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B.C. Judicial Review Deadlines & Covid-Related Suspensions

  • Image: “clocks” by Leo Reynolds is licensed under CC BY-NC-SA 2.0

In March, 2020, as fears mounted over covid-19, the Supreme Court of British Columbia and British Columbia Court of Appeal suspended their regular operations.

I expressed concern at the time with courthouses closing at a time when they are needed more – not less – than ever.

Early on in the covid-19 pandemic, governments recognized that many people faced difficulties meeting statutory deadlines.

Acknowledging this, on March 26, 2020, B.C.’s Minister of Public Safety and Solicitor General issued ministerial order MO86/2020 (Order #1) under the Emergency Program Act (EPA). It suspended statutory deadlines for commencing most types of civil proceedings in B.C. courts.

On April 8, 2020, effective April 15, 2020, he issued order MO98/2020 (Order #2), also under the EPA.  It replaced Order #1 and added certain exceptions relating to builder’s lien and Strata Property Act claims.

However, in a June, 2020 report, B.C. Ombudsperson Jay Chalke found that MO98/2020 was not authorized by the EPA.

The report did not have the force of law. It did, however, highlight the importance of respecting democratic processes, pandemic or not. 

Order #1 and Order #2 effectively suspended or amended legislation. But, the Ombudsperson concluded that EPA did not authorize the Minister to override otherwise valid legislation.

Even if the order was not contrary to law, the Ombudsperson concluded that it did not sufficiently guard against the potential for arbitrary or inconsistent decision-making by administrative bodies. He made certain recommendations.

On July 10, 2020, following the Ombudsperson report, the Covid-19 Related Measures Act (the CRMA) became effective.  Among other things, it enacted Order #1 and Order #2.  

The CRMA is not simple legislation. It enacts Order #1 as a provision of the CRMA from March 26, 2020 to April 14, 2020, the effective date of its repeal, which was by OIC 391/2020 made July 10, 2020.

It enacts Order #2 as a provision of the CRMA from April 15, 2020, until 90 days after the last extension of the declaration of the COVID-19-related state of emergency ends under s. 9(1) of the EPA expires or is cancelled (s. 3(5)). This is subject to being further extended by regulation (s. 3(6)).

So far, the state of emergency that was first declared across the province on or around March 18, 2020 is continuing until at least March 30, 2021.

On December 21, 2020, a surprise Order-in-Council 655/2020 was issued. As described by the Attorney General of BC (AGBC)’s office, it “de-linked the suspension of limitation periods from the duration of the state of provincial emergency.”   

On December 21, 2020, the AGBC announced that the suspension of deadlines for starting a civil proceeding in BC courts will end on March 25, 2021.  The announcement is not law.  It uses terminology that I would take issue with.

Whether the lifting of the suspension was legally effective remains to be seen.  Was this but one more of many examples of strange attempts at law making within B.C.?  That is a topic unto itself.

While a fair amount of commentary is available online regarding the lifting of the suspension, they focus on the impact on civil claims, particularly motor vehicle collision related litigation.

There is surprisingly little commentary on the impact on commencing a proceeding by way of a judicial review.  

Judicial review is the means by which a court may review decisions of administrative boards or tribunals.

Both Order #1 and Order #2 suspended deadlines for commencing “proceedings”. Below is the Order #2 provision with the relevant parts underlined:

2 (1) Subject to subsection (2), every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal is suspended.

A judicial review is a “proceeding.”   Assuming no builders’ lien or strata issues, then (2) isn’t relevant.  

If s. 57 of the Administrative Tribunals Act (ATA) applies, and the decision is a “final decision”, then a judicial review normally “must be commenced within 60 days of the date the decision is issued."

Examples of administrative bodies to which s. 57 of the ATA applies include the B.C. Human Rights Tribunal, the Employment Standards Tribunal, the Labour Relations Board, certain decisions of a superintendent of appeals and adjudicator under the School Act  and the Workers Compensation Appeal Tribunal. 

For s. 57 of the ATA to apply, the administrative body’s enabling legislation must state that it applies.

This 60-day deadline is the “mandatory time period” for “commencing” a judicial review “proceeding” on decisions to which it applies.  

Suspending statutory deadlines until March 25, 2021 means no clocks were ticking, no deadlines within which court proceedings had to be commenced were accruing, unless the matter fell within the specific exceptions in (2). 

What this means for these judicial reviews is that the earliest date that the 60 day clock starts to tick is March 25, 2021. Add 60 days and it seems to me that that is the earliest deadline for filing petitions for judicial review of administrative decisions issued during the suspension to which s. 57 of the ATA applies. 

I look forward to this being analyzed in a court decision, as will no doubt eventually occur.

Interested in limitation periods for simple wrongful dismissal claims? Check out this article.

Disclaimer:   This is a modified version of an article appearing in or around March 31, 2021 in online publications including the Kelowna Capital News. This article is for educational purposes only, and to provide very general thoughts and general information, not to provide legal advice. By viewing it, you agree that there is no lawyer-client relationship between you and the website publisher. Nothing here can be used as a substitute for competent legal advice from a practicing lawyer in your province with experience in dealing with the specific circumstances of your situation.  We may be reached through our website at inspirelaw.ca