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What is the exact suspension start date for civil matters under Order in Council 2020-4251?

Author(s): Alexandre Fallon, Annie-Claude Authier

Aug 17, 2020

On March 13, 2020 following the declaration by the World Health Organization of the COVID-19 pandemic, the Government of Québec declared a 10-day public health emergency throughout the province.[1] The declaration was renewed several times after that by subsequent government decrees and is still in effect at the time of writing.[2]

Following that Order in Council on March 13, the Honourable Nicole Duval Hesler, Chief Justice of Québec (replaced by the Honourable Justice Manon Savard in June 2020), and Mtre Sonia Lebel, Minister of Justice (replaced by Mtre Simon Jolin-Barrette in June 2020), jointly adopted Order 2020-4251 under article 27 of the Code of Civil Procedure on March 15, 2020.[3] That order suspended time limits pertaining to extinctive prescription (known as limitation periods in common law jurisdictions) and the deadlines for terms of forfeiture in civil matters together with procedural periods in civil matters[4] for the duration of the public health emergency.

On July 13, the Québec government announced that the deadlines suspended by Order 2020-4251 would start to run again[5] and would run for the number of days remaining in the period, with 45 days being added to civil case protocol deadlines.[6]

Following this announcement, it is now possible to calculate the new deadlines that apply.

For all case protocol deadlines that expired during the suspension period, the new deadline will be calculated by adding to September 1 the number of days from the beginning of the suspension to the initial deadline plus 45 days. For case protocol deadlines that will expire after the suspension period, the new deadline will be calculated by adding the total number of days of the suspension to the existing deadline plus 45 days.

As the deadline to answer a summons is not a procedural period, the 45-day extension does not apply. That means that defendants will have to answer proceedings filed during the suspension period no later than September 16, if they have a domicile, residence or establishment in Québec.[7]

For lawsuits where the period for extinctive prescription would have expired during the suspension period, the new deadline to file a proceeding may be obtained by adding to September 1 the number of days from the beginning of the suspension and the date on which the action became prescribed. For lawsuits where the period for extinctive prescription will expire after the suspension period, the new deadline to file a proceeding will be obtained by adding the total number of days of the suspension to the date of prescription.

Lastly, for appeals, including the deadlines for filing statements of appeal, applications for leave to appeal and the deadlines for filing factums and authorities in civil matters, the new deadline — for example, for filing a statement of appeal — can be found by adding the number of days from the beginning of the suspension period and the initial filing deadline to September 1.[8]

Determining the starting date of the suspension period is critical to the determination of the new deadline applicable in each of the cases outlined above. But what, precisely, is this starting date?

The relevant passages of Order 2020-4251, dated March 15, 2020, provide a useful starting point:

“Extinctive prescription and terms for forfeiture in civil matters are suspended until the expiry of the period of the declaration of public health emergency provided for in order in council 177-2020 dated 13 March 2020.

Similarly, procedural periods in civil matters are suspended during the same period, with the exception of cases deemed urgent by the courts.

[…]

If the public health emergency provided for in order in council 177-2020 dated 13 March 2020 is renewed, the measures provided for in this order are renewed for an equivalent period.

This order to take effect immediately.”

Despite the above passages, the government seems to have established the starting point of the suspension period as being March 15, 2020. In fact, in a release dated July 13, the government further clarified that the case protocol deadlines that will benefit from an additional extension of 45 days are those that were in effect on March 15, 2020. In the same release, the government stated that the entire suspension period is to be five and a half months. Therefore, without knowing the exact number of days from the beginning of the suspension to September 1, we can assume that the suspension was deemed to start on March 15, 2020. Lastly, on the Justice Québec website, the government expressly states that all civil procedure deadlines have been suspended as of March 15, 2020.[9]

That raises the question of whether the suspension really started on March 15, at the time the Order 2020-4251 proclaiming the suspension of deadlines in civil matters was signed, or rather whether it was retroactive to March 13, when the public health emergency was declared. Although there is little case law on the subject, we found a few decisions that would favour the March 13 date as the start date of the suspension.

The most interesting decision on this issue is Fournier c. Pelletier, 2020 QCCS 1629.[10] The judgment was rendered on May 21, 2020, by Justice Louis-Paul Cullen, J.S.C., who was seized of an application for provisional execution of one of the conclusions of a judgment rendered on March 17, 2020; provisional execution had not been requested of the trial judge.

Justice Cullen was of the opinion that, since the judgment was rendered on March 17, 2020, the deadline for filing the statement of appeal had not yet expired due to the government’s suspension order. As a result, the judgment had not yet become res judicata and was not yet enforceable. 

