COVID-19 and the Suspension of Limitation Periods in Alberta
Updated December 6, 2021
As most lawyers are aware, in response to the COVID-19 pandemic, the Minister of Justice and Solicitor General issued Ministerial Order 27/2020 which suspended limitation periods in a number of enactments from March 17 to June 1, 2020. The Ministerial Order expired on June 1, 2020, and limitations began to run again.
The time periods suspended by the Ministerial Order included Rules 3.26(1) and 3.27(2) of the Alberta Rules of Court. These rules deal with time for service of a statement of claim and obtaining an extension of the time for service.
The MO applies to the calculation of time under Rule 4.33(2) (dismissal for long delay) as well as other legislation and regulations. For more information about the MO and its application to the Alberta Rules of Court, please refer to an additional article on our website entitled Suspension of Limitation Periods and Court Deadlines During the Pandemic. This article clarifies the distinction between the suspension of limitation periods and other court deadlines which are subject to the discretion of a court or tribunal.
The Law Society continues to receive questions about the effect of the Ministerial Order on the calculation of limitation periods and the interpretation of the terms of the suspension.
It has also come to the Law Society’s attention that some lawyers are incorrectly relying upon the Ministerial Order when calculating limitation periods that began running on or after June 1, 2020. For example, lawyers should not be taking the Ministerial Order into account when calculating time for service of a statement of claim filed on or after June 1, 2020. Any statement of claim filed with the court on or after June 1, 2020, is not affected by the Ministerial Order and the 75-day suspension of time for service is not applicable.
The operative sections of the Ministerial Order stated:
- Limitation periods were suspended in the enactments under Appendix A from March 17 to June 1, 2020.
- Any period of time within which any step must be taken in any proceeding or intended proceeding was suspended subject to the discretion of the court, tribunal, or other decision-maker from March 17 to June 1, 2020.
- Time began to run again with regard to calculating limitation periods on June 1, 2020. The temporary suspension period from March 17 to June 1 will not be counted in calculating a limitation period.
Lawyers are encouraged to engage in risk management to prevent missed limitation periods and should take the following steps:
- Re-diarize all existing files affected by the Ministerial Order.
- Take the suspension period into account when calculating limitation periods and diarizing files on future retainers.
- Ensure that you and your staff are correctly calculating limitation periods for matters arising after June 1, 2020, as those matters will not be affected by the extension of time created by the Ministerial Order.
The suspension of limitation periods affects any file that had a limitation period running between March 17 and June 1. Lawyers need to add 75 days when adjusting the calculation of limitation dates on their files if time was running on any limitation periods prior to March 17, 2020. This is the case for matters where the limitation period would have expired during the suspension period, as well as those matters that had a limitation period running during the suspension period.
Some examples of how the Ministerial Order affected the calculation of limitation periods for the filing of initiating documents are as follows:
- If a limitation period was originally set to expire on March 18, 2020, then the plaintiff would have been required to file the initiating document by June 1, 2020.
- If a limitation period was originally set to expire on May 31, 2020, then the plaintiff would have had until August 14, 2020, to file the initiating document.
- If a limitation period was originally set to expire on June 2, 2020, then the plaintiff would have had until August 16, 2020, to file the initiating document.
- If a two-year limitation period was originally set to expire on November 1, 2021, then a plaintiff will have until January 15, 2022, to file the initiating document.
There is an exception to counting all 75 days of the suspension period, where the limitation period began running during the suspension period. For example, if a motor vehicle accident occurred during the suspension period, the limitation period would begin to run on June 1, 2020. Simply put, a limitation period that began running on or after March 18, 2020, and up to and including May 31, 2020, will expire on June 1, 2022.
Our Practice Advisors are available to answer questions from lawyers and students-at-law on a confidential basis and are pleased to address questions regarding limitation periods and other legal, ethical and practice issues.