Regardless of the pandemic, the Ontario Superior Court of Justice is not the correct forum to interpret emergency legislation

Attorney General for Ontario v. Persons Unknown, 2020 CarswellOnt 16834

In this recent case, the Attorney General sought declaratory relief concerning the effect of Ontario Regulation 73/20, under the section 7.1 of the Emergency Management and Civil Protection Act, concerning the operation of limitation periods during the COVID-19 pandemic.[1] Specifically, the Regulation suspended all limitation periods in Ontario from March 16 to September 14, 2020, when it was revoked. In this particular case, Justice Myers held that the application was procedurally improper, as it sought a legal opinion from Ontario’s Superior Court of Justice, absent a live dispute, in which opposing views could be weighed. This also raised questions about the judiciary’s role and the fundamental principles behind the constitutional separation of powers.

In this particular case, the Justice Myers felt that such an interpretation of the law and subsequent declaration would cross the line of constitutionally permissible roles for the Superior Court. Citing the Supreme Court’s decision in Ontario v. Criminal Lawyers’ Association of Ontario,[2] the Court restated the siloed branches of power that perform executive, legislative and judicial functions. The separation of powers provide each branch a normative role, restricting them from impeding on the other.[3] That is not to say that the separation of powers in impenetrable.

There are scenarios where one branch depends on another to resolve an issue, as was the case in Stephen Francis Podgurski (Re) and Attorney General for Ontario v. Persons Unknown.[4] In the Podgurski, the equitable jurisdiction of the court to relieve Canadians from time limits while enduring the seismic effect of the pandemic, which included exceptional containment measures preventing them from meeting deadline in their bankruptcy proceedings. In the later Persons Unknown case, the court relieved court officers from enforcing writs of possession during the pandemic. Neither case involved urgent scenarios where legal proceedings risked further spreading of the COVID-19 virus. As such, the urgency was deemed to be so extreme as to justify the Court’s jurisdiction to hear the cases with little to no notice. Considering the case at hand, the Court held that confusion allegedly created by O. Reg. 73/20 was not truly comparable to aforementioned cases, where people would potentially be forced out of their homes to be exposed to a deadly virus due to an eviction or bankruptcy.[5]

Additionally, the Court held that the Persons Unknown format does not permit the Attorney General to  ex parte interpretations of the laws which will restrict unnamed respondents from pursuing legal action in the future, nor was it appropriate for the Attorney General to seek the Court’s opinion on a hypothetical, unchallenged question of interpretation.

Furthermore, Justice Myers held there was another mechanism available for the executive to obtain clarity. These mechanisms include the government passing regulations or legislative responses to offer clarification to the revocation of the legislation. Additionally, the government could seek a legal opinion from the Court of Appeal. In this case, the Court rejected the Counsel for the Attorney General argument that the time to provide notice and convene a panel of the Court of Appeal would have taken too long, as the Court of Appeal can act quickly should true urgency be shown. Therefore the Court held it was unable and unwilling to usurp the Court of Appeal’s role, the regulatory power of the Attorney General .....