The Limitations Clock Starts Running Again

On March 17, 2020, a state of emergency was declared in this province, due to the COVID-19 pandemic. On March 20, 2020, the provincial government enacted O.Reg. 73/20 under s. 7.1 of the Emergency Management and Civil Protection Act suspending limitation periods and procedural time periods. The suspension is retroactive to March 16, 2020. O.Reg. 73/20 applies to limitation periods and procedural deadlines that are established by Ontario statutes, regulations, rules and by-laws, with some exceptions.

On June 5th, the provincial government extended the suspension of limitation periods up to and including September 11, 2020. On August 20, 2020, this was extended to September 14, 2020 (O.Reg. 457/20 and O.Reg. 458/20). This means that the limitations clock starts ticking again on September 14, 2020.

What does this mean for your potential claim? Pursuant to section 4 of the Limitations Act, 2002,[1] most claims, such as a claim for personal injury arising out of a motor vehicle accident or a slip and fall on someone else’s property, have a basic two year limitation. This means that you have two years from the date the claim was discovered to commence an action. There are exceptions for minors or persons lacking capacity, for example. For the purposes of this analysis, however, the basic two year limitation period will be used.

First, let’s examine what happens if you have a claim that was discoverable before March 16, 2020 (the day limitations were suspended). Assume that your accident occurred on May 15, 2018. Your limitation under the Limitations Act, 2002, would normally, therefore, be May 15, 2020. The suspension of the limitation period started on March 16, 2020. The time from March 16, 2020 to May 15, 2020 is 60 days. This means that on March 16, 2020, you had 60 days remaining in order to issue your claim. Because of the suspension of the limitations, your limitation now extends 60 days from September 14, 2020. Your new limitation is, therefore, November 13, 2020.

Another way to calculate the new limitation period is by adding 182 days to the original limitation. The duration of the suspension of the limitation period is 182 days (from March 16, 2020 to September 14, 2020). If you add 182 days to the original May 15, 2020 limitation deadline, the new date is November 13, 2020.

A handy tool for calculating these dates is www.timeanddate.com.

If, on the other hand, you were injured between March 16, 2020 and September 13, 2020, the two year limitation clock does not start running until September 14, 2020. This means that if you were injured on July 1, 2020, you would have until September 14, 2022 to commence an action.

While the suspension of the limitation periods and other procedural timelines may be helpful in some instances, it is always best not to leave things to the cusp of the expiration of the limitation period.

On May 13, 2020, Chief Justice Morawetz released a Notice to the Profession which, among other things, emphasized the responsibility of the profession and litigants to comply with existing orders of the court and procedural rules, and to work collaboratively to keep matters moving toward resolution, to the extent possible, using virtual means. The Notice has put the responsibility squarely on the litigants to utilize technological tools to keep matters moving, failing which, the parties will be required to explain to the Court why COVID-19 has rendered compliance not feasible.[2]

This article was written by member of the Personal Injury Team at McKenzie Lake. If you require assistance with a personal injury matter or wish to speak to a personal injury lawyer at McKenzie Lake Lawyers LLP, please call (519) 672-5666.

Updated September 4, 2020

[1] S.O. 2002, c.24, Sched. B

[2] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/