Know Your Limitations – A Refresher on the Suspension of Limitation Periods During COVID and its Continuing Ramifications

Ministerial Order 27/2020 was issued on March 30, 2020 (the “Ministerial Order”).[1] It suspended limitation periods from March 17, 2020 to June 1, 2020 within several listed enactments.

While issued almost three years ago, the Ministerial Order remains relevant. Parties involved in or contemplating litigation are continuing to experience its ramifications. Why is that?

The Ministerial Order’s Purpose

In essence, the Ministerial Order created a window of suspension, pausing limitation periods for 75 days. The Ministerial Order outlined two purposes:

1. It suspended limitation periods in the enactments listed under “Appendix A” (which is also named Appendix I at the end of the Ministerial Order); and
2. It suspended any period of time with which any “step” is required to be taken in any “proceeding or intended proceeding”.

The Ministerial Order’s Effects

The Ministerial Order affected limitation periods in three different ways:

1. First, it affects matters where the limitation period would have expired on a date during the suspension period (“Situation 1”). In Situation 1, the limitation period would be extended by 75 days.

   To illustrate Situation 1, if a plaintiff had a limitation period to file a commencement document, such as a Statement of Claim, by March 18, 2020, pursuant to the Ministerial Order, they instead would have had until June 1, 2020. Likewise, if the limitation period was to expire on May 30, 2020, the plaintiff would have had until August 13, 2020 – 75 days later – to file their Statement of Claim.

2. Second, it affects matters which had a limitation period that ran entirely through the suspension period (“Situation 2”). In Situation 2, the expiry date also requires adding 75 days.

   For example, under Rule 4.33 of the Alberta Rules of Court, a defendant can bring a “drop dead” application against a plaintiff if there has not been a significant advancement in an action for three years. Accordingly, pursuant to the Ministerial Order, if the last significant advancement was on April 24, 2019, the defendant would have to wait until on or after July 8, 2022, an additional 75 days, to bring a drop dead application.

3. Finally, it affects matters which had a limitation period that began running on a date during the suspension period (“Situation 3”). In Situation 3, the limitation clock began to run on June 1, 2020. Under situation 3, the limitation period is only extended by the amount of time remaining in the suspension period, it is not extended by the full 75 days.
   An example of Situation 3 would be where a plaintiff suffered an injury on April 4, 2020. Under the Ministerial Order, their two year discoverability limitation period to file a claim would have begun running on June 1, 2020 (not April 4, 2020) and thus would have expired on June 1, 2022.

Application in the Case Law

The Ministerial Order has been applied in multiple decisions since its establishment. For example, in Neilson v Leduc (County),[2] the Ministerial Order extended a deadline to file and serve an application for judicial review.

In Neilson, the applicants commenced an originating application for judicial review seeking to quash or declare invalid a bylaw passed by Leduc County. Leduc County applied to strike and/or summarily dismiss this originating application on the basis that it was filed beyond the time limits prescribed in the legislation.

The relevant limitation period in Neilson was Rule 3.15(3) of the Alberta Rules of Court, which provides that “an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act”.[3]

The Alberta Court of King’s Bench found that the limitation period ran from the date of the bylaw’s passing on March 10, 2020.[4] Under normal circumstances, six months from March 10, 2020 was September 10, 2020. However, there was no doubt that the Ministerial Order extended this deadline. Accordingly, the question arose whether the applicants were out of time since they filed and served their originating application on November 25, 2020.

Leduc County argued that the Ministerial Order extended the limitation period to November 24, 2020 (September 10, 2020 + 75 days), meaning that the applicants were one day late and out of time.

The Court stated the following with respect to the Ministerial Order’s effect:

[34]      The specific wording of the Ministerial Order indicates that limitations are “suspended from March 17, 2020 to June 1, 2020” and notes that “the limitation period or period of time resumes running on June 1, 2020 and the temporary suspension period shall not be counted.”

[35]      Section 22(6) of the Interpretation Act reads as follows:

If in an enactment a time is expressed to begin after or to be from a specified day, the time does not include that day.

[36]      Therefore, I find that the 6 month limitation period was suspended from and including March 18, 2020 to and including May 31, 2020, a period of 75 days.[5]

[Emphasis added]

Simply put, the Court found this to be an example of Situation 2. Dismissing various arguments of the applicant, the Court was satisfied that Rule 3.15(2) coupled with the Ministerial Order required that the originating application be served and filed on or before November 24, 2020.[6] As a result, the Court held that the entirety of the applicant’s claim was out of time. The fair and just result was to grant Leduc County’s application for summary dismissal.

Takeaways

The Ministerial Order has ongoing implications for parties involved in litigation. However, how the Ministerial Order will affect the action depends on when a claim arose or step was required to be taken in relation to the suspension period. Not all limitations periods are extended by the full 75 days.

Furthermore, the Ministerial Order only applies to the listed pieces of legislation. If proceedings are captured under or governed by an enactment that is not listed in the Ministerial Order, there may have been no suspension or impact of the limitation periods. And as illustrated in Neilson, parties should always be mindful of how the calculation of time may be determined by the specific wording of the applicable legislative provision.

McLennan Ross can provide legal advice as it relates to limitation periods, the Ministerial Order, and any corresponding issues. Please reach out to our Commercial Litigation Practice Group with any questions.

The content of this article is intended to provide general information on the subject matter. Specific advice should be sought about your particular circumstances.