Canada: New British Columbia Limitation Act

On June 1, 2013 the significantly revamped Limitation Act will come into effect in British Columbia. The Act imposes a tight two-year limitation period on most claims. Any company or person with business ties to British Columbia should closely monitor areas where litigation may be necessary, and review contractual provisions concerning potential litigation, to make sure that any potential claims are not statute-barred by the new Act.

We set out below the main changes under the new Act: this Alert is not intended to be an exhaustive review of the new Act.

GENERAL TWO-YEAR LIMITATION PERIOD

Under the new Limitation Act, in most circumstances, the claimant must sue within two years of the discovery of the claim. For most claims, this is a significant shortening of the limitation period under the present Act.

A claim is "discovered" under the new Limitation Act when the claimant knows that injury, loss or damage has occurred as a result of the defendant's actions, and that a court proceeding would be an appropriate way to address that harm. A claimant must exercise reasonable diligence in investigating, discovering, and acting on a potential claim

ULTIMATE LIMITATION PERIOD REDUCED TO 15 YEARS

Even if the two-year limitation period can be extended through late discovery, a claim must still be brought within the "ultimate limitation period". The new Act sets this period at 15 years (cutting in half the current ultimate limitation period of 30 years).

The ultimate limitation period "clock" starts ticking when the original act or omission takes place, regardless of whether damage has yet occurred or whether the claim has been discovered.

Once 15 years from the original act or omission has passed, all remedies, even private remedies (including arbitration rights and references to accountants and auditors), are extinguished, barring any claim.

This extinguishment, however, is modified in three important ways. First, if the defendant confirms that the claimant has a claim against the defendant, the limitation clock will be reset for both the basic limitation period and the ultimate limitation period. Second, the basic limitation period and the ultimate limitation period do not run, subject to few exceptions, while the person with the claim is under a disability or is a minor (under 19 years of age). Finally, the new Limitation Act sets out specific types of claims (including fraud) where the ultimate limitation period "clock" does not start until the discovery of the claim, which is subject to special discovery rules set out in the Act.

DOES THE OLD ACT OR THE NEW ACT APPLY?

The new Act does not provide for grandfathering or retroactivity. If the act or omission occurred and was discovered before the new Act is enacted (i.e. before June 1^st), the limitation period under the current Act will apply. If the act or omission occurred prior to the new Act coming into force, but was not discovered until after June 1, 2013, the limitation period under the new Act will apply.

This change may make a significant difference for litigants, as some claims discovered but not brought prior to June 1, 2013 may have a limitation period of 6 or 10 years, while that same claim, if discovered after June 1, 2013, will only have a limitation period of 2 years.

SHORTENED LIMITATION PERIODS FOR CLAIMS FOR CONTRIBUTION AND INDEMNITY

The new Act will also significantly reduce a defendant's right to bring claims for contribution and indemnity against third parties. Under the current Act, a defendant may wait and see whether he loses at the first trial before claiming against another party for contribution and indemnity. Under the new Act, however, the defendant will have to name as a third party or sue for contribution and indemnity soon after the start of the initial lawsuit.

ALL DISPUTES NOW IN REAL TIME

Claimants can no longer take a leisurely wait-and-see approach. All potential claims in all past and ongoing projects should be reviewed. Potential problem areas in ongoing projects and transactions should be anticipated, monitored, investigated, and swiftly acted upon. If in doubt, sue.

REVIEW CONTRACTUAL REMEDIES

When a limitation period expires, the claimant is not only barred from filing a claim in court. Instead, all judicial AND non-judicial remedies are extinguished. In other words, not only is the claimant prevented from suing, but is also be prevented from demanding payment, carrying out rent distress, repossessing vehicles and other secured goods, or starting an arbitration. Many contracts, such as joint-venture agreements, will set out processes for dealing with disputes. If those processes take longer than 2 years, the aggrieved party may be out of luck in pursuing a remedy. It is thus crucial to review all contracts with dispute-resolution provisions in light of the new Act.

IS IT POSSIBLE TO CONTRACT OUT OF THE NEW ACT, AND SHORTEN OR LENGTHEN LIMITATION PERIODS?

The new Limitation Act does not expressly allow parties to contract out of the Act. The validity of provisions that attempt to shorten or lengthen time periods for litigation remains uncertain. It is likely that shorter limitation periods will only be permissible between sophisticated business parties, each bargaining with equal power.

That being said, contracts that set down a shorter (or longer) limitation period should be reviewed and potentially redrafted to better permit alteration of a time period for dispute resolution.

IMPORTANT IMPLICATIONS FOR THE INSURANCE WORLD

The following are of particular importance to insurance companies and companies affected by insurance issues:

• The changes to third-party claims for contribution and indemnity are the most significant for insurers: if in doubt, add the party, and do soon after receiving a claim.
• The significant limitation period amendments in The Insurance Act (in effect July 1, 2012), remain in effect, and will govern limitation periods falling within those specific areas.
• The Insurance Act expressly allows parties to extend (but not shorten) limitation periods: that provision will prevail over the new Act's silence on the issue.
• Given the policy goal of swifter resolution of disputes, courts may expect insurers to exercise greater diligence and speed in investigating and suing to recoup payments on fraudulent insurance claims, despite the provisions extending the limitation period to two years following discovery.
• Medical professionals no longer enjoy a tighter 6-year ultimate limitation period, but are subject to the same 15-year ultimate limitation period as everyone else: resulting in increased exposure and revised and lengthened document retention policies.
• Given the standard 2-year limitation period, insurers may expect fewer attempts by plaintiffs to do an "end-run" around the limitation period by framing a claim in breach of trust or fiduciary duty.
• Strategic litigation decisions and opportunities: defendants may be better able to have statute-barred claims dismissed at an early stage. Standard choice-of-law clauses should also be reconsidered in light of the tight BC limitation period: it may be more desirable to sue or be sued elsewhere.
• Given the tight limitation periods, insurers and other companies will wish to review all systems for limitation period alerts and starting litigation. If in doubt, sue.

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.