B.C. Limitation ActB.C. Limitation ActPresented by Seema Lal

What is a limitation period?What is a limitation period?

Time limit in which to bring a claimTime limit in which to bring a claim

Balancing Policy considerations:Balancing Policy considerations: Compensation vs. finality and certaintyCompensation vs. finality and certainty

Types:Types: BasicBasic (default time limit)(default time limit) Discovery (of cause of action)Discovery (of cause of action) Ultimate limitation period Ultimate limitation period

““Old” Old” Limitation ActLimitation Act

Basic limitations: a variety:Basic limitations: a variety: 2 Y (personal injury, injury “to” property)2 Y (personal injury, injury “to” property) 6 Y (money judgments)6 Y (money judgments) 10 Y (breach of trust)10 Y (breach of trust)

Ultimate limitations: also a variety:Ultimate limitations: also a variety: 6 Y negligence/malpractice actions against 6 Y negligence/malpractice actions against

medical practitioners & hospitalsmedical practitioners & hospitals 30 Y ultimate limitation period30 Y ultimate limitation period

““Old” Old” Limitation ActLimitation Act

judicial interpretations:judicial interpretations:

““mysteriousmysterious”, “”, “obscureobscure”, “”, “inartisticinartistic”, ”, ““opaqueopaque”, “”, “difficultdifficult””

Southin J.: “Southin J.: “case law has added scorpions case law has added scorpions and snakes to moors and quick sand of and snakes to moors and quick sand of Limitation ActLimitation Act””

““New” New” Limitation ActLimitation Act

Basic 2 Y limitation from day of the Basic 2 Y limitation from day of the discovery discovery of the claim (s. 6)of the claim (s. 6)

• • 10 Y: enforcement of civil judgments (s. 7)10 Y: enforcement of civil judgments (s. 7)

• • 6 Y: debts owed to government (s. 38)6 Y: debts owed to government (s. 38)

Old DiscoveryOld Discovery

6.6.(4) Time does not begin to run against a plaintiff or claimant with (4) Time does not begin to run against a plaintiff or claimant with respect to an action …until the identity of the defendant or respect to an action …until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts respondent is known to the plaintiff or claimant and those facts within the plaintiff's or claimant's means of knowledge are such that within the plaintiff's or claimant's means of knowledge are such that a reasonable person, knowing those facts and having taken the a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, appropriate advice a reasonable person would seek on those facts, would regard those facts as showing thatwould regard those facts as showing that

(a) an action on the cause of action would, apart from the effect of (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, the expiration of a limitation period, have a reasonable prospect of have a reasonable prospect of success, andsuccess, and

(b) the person whose means of knowledge is in question ought, in (b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances the person's own interests and taking the person's circumstances into account, to be able to bring an action.into account, to be able to bring an action.

New DiscoverabilityNew Discoverability

Limitation clock does not start ticking until Limitation clock does not start ticking until plaintiff knows or ought reasonably to have plaintiff knows or ought reasonably to have known:known:

(a)(a) that injury, loss or damage had occurred;that injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or (b) that the injury, loss or damage was caused by or contributed to by an act or omission;contributed to by an act or omission;

(c) that the act or omission was that of the person (c) that the act or omission was that of the person against whom the claim is or may be made;against whom the claim is or may be made;

(d) that, having regard to the nature of the injury, loss or (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.means to seek to remedy the injury, loss or damage.

Audience Participation!Audience Participation!

Example 1Example 1 Jan 2014:Plaintiff injured in car accident Jan 2014:Plaintiff injured in car accident

(injury known immediately)(injury known immediately)

2 years2 years ￬￬ No right to sue after Jan 1, 2016No right to sue after Jan 1, 2016

Audience Participation!Audience Participation! Example 2Example 2

Jan 1, 2014 Plaintiff receives negligent investment adviceJan 1, 2014 Plaintiff receives negligent investment advice

Jan 1, 2016 Plaintiff acts on adviceJan 1, 2016 Plaintiff acts on advice

Jan 1, 2017 Actual damage occurs as a result of adviceJan 1, 2017 Actual damage occurs as a result of advice

Jan 1, 2018 Plaintiff speaks to new advisor and learns Jan 1, 2018 Plaintiff speaks to new advisor and learns advice was negligent:advice was negligent:

￬￬ Plaintiff must sue by Plaintiff must sue by Jan 1, 2020Jan 1, 2020

Ultimate Limitation PeriodUltimate Limitation Period

Old Act - 30 yearsOld Act - 30 years

ULP starts running when all elements of a cause of ULP starts running when all elements of a cause of action are completeaction are complete

New Act (Section 21) – 15 yearsNew Act (Section 21) – 15 years

starts ticking upon the original starts ticking upon the original act or omission act or omission regardless of whether damage has yet occurredregardless of whether damage has yet occurred

More Audience More Audience Participation!!!Participation!!!

