Catherine Lahey, QC, Iain Sinclair and Robert Bradley

The Province of New Brunswick declared a State of Emergency on March 19, 2020 related to the COVID-19 pandemic and issued a Mandatory Order stipulating restrictions on numerous activities aimed at slowing the spread of the virus. On April 24, 2020, the Minister of Public Safety issued a renewed and revised Mandatory Order (the “Order”) which relaxed restrictions pertaining to various activities and included a provision which significantly impacts the conduct of litigation in our Province.

Specifically, paragraphs 27(a) and (b) of the Order suspend limitation periods related to the commencement of proceedings as well as time limits relating to the conduct of ongoing proceedings throughout the term of the Order and for up to 90 days following the expiration of the State of Emergency. The suspension is retroactive to March 19, 2020.

The relevant provisions of the Order provide:

27 …

(a)        In accordance with the authority granted me under s.12.1 of the Emergency Measures Act and on the recommendation of the Attorney General, I hereby, retroactive to March 19, 2020:

• • (i) suspend the operation of any act, regulation, rule, municipal by-law or ministerial order that establishes limitation periods for commencing any proceeding before a court, administrative tribunal or other decision-maker; and
  • (ii) suspend the operation of any act, regulation, rule, municipal by-law or ministerial order that establishes limitation periods for taking steps in any proceeding before a court, administrative tribunal or other decision-maker.

(b)         In accordance with paragraph 12.1(c) of the Emergency Measures Act, this paragraph will cease to have effect no later than 90 days [sic] the state of emergency ends.

As noted, these provisions create significant implications both for the commencement of new proceedings and the conduct of ongoing proceedings in New Brunswick.

Commencement of proceedings

Section 27(a)(i) of the Order suspends limitation periods which were due to expire on or after March 19, 2020 until the expiration of the State of Emergency and up to 90 days thereafter. The Order relieves parties intending to initiate claims from the obligation to commence proceedings within the time limit prescribed by any applicable statute or other enactment described in the Order.

For example, if the limitation period applicable to a claim expired on March 20, 2020, the claim is not time barred if the plaintiff/applicant failed to commence the proceeding by that date. Now, in accordance with section 27(a)(i) of the Order, that limitation period is temporarily suspended until the expiration of the State of Emergency and up to 90 days thereafter.  With no expiration date for the State of Emergency in sight, this provision will have a substantial impact upon the course of litigation in our Province.

Conduct of ongoing proceedings

In accordance with section 27(a)(ii) of the Order, all time limits stipulated by any act, regulation, rule, municipal by-law or ministerial order applicable to any steps in a proceeding before a court, administrative tribunal or decision-maker are also temporarily suspended. Consequently, the requirement to take any steps in a proceeding as stipulated by any act, regulation, rule, municipal by-law or ministerial order, including obligations imposed by our Rules of Court pertaining to ongoing actions governed by New Brunswick courts, is temporarily suspended.

For example, if a party was required to file a Statement of Defence on April 20, 2020, that requirement is now temporarily suspended until the expiration of the State of Emergency and up to 90 days thereafter. Accordingly, the ability to enforce prescribed time limits and compel a party to take steps to advance a proceeding is now temporarily suspended as mandated by the Order.

Impact of the suspension prescribed by the order

The full scope of the impact of the suspension prescribed by the Order will not be known for some time. However, in the short term, the provision of the Order suspending limitation periods will have a significant impact on claims management and the assessment of exposure to anticipated litigation as well as the setting of associated reserves. Moreover, the suspension of time limits in ongoing proceedings is expected to delay the progress of litigation beyond the impact already experienced as a result of the partial suspension of court operations.

Close monitoring of the Order for amendments is recommended in order to identify any updates which could impact the period of suspension and the potential scope of this government initiative.

This update is intended for general information only. If you have questions about the above, please contact a member of our Litigation & Alternative Dispute Resolution Group.

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