A COVID Kerfuffle at the Federal Courts.

Managing the justice system during the coronavirus pandemic has been an unprecedented challenge. The Federal Courts have been issuing Orders and Directives on an almost weekly basis since mid-March in order to keep litigants informed about their rights and obligations during the pandemic and about whether and how the courts are open for business.

On July 27, 2020, Parliament introduced another wrinkle by passing the An Act Respecting Further COVID-19 Measures, S.C. 2020, c. 11, s. 11. This omnibus bill contained the Time Limits and Other Periods Act (COVID-19), (the “Act”) which retroactively suspended all time limits established by or under an Act of Parliament:

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.

For delays arising under the Federal Courts Act or the Supreme Court Act, section 6 clearly suspends all relevant deadlines, timelines, and suspension periods. But what about rules and regulations made pursuant to federal legislation? What about delays established by order of a federal court during the suspension period?

In Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (CA), 2020 FCA 137 (CanLII), http://canlii.ca/t/j9hw3, the Federal Court of Appeal provides answers to some of these questions. Chief Justice Noël begins as follows:

[1]  In a letter dated September 1, 2020, the Attorney General of Canada has communicated to this Court, through the Canadian Judicial Council, its position concerning the meaning and application of section 6 of the Time Limits and Other Periods Act (COVID-19), enacted by An Act Respecting Further COVID-19 Measures, S.C. 2020, c. 11, s. 11. As more fully explained below, this requires an immediate response as the Attorney General’s position contradicts the premise on which the Court has been managing ongoing matters since the beginning of the pandemic and creates intolerable uncertainty.

Oh boy.

The Attorney General’s letter explained that he believed that section 6 had the effect of suspending all time limits or deadlines in any Federal Court or Federal Court of Appeal proceeding, including delays set by court orders, with retroactive effect. On the one hand, this view has the benefit of some simplicity—no delays of any kind will run during the suspension period. On the other hand, all of the many COVID-specific directives and orders issued by the Federal Court and Federal Court of Appeal during the suspension period would be thrown into question.

Pursuant to its power to provide directions under Rule 54 and its plenary power to manage its own proceedings, the Court seizes itself of a “Reference” – a debate about whether the Attorney General’s interpretation of section 6 is valid.

Chief Justice Noël asks what Parliament intended in using the phrase “under an Act of Parliament” in section 6 of the Act. The Court finds that the language is clear, limiting the application of this provision to delays set by Acts of Parliament only:

[16]  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.

[17]  These questions must be answered in the negative. Were it otherwise, confusion and potential harm—surely not desired by Parliament—would result. For example, orders requiring a proceeding to be prosecuted urgently on shortened time limits to further the public interest and to avert some harm or prejudice would be invalidated with retroactive effect. The invalidation of the Court order would often leave a vacuum in the regulation of the proceeding resulting in uncertainty, with prejudicial effect on the parties and the public interest. A proceeding that might be ready for hearing and decision in a week or so might, at the behest of a party desiring delay, have to be rewound by several months. To bring about that sort of result, section 6 would have to contain the clearest of legislative language. Section 6 does not use such language.

[…]

[19]  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: see Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193 and the multitude of classic, binding Supreme Court of Canada authority approved therein. Where possible—and it is possible here—section 6 should be given a meaning that is respectful of judicial independence and obeys constitutional imperatives.

The Court closes its opinion with a gentle reminder that extensions of time are available to any litigant—including the AG—needing additional time to complete a step due to pandemic-related delays.