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As many writers have noted, the Government of Ontario suspended the limitations periods as of March 16, 2020 by Ontario Regulation 73/20: LIMITATION PERIODS (the “Emergency Order”). That Emergency Order was revoked[1] on September 14, 2020 and so limitations clocks started to run again.
The suspension of limitations periods was put into effect pursuant to section 1 of the Emergency Order, which stated:
Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.
Pursuant to section 2 of the Emergency Order, the Government of Ontario also suspended any period of time within which any step must be taken in any proceeding in Ontario. However, the suspension of steps in a proceeding was subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding.
The distinction is important. The suspension of limitations periods was automatic and not subject to the discretion of the governing court or tribunal, whereas a court or tribunal could use its discretion to require that certain steps in a proceeding be taken.
A limitations period is the time within which a legal proceeding must be commenced. There are many limitations periods established by the Assessment Act and some depend on whether a request for reconsideration is required or voluntarily started.
One example of a limitations periods under the Assessment Act is found at subsection 40(6):
40(6) If a person has not made a request for reconsideration in respect of a property under section 39.1 and is not required to do so as a precondition of appeal under subsection (3), the last day for the person to appeal for a taxation year is March 31 of the taxation year.
The effect of section 1 of the Emergency Order is that any time during which the suspension of limitations periods was in effect should not be counted in calculating the date by which an appeal must have been commenced.
In a memo dated April 21, 2020, the Assessment Review Board advised that it would be extending the deadline to file an appeal that was caught by a March 31, 2020 statutory deadline to May 29, 2020. The Board further indicated in a July 8, 2020 Frequently Asked Questions document that it would not accept section 40 appeals for the 2020 taxation year after May 29, 2020.
The statutory limitations period for appeals under subsection 40(6) of the Assessment Act is March 31, 2020. However, section 1 of the Emergency Order required that this statutory limitations period be extended to September 29, 2020 to account for the suspension of limitations periods as of March 16, 2020. Since the appeal deadline fell within the window of time in which the Emergency Order suspended the operation of limitations periods, it appears that the Board’s requirement to file an appeal by May 29, 2020 contravenes the Emergency Order.
Another example of a limitations period under the Assessment Act is found at subsection 40(8):
40(8) If a notice of assessment has been mailed under subsection 35 (1) for a property, the last day for appealing for a taxation year after 2016 for a person who has not made a request for reconsideration in respect of the property under section 39.1 and is not required to do so as a precondition of appeal under subsection (3) is 120 days after the issuance date printed on the notice.
This provision is for assessments that are issued at various points throughout the year, such as supplementary and omitted assessments. Subsection 40(8) states that you have 120 days from the date on the notice to appeal. Similar to subsection 40(6) and other limitations periods, any days that fall within the time that limitations periods were suspended pursuant to the Emergency Order should not be counted in determining the deadline for filing an appeal under subsection 40(8).
If you did not file an appeal to the Assessment Review Board because of COVID-19 or because the appeal was determined to be past a limitations period, you should contact NextGenLaw LLP at your earliest opportunity.
[1] Interestingly, the Government of Ontario has brought an application for, among other things, a declaration that any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period that was temporarily suspended on March 16, 2020, by Regulation 73/20, as amended, now revoked, resumed running on September 14, 2020, and the temporary suspension period shall not be counted against any applicable limitation period. Click here for a copy of the Government of Ontario’s application dated October 2, 2020.
