How to deal with limitations periods that were suspended during the pandemic
From calls we have received from insureds, LAWPRO is aware there are questions regarding whether limitation periods and procedural deadlines were suspended during the pandemic. We have had several pandemic-related limitation period claims reported to us. This article provides some direction on how you should deal with limitation periods or procedural deadlines that may have been impacted by the pandemic. It also provides direction on when you should be reporting a claim to LAWPRO or your excess insurer.
By an Emergency Order dated March 20, the Ontario government suspended the running of most provincial limitation periods and procedural time periods retroactively to March 16 due to the COVID-19 emergency. This suspension ended on September 14, 2020 and limitation periods start running again as of September 14. Days should be counted starting on September 14, not September 15.
The government had previously lifted the suspension for Construction Act, Planning Act and support arrears enforcement matters (see this article for more details).
The provincial suspension of procedural deadlines under the Emergency Order was subject to the direction of courts, tribunals and other decision-makers responsible for proceedings. Courts and tribunals have been regularly updating the profession and the public regarding deadlines and significant changes in processes (such as new e-filing protocols). Lawyers should not assume that court or tribunal procedures were suspended, and should review court and tribunal notices for guidance.
Federal limitation periods and certain other time limits related to proceedings were suspended by the Time Limits and Other Periods Act (COVID-19) for a period of six months starting on March 13, 2020 and ending on September 13, 2020 inclusive. This Act did not extend to time limits under the Federal Courts Rules or under orders made by the court (see this article for more details).
Keep in mind that contractually specified deadlines or “limitation periods” remain in place and would not have been suspended by legislation.
Dealing with limitations that were suspended during the pandemic
Unfortunately, there appears to be some questioning whether Ontario limitation periods were suspended by the Emergency Orders. LAWPRO believes these concerns are unwarranted. Further to the provisions of the original Emergency Order, and the subsequent actions and circumstances springing from it, LAWPRO believes that limitation periods and procedural deadlines were suspended (with limited exceptions).
That being said, out of an abundance of caution, lawyers can take steps to avoid relying on the suspension of limitation periods and other deadlines . Subject to getting instructions from their clients, lawyers should consider immediately issuing the action but not serving it, immediately issuing an action and then entering into an agreement to hold the action in abeyance, or seeking a tolling agreement.
How to calculate limitations periods impacted by the suspension
Counting dates for limitations period calculation purposes can be tricky, especially where tolling periods are involved. For illustrative purposes, this article provides some examples on how to calculate limitations periods that were impacted by the suspension specified in the March 20 Emergency Order.
When to report a claim to LAWPRO or your excess insurer
Notwithstanding the reporting obligations set out in the LAWPRO policy, LAWPRO is not currently requiring insureds to report claims from the uncertainty over whether limitation periods have been suspended pursuant to the Emergency Order, unless the opposing side in the litigation has asserted a limitation period defence. You can report a claim online here. For excess insurance purposes this claim notice report will be sufficient if your excess coverage is with LAWPRO.
If your excess insurance is with another carrier, you should review the terms of your policy and consider whether reporting a claim is appropriate, especially if your policy is renewing with your current or a new carrier on January 1, 2021.
Please contact LAWPRO immediately in any circumstance where you feel or think you may have made an error, or if your client or opposing counsel allege an error has been made. Providing early notice of a claim or existing circumstance in which a claim may arise gives LAWPRO the best chance to help put things right. Many errors can be fixed, or steps can be taken to minimize damages. Late notice often causes small problems to become big ones, and can jeopardize your coverage under the LAWPRO policy. Don’t try to take steps on your own to try to repair a potential claim. Let us know immediately, and we will help you determine how to best move forward. Reporting a real or potential claims does not trigger a deductible payment.
Tips for avoiding a LAWPRO claim
Here are some tips to help you reduce your exposure to a limitations or procedural period claims:
1. Update your client on the status of their matter and the impacts of the pandemic: Clients are often frustrated by unexplained delays. When advising clients, discuss the potential impacts of the COVID-19 pandemic and whether it may impact their legal needs or legal strategy, the timeline for the matter and what legal costs will be. For potential and ongoing claims, advise them of the impact of the suspension and recommencement of limitation periods and the continuing need to meet court and procedural deadlines.
2. Review and promptly revise timelines where circumstances change: Make sure that all key deadlines and limitation periods are being addressed. Where set deadlines or schedules are no longer viable due to the COVID-19 emergency, promptly work to seek an extension. Work reasonably with your client and opposing counsel to ensure that deadlines and schedules are revised as necessary.
3. Check procedural deadlines and continue to consult court and tribunal websites for further COVID-19 notices and updates: During the COVID-19 emergency period, many courts and tribunals introduced major changes to their processes. Some of these changes, such as e-filing and using CaseLines in the Ontario Court of Justice and the Superior Court of Justice are permanent changes. Continue to monitor court and tribunal notices and other updates to be aware of further changes.