Reference re S. 6 of the Time Limits and Other Periods Act – Federal Court of Appeal finds that s. 6 did not trench on orders made under the Federal Courts Rules
In a letter dated September 1, 2020 addressed to the Federal Court, the Attorney General stated his position that s. 6 of the Time Limits and Other Periods Act (COVID-19), which suspended retroactively all “time limits…established by or under an Act of Parliament” during the March 13-September 13 period, ousted all “orders and directives issued” by the Courts concerning time limits or setting deadlines. The reaction of Noël C.J. was instantaneous. On September 3, he issued the following direction pursuant to Rule 54:
The Court directs that the Attorney General’s position concerning the interpretation and effect of section 6, in so far as it extends to the time limits under the Rules and orders made thereunder, is incorrect in law and should not be followed. The Federal Courts Rules, S.O.R./98-106 and this Court’s Practice Directions, judgments, orders and directions remain in full force and effect.
Were it otherwise, confusion and potential harm—surely not desired by Parliament—would result. For example, orders requiring a proceeding to be prosecuted urgently on shortened time limits to further the public interest and to avert some harm or prejudice would be invalidated with retroactive effect. …
Beyond this, construing section 6 as allowing Parliament to unilaterally interfere with the management and governance of ongoing proceedings would invade a core judicial function … . Where possible—and it is possible here—section 6 should be given a meaning that is respectful of judicial independence and obeys constitutional imperatives.
Presumably, the Tax Court will take a similar view that s. 6 does not prevent it from controlling its own proceedings.
Respecting the scope of s. 6, Noël C.J. noted that it did extend the time periods for starting proceedings in the Federal Court, for example s. 27(2) of the Federal Courts Act (the time limit for bringing appeals) and ss. 18.1(2) and 28 thereof (the time limit for bringing an application for judicial review).
Neal Armstrong. Summary of Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (CA), 2020 FCA 137 under Time Limits and Other Periods Act (COVID-19), s. 6.