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Limitations - COVID Suspension [Reg 73/20]. Brady v. Waypoint Centre for Mental Health Care [clarifying]
In Brady v. Waypoint Centre for Mental Health Care (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against the "motion judge’s order dismissing her claim for wrongful dismissal".
Here the court considers the COVID-originated EMCPA limitation six-month time-extension:[2] ... Second, she found that the claim was statute-barred because it was commenced after the two-year limitation period had expired. The appellant argues that the motion judge erred in both of these conclusions.
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[6] The appellant argues that her claim was discoverable on April 30, 2020, the date she was advised she was being terminated from the acting manager position and would be returned to her position in the bargaining unit. We note that it could be argued that the claim was discoverable as late as May 22, 2020. However, because limitation periods were suspended throughout that period, the limitation analysis is the same whether the claim was discoverable on April 30, 2020 or as late as May 22, 2020.
[7] At the time the appellant’s claim was discoverable in late April or mid-May 2020, limitation periods were suspended as part of the response to the COVID-19 pandemic. The relevant legislative and regulatory provisions are as follows:Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (the “EMCPA”)
7.1(6) If a provision establishing a limitation period or a period of time within which a step must be taken in a proceeding is temporarily suspended by the order and the order does not provide for a replacement limitation period or period of time, the limitation period or period of time resumes running on the date on which the temporary suspension ends and the temporary suspension period shall not be counted.
O. Reg. 73/20, formerly under the EMCPA
1. Any provision of any statute, regulation, by-law or order of the Government of Ontario establishing any limitation period shall be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.
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6. For greater certainty, any limitation period or period of time within which a step must be taken in a proceeding that is temporarily suspended under this Regulation resumes running on the date on which the temporary suspension ends and the temporary suspension period shall not be counted. [8] The temporary suspension of limitation periods created by the regulation ended on September 14, 2020: O. Reg. 457/20, s. 1, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. The total length of the suspension of limitation periods under the regulation was 183 days.
[9] We agree with the motion judge’s conclusion that, although the appellant’s claim was discoverable in late April or mid-May 2020, the limitation period was suspended until September 14, 2020, the date that the suspension of limitation periods ended. On September 14, 2020, the limitation period started running on the appellant’s claim. Because the two-year period started running on September 14, 2020, it expired on September 14, 2022. The appellant commenced her claim on October 27, 2022. This was outside the two-year limitation period.
[10] The appellant renews the argument made below that the limitation period should be calculated by starting on the date her claim was discoverable, April 30, 2020, and adding the full length of the suspension of limitation periods, 183 days, plus the two-year limitation period. Using this approach, the appellant argues that she had until October 30, 2022 to commence her claim – two years and 183 days from April 30, 2020. In support of this argument the appellant relies on McAuley v. Canada Post Corporation, 2021 ONSC 4528. In that case at para. 42, Boswell J. described the effect of the suspension of limitation periods as “to extend any running limitation period by 183 days. In other words, all limitation periods subject to the regulation were extended by roughly six months.”
[11] The motion judge rejected this argument. She was correct to do so. The appellant’s reliance on McAuley is misplaced. In McAuley, unlike this case, the claim was discoverable prior to the suspension of limitation periods. Thus, when limitation periods were suspended effective March 16, 2020, the limitation clock in McAuley was already running. The suspension of limitation periods under the EMCPA stopped the running of limitation periods for 183 days, and then the limitation clock restarted running on September 14, 2020. It was in the context of a limitation period that was already running when the suspension started on March 16, 2020, that Boswell J. said that the effect of the extension of limitation periods “was to extend any running limitation period by 183 days.”
[12] Where, as in this case, the claim was not discoverable before the commencement of the suspension of limitation periods, the limitation clock did not start running until the suspension ended on September 14, 2020. There is no need to notionally add 183 days to the limitation period. The two-year period simply started running later – on September 14, 2020, when the suspension of limitation periods ended. . Priolo v. Workplace Safety and Insurance Appeals Tribunal
In Priolo v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2023) the Divisional Court considered the interaction of the 6-month COVID limitation suspension [March 16, 2020 to September 14, 2020] under Reg 73/20, with the old laches JR commencement limitation:[9] In this case, the Applicant’s position is that the application for judicial review is timely because it had to be filed within six months of the end of the suspension of limitation periods on September 16, 2020, or before March 15, 2021. The Respondent’s position is that the application had to be filed within six months of the final reconsideration decision, or by November 1, 2020, and was therefore four months late.
[10] O. Reg. 73/20 suspended limitation periods established by “any statute, regulation, rule, by-law or order of the Government of Ontario[.]” It is unlikely that this provision would apply to a common law timeline subject to the discretion of the court in its application.
[11] In any event, however, even if the six-month timeline was not suspended, the delay at issue from the final reconsideration decision to the commencement of the judicial review application is four months. The WSIAT has not suggested that the Applicant was required to bring an application for judicial review at an earlier stage, such as after the merits decision in 2017. In my view, a four month delay in bringing an application for judicial review does not constitute an inordinate delay, especially in the circumstances, which include the COVID-19 pandemic.
Reasonableness of the Explanation
[12] The Applicant submits that even if O. Reg. 73/20 does not apply to the presumptive time frame for commencing an application for judicial review, the underlying rationale for the suspension of statutory limitation periods is relevant to the issue of whether the delay was undue and the reasonableness of his explanation for the delay. The Applicant submits that it was reasonable for him not to pursue a non-urgent matter at a time when court resources were constrained by the pandemic.
[13] I would not go so far as to accept the Applicant’s submission that it was reasonable to refrain from bringing his application for judicial review while court resources were under pressure from the pandemic. The Applicant, who has been represented by counsel throughout, ought to have followed the procedures specified in the Notice to Profession, of which counsel are expected to be aware: Go Fleet Corporation v. So, 2021 ONSC 2199 (Div. Ct.) at para. 10.
[14] In Democracy Watch, at para. 50, Favreau J. (as she then was) noted the suspension of limitation periods as a factor in determining whether to dismiss an application for judicial review for delay. In this case, given that the delay was not lengthy and the suspension of other timelines because of the pandemic during the relevant time period, I find that the Applicant’s explanation weighs against dismissing the application for delay.
Prejudice Resulting From the Delay
[15] The WSIAT submits that the passage of time raises a presumed prejudice to the integrity of the workplace insurance scheme and the finality of decisions. The WSIAT further notes that there are decisions pertaining to the Applicant dating back to 2012 and that the merits decision under review was made over four years ago. The WSIAT has not, however, adduced evidence of actual prejudice. Moreover, it has not identified prejudice attributable to the four-month delay in bringing the application.
[16] Where the delay is lengthy, prejudice can be presumed: Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.) at para. 9. Under the circumstances, it is not clear to me that the length of the delay would result in a presumption of prejudice. Even presuming some prejudice arising from the delay, I am not satisfied that the prejudice to the WSIAT arising from the four-month delay would warrant this court exercising its discretion to dismiss the application for judicial review. The Applicant has not raised any procedural fairness or other issues requiring evidence beyond the Record of Proceedings.
[17] The WSIAT filed its Record of Proceedings in August 2022. The Applicant has filed his factum on the application. There is no reason why this matter cannot proceed to a hearing in an expeditious manner. Should the parties be unable to agree to a timeline for the remaining steps in the proceeding, they may request a case management conference before me.
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