Extension of the Order in Council to April 14, 2020

In an effort to stop the spread of the coronavirus (COVID-19), the Government of Ontario recently extended the Declaration of Emergency to April 14, 2020.

A copy of Ontario Regulation 105/20 can be found here.

Accordingly, the Order in Council dated March 20, 2020, suspending statutory limitation periods and, subject to the discretion of the court, tribunal, or other decision-maker responsible for the proceeding, procedural timelines continues in effect until April 14, 2020.

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Suspension of Limitation Periods and Procedural Deadlines in Ontario: An Update

Background

As has been widely discussed, in light of the unprecedented impact of the novel coronavirus (COVID-19), on March 20, 2020, the Lieutenant Governor made an Order in Council under section 7.1(2) of the Emergency Management and Civil Protection Act, RSO 1990, c E.9 (the “Act”) suspending limitation periods for the duration of the emergency (the “Suspension Order”). The Suspension Order also suspends procedural time periods, subject to the discretion of the court, tribunal, or other decision-maker responsible for the proceeding. The suspensions are retroactive to March 16, 2020. A copy of the Suspension Order, filed with the Registrar of Regulations (as O.

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Ontario Suspends Limitation Periods

In light of the unprecedented impact of the novel coronavirus (COVID-19), on March 20, 2020, the Lieutenant Governor made an Order in Council under section 7.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9 suspending limitation periods for the duration of the emergency. The Order in Council also suspends procedural time periods, subject to the discretion of the court, tribunal, or other decision-maker responsible for the proceeding. The suspensions are retroactive to March 16, 2020. A copy of the Order in Council dated March 20, 2020, filed with the Registrar of Regulations, can be downloaded here.

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Limitation Periods during the Coronavirus Pandemic

Limitation Periods during the Coronavirus Pandemic

To protect health and safety and help contain the spread of the novel coronavirus (COVID-19), the Ontario Superior Court of Justice has suspended all regular operations effective March 17, 2020 and until further notice.

In a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings released on March 15, 2020, the court provided the following important guidelines that will have consequences on parties approaching statutory limitation periods in Ontario during this unprecedented pandemic:

  1. Ontario courthouses will currently remain open. Regular filings that are not urgent may continue to occur at courthouses.
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Court of Appeal holds that the duty to defend is an ongoing obligation to be applied on a “rolling” basis and insurers cannot contract out of the Limitations Act where policy holders are consumers

In Reeb v The Guarantee Company of North America, 2019 ONCA 862, the Court of Appeal for Ontario considered two matters regarding the duty of an insurance company to defend. In one of the matters, an insurance company brought an application against two other insurance companies for a declaration that they are obligated to pay for one-third of the ongoing defence costs of the applicant. The applicant was successful and the respondents appealed. In dismissing the appeal and concluding the respondents had a duty to defend and contribute to the applicant’s defence costs, the Court of Appeal considered two limitation period arguments.

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A Rule 21 motion is appropriate to determine a limitation issue when no material facts are in dispute, and no finding of discoverability is required

In Davidoff v Sobeys Ontario, 2019 ONCA 684, the Court of Appeal for Ontario considered the formal requirements that must be in a Notice of Action in order to properly commence a claim within the limitation period, and whether it was appropriate to bring a Rule 21 motion to strike to determine a limitation period issue.

The plaintiff brought an action against the defendant for wrongful dismissal. Both parties agreed that the limitation period expired on October 6, 2017 – two years following the termination of employment. On September 29, 2017, the plaintiff mailed a letter entitled “Notice of Action for Wrongful Dismissal and Defamation of Alexander Davidoff” to the defendant’s Director of Human Resources and emailed the same letter to the defendant’s lawyer.

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Court of Appeal warns that pending “forum issues” will not delay the commencement of a limitation period in Ontario

In Lilydale Cooperative Limited v Meyn Canada Inc, 2019 ONCA 761, the Court of Appeal for Ontario concluded that it is not appropriate for a party to wait for a forum dispute to be decided prior to commencing a claim in Ontario. A forum dispute does not toll the limitation period under the Limitations. Act, 2002. This decision is consistent with recent Court of Appeal cases, which have held that settlement discussions and appeals do not postpone the commencement of limitation periods.

In 2004, the plaintiff commenced an action against two defendants in Alberta. Because of a limitation issue in the Alberta action, the plaintiff also commenced an action in Ontario against the same defendants in early 2006, making the same claims as in the Alberta action.

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