Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: COVID-19 not necessarily a concern for all

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

Lately, there is a dichotomy within B.C.’s justice system.

As a result of concerns over COVID-19, B.C. courts have largely shut down, allowing only “urgent and essential matters” to proceed. This is a topic unto itself.

Though efforts are now being made to re-open British Columbia’s courts to an extent, restrictions remain in place. There is already a backlog of cases to be heard. Extra cases will also arise as a result of Covid-19.

Limitation periods and other time periods for proceedings in B.C. courts remain suspended.

This is not the case in Alberta, or for many B.C. administrative bodies.

What is an administrative body?

Those who exercise public power in relation to others, outside the criminal law context. These bodies have powers which are normally set out in legislation, implemented through the democratic process.

Consistent with the expanding role of government in all facets of our lives, administrative law is a prominent area of law within Canada.

As was described by Justice Cory of the Supreme Court of Canada in R. v. Wholesale Travel Group Inc.:

It is difficult to think of an aspect of our lives that is not regulated for our benefit and for the protection of society as a whole. From cradle to grave, we are protected by regulations; they apply to the doctors attending our entry to the world and to the morticians present at our departure. Every day, from waking to sleeping, we profit from regulatory measures which we often take for granted. On rising, we use various forms of energy whose safe distribution and use are governed by regulation. The trains, buses and other vehicles that get us to work are regulated for our safety. The food we eat and the beverages we drink are subject to regulation for the protection of our health.

Many, many disputes are heard and resolved by administrative tribunals rather than courts.

British Columbia

The B.C. government acknowledges that as a result of COVID-19, “British Columbians involved in legal or administrative proceedings may be unable to take steps required by legislation.”

On July 10, 2020, B.C.’s COVID-19 Related Measures Act (CRMA) went into effect. It enacts numerous previous COVID-19 related orders and regulations as a provision of the CRMA, including two previous ministerial orders. The first, MO86/2020, was made on March 26, 2020 and suspended limitation periods for court proceedings. The second, MO98/2020, was made effective April 15, 2020 and created exceptions relating to builder’s lien claims and certain claims under the Strata Property Act.

These orders permitted, but did not require, administrative tribunals and other bodies with a statutory decision-making power to waive, suspend or extend a mandatory time period relating to the exercise of that power.

On August 4, 2020, the Lieutenant Governor made the COVID-19 (Limitation Periods in Court Proceedings) Regulation, amending the CRMA. This Regulation and the CRMA state that the suspension of mandatory limitation periods and any other mandatory time periods in British Columbia law for commencing a civil or family proceeding, claim or appeal in British Columbia’s courts will end 90 days after the end of the state of emergency.

B.C.’s state of emergency remains in effect. Order-in-council 506-2020 continues it until at least September 29, 2020.

The upshot of all of this is that subject to some narrow exceptions, limitation periods for court proceedings remain suspended in B.C.

But for administrative proceedings, that may or may not be the case. Indeed, many administrative tribunals are operating as “business as usual.”

Tribunals still operate under certain restrictions, including administrative law rules of natural justice and fairness and the Canadian Charter of Rights and Freedoms.

If this all seems confusing, consider that as of September 15, 2020, the government itself does not know how many COVID-19 instruments have been issued. Its list of 117 instruments relating to COVID-19 contains a disclaimer stating that its own list “may not be exhaustive.”

Alberta

On March 30, 2020, Alberta’s Minister of Justice and Solicitor General issued an order under the Public Health Act, MO 27/2020, suspending limitation periods and periods of time requiring any step to be taken in many proceedings and intended proceedings.

On June 1, 2020, M027/2020 expired. That means that on June 1, 2020, the clock began ticking again in Alberta on limitation periods and other time periods affected by the order.

And So…

Regional differences may be understandable.

But within B.C. the contrast between the shut-down of courts, and business as usual for tribunals, is striking.

B.C. tribunals may exist within blocks of a court house. One is suspended, the other is not.

The question arises, on what basis is COVID-19 of such grave concern to B.C.’s courts, but not for many B.C. administrative tribunals?

In case you missed it?

Temporary layoffs during COVID-19

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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