Federal Court of Appeal Rejects Attorney General’s Position on the Time Limits and Other Periods Act (COVID-19)

Mark Feigenbaum

In a recent Federal Court of Appeal decision, the Court rejected the Attorney General’s interpretation of the Time Limits and Other Periods Act (COVID-19), which would have invalidated directions and decisions previously issued by the Court. The Court called the Attorney General’s position an “intolerable invasion”.

Attorney General States Positions on Time Limits under COVID-19 Legislation

As a result of the COVID-19 pandemic, the Canadian government introduced a law called the Time Limits and Other Periods Act (COVID-19) (the “Act”), which was enacted by An Act Respecting Further COVID-19 Measures; it received Royal Assent on July 27, 2020. The full title of the law is “An Act respecting the suspension or extension of time limits and the extension of other periods as part of the response to the coronavirus disease 2019”.

Section 6 of the Act provides as follows:

6. (1) The following time limits are, if established by or under an Act of Parliament, suspended for the period that starts on March 13, 2020 and that ends on September 13, 2020 or on any earlier day fixed by order of the Governor in Council made on the recommendation of the Minister of Justice:

(a) any limitation or prescription period for commencing a proceeding before a court;

(b) any time limit in relation to something that is to be done in a proceeding before a court; and

(c) any time limit within which an application for leave to commence a proceeding or to do something in relation to a proceeding is to be made to a court.

(2) The court may, by order, vary the suspension of a time limit as long as the commencement date of the suspension remains the same and the duration of the suspension does not exceed six months.

(3) The court may make orders respecting the effects of a failure to meet a suspended time limit, including orders that cancel or vary those effects.

(4) The Governor in Council may, by order made on the recommendation of the Minister of Justice, lift a suspension in circumstances specified in the order.

In a letter dated September 1, 2020, the Attorney General of Canada communicated to the Federal Court of Appeal, stating its position concerning the meaning and application of section 6 of the Act. The Attorney General’s position was that section 6 retroactively suspended all “time limits…established by or under an Act of Parliament” during the March 13 to September 13, 2020 period and that “orders and directives issued” by the courts, including the Federal Court of Appeal, concerning time limits or setting deadlines for procedural steps were ousted by section 6. For example, in the view of the Attorney General, an order of the Federal Court of Appeal expediting a specific proceeding for reasons of urgency or for public interest reasons would no longer be valid, with retroactive effect.

If the Attorney General’s position was accepted, it would mean that the Federal Court of Appeal’s practice directions concerning time limits and decisions made under them would no longer be valid, with retroactive effect.

The Federal Court of Appeal was therefore asked to provide clarity as to the applicable time limits in pending proceedings before it, because if the Attorney General’s position was correct, many of the Court’s judgments, orders and directions setting time limits would be reversed.

Federal Court of Appeal Rejects Attorney General’s Position                

At the outset, the Court stated that there was no doubt that section 6 effectively amended the statutory time periods in federal legislation for starting proceedings; by virtue of section 6, the time limits stated in several sections of the Federal Courts Act did not run between March 13, 2020 and September 13, 2020. 

However, the Court noted that section 6 did not say “time limits…established by or under an Act of Parliament, under legislation made under an Act of Parliament, under judgments, orders and directions made under legislation made under an Act of Parliament or under Practice Directions made by any Court”. Rather, section 6 simply says “under an Act”. The Court explained that it must look to the purpose and context of section 6 to determine its authentic meaning and stated: 

“Was Parliament’s purpose to interfere with the Federal Courts Rules passed under the explicit, special and separate procedure in section 46 of the Federal Courts Act? Was its purpose to invalidate and alter the time limits set in all judgments, orders, directions, Practice Directions and Registry actions such as lifting the suspensions of time and allowing certain proceedings to progress under earlier Practice Directions? A good way of testing this is to look at the effects that section 6 would have if it bears the meaning that the Attorney General ascribes to it.

These questions must be answered in the negative. Were it otherwise, confusion and potential harm—surely not desired by Parliament—would result. […]

Beyond this, construing section 6 as allowing Parliament to unilaterally interfere with the management and governance of ongoing proceedings would invade a core judicial function—an especially intolerable invasion given the presence of the Attorney General’s Deputy as counsel and other parties related to the Government of Canada in the majority of proceedings before this Court.” 

The Court therefore concluded that the time limits under its Court orders and directions remained valid and had not been ousted by section 6. Additionally, it found that the Rules that set time limits also remained valid and were not ousted by section 6. Finally, the Court found that section 6 did not affect the Practice Directions made by Court or actions taken by the Registry under its Practice Directions.

As a result, the Court issued a Direction as follows:

“The Court directs that the Attorney General’s position concerning the interpretation and effect of section 6, in so far as it extends to the time limits under the Rules and orders made thereunder, is incorrect in law and should not be followed. The Federal Courts Rules and this Court’s Practice Directions, judgments, orders and directions remain in full force and effect.”

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