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Justice Minister David Lametti

Feds plan to suspend, extend federal time limits, extend civil notice periods during pandemic

Tuesday, May 26, 2020 @ 1:13 PM | By Cristin Schmitz

Last Updated: Thursday, May 28, 2020 @ 1:01 PM


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Ottawa says it wants to be fair and flexible during the COVID-19 fallout, and is seeking feedback from the bar until May 29 on draft legislation that would, if enacted: temporarily suspend some key time limits under federal legislation; allow other time limits to be suspended or extended where the circumstances of the pandemic may make compliance difficult or impossible; as well as extend certain other periods so that their expiration does not produce “unfair or undesirable” effects.

Justice Minister David Lametti’s draft legislative proposals posted on his department’s website May 19, aim to affect more than two dozen federal statutes, regulations and provisions but stipulate that they do not apply to the investigation of an offence, or a proceeding respecting an offence. The federal justice minister is still consulting with the provincial and territorial attorneys general and the judiciary about how to address COVID-19-caused delays in criminal prosecutions, which are subject to subject to time limits specified by the Supreme Court in R. v. Jordan 2016 SCC 27.

The draft legislative proposals do apply however in many important non-criminal law areas, for example, to the Divorce Act, Ian McLeod, a spokesperson for the federal Department of Justice confirmed.

“The proposal would suspend, as of March 13, 2020 and until Sept. 13, 2020, or an earlier date set by the governor-in-council, time limits concerning proceedings before the courts,” McLeod said. “This would mean that the deadlines in relation to matters such as commencing a proceeding or taking certain steps during a proceeding, such as appealing or varying a court order, would be suspended. This legislation would apply to the Divorce Act and, for example, would preserve every spouse’s ability to obtain the relief that they are seeking and would also avoid the negative consequences of missing a legislative deadline.”

The facts that the draft legislation would also provide some flexibility to courts regarding the application of the suspension, and that the governor-in-council would be allowed to lift the suspensions in certain circumstances could also be significant for family law cases, McLeod told The Lawyer’s Daily. “This would be important for spouses who do not want the suspension of the deadlines to apply to them, such as, for example, where the parties need their divorce judgment to take effect as soon as possible so that they may remarry.”

Justice Minister David Lametti

The government said in a press release that it recognizes that many Canadians and Canadian businesses could be impacted and face possible legal repercussions if, due to the COVID-19 pandemic, they fail to meet deadlines and time periods set by law with respect to legal proceedings and some key regulatory matters.

“A fair and accessible justice system is a fundamental pillar of our democratic society,” Lametti said in a prepared statement. “These are unprecedented times, and we are committed to ensuring that the decisions the government takes protect Canadians’ rights and access to justice.”

The government said the draft Time Limits and Other Periods Act (COVID-19) would suspend certain time limits, and enable federal ministers to extend or suspend other time limits included in federal legislation to ensure that Canadians and Canadian businesses are able to meet regulatory time limits and deadlines found in federal legislation, such as some key deadlines found in the Bankruptcy and Insolvency Act and in regulations made under the Canada Labour Code; and help protect Canadians’ rights and access to justice in the context of civil legal proceedings before the courts, by ensuring that individuals are not prevented from asserting their rights for having missed a time limit or deadline during the COVID-19 pandemic.

The draft legislative proposals also include provisions to ensure that temporary extensions or suspensions cannot be made after Sept. 30, 2020, and could be retroactive to March 13, 2020, when the COVID-19 pandemic officially began.

The draft Time Limits and Other Periods Act (COVID-19) would:
  • Suspend, as of March 13, 2020, and until Sept. 13, 2020, or an earlier date set by the governor-in-council, certain time limits concerning proceedings, other than proceedings concerning offences, before the courts;
  • Allow courts to vary the suspension within certain limits and take measures regarding the effects of a failure to meet a suspended time limit;
  • Allow the governor-in-council to lift such suspensions in certain circumstances;
  • Allow cabinet ministers, in respect of specified legislation, to suspend or extend time limits and extend other periods for no more than six months, and to give such suspensions or extensions retroactive effect to March 13, 2020; and
  • Allow cabinet ministers in the latter situation to give specified persons, bodies or tribunals some flexibility in applying these suspensions or extensions.

