An overview of the new BC Limitation Act that came into force on June 1, 2013. Differences between the "old" BC Limitation Act and the "new" BC Limitation Act.

1. B.C. Limitation ActB.C. Limitation Act
Presented by Seema Lal

2. 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 periodUltimate limitation period

3. ““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 against6 Y negligence/malpractice actions against
medical practitioners & hospitalsmedical practitioners & hospitals

30 Y ultimate limitation period30 Y ultimate limitation period

4. ““Old”Old” Limitation ActLimitation Act
 judicial interpretations:judicial interpretations:
 ““mysteriousmysterious”, “”, “obscureobscure”, “”, “inartisticinartistic”,”,
““opaqueopaque”, “”, “difficultdifficult””
 Southin J.: “Southin J.: “case law has added scorpionscase law has added scorpions
and snakes to moors and quick sand ofand snakes to moors and quick sand of
Limitation ActLimitation Act””

5. ““New”New” Limitation ActLimitation Act
 Basic 2 Y limitation from day of theBasic 2 Y limitation from day of the discoverydiscovery
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)

6. 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 orrespect to an action …until the identity of the defendant or
respondent is known to the plaintiff or claimant and those factsrespondent is known to the plaintiff or claimant and those facts
within the plaintiff's or claimant's means of knowledge are such thatwithin the plaintiff's or claimant's means of knowledge are such that
a reasonable person, knowing those facts and having taken thea 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 ofhave 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 circumstancesthe 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.

7. New DiscoverabilityNew Discoverability
 Limitation clock does not start ticking untilLimitation clock does not start ticking until
plaintiff knows or ought reasonably to haveplaintiff 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 appropriatedamage, 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.

8. Audience Participation!Audience Participation!
 Example 1Example 1
 Jan 2014:Plaintiff injured in car accidentJan 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

9. Audience Participation!Audience Participation!
 Example 2Example 2
 Jan 1, 2014 Plaintiff receives negligent investmentJan 1, 2014 Plaintiff receives negligent investment
adviceadvice
 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 learnsJan 1, 2018 Plaintiff speaks to new advisor and learns
advice was negligent:advice was negligent:
￬￬
 Plaintiff must sue byPlaintiff must sue by Jan 1, 2020Jan 1, 2020

10. Ultimate Limitation PeriodUltimate Limitation Period
 Old Act - 30 yearsOld Act - 30 years

ULP starts running when all elements of a cause ofULP 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 originalstarts ticking upon the original act or omissionact or omission
regardless of whether damage has yet occurredregardless of whether damage has yet occurred

11. More AudienceMore 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 adviceJan 1, 2017 Actual damage occurs as a result of advice
 Jan 1, 2028 Plaintiff speaks to new advisor and learns that earlierJan 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 earlierJan 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

12. One more….One more….
 Jan 1, 2015 building envelope negligentlyJan 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!

13. Confirming Cause of ActionConfirming Cause of Action
 Old ActOld Act

Confirmations restart limitation running butConfirmations restart limitation running but
only to 30 year ultimate limitation periodonly to 30 year ultimate limitation period
 New ActNew Act

Limitation periods extended if defendantLimitation periods extended if defendant
acknowledges liability before limitation periodacknowledges liability before limitation period
expiresexpires

14. Contribution & IndemnityContribution & Indemnity
 Significant change!Significant change!
Old Act:Old Act:
 No specific limitation period for claims for contributionNo specific limitation period for claims for contribution
and indemnityand indemnity
 Generally accepted that the limitation clock does notGenerally accepted that the limitation clock does not
begin to run until the defendant has admitted liability, orbegin 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 beforeluxury of taking a “wait and see” approach before
incurring the cost of identifying and adding parties to aincurring the cost of identifying and adding parties to a
proceeding.proceeding.

15. New ActNew Act
 Bring claim within 2 year basic limitationBring claim within 2 year basic limitation
periodperiod
 No right to commence court proceedingNo right to commence court proceeding
for contribution or indemnity after thefor contribution or indemnity after the
expiryexpiry

16. Application of the New ActApplication of the New Act
The two-year limitation for contributionThe two-year limitation for contribution
and/or indemnity claims will begin to run theand/or indemnity claims will begin to run the
later of:later of:

the day on which the defendant is served withthe day on which the defendant is served with
a pleading in respect of a claim on whicha 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 orthe first day on which the defendant knew or
reasonably ought to have known that a claimreasonably ought to have known that a claim
for contribution and indemnity may be made.for contribution and indemnity may be made.

17. Transition PeriodTransition Period
Generally:Generally:
 No grandfathering or retroactivityNo grandfathering or retroactivity
 If the act or omission occurred and damage wasIf the act or omission occurred and damage was
discovered before June 1, 2013 the old Actdiscovered 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, 20132013 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

18. Practice TipsPractice Tips
Can you extend/shorten limitation periods?Can you extend/shorten limitation periods?
 Both Acts are silent (Note: Alberta andBoth Acts are silent (Note: Alberta and
Ontario)Ontario)
 Courts will likely to be guided by principles ofCourts will likely to be guided by principles of
fairness and unconscionabilityfairness and unconscionability
 Not likely to allow a shortening of a limitationNot likely to allow a shortening of a limitation
period where unjust, especially where there isperiod where unjust, especially where there is
an imbalance in sophistication/power of thean imbalance in sophistication/power of the
partiesparties

19. Practice TipsPractice Tips
Tolling AgreementsTolling Agreements
 Agreements between parties not to rely on theAgreements 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 ActLimitation Act does not apply…”;does not apply…”;

b. “…the parties agree to suspend/toll allb. “…the parties agree to suspend/toll all
relevant limitation periods under therelevant limitation periods under the Act…”Act…”;;
andand

c. “…the parties agree not to plead anyc. “…the parties agree not to plead any
limitation defence …”limitation defence …”

20. 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 problemsUnder 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 nextlet’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