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 statute.

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.

Readers should note that the new Limitation Act provides for special discovery rules for specific types of claims, including claims involving fraud, trust obligations, and future interest in trust property. There are also special rules relating to discovery of claims by successors, predecessors, principals and agents. These rules should be reviewed carefully, as they alter the calculating formula for determining the running of the limitation period.

Importantly, the new Act does not apply where other enactments govern the limitation period. Businesses should be sure to review all applicable legislation, including the Builders Lien Act for limitation compliance.

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...