Limitation Act

Limitation Act 13 2012 May 14, 2012 76470131/2103529917/875158003 E3tlc12013 1 Interpretation 1 Definitions Definitions 1 In this Act: basic limitation period , in relation to a claim, means the limitation period applicable to the claim under Part 2; caregiver means, a in relation to a minor, a parent, guardian or other person who usually has care and control of the minor, or b in relation to a person for whom a committee has been appointed under the Patients Property Act , the committee; claim means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; defendant includes a respondent; discover , in relation to a claim, has the meaning set out in Divisions 2 and 3 of Part 2; extraprovincial judgment means a judgment, order or award other than a local judgment; judgment means an extraprovincial judgment or a local judgment; limitation period , in relation to a claim, means the period after which a court proceeding must not be brought with respect to the claim; local judgment means any of the following: a a judgment, order or award of i the Supreme Court of Canada relating to an appeal from a British Columbia court, ii the British Columbia Court of Appeal, iii the Supreme Court of British Columbia, iv the Provincial Court of British Columbia, or v an arbitration to which the Arbitration Act applies; b an arbitral award to which the Foreign Arbitral Awards Act or the International Commercial Arbitration Act applies; person under a disability means an adult who is incapable of or substantially impeded in managing the adult's affairs; plaintiff includes a claimant and a petitioner; secured party means a person who has a security interest; security agreement means an agreement that creates or provides for a security interest; security interest means an interest in collateral that secures payment or performance of an obligation; ultimate limitation period , in relation to a claim, means the limitation period applicable to the claim under Part 3; writ of execution includes an order for seizure and sale issued under the Small Claims Rules. 2 Court Proceedings and Claims to Which This Act Does Not Apply Exempted court proceedings 2 1 This Act does not apply to the following court proceedings and has no impact on when or if such court proceedings may be brought: a an appeal; b a judicial review application; c a court proceeding under the Offence Act to prosecute an offence; d a court proceeding in which the only relief sought is to obtain a declaration; e a court proceeding to enforce a local judgment for the possession of land; f a court proceeding to enforce an injunction or a restraining order; g a court proceeding to enforce an easement, restrictive covenant or profit  prendre. 2 This Act does not apply to court proceedings based on existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed in the Constitution Act, 1982 . 3 Court proceedings referred to in subsection (2) are governed by the law that would have been in force with respect to limitation of actions if this Act had not been passed. Exempted claims 3 1 This Act does not apply to the following: a a claim that is subject to a limitation period established by an international convention or treaty that is adopted by an Act; b a claim for possession of land if the person entitled to possession has been dispossessed in circumstances amounting to trespass; c a claim for possession of land by a life tenant or person entitled to the remainder of an estate; d a claim for possession of land by a person who has a right to enter for breach of a condition subsequent, or a right to possession arising under possibility of reverter of a determinable estate; e a claim by a debtor in possession of collateral to redeem that collateral; f a claim by a secured party in possession of collateral to realize on that collateral; g a claim by a landlord to recover possession of land from a tenant who is in default or over holding; h a claim for the title to property by any person in possession of that property; i a claim relating to misconduct of a sexual nature, including, without limitation, sexual assault, i if the misconduct occurred while the claimant was a minor, and ii whether or not the claimant's right to bring the court proceeding was at any time governed by a limitation period; j a claim relating to sexual assault, whether or not the claimant's right to bring the court proceeding was at any time governed by a limitation period; k a claim relating to assault or battery, whether or not the claimant's right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant i was a minor, or ii was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery; l a claim for arrears of child support or spousal support payable under i a judgment, or ii an agreement filed with the court under section 148 (2) or 163 (3) of the Family Law Act ; m fines or penalties under the Offence Act ; n [Not enacted.] o fines or penalties under the Securities Act or a claim for an amount payable pursuant to an order made under section 155.1 (b), 157 (1) (b), 161 (1) (g) or 164.09 of that Act. 2 This Act does not apply to a claim or court proceeding for which a limitation period has been established under another enactment, except to the extent provided for in the other enactment. 3 Application Conflict of laws 4 1 If the substantive law of another jurisdiction is to be applied by the court in deciding a claim, the law of that other jurisdiction respecting limitation periods must be applied in relation to the claim. 