The government suspended limitation periods between March and September due to COVID-19. The government believed that it had properly done so. Nevertheless, the government asked the court to confirm it had properly done so due to amorphous concerns that had been raised. Justice Myers dismissed this application as it would have the court cross the line that separated an independent judiciary from the executive and legislative branches. The government had other tools in its toolkit to address the limitation period issue (if there was, in fact, any issue).

As I previously blogged, in order to respond to the COVID-19 pandemic, the government suspended all limitation periods and other statutory deadlines as at March 16, 2020 pursuant to a regulation made under sections 7.01 and 7.1 of the Emergency Management and Civil Protection Act. The various COVID-19 related regulations made under this act were transferred to the new Reopening Ontario (A Flexible Response to COVID-19) Act. Most of these transferred regulations are still intact but as at September 14, 2020 the regulation regarding limitation periods was repealed.

The government brought an application for a declaration that these regulations, as Justice Myers termed it, “say what they mean and mean what they say” (i.e. that the limitation period was validly suspended). I previously blogged about a previous order in this case here, where Justice Myers appointed amicus curiae as the government and the intervenors in the case all supported the view that the limitation period was validly suspended. Justice Myers has now heard the application and released a decision in Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6974.

Justice Myers found that there was no admissible evidence of a single person having read the various regulations and statutes and formed a considered legal opinion that the limitation period was not validly suspended. Nor was there any evidence that anyone had raised any argument in any proceeding that the limitation period was not validly suspended.

In essence, Justice Myers found, the government was not asking for the judiciary to decide a dispute among interested parties – but to endorse a particular view of the interpretation of the law. Justice Myers held that this crossed the line of the court’s constitutionally permissible role. The judiciary is not in-house counsel for the executive; its job is to fairly and dispassionately decide disputes between parties with opposite views.

The CEO of LawPRO (Ontario lawyers’ insurance company) gave evidence that there was a live dispute as there would be claims against lawyers if this issue was not resolved, even if the lawyer had given the “correct” advice. While Justice Myers noted that this may say something about our litigious society, the fear that people may sue lawyers in the future (rightly or wrongly) is not a live dispute at this time.

Justice Myers noted that he was not holding that the judicial and executive branch could never help each other out in appropriate circumstances. His Honour gave the example of the court freezing residential evictions during COVID-19 due to an emergency application by the government. This was a situation where neither the judicial or executive branch could resolve this urgent matter on their own and very different from the case at hand (as Justice Myers noted, protecting lawyers from being confused about limitation periods or protecting LawPRO from future lawsuits is not comparable to someone being forced out of their home to be exposed to a deadly virus).

If there was mischief to be solved regarding the limitation period, his Honour set out how there was much the government could do. It could seek a reference to the Court of Appeal to determine a question of law, it could make new clarifying regulations (or a regulatory impact statement) or ask the legislative branch to pass a new law. His Honour held that he could not usurp “the role of the Court of Appeal in a reference, the regulatory role of the Attorney General, or the legislative role of the Legislature.”

Justice Myers concluded by thanking all counsel for their excellent written and oral submissions, and especially thanked Lax O’Sullivan Lisus Gottlieb LLP for its role as amicus which represented the best traditions of a free and independent bar.

Now that Justice Myers has ruled, the government will have to decide what alternate strategy it will pursue for certainty regarding the limitation suspension issue (or decide that the plain language of the regulation and the statute is good enough).