Effective Monday, September 14, 2020, Ontario Regulation 457/20, made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c 17, “revoked” Ontario Regulation 73/20 (the “Suspension Order”), made under the Emergency Management and Civil Protection Act, RSO 1990, c E.9. Under the Suspension Order, limitation periods and procedural timelines were suspended for 182 days (i.e., 26 weeks).
By Notice of Application issued on October 1, 2020, the Attorney General for Ontario (the “Attorney General”) seeks a declaration from the Ontario Superior Court of Justice that the temporary suspension period (i.e., March 16, 2020 to September 13, 2020) shall not be counted against any applicable limitation period.
The Attorney General has apparently received inquiries from several lawyers in Ontario who are concerned that because the Suspension Order was “revoked,” it is of no effect and therefore the revocation has produced an unintended consequence that the suspension period must now be counted against all applicable limitation periods.
This seems to be much ado about nothing. As the Attorney General points out, under section 51(a) and (b) of the Legislation Act, 2006, SO 2006, c 21, Sch F, the revocation of a regulation (such as the Suspension Order) does not affect its previous operation or any right, privilege, obligation, or liability that came into existence under it.
By endorsement ex proprio motu released on October 15, 2020 in Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6261, Justice Myers raised, among other things, “the issue of the utility or lack of utility to the declaration of right sought especially when relief is available […] by the government promulgating a clarifying regulation or passing legislation to cure any uncertainty that it fears its repeal of the emergency regulation may have caused.”
Justice Myers went on to posit the following question: “is it the court’s proper role to render opinions on issues of law to help the executive branch cure unintended uncertainty created in the legislative or regulatory process without hearing from anyone who actually advances the unintended position?”
In the result, Justice Myers appointed external counsel to render assistance to the court amicus curiae “to advance the unrepresented position that the proposed application is not a procedurally appropriate mechanism to achieve the relief sought by the applicant.”
This case is likely to be noteworthy for its holding on the threshold procedural issue raised by Justice Myers, and not for the procedural issue it seeks to address.