Jan 1, 2014 Plaintiff receives negligent investment adviceJan 1, 2014 Plaintiff receives negligent investment advice Jan 1, 2016 Plaintiff acts on adviceJan 1, 2016 Plaintiff acts on advice Jan 1, 2017 Actual damage occurs as a result of advice Jan 1, 2017 Actual damage occurs as a result of advice Jan 1, 2028 Plaintiff speaks to new advisor and learns that earlier Jan 1, 2028 Plaintiff speaks to new advisor and learns that earlier

advice was negligent sues immediately…..advice was negligent sues immediately…..

SAFE Jan 1, 2029 Ultimate limitation period expiresSAFE Jan 1, 2029 Ultimate limitation period expires

Jan 1, 2030 Plaintiff speaks to new advisor and learns that earlier Jan 1, 2030 Plaintiff speaks to new advisor and learns that earlier advice was negligent: discovers claim and tries to sue: advice was negligent: discovers claim and tries to sue: TOO LATETOO LATE

One more….One more….

Jan 1, 2015 building envelope negligently Jan 1, 2015 building envelope negligently constructedconstructed

No damage visible until 2040No damage visible until 2040

past 15 Y ULP: past 15 Y ULP: out of time!out of time!

Confirming Cause of ActionConfirming Cause of Action

Old ActOld Act

Confirmations restart limitation running but Confirmations restart limitation running but only to 30 year ultimate limitation period only to 30 year ultimate limitation period

New ActNew Act Limitation periods extended if defendant Limitation periods extended if defendant

acknowledges liability before limitation period acknowledges liability before limitation period expiresexpires

Contribution & IndemnityContribution & Indemnity

Significant change!Significant change!

Old Act:Old Act: No specific limitation period for claims for contribution No specific limitation period for claims for contribution

and indemnityand indemnity Generally accepted that the limitation clock does not Generally accepted that the limitation clock does not

begin to run until the defendant has admitted liability, or begin to run until the defendant has admitted liability, or has been found liable for the claimhas been found liable for the claim

luxury of taking a “wait and see” approach before luxury of taking a “wait and see” approach before incurring the cost of identifying and adding parties to a incurring the cost of identifying and adding parties to a proceeding.proceeding.

New ActNew Act Bring claim within 2 year basic limitation Bring claim within 2 year basic limitation

periodperiod No right to commence court proceeding No right to commence court proceeding

for contribution or indemnity after the for contribution or indemnity after the expiryexpiry

Application of the New ActApplication of the New Act

The two-year limitation for contribution The two-year limitation for contribution and/or indemnity claims will begin to run the and/or indemnity claims will begin to run the later of:later of: the day on which the defendant is served with the day on which the defendant is served with

a pleading in respect of a claim on which a pleading in respect of a claim on which contribution and indemnity is based; orcontribution and indemnity is based; or

the first day on which the defendant knew or the first day on which the defendant knew or reasonably ought to have known that a claim reasonably ought to have known that a claim for contribution and indemnity may be made.for contribution and indemnity may be made.

Transition PeriodTransition Period

Generally:Generally:

No grandfathering or retroactivityNo grandfathering or retroactivity If the act or omission occurred and damage was If the act or omission occurred and damage was

discovered before June 1, 2013 the old Act discovered before June 1, 2013 the old Act appliesapplies

If the act or omission occurred before June 1, If the act or omission occurred before June 1, 2013 but was not discovered until June 1, 2013 2013 but was not discovered until June 1, 2013 or later the limitations under the New Act applyor later the limitations under the New Act apply

Practice TipsPractice Tips

Can you extend/shorten limitation periods?Can you extend/shorten limitation periods? Both Acts are silent (Note: Alberta and Ontario)Both Acts are silent (Note: Alberta and Ontario)

Courts will likely to be guided by principles of Courts will likely to be guided by principles of fairness and unconscionabilityfairness and unconscionability

Not likely to allow a shortening of a limitation Not likely to allow a shortening of a limitation period where unjust, especially where there is an period where unjust, especially where there is an imbalance in sophistication/power of the partiesimbalance in sophistication/power of the parties

Practice TipsPractice Tips

Tolling AgreementsTolling Agreements Agreements between parties not to rely on the Agreements between parties not to rely on the

running of the limitation periodrunning of the limitation period Remain uncertain under the New ActRemain uncertain under the New Act Prudent drafting:Prudent drafting:

a. “…a. “…Limitation Act Limitation Act does not apply…”;does not apply…”; b. “…the parties agree to suspend/toll all b. “…the parties agree to suspend/toll all

relevant limitation periods under the relevant limitation periods under the Act…”Act…”; and; and c. “…the parties agree not to plead any c. “…the parties agree not to plead any

limitation defence …”limitation defence …”

Practice Tips (cont’d)Practice Tips (cont’d) All disputes are now in real timeAll disputes are now in real time

Under Old Act 6-year limitation period when problems Under Old Act 6-year limitation period when problems appeared, one could sit back and say:appeared, one could sit back and say:

• “• “let’s see how the rest of the project goeslet’s see how the rest of the project goes”” • “• “let’s see if any actual damages ariselet’s see if any actual damages arise”” • “• “let’s see if we can negotiate a discount for our next let’s see if we can negotiate a discount for our next

project”project” • “• “we’ll only sue if he sues uswe’ll only sue if he sues us””

That leisure is goneThat leisure is gone