COVID-19 and Municipalities: Suspension of Limitation Periods

On March 20th , the Province issued an order under ss 7.1(2) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (“EMCPA”) suspending provincial limitation periods retroactive to Match 16 th , 2020. The Order states:

1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.
2. 2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

The Order not only suspends limitation periods, but goes further and suspends all timelines for completing steps in “proceedings” (undefined) and perhaps even more importantly steps in “intended proceeding.” Under EMCPA s.7.1(4), the Order lasts for a maximum of 90 days, but new orders may be issued further extending the suspension of limitation periods.

What does this Order mean?

Here is how the limitation period suspension works:

Suspension means the clock stops ticking. So, for instance, if a limitation period was set to run out on March 20th, and the suspension extends for 120 days, then the new limitation period will be March 20th, plus 120 days. The same math applies for limitation periods that are set to expire after the end of the suspension period (provided that the event that normally triggers the start of a limitation period came on or before the last day of suspension). Lawyers will need to keep track of how many days the suspension lasted for, and the start and end dates in assessing limitation periods years after the current crises ends.

Ok, but what is a ‘proceeding’?

Most obviously, a proceeding includes civil matters. The Courts of Justice Act, R.S.O. 1990, c. C.43 builds the word ‘proceeding’ into the definitions of ‘motion’, ‘action’ and ‘application.’ However, in common legal parlance, ‘proceeding’ refers to any adjudicative hearing process or event, including hearings by administrative tribunals and boards. For instance, the word ‘proceeding’ (undefined) appears throughout the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1 as well as the Provincial Offences Act, R.S.O. 1990, c. P.33. That is likely what is intended here.

It is less clear as to whether ‘proceeding’ requests for administrative review of a decision under a stature or an inquiry.

Does “Government of Ontario” include municipalities and hence limitation periods and timelines established under municipal by-laws or orders?

The term “Government of Ontario” is undefined, but the EMCPA seems to draw a distinction between municipalities (whose emergency management program requirements are set out in s.2.1) and Government of Ontario ministries, agencies, boards, commissions and “other branch of government” that have their emergency program requirements set out in s. 5.1 of the EMCPA.

However, in our view, it makes little sense for the Order to apply to the legislation that gives municipalities powers to pass by-laws or issue orders but not the by-laws or orders themselves (and note ‘by-laws’ are specifically referenced in the Order). Legally there is also not a great deal of difference between municipalities and a government agency such as a Conservation Authority. They are both legal entities created by provincial statutes and are exercising governmental powers delegated by the province through legislation.

We will not have clarity on this issue unless it receives judicial consideration, but the cautious approach would be for municipalities to treat the Order as applying to limitation periods and timelines for proceedings in their by-laws and orders, such as timelines for licensing appeals.

What is a step in a proceeding or intended proceeding?

A step in a proceeding would include things like timelines for filing a statement of defence and fulfilling undertakings in civil matters or witness statements in an LPAT hearing. They would also include compliance with the requirements in court ordered timetables and tribunal procedural orders.

A step in an intended proceeding is less clear, but some legislation requires a step to be taken by a potential litigant within a certain period of time, before the litigant can initiate proceedings. For instance, s.44(10) of the Municipal Act, 2001, S.O. 2001, c. 25 requires a potential litigant to provide notice to a municipality within 10 days of an injury suffered as a result of the maintenance/state of repair of a bridge of highway, or the potential litigant is barred from commencing an action for damages. It is the timelines for this kind of preliminary or threshold step that will be suspended.

It is less clear whether the Order impacts legislated timelines for municipalities to make decisions, where a failure to meet the timeline creates a right of appeal, for instance the timeline for a CBO to decide whether to issue a permit under Building Code s.1.3.1.3 or timelines under the Planning Act, R.S.O. 1990, c. P.13 for municipalities to render a decision on applications for zoning by-law amendments, official plan amendments, etc. Arguably, these statutory decisions are not steps in intended proceedings, but they do form part of the continuum of steps necessary for a proceeding to be commenced. A cautious approach would be to assume that municipal decision making timelines still apply, and indeed the inclusion of government services for licenses and permits in Ontario’s Essential Workplaces List suggests this as well (our article on the essential workplaces list and municipalities can be found here.

In a nutshell how does this impact Municipalities?

Based on the forgoing discussion, the suspension of limitation periods and procedural timelines that most impact municipalities likely includes:

1. for civil claims:
   1. limitation periods under the Limitations Act, 2002, S.O. 2002, c. 24,
      Sched. B or other legislation,
   2. timelines for any special notice requirements in advance of commencing litigation, such as under s. 44(10) of the Municipal Act
2. under the Planning Act:
   1. timelines for appealing municipal approvals and denials, such as for zoning , official plans, site plans, etc.
3. under the Expropriations Act:
   1. the timeframe for providing notice of an injurious affection claim under s. 21 of the act;
   2. appeals under s.31
   3. potentially, the timeframe for notifying an approval authority to
      request an inquiry into the necessity of an expropriation under s.
      6(2) of the act.
4. for prosecutions:
   1. any limitation periods for laying an information or certificate of
      offense
   2. timelines for defendants to give notice of intention to appear
5. under the Building Code Act
   1. timelines for appeals of Property Standards Orders under s. 15.3
   2. timelines of appeals of orders and decisions of the CBO, building inspectors and registered code agencies under s.25
6. under the Fire Prevention and Protection Act, 1997, S.O. 1997, c. 4
   1. timelines of appeals of orders made by the Fire Marshall to the Fire Safety Commission under s.26
   2. appeals to Divisional Court of decisions of the Superior Court in applications by the Fire Marshall under s. 32
   3. appeals of orders to pay costs under s. 36
7. under the Assessment Act, R.S.O. 1990, c. A.31, R.S.O. 1990, c. A.31
   1. potentially, timelines for requests for reconsideration under s. 39.1
   2. timelines for appeals to the Assessment Review Board under s.40
   3. timelines for appeals to the Divisional Court for decisions of the Assessment Review Board under s. 43.1
8. Development Charges Act, 1997, S.O. 1997, c. 27
   1. timelines for appeals of DC by-laws and amendments under s. 13
   2. potentially, timelines for complaints to Council regarding calculations of DC’s etc., under s. 20;
   3. timelines for appeals of decisions / non-decisions on complaints to Council, under s. 22
9. timelines for appeals in municipal by-laws, such as business licensing by-laws

The above list is partial only, but it is easy to see from the list the extent to which the suspension of limitation periods will impact municipal administration in this time of crises and after, particularly with respect to orders, decisions, assessments and by-laws that are subject to appeal.

Even after the suspension expires, it will take some time to sort our what is in effect and what may still be subject to challenge. We can also expect courts and tribunals to push for aggressive timetables for procedural steps, to clear the backlog resulting both from the Order and the closure of courts and tribunals to most matters.

We will continue to provide analysis and updates of the many changes impacting municipalities in the wake of the COVID-19 pandemic. Read more updates. 

The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.