COVID-19: Order 2020-4251 and the suspension of limitation periods, forfeiture periods and procedural deadlines
On March 15, 2020, the Chief Justice of Quebec and the Minister of Justice issued Order 2020-4251 (the “Order”) pursuant to Section 27 of the Code of Civil Procedure,1 following the declaration of a health emergency on March 13, 2020 resulting from the coronavirus and COVID-19 crisis.
The Order provides as follows, effective immediately:
a) the limitation and forfeiture periods in civil matters are suspended until the expiry of the period of the declaration of a state of health emergency set out in Order 177-2020 of March 13, 2020;
b) the deadlines for civil procedures are suspended during this period, except for cases deemed urgent by the courts;
c) during this period, pleadings served on the Attorney General of Quebec in civil matters may also be made at firstname.lastname@example.org, for the districts of Beauharnois, Bedford, Drummond, Gatineau, Iberville, Joliette, Labelle, Laval, Longueuil, Mégantic, Montréal, Pontiac, Richelieu, Saint-François, Saint-Hyacinthe and Terrebonne; or at email@example.com, for other districts;
d) in the event of a renewal of the declaration of a state of health emergency under Order 177-2020 of March 13, 2020, the measures provided for by the present Order shall be renewed for an equivalent period.
As of today’s date, the state of health emergency declared under Order 177-2020 is for a period of 10 days beginning March 13, 2020 – i.e., until March 23, 2020 – although it may be renewed.
The powers conferred on the Chief Justice of Quebec and the Minister of Justice under Section 27 of the Code of Civil Procedure have never been exercised to date. The legal and practical consequences of this extraordinary measure have so far not been addressed by the courts.
The following is a review of the distinction between the time limits referred to in the Order:
a) prescription periods: these time limits are intended to extinguish rights based on the passage of time, depending on their nature and the period determined by law. These periods may, however, be suspended or interrupted based on the parties’ circumstances or actions. A court or tribunal may not raise prescription ex officio;
b) forfeiture periods: these time limits extinguish a claim as soon as the statutory period assigned to them has expired without the creditor having either taken the required action or initiated recourse, regardless of the circumstances. Forfeiture periods are a matter of public policy and must be raised ex officio by a court or tribunal;
c) procedural deadlines: these time limits are those implemented in a litigious context in the presence of a situation that has already been brought before the courts and whose starting points and duration are closely linked to the legal claim itself and not to the substantive right that the claim invokes.
The Order means that the calculation of time to invoke substantive rights before a court or to take the actions required by law for the recognition or preservation of rights, both with respect to limitation periods and forfeiture periods, is suspended.
Consequently, as many days as those elapsed during the period of the Order will have to be added to the time periods that would have elapsed before its coming into force, resulting in a corresponding extension of the deadlines for initiating a claim or taking the actions required by law for the recognition or preservation of rights.
As for procedural deadlines, their suspension entails, for all intents and purposes, the suspension of non-urgent proceedings and the statutory deadlines for their conduct. While the law does not specify the time limits in question, all those provided for in the Code of Civil Procedure should normally be covered, including:
a) the time limit to serve a proceedings after it has been filed with the court;
b) the time limit to file a response;
c) the time limit for submitting a case protocol;
d) the time limit for the inscription for trial;
e) the time limits set out in the case protocol for the conduct of the litigation and the filing of any notice;
f) the time limits for the judiciary to render a judgment;
g) the time limits for filing an appeal and the deadlines for filing memoranda or briefs.
Despite the clear language of the Order, the situation is evolving rapidly and some courts and tribunals are adopting varying rules and guidelines.
As a precaution, practitioners and litigants should consider the following measures:
a) confirm the specific guidelines of the courts and tribunals before which they are litigating, with regard to applicable time limits and measures that may or may not be taken;
b) if a legal act can be carried out or a claim can be filed during the period of the Order, this will ensure the preservation of rights and prevent any future challenge based on the calculation of time limits;
c) rigorously calculate the passage of time during the time frame of the Order and carefully identify the new end dates of the limitation and forfeiture periods for the exercise of rights or the raising of a defence after the time frame of the Order has passed.
Finally, we anticipate that new guidelines will be issued by the Quebec courts and tribunals when the Order is lifted, in particular for the resumption of judicial and quasi-judicial activities and the reorganization of ongoing proceedings.
Until then, we hope above all to preserve our collective and individual health.
An article written by the litigation team
1 27. In a state of emergency declared by the government or in a situation where it is factually impossible to comply with the rules of the Code or to use a means of communication, the Chief Justice of Quebec and the Minister of Justice may jointly suspend or extend a limitation period or procedural deadline for a specified time, or authorize the use of another means of communication in the manner they specify.
Their decision takes effect immediately and must be published without delay in the Gazette officielle du Québec.