Court File and Parties

COURT FILE NO.: CV-20-648669

DATE: 20201015

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

Attorney General for Ontario, Applicant

– and –

Persons Unknown, Respondents

BEFORE: F.L. Myers J.

Endorsement ex proprio motu

[1] The Attorney General applied in writing and without serving anyone for an order declaring:

…that any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period that was temporarily, suspended on March 16, 2020, by Regulation 73/20 [under the Emergency Management and Civil Protection Act, RSO 1990 c E9] as amended, now revoked, resumed running on September 14, 2020, and the temporary suspension period shall not be counted against any applicable limitation period;

[2] In essence, the government seeks an order that its emergency regulations suspending limitation periods and other time limits from March to September of this year have effectively accomplished that outcome. Apparently, some people have expressed a concern that despite s. 51 (1) of the Legislation Act, 2006, SO 2006, c 21, Sch F, the recent repeal of the March regulation that suspended limitation periods might have the effect of retroactively reinstating time limits for the six month period in which they were suspended.[^1] If this is so, people may find themselves out of time to sue or with defences to provincial offences (and a host of other effects) that the government did not intend.

[3] I held a case conference with counsel for the applicant and advised that I was not comfortable with proceeding in writing without notice to anyone on this application. Among other thangs, I raised concerns as to whether the procedure of applying for a declaration that requires an interpretation of the law without notice to anyone was appropriate.

[4] As a result, the Attorney General came forward with a lengthy list of legal organizations and individuals whom he was prepared to serve with its application materials and I ordered service accordingly.

[5] After being served, Lawyers’ Professional Indemnity Company, the insurer of Ontario lawyers, and a lawyer named Mr. Selwyn Pieters have now both applied to intervene as parties in the application. Both support the government’s position.

[6] Part of the purpose of requiring service of the application was to determine if there were affected persons who might have come forward with conflicting positions to create a lis inter partes. I specifically raised with counsel for the Attorney General an issue regarding the lack of factual underpinning for the determination of law sought. I also raised the issue of the utility or lack of utility to the declaration of right sought especially when relief is available by way of a reference to the Court of Appeal or by the government promulgating a clarifying regulation or passing legislation to cure any uncertainty that it fears its repeal of the emergency regulation may have caused.

[7] There is also a more fundamental issue about the appropriateness of the Attorney General coming to the court without notice to anyone or any form of public hearing seeking a determination of an issue of law that he submits may have widespread effects. I have no doubt that the court has jurisdiction to issue declarations of right and to waive service in appropriate cases. But is it the court’s proper role to render opinions on issues of law to help the executive branch cure unintended uncertainty created in the legislative or regulatory process without hearing from anyone who actually advances the unintended position?

[8] Questions concerning the appropriateness of this process have not been fleshed out in any decided case of which I am aware.

[9] The government and the two proposed intervenors support the application. No one has come forward to argue the contrary position that is a gating issue that I feel obliged to raise in the court’s gatekeeping role in unopposed proceedings. I have therefore appointed Lax O’Sullivan Lisus Gottlieb LLP as counsel to render assistance to the court amicus curiae under Rule 13.02 of the Rules of Civil Procedure. Mr. Matthew Gottlieb and Mr. James Renihan, and others from the firm as they deem apt, have agreed to act as friends of the court to advance the unrepresented position that the proposed application is not a procedurally appropriate mechanism to achieve the relief sought by the applicant.

[10] The court has previously convened a case conference for October 16, 2020 to deal with scheduling. I have invited amicus to attend to be part of the scheduling process.

F.L. Myers J.

Date: October 15, 2020

[^1]: Subsection 51 (1) of the Legislation Act says: 51 (1) The repeal of an Act or the revocation of a regulation does not, (a) affect the previous operation of the repealed or revoked Act or regulation…