In response to the COVID-19 pandemic, the Lieutenant Governor in Council issued Order in Council 080/2020 on March 17, 2020 (the “Order in Council”). The Order in Council declared a state of public health emergency in Alberta for a period of 90 days.
To account for the significant impact of the COVID-19 pandemic on legal proceedings, Alberta joined the likes of British Columbia, Ontario, and Quebec in suspending certain limitation periods and time periods for steps in proceedings.
The Minister of Justice and Solicitor General issued Ministerial Order 27/2020 on March 30, 2020 (the “Ministerial Order”). For the designated Alberta enactments within the jurisdiction of the Minister of Justice and Solicitor General, the Ministerial Order retroactively suspended limitation periods and “[a]ny period of time within which any step must be taken in any proceeding or intended proceeding… subject to the discretion of the court, tribunal, or other decision-maker” from March 17, 2020 to June 1, 2020 (Ministerial Order at page 1).
The Ministerial Order was set to lapse on the earlier of (i) June 1, 2020, (ii) 60 days after the Order in Council is terminated, or (iii) when the Ministerial Order is terminated by the Lieutenant Governor in Council. As the first of those three options came to fruition, limitation periods and time periods for steps under the designated Alberta legislation resumed on June 1, 2020.
The Effect of the Ministerial Order
The practical effect of the Ministerial Order is that 75 days are added to any deadline for a limitation period or a step under the designated Alberta legislation which was counting down as of March 17, 2020. In accordance with section 22(6) of the Interpretation Act, RSA 2000, c I-8, March 17, 2020 is not counted in the calculation for the suspensions. The Ministerial Order further states that for purposes of clarity, June 1, 2020 is the date on which limitation periods and time periods for steps begin to run again. In short, it is as if the clock stopped running on March 17, 2020 and only began running again on June 1, 2020.
For example, if a two-year limitation period began running on January 1, 2019, the two years would be running when the suspension occurred on March 17, 2020 and would be frozen until June 1, 2020. Therefore, the original deadline for the limitation period of January 1, 2021 would be extended to March 17, 2021.
If the limitation period or time period for a step began to run between March 17, 2020, and June 1, 2020, the new date on which the limitation period or time period for a step would start to run would be June 1, 2020.
Deadlines for limitation periods or time periods for a step which began counting down after June 1, 2020 are unaffected by the Ministerial Order.
Legislation Affected by the Ministerial Order
The Ministerial Order does not operate as a blanket suspension of limitation periods and time periods for steps under every piece of Alberta legislation. Under section 52.1(3) of the Public Health Act, RSA 2000, c P-37, the Minister of Justice and Solicitor General only has the authority to suspend enactments which are under their responsibility. Appendix I to the Ministerial Order lists 102 Alberta statutes, and includes all the regulations under those statutes, which had their limitation periods and time periods for steps suspended. Two important Alberta statutes caught under the Ministerial Order are the Limitations Act, RSA 2000, c L-12, which sets out a limitation period of two years for most civil claims, and the Alberta Rules of Court, Alta Reg 124/2010 (a regulation of the Judicature Act, RSA 2000, c J-2). It is important to note that the Ministerial Order does not apply to court orders, as they are not regulations as defined in section 1(1)(c) of the Interpretation Act.
The Ministerial Order does not apply to legislation that is outside of the jurisdiction of the Minister of Justice and Solicitor General, nor does it apply to legislation that is not listed in Appendix I. Some noteworthy enactments not caught under the Ministerial Order include the following:
- The Insurance Act, RSA 2000, c I-3;
- The Builders’ Lien Act, RSA 2000, c B-7;
- The Employment Standards Code, RSA 2000, c E-9;
- The Labour Relations Code, RSA 2000, c L-1; and
- The Municipal Government Act, RSA 2000, c M-26.
Impact of the Ministerial Order on Litigation
When determining how the Ministerial Order applies to a given deadline, an important distinction must be made between whether it would fall under the Ministerial Order’s first provision as a limitation period or second provision as a time period for a step in a proceeding.
Unlike the suspension of limitation periods, the suspension of time periods for steps is not absolute. The Ministerial Order states that the suspension of time periods for steps in any proceeding or intended proceeding is “subject to the discretion of the court, tribunal, or other decision-maker” (Ministerial Order at page 1). It is uncertain how this part of the Ministerial Order will be interpreted by the courts. Although it leaves room for lawyers to argue that the specific circumstances of their file warrant the suspension period not applying, it could also provide decision-makers with the discretion to refuse to apply the suspension. That said, the latter interpretation would lead to uncertainty for litigants as to whether their legal rights have been affected by the suspension. It is doubtful that the drafters of the Ministerial Order intended for litigants to be required to expend the time and cost of bringing an application before the courts to know whether the suspension applies to them.
The Law Society of Alberta has stated that the distinguishing factor which determines whether a deadline relates to a limitation period or a step in a proceeding under the Ministerial Order is the authority of the court to vary the time limit (link). Where there is a deadline that the court has no discretion to change, it would be recognized as a limitation period. Where there is a deadline that the court has discretion to change, it would be recognized as a time period for a step in a proceeding.
For example, the time to serve a Statement of Claim under the Alberta Rules of Court is one year from the date it is filed. For most of the time periods in the Alberta Rules of Court, the court has discretion to “stay, extend or shorten a time period” under Rule 13.5(2). However, the rule for the time to serve a Statement of Claim is one of the few exceptions. As a result, the court has no authority to vary the time for serving a Statement of Claim and it would be classified as a limitation period under the Ministerial Order. This point follows the same reasoning from the Alberta Court of Appeal in Performance Industries Ltd. v. Forgues, 2006 ABCA 401 (CanLII), where it was held that the deadline for service of a Statement of Claim is a limitation period (albeit under the old Alberta Rules of Court, Alta Reg 390/1968).
Although the Law Society of Alberta’s interpretation is persuasive, recent case law applying the Ministerial Order seems to suggest that even time limits which the court has discretion to vary could be considered limitation periods. Two recent Court of Appeal of Alberta decisions, Ruby v Mills, 2020 ABCA 223 (CanLII) and Li v Morgan, 2020 ABCA 186 (CanLII), apply the suspension in the Ministerial Order to the six month deadline to restore an appeal under the Alberta Rules of Court. The Court in both decisions appears to classify these time limits as limitation periods rather than time periods for steps in proceedings, despite the fact that the Court has discretion to vary the time limit. That said, the analysis from the decisions does not expressly differentiate between the two provisions of the Ministerial Order when determining whether it applies to the six month deadline and, as such, the decisions may not offer much insight into how the Ministerial Order should be applied in different situations.
The Ministerial Order will undoubtedly impact calculations of limitation periods and time periods for steps in proceedings long into the future. Lawyers will need to be vigilant in accounting for the suspension on both current and future retainers. Further, clients will need to be advised as to whether or not the Ministerial Order affects their time to bring an action.
By Taylor Maxston