Time Limits and Other Periods Act (COVID-19)

The Attorney General’s position, in a letter dated September 1, 2020 and addressed to the Court, was that s. 6 of the Time Limits and Other Periods Act (COVID-19), which suspended retroactively all “time limits…established by or under an Act of Parliament” during the March 13-September 13 period, ousted all “orders and directives issued” by the Courts concerning time limits or setting deadlines. Noël C.J. found that the intolerable uncertainty created by this position necessitated providing clarity under Rule 54 as to the applicable time limits in pending proceedings before the Court.

Accordingly, he issued the following direction (at para. 11):

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, S.O.R./98-106 and this Court’s Practice Directions, judgments, orders and directions remain in full force and effect.

Respecting the scope of s. 6, Noël C.J. further noted (at para. 12):

[S]ection 6 does effectively amend the statutory time periods in federal legislation for starting proceedings in this Court: see, for example, subsection 27(2) of the Federal Courts Act … (the time limit for bringing appeals) and sections 18.1(2) and 28 [thereof] … (the time limit for bringing an application for judicial review). … Thus, if a party had thirty days to appeal a judgment of the Federal Court to this Court and twenty days had elapsed by March 13, 2020, the deadline for appealing the judgment would be September 23, 2020. Under the terms of the sections in the preceding paragraph, the deadline is extendable by order of the Court.

By way of further explanation, he stated (at paras. 17-20):

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 Federal Courts Rules are not made “under an act of parliament” in the usual way in which this term is understood. …

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 … . Where possible—and it is possible here—section 6 should be given a meaning that is respectful of judicial independence and obeys constitutional imperatives.

Another important contextual consideration is that Court orders or directions, when made, are law until set aside.