FINDING THE SOLUTION
FINDING THE SOLUTION
March 15, 2020 Litigation and Conflict Resolution
On March 13, 2020, by way of Order in Council No. 177-2020, the Government declared a health emergency throughout Québec territory under section 119 of Public Health Act (chapter S-2.2) for a period of ten (10) days, which is renewable.
Two days later, on March 15, the Honourable Nicole Duval Hesler, Chief Justice of Québec, and Ms. Sonia Lebel, Minister of Justice, jointly issued Order No. 2020-4251.
For the first time, the Chief Justice of Québec made use of the powers conferred by art. 27 of the Code of Civil Procedure to suspend time limits for prescription and civil proceedings and to authorize the use of a means of communication due to the declaration of a public health emergency.
In essence, these are the main components of Order No. 2020-4251 to keep in mind:
(i) the periods for extinctive prescription and forfeiture in civil matters are suspended until the expiry of the declared public health emergency (Order in Council No. 177-2020);
(ii) time limits for civil proceedings are also suspended for the duration of the public health emergency, except for matters deemed urgent by the courts;
(iii) for the duration of the public health emergency, pleadings may be submitted to the Attorney General of Québec by email, depending on the judicial district.
Suspension of periods for extinctive prescription and forfeiture
In practical terms, this means that the time limit for bringing an action relating to real property rights, a personal right of action or movable real rights is suspended.
Typically, the event marking the start of the extinctive prescription is the day on which the right of action arose. However, there are a number of provisions in the Civil Code of Québec that clarify the application of this concept.
For example, the right of action for latent defects arises as soon as a buyer becomes aware of one or more defects affecting the immovable. This right of action lapses after three (3) years from the discovery/knowledge of these defects.
Pursuant to the Order, if you discovered defects affecting your property on March 16, 2017, you had until March 16, 2020, to initiate legal proceedings against the sellers.
As civil claims not deemed urgent are not permitted during the declared state of public health emergency, you cannot initiate legal proceedings within the prescription period set out in the Civil Code of Québec, i.e., three (3) years.
To ensure that litigants do not lose their rights of action, Order No. 177-2020 suspended these times limits for the period covered by said order.
The same goes for creditors whose claims are time-barred during this period: the limitation periods for bringing an action are suspended.
Once the state of emergency has been lifted, it will still be possible to pursue an action.
However, at this time, we do not know the duration of this suspension or the extension that will be granted to litigants to bring an action after the state of emergency has ended.
Suspension of time limits for civil proceedings and urgent applications
With regard to the time limits for civil actions already brought before the courts, these are also suspended by this Order.
In principle, to be set down for trial and judgment, a civil case must be ready within six (6) months from the date on which the case protocol is presumed to have been accepted or by special circumstances (art. 173 of the Code of Civil Procedure), failing which the plaintiff is deemed to have withdrawn his or her application.
For cases that would have been set down during the state of emergency period, this time limit is also suspended: your case will proceed and a new deadline will be set by the court when regular activities resume.
To comply with public health measures, out-of-court examinations are postponed and procedural filing deadlines are suspended.
Only urgent applications may be brought before the courts until further notice.
The Court of Québec and the Superior Court have defined what they consider to be urgent applications, and each judicial district has implemented strict measures for submitting such applications.
In closing, if you would like to know whether your application is considered urgent or if you have any questions regarding the prescription period of your right of action, contact one of our lawyers. We will give you a clear picture of your rights to pursue a claim.
If you are already one of our clients, do not hesitate to contact your lawyer to get more information on the status and outcome of your case. We are happy to answer all your questions.
This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.Back to the list of publications - Litigation and Conflict Resolution