The draft legislation lists more than two dozen Acts, regulations and provisions for which ministers can make orders suspending or extending time limits including: the Bankruptcy and Insolvency Act; the Income Tax Act; the Companies’ Creditor Arrangement Act; the Canada Business Corporations Act; the Garnishment, Attachment and Pension Diversion Act; the Pension Benefits Division Act; the Public Service Superannuation Act; the Wage Earner Protection Act, the Canada Labour Standards Regulations; and the Canada Occupational Health and Safety Regulations.

The proposals would also allow the governor-in-council to restrict or impose conditions on the powers granted to ministers.

The draft legislative proposals require that orders, along with a statement explaining the reason for their making, be published on a government of Canada website no later than five days after they are made, for a period of at least six months, followed by publication in the Canada Gazette.

Orders made under subsection 6(1), (3) or (4) or 7(1) or (2) of the draft Act would be exempted from the application of the Statutory Instruments Act.

The legislative proposals also have a sunset provision, stating that a power conferred on the governor-in-council or a cabinet minister under the legislation cannot be exercise after Sept. 30, 2020.

The draft Act says its purpose is “to temporarily suspend certain time limits and to temporarily authorize, in a flexible manner, the suspension or extension of other time limits in order to prevent any exceptional circumstances that may be produced by coronavirus disease 2019 (COVID-19) from making it difficult or impossible to meet those time limits; and to temporarily authorize, in a flexible manner, the extension of other periods in order to prevent any unfair or undesirable effects that may result from the expiry of those periods due to those exceptional circumstances.”

Vis-a-vis suspension of time limits related to proceedings, the draft legislation states:

6(1) The following time limits are, if established by or under an Act of Parliament, suspended for the period that starts on March 13, 2020 and that ends on September 13, 2020 or on any earlier day fixed by order of the Governor in Council made on the recommendation of the Minister of Justice:
  • (a) any limitation or prescription period for commencing a proceeding before a court;
  • (b) any time limit in relation to something that is to be done in a proceeding before a court; and
  • (c) any time limit within which an application for leave to commence a proceeding or to do something in relation to a proceeding is to be made to a court.

A marginal note for a provision enabling variation by a court states that “the court may vary the suspension of a time limit as long as the commencement date of the suspension remains the same and the duration of the suspension does not exceed six months.”

Other marginal notes stipulate that: “the court may make orders respecting the effects of a failure to meet a suspended time limit, including orders that cancel or vary those effects; and “the Governor in Council may, by order made on the recommendation of the Minister of Justice, lift a suspension in circumstances specified in the order.”

With respect to other time limits and periods in Acts and regulations, the draft legislative proposals state that the minister who is responsible for an Act of Parliament set out in column 1 of the appended schedule or a relevant portion of an Act may make an order:

(a) suspending or extending a time limit that is established by or under any provision of the Act that is set out in column 2 of the schedule;

(b) extending any other period that is established by or under any provision of the Act that is set out in column 2 of the schedule;

(c) if a regulation is set out in column 2 in respect of the Act,

(i) suspending or extending a time limit that is established by, or under, that regulation, or

(ii) extending any other period that is established by, or under, that regulation; or

(d) extending a suspension or extension.

Vis-à-vis regulations, the minister who is responsible for a regulation set out in column 1 of the schedule, or a relevant portion of the regulation, may make an order:

(a) suspending or extending a time limit that is established by or under any provision of the regulation that is set out in column 2;

(b) extending any other period that is established by or under any provision of the regulation that is set out in column 2; or

(c) extending a suspension or extension.

The draft legislation stipulates that a time limit may be suspended or extended and a period may be extended for a total maximum duration of six months.

An order under specified provisions may, if it so provides, have retroactive effect, but not before March 13, 2020, and it may also include provisions respecting the effects of a failure to meet the time limit or of the expiry of the period before the day on which the order was made, including provisions that cancel or vary those effects.

Photo of Justice Minister David Lametti by Roy Grogan

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Cristin Schmitz at Cristin.Schmitz@lexisnexis.ca or at 613-820-2794.