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Why does Ontario continue its suspension of limitation periods? | Tom Macmillan

Friday, August 07, 2020 @ 8:31 AM | By Tom Macmillan


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Tom Macmillan
In part one, I asked: why we are delaying the running of limitations periods for countless actions in Ontario?

Two thoughts come to mind, but neither seems to adequately answer the question.

The first is that the court system may be struggling with remote staffing. Whereas in pre-COVID-19 times, court staff designated to process filings could work in close proximity physically at the courthouse, this has not recently been possible. It could well be that there are concerns relating to a present inability of staff to process the typical flow of court filings.

If there is any such concern, it should be one that is easily overcome. Law practices and government bureaucracies across the country have had, over the last four months, to adapt to remote working setups. It appears that the experience has been predominantly positive — that organizations and institutions have found the transition to remote working to be less painful than originally feared. It is difficult to picture why this experience would be different for court staff.

Processing online court filings by court staff presumably is not significantly different when done remotely. While it makes sense that there would necessarily have been a transition period in setting up courthouse staff to work remotely, this does not explain the continued extension of the limitation period suspension, now to September.

The second concern that comes to mind, as alluded to earlier, is that not all Ontarians have easy access to the Internet. The worry is that access to justice will be completely denied to those who are unable to issue a claim in person due to courthouse closures and are unable to issue online due either to a lack of availability of the Internet or a lack of understanding of the process.

In response, it is worth noting that the Ontario Superior Court, in the recent case of Arconti v. Smith 2020 ONSC 2782, ruled that examinations for discovery must proceed by way of videoconference, over the objection of one of the parties who wished for examinations to be delayed in order to proceed in person. Justice Frederick L. Myers ordered that the examinations for discovery proceed by videoconference, noting that although it is an imperfect tool, it is efficient and less costly.

While no argument was made in this case regarding the lack of availability of an Internet connection by the objecting party, Justice Myers’ strong words regarding the need to pull litigants into the 21st century via technology, suggests that there is a push to require the use of available technology to avoid litigation delays. This thinking should apply as well to using readily available technology to avoid the current pause on limitations periods.

I grant that for some accessing the Internet is difficult, but it is not significantly more burdensome than having to prepare physical court filings and attend personally at the court to issue a claim. It is true that many Ontarians could find navigating the online filing portal difficult, but again, the in-person filing process has its own complications and challenges that for a lay person can be overwhelming.

Finally, it is worth noting that other jurisdictions have allowed limitations periods to resume running. Alberta, for example, did not renew its ministerial order suspending the running of limitations periods, resulting in their beginning to run again as of June 1.

Interestingly enough, this ministerial order only applied to certain statutes in the first place, notably excluding that province’s Insurance Act. This means that it has been business as usual for a number of Alberta civil actions throughout the emergency period, even in the face of courthouse closures.

As noted earlier, compared with more pressing matters, such as the gradual reopening of courthouses and the commencement of trials, the issue of suspended limitation periods is unlikely to garner much attention. It remains, however, an issue that affects a great many cases and will result in continued delays as the emergency orders are continually extended. In light of available alternatives, it is not clear that any of this is necessary.

This is part two of a two-part series. Part one: Time stands still: Ontario continues suspension of limitation periods.

Tom Macmillan is a partner with Rogers Partners LLP in Toronto. Macmillan practises a range of litigation matters, including personal injury litigation, professional negligence, construction and more. He is also a member of the Young Advocates’ Standing Committee of The Advocates’ Society.

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