In addition, in the absence of a statement of appeal in the file, the plaintiff (who had won in first instance) could not invoke the second paragraph of article 661 of the Code of Civil Procedure, which gives the Court of Appeal the power to order provisional execution of a judgment even where it was not ordered by the judgment itself, since no appeal had been brought. According to the judge, it was not possible to know when (or if) the appeal would be brought because the date for lifting the deadline suspension period was unforeseeable.[11]

On the specific point of the deadline suspension ordered pursuant to the public health emergency, Justice Cullen felt that:

[TRANSLATION] [1] Order 2020-4251 dated March 15, 2020, which came into effect retroactive to March 13, 2020, and was made because of the public health emergency declaration of March 13, 2020, suspends civil procedure deadlines, including those for appeals, until the emergency declaration is over.

[2] Consequently, a judgment rendered in one party’s favour since March 13, 2020, cannot become executory merely because no statement of appeal was made within 30 days of the notice of judgment, since that 30-day deadline has been suspended indefinitely.

In order to remedy the legal void (“legal limbo”) and based on its powers under articles 25 and 49 of the Code of Civil Procedure, the Superior Court declared itself the appropriate forum for deciding on the issue of partial provisional execution. As a result, Justice Cullen granted the plaintiff partial execution of the judgment to prevent him from suffering serious or irreparable prejudice.

In Bissonnette c. Scraire, 2020 QCCS 1824,[12] Justice Danielle Turcotte, J.S.C. was seized of an application for revocation of a judgment rendered on August 9, 2019, with the notice of judgment dated September 11, 2019. The judge quickly dismissed the application, ruling that the mandatory six-month deadline had expired on March 11, 2020. With regard to the deadline suspension ordered pursuant to the health emergency, the judge wrote the following:

[TRANSLATION] [26] In this case, the plaintiffs merely state that the World Health Organization declared a health emergency on March 11, 2020. However, it was not until March 13 that the Minister of Justice and the Chief Justice of Québec signed the order suspending the deadlines. At that time the mandatory deadline had already expired.

With respect, the judge’s words are unclear. It is not obvious whether she considers that the deadline suspension decreed in the March 15 order (and not March 13, as is written in the judgment) is retroactive to March 13, or whether there is simply a clerical error and the date should have been written as “March 15” instead of “March 13.”

The other decisions we found address the issue only superficially.[13] 

All in all, while some judges appear to consider that the deadline suspension period started on March 13 rather than March 15, it is still too early to confirm a jurisprudential trend. In the meantime, in the absence of clarification, litigants should adopt the most conservative position (i.e., to consider the start of the suspension period as being March 15, 2020).

 


[1] Order in Council 177-2020 concerning a declaration of a public health emergency under s. 118 of the Public Health Act [in French only]:  <http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=1&file=104301.pdf>

[2] Order in Council 818-2020 – The public health emergency was extended until August 19, 2020 [in French only]: <https://cdn-contenu.quebec.ca/cdn-contenu/adm/min/sante-services-sociaux/publications-adm/lois-reglements/decret-818-2020.pdf?1597323058>.

[3] Order 2020-4251 of the Chief Justice of Québec and the Minister of Justice, dated March 15, 2020: <https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/En__Anglais_/centredoc/covid-19/Arrete_ministeriel_art_27_cpc-a.pdf>.

[4] With the exception of cases deemed urgent by the courts.

[5] Should public health in Québec deteriorate by September 1, the decision to lift the deadline suspension could be revised.

[7] Code of Civil Procedure, arts. 145 and 490.

[8] This method of calculation only applies if the notice of judgment precedes the suspension period announced by the government.

[10] Fournier c. Pelletier, 2020 QCCS 1629 [in French only]: <https://www.canlii.org/fr/qc/qccs/doc/2020/2020qccs1629/2020qccs1629.html?resultIndex=1>.

[11] NB: since the government announcement of July 13, September 1, 2020, has now been set for the lifting of the suspension.

[12] Bissonnette c. Scraire, 2020 QCCS 1824 [in French only]: <https://www.canlii.org/fr/qc/qccs/doc/2020/2020qccs1824/2020qccs1824.html?resultIndex=1>.

[13] In Acier Leroux, division de Métaux Russel inc. c. L'Unique assurances générales inc., 2020 QCCQ 2440, Justice Brunelle J.C.Q stated the following:

[TRANSLATION] [29] In the case before us, the 45-day deadline from the date the originating application was served has not legally expired. In fact, Order 2020-4251 suspended civil procedural deadlines from March 13, 2020.

In Groupe Canam inc. (Canam Battement’s) c. Alma Soudure inc. 2020 QCCS 1813 and Gestion Lebeau Gagnon inc. c. Vallières, 2020 QCCS 1988, the following mention is made at the very end of the judgments: [TRANSLATION] “Civil procedure deadlines suspended as of March 15, 2020.” Otherwise, those two judgments do not deal with or refer in any way to the start of the suspension period or the suspension period itself as decreed by the government in Order 2020-4251. In our view, this mention is made for information purposes only as the judgments were rendered during the suspension period, and they cannot be considered to be judicial opinion with respect to the start of the suspension period.

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