Commercial Litigation and Dispute Resolution Blog

Since we wrote our blog post of March 30, 2020, entitled “Suspension of Mandatory Limitation Periods & Other Mandatory Time Periods for Commencement of Proceedings in British Columbia,” there has been an important change to the law in B.C.

Ministerial Order No. M086 (the “Prior Order”), discussed in that blog post, was repealed and replaced by Ministerial Order No. M098 (the “New Order”).

What stays the same? Subject to the two important exceptions described below, mandatory limitation periods and mandatory time periods within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal is suspended until the date on which the last extension of the provincial state of emergency expires or is cancelled.

What has changed? The New Order adds two exceptions to the general proposition above. There is no suspension of any mandatory limitation period and any other mandatory time period established under: a) the Builders Lien Act (the “BLA”); and b) Division 5 of Part 5 of the Strata Property Act (which is entitled “Builders Liens and other Charges”).

Since the Prior Order did not suspend the time limits for filing liens under these two statutes, the reasoning behind the New Order may include that it is therefore consistent to require that limitation periods in relation to such claims also be complied with. It also undoubtedly permits the release of holdbacks which arguably could not be released while the suspension under the Prior Order remained in effect. The New Order expressly provides that the exception from the suspensory effect of s. 2(1) of that Order to “any other time limit established under these two enactments,” removing any uncertainty as to whether time limits for filing liens or other statutory time limits, such as those for delivering and posting a certificate of completion, were suspended under the Prior Order.

The New Order is therefore a welcome addition. The main benefit of excepting the BLA from the New Order is that, as mentioned, it allows holdback funds to be disbursed down the contractual chain on many construction projects thereby providing a much needed infusion of cash to contractors and subcontractors as well as their respective employees. Thus, the New Order removes a likely unintended consequence of the Prior Order which may have prevented that from occurring.

For more information or advice on time limits for filing liens and commencing actions under these enactments, contact Michael B. Morgan at mmorgan@lawsonlundell.com.