COURT CASES on LIMITATION PERIODS and TIME LIMITS

 

Depending on the nature of your claim, there can be strict limitation periods and time limits for you to perform a certain action, such as commencing legal proceedings, notifying ICBC or municipalities of your claim, or serving legal documentation on the Defendants. Failure to do so can result in your claim being lost forever. The applicable limitation periods for British Columbia civil matters are set out in the Limitation Act, and other time limits are found in various statutes and the British Columbia Supreme Court Civil Rules. Generally speaking, most civil matters in British Columbia have a two year limitation period within which to commence legal proceedings.  In certain circumstances, the limitation period can be postponed.

 

POSTPONEMENT of LIMITATION PERIOD

 

Section 6(4) of the Limitation Act discusses the postponement of the running of a limitation period.

 

In Iezzi v. R., the Plaintiff commenced legal proceedings, claiming she had been accidentally infected with Hepatitis C by a syringe as she worked as a foster parent. She did not sue until eight years after the incident. The Ministry of Children and Family Development argued that the matter was statute barred, as it was not brought within the applicable two year period. The Court, however, ruled that ongoing settlement negotiations and other factors caused the relevant limitation period to be postponed.

 

[10]           Section 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266 (“Act ”), provides for a limitation period of two years.  Section 6(4) of the Act provides for the postponement of the running of the limitation period as follows: 

 

Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant, and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that

 

(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and

(b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.

 

[15] I am satisfied that there was a postponement of the limitation period to sometime between the Spring of 2008 and the Fall of 2008 as a result of a number of factors.  There were negotiations with the Ministry during 2006 and until April 2008 regarding a possible settlement of damages flowing from the Hepatitis C infection and from the breach of contract.  It would have been unwise to interrupt those by the commencement of an action.  While negotiations were ongoing and while there was still a hope that a settlement could be reached, a reasonable person would believe that it was not necessary to commence an action for damages flowing from the Hepatitis C infection.  It was not until the April 1, 2008 meeting with a Ministry representative that the final position of the Ministry regarding a possible settlement was received.  Even then, Ms. Iezzi advised the Ministry that she had “no desire to go to a lawyer” although she also did advise that “I have been left with no other choice”.  It was only at that point that negotiations came to a conclusion and that Ms. Iezzi was left with no other alternative.

 

[16] It was not until sometime between April 2008 and September 2008 that Ms. Iezzi obtained the actual documentation relating to the Hepatitis C status of MW.  Before commencing an action, a reasonable person would first ascertain the exact knowledge the Ministry had about the Hepatitis C status of MW when she was placed as a foster child.  A reasonable person would not want to rely on the unsubstantiated information that was available from an employee of the Ministry.  A reasonable person would first wish to see the actual documentation before proceeding.  That documentation was not available to Ms. Iezzi until she ascertained in a document that was made available to her that the Ministry was aware that MW had Hepatitis C when MW was placed with her because the Ministry was in possession of the records available from the Juvenile Detention Centre.

 

[17] Until that information was available, it would have been foolhardy and unreasonable for a person to conclude that an action should be commenced and that there was a reasonable or any possibility of success.  Until the actual documentation was available to her, Ms. Iezzi had only the hearsay statements from her resource worker.  It was reasonable not to proceed until a determination could be made that there was a reasonable prospect of success and that there was a reasonable prospect of there being sufficient funds available if an action was successful to justify the action being commenced in the first place.

 

[18] I also consider that Ms. Iezzi was under intense stress.  I am satisfied that I should take into account a number of circumstances in dealing with whether the running of the limitation period should be postponed.  First, she had lost her house.  Second, she had lost her health as a result of the Hepatitis C infection.  Third, she had lost her livelihood because she could no longer take foster children.  At the same time to require her to face the intense stresses and strains involved in suing the Province is unrealistic.

 

[19] Taking into account all of the circumstances surrounding the commencement of this action in October 2009, I am satisfied that the application of the Defendant should be dismissed.

 

NO POSTPONEMENT of LIMITATION PERIOD

 

It should be remembered that each case has its’ own unique set of facts, and in certain circumstances where a limitation period has been missed, the Court may very well rule that the claim would be lost.

