Practically speaking, it is often inconvenient and costly for
building professionals to keep project files; understandably, they
do not wish to retain files any longer than necessary. In
British Columbia, the provisions of the Limitation Act,
S.B.C. 2012, c. 13 (the "Act") should guide building
professionals in the formation of their records retention
The Act establishes limitation periods for civil actions, which
arguably indicate the duration of time that project files should be
kept. The Act does not contain any requirements with respect
to record retention, however, to fully defend claims made against
them, building professionals should have their complete project
file available to them.
Purpose of Limitation Period Legislation
When considering time requirements for record retention, it is
helpful to understand the policy rationale underlying limitation
The purpose of such legislation is to ensure that civil actions
are brought in a timely manner, while affording the plaintiff a
reasonable opportunity to seek legal advice, consider settlement,
and, if necessary, bring a claim. Any claim that is not
commenced within the "basic limitation period" is
vulnerable to a limitations defence which, if successful, will
result in the defendant being immune from liability.
The limitation period runs from the time the cause of action
arises. In order to protect the rights of the plaintiff, the
running of a limitation period can be postponed or suspended in
To avoid stale claims and the prospect for open-ended liability,
the Act prescribes an "ultimate limitation period", which
establishes an outside time limit for asserting a claim even where
one or more of the tolling provisions would otherwise extend the
running of time.
Overview of the Act as it Pertains to Record Retention
Two-Year Basic Limitation Period
The requirement for record retention turns upon the basic and
ultimate limitation periods.
The basic limitation period for most claims expires two years
after the claim is "discovered". A claim has been
discovered when the person ought to have known all of the
an injury, loss, or damage has occurred;
an act or omission caused or contributed to the injury, loss,
the act or omission was caused by the person against whom the
claim is made or may be made; and
a court proceeding would be an appropriate means to seek to
remedy the injury, loss, or damage.
15-Year Ultimate Limitation Period
The Act, which came into effect on June 1, 2013, shortened the
ultimate limitation period from 30 years to 15 years. This
period starts to run from the date the act/omission occurs, not the
date of discovery.
For example, if a plaintiff discovers a claim 18 years after an
act/omission by the defendant, the claim will be statute-barred,
even if the plaintiff has not yet suffered any damages.
However, if a defendant has wilfully concealed a claim, the Act
postpones the ultimate 15-year limitation period and deems the act
or omission to have taken place on the day the claim was
Records Created Before June 1, 2013
Under the transition provisions of the Act, the maximum exposure
to liability for acts/omissions that occurred before June 1, 2013
will end on June 1, 2028. Additionally, a claimant has one
year to serve the defendant under the British Columbia Supreme
Court Rules, which is added to this time period.
Therefore, records created before June 1, 2013 should be
31 years from the date of last entry (application of 30-year
ultimate limitation period plus one year for service); or
June 1, 2029 (the end date prescribed in the Act plus one year
for service) whichever comes first.
Records Created After June 1, 2013
If a professional has created records after June 1, 2013, those
records should be retained for at least 16 years from the date of
last entry (application of 15-year ultimate limitation period plus
one year for service).
What Does this Mean for Insurers?
In most instances, the project file is necessary for the defence
of a claim against a building professional. Without the file,
the insured, and their insurer, may be prejudiced or at a
disadvantage in the defence of the claim. Brokers should
encourage their clients to retain their complete project files for
the relevant period of time.
A prudent records retention policy for building professionals
may be summarized as follows:
For records created before June 1, 2013: retain
records for 31 years from the date of last entry or until June 1,
2029, whichever comes first.
For records created after June 1, 2013: retain
records for at least 16 years from the date of last entry.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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