Yesterday, the Court of Queen’s Bench of Alberta announced that it will extending its current policy of hearing only emergency and urgent matters to May 31, 2020. This means that all matters set down for May 2020 will be adjourned to no fixed date and will be rescheduled when the Courts resume their normal sittings.
COVID-19 is obviously not limited to just Alberta – its effects have been global. So it has been interesting to take an opportunity to consider and digest the thoughts of practioners in other jurisdictions. We recently came across an interest blog post from Papazian Heisey Myers in Ontario. Michael S. Meyers is experienced enforcement counsel with a broad clientele, which includes both institutional and private lenders. Michael provides his thoughts on the impact COVID-19 will have on private lenders and reviews the concept of default under a mortgage.
This post is shared with Michael’s permission and represents his opinion. But it is certainly food for thought.
With all the uncertainty surrounding closures under the COVID 19 crisis, we wanted to provide you with information on the impact that this will have on Alberta enforcement matters. Until May 1, 2020, all applications, except on an emergency basis and desk applications, have been adjourned without a return date. That date may be extended.
Demands and Claims
It is still possible to issue demands, communicate with borrowers, and issue commencement documents such as Statements of Claim. Documents, such as Statements of Claim are still able to be served.
Lawyers continue to be able to order appraisals for properties. The appraisers advise that they are taking extra precautions when doing interior appraisals. Interior appraisals are unlikely to be available for residences where the occupants are in quarantine or are awaiting test results for COVID-19. Appraisers are exploring more innovative ways to carry out more robust appraisals in those instances. It is uncertain the extent that COVID-19 will have on the market. As such, and due to the restrictions placed by the Court on the hearing of applications, lenders may want to consider whether they wish to wait to order the appraisal until the Court reopens for hearings. The advantage of ordering now is that lenders will have all information necessary to proceed with the application once the Court reopens for hearings. However, there is a chance that the market value will have changed by the time the Court reopens. If that happens, it may be necessary for lenders to order updated appraisals.
As noted above, the Court has adjourned all existing hearings up to May 1, 2020 without a return date. Lawyers can file new applications, but those applications generally have to be filed without a return date at this time. Emergency and urgent, non-emergency applications are still being heard with permission from the Court. This would include applications for Preservation Orders and in the proper circumstances may also include Receivership, and CCAA proceedings. The Court is also accepting desk applications for matters such as Substitutional Service Orders, and Consent Orders.
Commissioning of Affidavits
Temporary measures have also been put into place in the Court of Queen’s Bench and Court of Appeal to permit the Commissioning of Affidavits remotely rather than in person. There are certain specific steps required in order to properly have Affidavits sworn and identification checked.
The Land Titles Office online registration remains open and we are able to submit documents in the usual course. The Land Titles Office is now also accepting Affidavits that are commissioned using video or teleconferencing. However, these Affidavits must be commissioned by a lawyer who is practicing in Alberta. Additionally, Land Titles will still require the original signatures for registration.
Suspension of Filing Deadlines
Although the Court remains open for the filing of documents and is now also accepting filing of documents by email, as of March 20, 2020 all filing deadlines have been suspended. This means that the time for filing documents, such as Statements of Defence, is on hold until the suspension is lifted. Accordingly, lawyers are not able to obtain Default Judgment against any defendant at this time, nor are we able to file a Noting in Default.
The exception to this is the Court of Appeal. Where an appeal has been set for appeal and no adjournment has been obtained, all filing deadlines remain in effect. If an appeal has not been set for appeal and deadlines for filing of documents fall on or before May 4, 2020, those deadlines are extended by 2 months. In all other cases, including applications before the Court of Appeal, the filing deadlines remain unaltered. Filing deadlines for Notices of Appeal, Applications for Permission to Appeal and other documents commencing an appeal remain unaltered.
Judgments and Enforcement
The taking of enforcement steps with respect to commercial properties are also affected. Assets, including land, can still be seized. However, objection, notice and waiting periods with respect to a seizure are suspended. That means that any objection period which started prior to March 16, 2020 would be suspended and not restart until June 2, 2020. Seizures made after March 16, 2020 would not have the objection period begin until June 2, 2020. The same would apply to sale notices on both personal property and land, and seizures under the Personal Property Security Act. Distributions of proceeds will also be delayed in many cases. The suspension may also be extended by the government.
It is uncertain the extent to which COVID-19 will affect seizures of non-commercial personal property, though there appears to be some civil enforcement agencies who are not undertaking these sorts of seizures. Additionally, the suspension of waiting periods noted above would also apply to non-commercial personal property and evictions.
If a debtor agrees to waive notice periods, it may be possible to continue with enforcement notwithstanding these new rules. You should speak to your counsel to determine whether such a waiver would be effective.
Suspension of Limitation Periods
On March 30, 2020, the Alberta Government signed a Ministerial Order suspending the limitation periods under a number of pieces of legislation, including the Limitations Act. The suspension runs from March 17, 2020 until June 1, 2020. This means that the usual 2 year “limitations clock” stopped on March 17, 2020 and will start up again on June 1, 2020. Please note that the Government does have the ability to terminate the suspension sooner.
Although there is this suspension in place, we are still recommending that where there is a pending claim, you may wish to still have a Statement of Claim or Originating Notice filed within the usual 2 year time period. This would avoid any possible calculation issues or arguments that could arise due to the suspension period. The Rules of Court permit up to a year to serve a Statement of Claim after it has been filed.
We wish you all the best during these challenging times.