Federal Court of Appeal rejects the Attorney General of Canada’s position on the Time Limits and Other Periods Act (COVID-19) as creating “intolerable uncertainty”

Print Friendly, PDF & Email

Under section 6 of the Time Limits and Other Periods Act (COVID-19) (the “Act), time limits established by federal legislation for starting or taking steps in a civil proceeding are suspended for a maximum period of six months, as of March 13, 2020 and ending on September 13, 2020 or on an earlier date fixed by order of the Governor in Council on the recommendation of the Minister of Justice.

By letter dated September 1, 2020, the Attorney General of Canada advised the Federal Court of Appeal that section 6 of the Act suspends retroactively all “time limits […] established by or under an Act of Parliament” from March 13, 2020 to September 13, 2020 and that “orders and directives issued” by the courts in respect of time limits or establishing deadlines for procedural steps are ousted by the Act. Taken to its logical conclusion, the Attorney General’s interpretation is that a court order expediting an urgent proceeding, or matter of public interest, would no longer be valid, with retroactive effect.

In Reference Re: Section 6 of the Time Limits and Other Periods Act (COVID-19), 2020 FCA 137, the Federal Court of Appeal held that the “Attorney General’s position contradicts the premise on which the Court has been managing ongoing matters since the beginning of the pandemic and creates intolerable uncertainty.” The Federal Court of Appeal “directs that the Attorney General’s position concerning the interpretation and effect of section 6, in so far as it extends to the time limits under the Rules and orders made thereunder, is incorrect in law and should not be followed. The Federal Courts Rules, S.O.R./98-106 and this Court’s Practice Directions, judgments, orders and directions remain in full force and effect.”

The direction and reasons of the Federal Court of Appeal provide helpful clarification of section 6 of the Act. As a matter of statutory interpretation, the Attorney General’s position that section 6 invalidated time limits or procedural steps contained in orders and practice directions would require clear legislative language. On its face, section 6 suspends time limits “under an Act of Parliament.” It does not expressly extend to time limits under the Federal Courts Rules (which are made by a statutory rules committee), or under judgments, orders, and directions that have been issued by the court. Further, the interpretation espoused by the Attorney General would “unilaterally interfere with the management and governance of ongoing proceedings” and “would invade a core judicial function.” Section 6 of the Act must be interpreted in a way that avoids potential prejudice to litigants and respects judicial independence.

Accordingly, the Federal Court of Appeal confirmed that “the time limits under all Court orders and directions still stand and have not been ousted by section 6. As well, the Rules that set time limits still stand and have not been ousted by section 6. Section 6 does not affect the Practice Directions made by this Court or actions taken by the Registry under those Practice Directions.”