2 Despite subsection (1) of this section, the court must apply section 3 (1) to any claim referred to in section 3 (1) (i), (j) or (k) whether or not the substantive law of another jurisdiction is to be applied by the court in deciding the claim. Rules of equity not overridden 5 Nothing in this Act interferes with any of the following: a a rule of equity that refuses relief, on the ground of acquiescence, to a person whose right to commence a court proceeding in respect of a claim is not barred by this Act; b a rule of equity that refuses relief, on the ground of inexcusable delay, to a person i who claims equitable relief in aid of a legal right, and ii whose right to commence a court proceeding in respect of a claim is not barred by this Act. 2 Basic Limitation Period 1 Establishment of Basic Limitation Period Basic limitation period 6 1 Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered. 2 The 2 year limitation period established under subsection (1) of this section does not apply to a court proceeding referred to in section 7. Basic limitation period for court proceeding to enforce or sue on judgment 7 Subject to this Act, a court proceeding must not be commenced to enforce or sue on a judgment for the payment of money or the return of personal property, a if the judgment is a local judgment, more than 10 years after the day on which the judgment becomes enforceable, or b if the judgment is an extraprovincial judgment, after the earlier of the following: i the expiry of the time for enforcement in the jurisdiction where the extraprovincial judgment was made; ii the date that is 10 years after the judgment became enforceable in the jurisdiction where the extraprovincial judgment was made. 2 Discovery of Claim General discovery rules 8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: a that injury, loss or damage had occurred; b that the injury, loss or damage was caused by or contributed to by an act or omission; c that the act or omission was that of the person against whom the claim is or may be made; d that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. Special situations for persons of full capacity 9 For a claim set out in section 12, 13, 14, 15, 16 or 17 of an adult person of full capacity, the discovery rules set out in that section apply. Special situations for minors 10 For a claim of a minor, the discovery rules set out in section 18 apply. Special situations for persons under disability 11 For a claim of a person under a disability, the discovery rules set out in section 19 apply. 3 Special Discovery Rules Discovery rule for claims based on fraud or recovery of trust property 12 1 In this section, fraud or trust claim means a a claim based on fraud, or fraudulent breach of trust, to which a trustee was a party or privy, b a claim to recover from a trustee trust property, or the proceeds from the trust property, if i that property is or those proceeds are in the possession of the trustee, or ii that property was or those proceeds were previously received by the trustee and converted to the trustee's own use, or c any other claim arising out of the fiduciary relationship between a trustee and a beneficiary if the trustee i wilfully conceals from the beneficiary the fact that A injury, loss or damage has occurred, B the injury, loss or damage was caused by or contributed to by an act or omission, or C the act or omission was that of the person against whom the claim is or may be made, or ii wilfully misleads the beneficiary as to the appropriateness of a court proceeding as a means of remedying the injury, loss or damage. 2 A fraud or trust claim is discovered when the beneficiary becomes fully aware a that injury, loss or damage had occurred, b that the injury, loss or damage was caused by or contributed to by the i fraud, ii fraudulent breach of trust, iii conversion, or iv other act or omission on which the claim is based, c that the fraud, fraudulent breach of trust, conversion or other act or omission was that of the person against whom the claim is or may be made, and d that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. 3 For the purposes of subsection (2), the burden of proving that a fraud or trust claim has been discovered rests on the trustee. Discovery rule for claims for future interest in trust property 13 A claim relating to a future interest in trust property is discovered on the later of the following: a the day on which the claim is discovered under section 8 or 12, as the case may be; b the day on which the interest becomes a present interest. Discovery rule for claims for demand obligations 14 A claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made. Discovery rule for claims to realize or redeem security 15 A claim to realize or redeem security is discovered on the first day that the right to enforce the security arises. Discovery rule for claims for contribution or indemnity 16 A claim for contribution or indemnity is discovered on the later of the following: a the day on which the claimant for contribution or indemnity is served with a pleading in respect of a claim on which the claim for contribution or indemnity is based; b the first day on which the claimant knew or reasonably ought to have known that a claim for contribution or indemnity may be made. Discovery rules for successors, predecessors, principals and agents 17 1 A claim of a person claiming through a predecessor in right, title or interest is discovered on the earlier of the following: a the day on which the claim is discovered by the predecessor; b the day on which the claim is discovered by the person claiming. 