Commercial Litigation and Dispute Resolution Blog

Most claims that have to be pursued by way of a court proceeding are subject to a limitation period, i.e., a time period within which the court proceeding must be commenced. Failing to commence the proceeding within the limitation period results in the claim being barred.

The basic limitation period under the Limitation Act, R.S.B.C. 1996, c. 13, is two years from the date the claim was discovered. Other claim-specific limitation periods can be found in various statutes.

Individuals and businesses may have been considering commencing a court proceeding in relation to a claim based on events that happened in the recent past. For example, if Party A breached a contract for the supply of auto parts in July of 2018, Party B may have been considering pursuing a claim against Party A by commencing an action in the Supreme Court of British Columbia. Party B is aware that the limitation period will expire in July of 2020 (subject to precise calculations as to when the breach occurred and was discovered). However, in light of the COVID-19 pandemic, Party B would have justified concerns about being able to assemble the information needed to instruct their lawyer and commence an action.

The B.C. government has acted expeditiously to remove the uncertainty caused by this situation.

By way of a Ministerial Order dated March 26, 2020 (the “Order”) and made pursuant to the Emergency Program Act, R.S.B.C. 1996, c. 111, the British Columbia Ministry of Public Safety and Solicitor General has suspended every “mandatory limitation period” as well as “any other mandatory time period” within which a civil or family action, proceeding, claim or appeal must be commenced. 

NOTE: a new ministerial order has replaced the Ministerial Order of March 26. Details on the New Order can be found in our blog here. 

The Order applies from March 26, 2020, and ends on the date which the declaration of a state of emergency in B.C. expires or is cancelled, or the date on which any extension of that declaration expires or is cancelled.

In the example above, the limitation period for Party B commencing its action has not yet expired; once the Order ends, Party B will still have the amount of time it had left on March 25, 2020, to start its court proceedings.

As noted above, the Order also suspends any other mandatory time period that is established in an enactment or law in B.C. within which a civil or family action, proceeding, claim or appeal must be commenced in a B.C. court.

Not all proceedings for relief are brought before a court. The Order has recognized this reality, mandating that “[a] person, tribunal or other body that has a statutory power of decision may waive, suspend or extend a mandatory time period relating to the exercise of that power”. The Order is therefore worded in such a way as to leave it up to those with a “statutory power of decision” to decide whether to modify a mandatory time period. That quoted phrase is defined under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, as follows:

“statutory power of decision” means a power or right conferred by an enactment to make a decision deciding or prescribing

(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or

(b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person is legally entitled to it,

and includes the powers of the Provincial Court…

For example, s. 243(1) of the Workers Compensation Act, R.S.B.C. 1996, c. 492, provides that an appeal from the Review Division must be filed within 30 days of that decision. Section 243(3) allows the chair of the Workers’ Compensation Appeal Tribunal (“WCAT”) to extend the time to appeal in “special circumstances”. Presumably the effect of the Order will be to expand what WCAT may consider in determining whether special circumstances precluded the filing of an appeal on time.

The Order only applies to suspend limitation periods and other mandatory time periods under B.C. enactments. If your claim was governed by federal law, for example, or the law of Alberta, the Order would not suspend the relevant limitation period or other mandatory time period.

Accordingly, it will be important to determine whether B.C. law applies to your claim. B.C. law, including B.C. limitation law as modified by the Order, will not apply automatically simply because a party sues here. Parties may have stipulated that another jurisdiction’s law applies by contract. Further, under conflict of laws principles, courts may conclude that because another claim is more clearly connected to a jurisdiction other than B.C., that other jurisdiction’s law applies to the claim.

If B.C. law does not apply, you will have to determine whether the jurisdiction whose law does apply has enacted a similar emergency Order (Ontario has done so, for example).

Note as well that the Order does not apply to time limits unrelated to the commencement of a court proceeding or the exercise of a statutory power of decision. Deadlines for filing various types of liens, for example, are not covered by the Order. Court deadlines that do not relate to commencement of a proceeding are also not covered.

It may be that the Order will be expanded to cover other subject matters as the pandemic continues to require extraordinary measures to prevent the spread of COVID-19.

For clarification about which jurisdiction’s law applies to your claim, whether time limits related to a proposed claim are suspended by the Order, or more generally about the effects of the Order, please do not hesitate to contact our COVID-19 Response Team, on these topics or any other.