- Regarding Limitation Periods
- Counting Time
- Extending or Shortening Time
The Rules regarding filing and service of pleadings, amendments, motions and other procedures often are conditioned with a time limit. For instance, a defence should be filed "within 20 days after being served with the claim" [R9.01].
Specific time limits for different steps are set out throughout the program, when the particular documents or steps are discussed. This chapter is to explain the rules which govern "time" generally.
Most Small Claims Court "deadlines", if missed, are not necessarily fatal to your case, However it is important to meet the timelines if you can. Getting your case back on track may require a motion to extend time, which is significant effort and some expense.
When extensions are required, the court tends to grant them tolerantly and leniently unless the party requesting them has been neglectful or acting in bad faith. If the other party has or will suffer harm or expense caused by the lateness the court may still grant an extension, but with a negative costs order against the requester - or even refuse the extension outright.
Timelines can often be extended with the consent of the other parties to the action [R3.02(2)]. This is something commonly negotiated amongst lawyers and agents.
2. Regarding Limitation Periods
It is essential to distinguish Small Claims Court procedural timelines from "limitation periods" governed by the Limitations Act and other statutes.
"Limitations" are very significant deadlines for the commencement of court proceedings. Failure to meet a limitation period will very likely be fatal to your case. The law of limitation periods changed significantly on 01 January 2004.
Limitation periods vary with different causes of actions, parties and other factors involved in a proceeding. Missing a limitation period is not something that the court can change (ie. extend time) by order - although the court may find that the facts of the case justify a counting of limitation time that is favourable to a party (mainly by the principle of "discoverability").
See the Isthatlegal resource: Limitations.
Also see the COVID six-month suspension of limitations and time limits here: 2020 Limitations and Time Limit Suspension.
3. Counting Time
When a certain amount of time is set out for doing something, exclude the first day and include the last day of the period - except if the last day is a holiday then extend time to the next day that is not a holiday [R3.01(1)].
As well, it is important to note that no document may be served and no order shall be executed on Sunday, except with leave of the court [CJA s.124]. Where service efforts are deemed to take effect several days after an initial act, doing the initial act on a Sunday should not be a problem because the first day is not counted anyway (above). The problem is when the "deemed date" is a Sunday, in which case no service will be effective until the next day that is not a holiday. If necessary, either before or after the fact, the rule that "no document may be served and no order shall be executed on Sunday" may be varied "with leave of the court" [CJA s.124]
Recall that a Defence "shall" be filed 20 days after service of a Claim. Let's say the Claim was served on the defendant on the 17th day of the September. Counting would go like this:
If the 7th is not Sunday or a holiday, then deadline for filing a Defence under this rule is 7th October (so if you file on the 8th you are late). If the 7th is a holiday, say Saturday (a holiday) - then extend two days (Sunday too) to 9th October (so if you file on the 10th you are late).
- do not count the 17th, start counting at the 18th
- 18th to 30th of September is 13 days
- 1st to 7th October is seven days (count the 7th as it is the last day)
- total now 20 days
Holidays include [R1.02]:
If New Year's Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday. If Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday are holidays. If Christmas Day falls on a Friday, the following Monday is a holiday.
- any Saturday or Sunday,
- New Year's Day,
- Family Day,
- Good Friday,
- Easter Monday,
- Victoria Day,
- Canada Day,
- Civic Holiday,
- Labour Day,
- Thanksgiving Day,
- Remembrance Day,
- Christmas Day,
- Boxing Day, and
- any special holiday proclaimed by the Governor General or the Lieutenant Governor.
As noted above, no document may be served and no order shall be executed on Sunday, except with leave of the court [CJA s.124] (see the discussion of this in the section "Counting Time", above.)
5. Extending or Shortening Time
The court may, on motion by a party or on its own motion, extend or shorten prescribed times as set out in these Rules or as set out in any order - on such terms as are just [R3.02(1)].
Prescribed times for "serving or filing documents" may be extended or shortened if all the parties to a case provide written consent to this effect [R3.02(2)](see Ch.12, s.11 "Motions and Procedural Changes: Procedural Changes on Consent"). However, parties would NOT be able - by their consent alone - to accelerate or delay the hearing date for a trial, this will require the court's permission.