 

In Telus Corporation v Araneda, the Plaintiff wished to sue the Defendant for property damages arising out of a motor vehicle accident. Legal proceedings were commenced nine days after the two year mark. The Plaintiff argued that they were waiting for the police report to properly ascertain the identity of the Defendant, however the Court ruled that this was insufficient to postpone the limitation period.

 

[20]         On the day of the accident, Telus, through its employee Dale Summers, knew it had a claim for property damage and knew the name of the tortfeasor was immediately ascertainable from a reliable source, the RCMP.

 

[21]         In saying so, I reject Telus’ argument that a large enterprise should be judged on its “ individual circumstances” and that its step-wise approach to the management of its legal claims is akin to the situation in Strata Plan LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of Appeal upheld a judge of this Court who had found that an action brought by a strata corporation against an individual one day outside the limitation period was not statute-barred because the strata corporation was obliged to pass a resolution before it could initiate the action, and doing so took some time.

 

[22]         Telus was not impeded by a statutory prerequisite, and there is no reason in principle why a large organization should be judged by a more accommodating standard than would apply to any competent individual. As in Meeker, Telus knew on the first day of the accident that it had suffered actionable harm and that the name of the person involved was ascertainable.

 

[23]         It is regrettable that the limitation period went by in this case. As some of the case law demonstrates Courts frequently go some distance to ensure that cases are tried on their merits. The policy inherent in limitation periods, however, must also be respected. Applying the relevant legal principles to the present case, Telus has not established that it is entitled to postponement, and the action must be dismissed.

 

NO RENEWAL of ORIGINATING LEGAL DOCUMENTATION

 

Rule 3-2(1) of the British Columbia Supreme Court Civil Rules allows the Court to renew originating legal documentation, in certain circumstances, after the limitation period has expired.

 

In Mackie v. McFayden, the Plaintiff properly commenced legal proceedings, properly served the documentation on the Defendant driver, but failed to serve the documentation on the Defendant owner within one year of filing the original documentation. The Court refused to allow a renewal of the originating documentation, thereby causing the Plaintiff’s claim to be dismissed.

 

[19]        The law regarding the renewal of the writ is relatively straightforward. Five factors are to be considered:

 

1. Whether the application to renew was made promptly;

2. Whether the defendant had notice of the claim before the writ expired;

3. Whether the defendant is prejudiced;

4. Whether the failure to effect service was attributable to the defendant; and

5. Whether the plaintiff, as opposed to his solicitor, is at fault.

 

Imperial Oil Ltd. V. Michelin North America (Canada) Inc. (2008), 81 B.C.L.R. (4th) 99 (C.A.).

 

[22]        In this case, the application for renewal of the writ was not made promptly. The writ expired in April 2008; the application for renewal was made eighteen  months later.

 

[23]        There is no evidence to suggest that Ms. McFayden has had notice of this claim.

 

[24]        Mr. Klear submits that there is prejudice to Ms. McFayden. While ICBC will defend the claim, it may seek indemnification for damages paid to the plaintiff.

 

[25]        Whether or not that is the case, prejudice may be presumed simply by the passage of time without the defendant McFayden having to prove actual prejudice: Mountain West Resources Ltd. v. Fitzgerald (2005), 37 B.C.L.R. (4th) 134 (C.A.). In this case, the writ has been outstanding for nearly three years.

 

[26]        There is no evidence that the failure to renew the writ is the fault of the defendant McFayden.

 

[27]        On the other hand, it would appear that the plaintiff’s solicitors (as opposed to the plaintiff) neglected to proceed with the application to renew the writ. Importantly, no explanation whatsoever is offered for this delay. The plaintiff may have his own remedy in these circumstances: Skolnick v. Wood, [1981] 2 W.W.R. 649. However, given the defendant Olson’s position that there is no cause of action against Ms. McFayden, the plaintiff may not need to seek such relief.

 

[28]        Balancing all of these factors, I am persuaded that the writ should not be renewed. Thus, the plaintiff’s motion is dismissed in its entirety.