss shifting agreed-upon deadlines with their counterparties and with the arbitrator if necessary.

The Order may also apply to certain deadlines relevant to Ontario tax disputes. For more details about the impact of the Order on Ontario tax disputes, please see our update in respect of provincial taxes, available here.

The Order in Council was made pursuant to the Emergency Management and Civil Protection Act, following the declaration of a state of emergency in Ontario on March 17, 2020. Section 7.1 of the Act authorizes the Lieutenant Governor in Council, when a state of emergency has been declared, to make certain orders to “facilitate providing assistance to victims of the emergency” or to “otherwise help victims or other persons deal with the emergency and its aftermath”. The Act provides that a temporary suspension shall not exceed 90 days but may be renewed pursuant to ss. 7.1(4) and (5). Because the Order specifies that the suspension shall remain in place “for the duration of the emergency”, litigants can expect that the Order will likely be renewed while the province remains in a state of emergency.

Litigants with claims about to expire before March 16, 2020 would be wise to carefully monitor the government’s approach to this issue, to navigate the process when limitation periods are reactivated.

Law Society endorses virtual commissioning of affidavits

The Law Society of Ontario announced that, until further notice, it will interpret professional requirements to account for the practical challenges facing counsel as a result of COVID-19. The Law Society will interpret the statutory requirement that oaths and declarations be taken “in the presence of” the commissioner as not requiring physical presence. Instead, alternative means of commissioning, such as commissioning via video conference, will be permitted.

This is a reversal from a long-held position of Ontario’s legal professional self-regulator, which reflects the wide recognition that the COVID-19 situation will require altering long-standing practices, particularly those that involve face-to-face interactions.

The Law Society has nevertheless highlighted certain risks presented by the virtual commissioning of documents, such as fraud and identity theft. These risks are likely low in the corporate context, where they can be mitigated by using caution and typical “know your client” best practices. Regardless, counsel engaging in virtual commissioning may consider taking the following precautions:

  • Ask the deponent to email scanned copies of official photo identification in advance of the video conference, and keep a record of them (ensuring that this is done in compliance with privacy considerations);
  • Specify in the affidavit that it has been sworn or affirmed virtually due to COVID-19; and
  • To the extent possible, consider recording the videoconference with the consent of all participants.

The Law Society’s willingness to endorse virtual commissioning in spite of identified risks reflects the need for flexibility and pragmatism in the face of the new challenges presented by COVID-19. It should be noted that the Law Society, as the professional regulator, cannot amend the statutory requirement that a declaration be taken in the presence of” the commissioner – which the Law Society noted remains ambiguous as to whether physical proximity is required. While the Law Society’s guidance makes clear that this practice is now temporarily permissible from a professional conduct standpoint, it remains unclear how courts and regulators will respond to this approach from an evidentiary perspective.

Virtual commissioning is a practical innovation, taking modern technology into account. It would be worth considering maintaining and formalizing this practice in the future – as being practical and less expensive for parties. It would also be worth considering delegating such rule-making powers regarding commissioning of affidavits to regulations and/or regulators, as opposed to having legislated requirements.

More information is available on the Law Society Website: “Frequently Asked Practice Management Questions regarding COVID-19”.

We continue to monitor and report on new developments relevant to our clients and will revise this post as appropriate, particularly if and as other jurisdictions make similar announcements. For further insight on the legal and business considerations related to COVID-19, visit the Osler COVID-19 page.

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Editors

Lawrence E. Ritchie

Partner, Litigation

Alexander Cobb

Partner, Litigation

Shawn Irving

Partner, Litigation

Kevin O’Brien

Partner, Litigation

Lauren Tomasich

Partner, Litigation

Malcolm Aboud

Associate, Litigation