and Taahaa Patel, Articled Student
The provincial government has announced that suspended limitation periods, or deadlines by which a claimant must commence court proceedings, will resume running on March 25, 2021.
Background
After the provincial government declared a state of emergency due to the COVID-19 pandemic, it suspended the running of limitation periods, which require that a party take certain steps, such as filing a claim, before a particular deadline.
The Ministerial Orders
Initially, under the Emergency Program Act, R.S.B.C. 1996, c. 111 (the “EPA”), the government issued two Ministerial Orders (the “Orders”):
- On March 26, 2020, the government suspended mandatory limitation periods and other mandatory time periods for commencing a civil or family action, proceeding, claim, or appeal in B.C. (Ministerial Order MO86 (“Order No. 1”).
- On April 15, 2020, the government replaced and repealed the previous order (Ministerial Order No. MO98 (“Order No. 2”). Order No. 2 continued to suspend mandatory limitation periods, but provided an exception to the suspension of limitation periods for those established under the Builders Lien Act and Division 5 of Part 5 of the Strata Property Act. These exceptions addressed the unintended impact that Order No. 1 had on the construction industry.
Concurrently, the B.C. Supreme Court suspended filing and service timelines from March 18, 2020 to May 29, 2020. Except for a Request for Urgent Hearing, Telephone Conference Hearing, or Application by Written Submissions, documents filed between March 19, 2020 and May 28, 2020 were deemed to have been filed on May 29, 2020.
The COVID-19 Related Measures Act
On July 8, 2020, the Legislature passed the COVID-19 Related Measures Act (the “CRMA”), which came into force on July 10, 2020.
The CRMA continued the suspension of limitation periods and incorporated the Orders into Schedule 2 of the CRMA. The reason for this change was to detach the Orders from the EPA and make them a part of the COVID-19 provision instead. This allowed the effects of the Orders to last beyond the state of emergency if necessary.
On August 4, 2020, the government approved the COVID-19 (Limitation Periods in Court Proceedings) Regulation, B.C. Reg. 199/2020 (the “Regulation”). The main effect was to change the end date for the suspension in respect of the Court of Appeal from 90 to 45 days beyond the end of the state of emergency. The CRMA and the Regulation provided that limitation periods and any other time periods for commencing a civil or family action, proceeding, claim or appeal in the B.C. Supreme Court would end 90 days after the state of emergency was over.
The following Order in Council, discussed below, changed this end date.
When Does the Limitation Period Suspension End?
The suspension of limitation periods ends on March 25, 2021.
Order in Council 655/2020, effective March 25, 2021, provides as follows:
On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that
(a) sections 2 and 3 of Appendix 2 of B.C. Reg 199/2020 are repealed, and
(b) effective March 25, 2021, item 27 of Schedule 2 of the COVID-19 Related Measures Act, S.B.C. 2020, c. 8, is repealed.
This means that the suspension of mandatory limitation periods will end on March 25, 2021.
This also severs the link between the suspension of limitation periods and the state of provincial emergency.
What Is the Effect of Ending or Repealing the Limitation Act Suspension?
According to the Interpretation Act, R.S.B.C. 1996, c. 238, the effect of repealing a regulation is as follows:
Where an enactment is repealed in whole or in part, the repeal does not
(b) affect the previous operation of the enactment so repealed or anything done or suffered under it;
(c) affect a right or obligation acquired, accrued, accruing or incurred under the enactment so repealed….
How Do I Calculate the Expiry of a Limitation Period after the Suspension Ends?
While the suspension is in effect, any running of a limitation period is paused. When the suspension is lifted, an applicable limitation period will resume running.
For ease of calculating limitation periods, the suspension will have lasted for exactly one year when it is lifted on March 25, 2021.
As the Orders and the Regulation suspended the limitation periods and other time periods, in calculating limitation period end date, one would not count the days on which the provisions were in force.
In calculating limitation expiry, be aware of whether the limitation date would fall during the suspension period or after the suspension period.
The BC Ministry of Attorney General gives the following example:
If you had five days remaining in your limitation period before Limitations Order #1 came into force, then you would still have five days remaining, starting on the day after the applicable paragraph of subsection 1(1) of the COVID-19 (Limitation Periods in Court Proceedings) Regulation (as enacted as a COVID-19 provision) is repealed.
If the limitation period had expired before the suspension period, it would remain expired.
If a cause of action arose during the suspension period, the limitation period will begin running at the end of the suspension period.
The Law Society of B.C. has provided helpful guidelines and examples for calculating the effect of the suspension of limitation periods in various scenarios.
Mandatory limitation periods will have been suspended for one year, from the beginning of the day on March 26, 2020 to the end of the day on March 25, 2021.
The expiry of a limitation period may completely stop a claimant from getting a legal remedy, so it is critical to seek legal advice as early as possible if you have a legal claim. If you are considering starting a legal action, please contact a lawyer at Owen Bird Law Corporation. The foregoing article is provided for general informational purposes only and is not legal advice.