Sunday, September 26, 2010

White Paper on Limitation Act Reform

The B.C. Ministry of the Attorney General has published its “White Paper on Limitation Act Reform.

The White Paper proposes significant changes to British Columbia’s Limitation Act. I will summarize a few of the highlights of the recommendations in this post. (I have written about our current Limitation Act here.)

If adopted the most of the basic limitation periods will be two years. This stands in contrast with the current legislation which sets out two years, six years or ten years, depending on the type of claim. Some claims would continue under the proposals to have longer basic limitation periods including claims on a judgment (ten years), or claims made by the government.

The basic limitation period would continue to start to run from the date the claimant discovered that he or she had a claim (or should have reasonably discovered the claim), but the language of this section will be simplified.

The ultimate limitation period would be changed to either ten or fifteen years. Currently, it is thirty years for most types of claims, but there is a six year limitation period for medical malpractice claims against hospitals and medical practitioners. The ultimate limitation period applies even if the claim is not discovered until later.

The ultimate limitation period will begin to run from the time of an act or omission giving rise to the claim, rather than when all of the elements of the claim are present. Currently, in the case of a claim in negligence the limitation period does not begin to run until the claimant has suffered damage. For example, if a building is negligently designed, put the damage to the building occurs years after the building is built, the ultimate limitation period does not begin to run until after the damage occurs. Under the proposed changes, the ultimate limitation period will begin to run from the date of the design, even though the damage may occur say fifteen years later.

If someone under the age of 19 has a claim, the running of both the basic limitation period and the ultimate limitation period would be postponed until the minor attains the age of 19, unless notice is given to the minor’s guardian and to the Public Guardian and Trustee to commence a claim earlier, in which case the basic limitation period will begin to run from the date notice is given.

Similarly, the basic limitation period would not begin to run against an adult person while he or she is under a legal disability. But the ultimate limitation period would not be affected by the disability, and would run from date of the act or omission.

The White Paper also includes a proposal to postpone the running of both the basic and ultimate limitation periods for fraud and fraudulent breach of trust, including claims against a trustee who willfully conceals the loss or damage, until the beneficiary becomes fully aware of his or her claim.

Currently, the limitation period for loans payable on demand begins to run from the date a loan is made, rather than from the date of demand. This can create problems for loans made within families. Parents will sometimes make loans to children on demand, without realizing that they may not be able to collect after six years (see my posts on this topic here and here). The White Paper contains a proposal that the basic and ultimate limitation periods would not begin to run until the borrower fails to pay after the lender demands payment.

Certain types of claims, such as claims based on sexual assault would continue to have no limitation period.

Some claims would continue to be governed by other legislation. For example, the limitation period for Wills Variation Act claims is governed by the Wills Variation Act, rather than by the Limitation Act. The White Paper proposes that other limitation periods be listed on a Schedule to the reformed Limitation Act.

You may comment on the White Paper until November 15, 2010 by sending your comments as follows:

Civil Policy and Legislation Office
Justice Services Branch
Ministry of Attorney General
PO Box 9222 Stn Prov Govt
Victoria, B.C. V8W 9J1
Facsimile: 250 387-4525

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