November 2, 2020Back to Latest

Alberta Lawyers Indemnity Association (“ALIA”) and the Law Society of Alberta have received reports of pandemic-related court delays that may expose lawyers to claims related to delayed litigation or missed limitation periods and key deadlines. Continued confusion around suspension of limitation periods also has been reported.

Reports from lawyers include delays in receiving signed court orders back from Justices and Masters in Chambers and delays in receiving confirmation of court filings, as well as difficulties in scheduling timely applications.

Reported delays vary depending on the judicial district and the particular circumstances. However, any delay in a litigation action may result in claims against the lawyers involved. Even where claims are without merit, their defence may cause ALIA’s indemnity program to incur increased costs. All Subscribers of the indemnity program ultimately pay these costs.

ALIA recommends that Subscribers exercise increased vigilance against court delays that may be caused or exacerbated by the pandemic. Click here for more information on practice management tips.

Lawyers also continue to report confusion on the distinction between the suspension of limitation periods and provisions in the Rules of Court that allow courts to exercise discretion. Subscribers are also reminded that the suspension of limitation periods applies to some–but not all–provincial legislation. Click here for more information on suspensions of provincial limitation periods and deadlines and practice management tips.

Click here for information and practice management tips relating to federal limitation periods.

Provincial Limitation Periods

Suspensions of Alberta provincial limitation periods and deadlines were implemented by the Ministerial Order in March 2020 (the “Ministerial Order”) that was retroactive to March 17, 2020 and continued until June 1, 2020.

Lawyers continue to report confusion on the distinction between the suspension of limitation periods and provisions in the Rules of Court that allow courts to exercise discretion.

Confusion also has been reported around the fact that suspensions did not apply to some Alberta legislation, including, but not limited to, the Builder’s Lien Act (Alberta), the Residential Tenancies Act (Alberta) and the Personal Property Security Act (Alberta). Subscribers risk incorrectly diarizing matters if they miss this distinction.

The Law Society has published two articles in collaboration with lawyers from the Government of Alberta that address the suspensions in detail.

Practice Management Tips – Court Delay and Provincial Limitation Periods

Consider potential impacts of court delays and suspended Alberta limitation periods as follows:

• When in doubt, use the earliest applicable limitation period.
• Limitation period issues often arise out of situations where lawyers have waited until the last possible moment to issue a statement of claim. This can result in a claim against a lawyer under normal circumstances. Lawyers need to consider this under the current circumstances.
• Keep a file list, and triage based on urgency.
• Review all matters with an eye toward limitations and deadlines that may be affected by court delays and specifically address the possibility of court delays in your matters. Consider issuing a statement of claim or taking other necessary steps as soon as possible.
• Consult with colleagues on the kinds of delays they are generally experiencing to better predict the kinds of delays you may face.
• Regularly visit the websites for the Alberta Provincial Court, Court of Queen’s Bench and Court of Appeal and review their current COVID-19 updates.
• Check the actual suspension of limitation periods and whether the Ministerial Order applies to any particular matter.
• When advising clients, discuss the potential impacts of actual or potential suspension of limitation periods and set clear expectations with them.
• Note that contractual limitation periods continue to apply and have not been suspended by either federal legislation or Alberta’s changes.
• Review other resources on COVID-19 practice and fraud issues, including Loss Prevention During COVID-19.

Federal Limitation Periods

As previously advised, the federal government has passed legislation suspending federal limitation periods from March 13, 2020 to September 13, 2020, or any earlier day fixed by order of the Governor in Council made on the recommendation of the Minister of Justice. The Time Limits and Other Periods Act (COVID-19) (Canada) was introduced as a Schedule to An Act Respecting COVID-19 Measures. The legislation received Royal Assent on July 20, 2020.

The Time Limits and Other Periods Act (COVID-19) (Canada) includes a schedule setting out which Acts or Regulations are affected. The legislation allows:

• courts to vary the suspension within certain limits and take measures regarding the effects of a failure to meet a suspended time limit;
• the Governor in Council to lift such suspensions in certain circumstances; and
• ministers, in respect of specified legislation, to suspend or extend time limits and extend other periods for no more than six months, and to give such suspensions or extensions retroactive effect to March 13, 2020.

The legislation also sets a hard cap on any further suspensions by providing that a suspension must not allow a time limit to continue past December 31, 2020.

Practice Management Tips – Federal Limitation Periods

Consider potential impacts of suspended limitation periods as follows:

• When in doubt, use the earliest applicable limitation period.
• Check the actual suspension of limitation periods: For any federal matter, check whether the Time Limits and Other Periods Act (COVID-19) (Canada) applies and whether orders made under the legislation have been made. Determine whether any suspension applies to September 13, 2020 or another date.
• When advising clients, discuss the potential impacts of actual or potential suspension of limitation periods: As suspensions can be extended or otherwise varied by the courts, Governor in Council and ministers, when advising clients, consider both actual suspensions in place and potential changes.
• Consider the potential impact of other limitation periods: Depending on your matter, other limitation periods may need to be considered.
• Note that contractual limitation periods continue to apply and have not been suspended by either federal legislation or Alberta’s changes.

If lawyers have any questions about practice issues during the pandemic, the Law Society of Alberta’s Practice Advisors continue to be available and are working remotely. ALIA Claims Counsel also are working remotely. To report a claim or potential claim, please contact ALIA. ALIA also asks Alberta lawyers to continue reporting attempted frauds and scams to ALIAlert to facilitate warnings to the profession of fraudulent activities.

ALIA acknowledges, with thanks, practicePRO for its blog, upon which the Federal Limitation Periods section of this ALIAdvisory is based.