Nunc Pro Tunc – This Latin term literally translates to “now for then.”
Nunc pro tunc refers to a court-ordered retroactive effect. Nunc pro tunc gives jurisdiction to take an action that was not taken when it should have been. A nunc pro tunc order is applied as though the action had been performed at the earlier time. The nunc pro tunc doctrine seeks to “answer the purposes of justice, but never to do an injustice.”
In a recent Superior Court decision, Weiche v. Berghof Estate, 2013 ONSC 7742 (CanLII), Justice M. A. Garson addresses the doctrine in depth. Justice Garson refers to Justice Kelly’s discussion of the nunc pro tunc doctrine in Hogarth v. Hogarth:
There is inherent jurisdiction to the Court to make orders nunc pro tunc to validate proceedings which have been carried out and have been found ineffective by reason of some slip or oversight having been made in the conduct of such proceedings, and to ensure against some injustice resulting therefrom. The procedure has been invoked to direct the entry of an order or judgment made on an earlier date but, by some oversight, has not been entered, although proceedings have been taken in pursuance of such judgment or order. The procedure has also been invoked to make an order as of a date when argument has been terminated before the Court and decision thereon reserved, so as to protect the litigant against some injustice resulting from the delay in rendering the judgment, which delay was caused for the convenience of the Court. But where a litigant has been delayed by his own laches, or where the delay has been extraordinary, some delay being unavoidable, the Court will refuse to direct a judgment order to be entered nunc pro tunc.
With leave from the court, nunc pro tunc orders may be used to cure procedural irregularities, such as amending a proceeding, or issuing an order that was inadvertently not issued. The nunc pro tunc doctrine has also been applied in tribunal decisions. For example, the Ontario Labour Board has made an order to amend a respondent’s name.