2 A claim of a principal, if the principal's agent had a duty to communicate to the principal knowledge of the matters referred to in section 8 (a) to (d), is discovered on the earlier of the following: a the day on which the claim is discovered by the principal's agent; b the day on which the claim is discovered by the principal. Discovery rule for minors 18 A claim of a minor is discovered, a unless a notice to proceed is delivered under paragraph (b) before the minor attains the age of 19 years, on the later of the following: i the day on which the minor attains the age of 19 years; ii the day on which the claim is discovered under section 8, 12, 13, 14, 15, 16 or 17, as the case may be, or b on the day on which a notice to proceed that complies with the requirements of section 20 (2) and any requirements prescribed under section 20 (5) is delivered in accordance with section 20 (1) and with any requirements prescribed under section 20 (5). Discovery rule for persons under disability 19 A claim of a person under a disability is discovered, a unless a notice to proceed is delivered under paragraph (b) before the person ceases to be a person under a disability, on the later of the following: i the day on which the person ceases to be a person under a disability; ii the day on which the claim is discovered under section 8, 12, 13, 14, 15, 16 or 17, as the case may be, or b on the day on which a notice to proceed that complies with the requirements of section 20 (2) and any requirements prescribed under section 20 (5) is delivered in accordance with section 20 (1) and with any requirements prescribed under section 20 (5). Notice to proceed if basic limitation period postponed under section 18 or 19 20 1 If the discovery rule under section 18 (a) or 19 (a) postpones the running of the basic limitation period applicable to a claim of a minor or a person under a disability and the minor or person under a disability has a caregiver, a person against whom the claim is or may be made may, for the purposes of section 18 (b) or 19 (b), deliver a notice to proceed to a the caregiver, and b the Public Guardian and Trustee. 2 A notice to proceed delivered under this section must meet all of the following requirements: a it must be in writing; b it must be addressed to the caregiver and to the Public Guardian and Trustee; c it must specify the name of the minor or person under a disability; d it must specify the circumstances out of which the claim arises or may be alleged to arise, with as much particularity as is necessary to enable the caregiver to investigate whether the minor or person under a disability has the claim; e it must give warning that, because of the delivery of the notice, section 6 or 7, as the case may be, applies as if the claim was discovered on the date of the delivery of the notice; f it must give the following warning as applicable: i if the person who may have the claim is a minor, that, because of the delivery of the notice, section 21 (2) (d) (ii) applies to limit the period within which a court proceeding may be commenced in relation to the claim; ii if the person who may have the claim is a person who was under a disability at the time at which the act or omission on which the claim is based took place, that, because of the delivery of the notice, section 21 (2) (e) (ii) applies to limit the period within which a court proceeding may be commenced in relation to the claim; g it must specify the name of the person on whose behalf the notice is delivered; h it must be signed by i the person on whose behalf the notice is delivered, or ii the person's solicitor. 3 Section 18 (b) or 19 (b) operates to benefit only the person on whose behalf the notice referred to in that section is delivered and only with respect to a claim arising out of the circumstances specified in the notice. 4 A notice to proceed delivered under this section is not an acknowledgement for the purposes of section 24 and is not an admission for any purpose. 5 The minister may make regulations prescribing the form, content and mode of delivery of a notice to proceed under this section. 3 Ultimate Limitation Period Ultimate limitation period 21 1 Subject to Parts 4 and 5, even if the limitation period established by any other section of this Act in respect of a claim has not expired, a court proceeding must not be commenced with respect to the claim more than 15 years after the day on which the act or omission on which the claim is based took place. 2 For the purposes of this section and subject to section 24 and subsection (3) of this section, for any of the following claims, the day an act or omission on which the claim is based takes place is as follows: a in the case of a claim arising out of a conversion, the day on which the property was first converted by any person; b in the case of a claim referred to in section 12, 13, 14 or 15, the day on which the claim is discovered in accordance with that section; c in the case of a claim for contribution or indemnity, the day on which the claimant for contribution or indemnity is served with a pleading in respect of a claim on which the claim for contribution or indemnity is based; d in the case of a claim of a minor, on the earlier of the following: i the day on which the minor attains the age of 19 years; ii the day on which the claim is discovered under section 18 (b); e in the case of a claim of a person who is under a disability at the time at which the act or omission on which the claim is based takes place, on the earlier of the following: i the day on which the person ceases to be a person under a disability; ii the day on which the claim is discovered under section 19 (b). 3 If a person against whom a claim is or may be made a wilfully conceals from the claimant the fact that i injury, loss or damage has occurred, ii the injury, loss or damage was caused by or contributed to by an act or omission, or iii the act or omission was that of the person against whom the claim is or may be made, or b wilfully misleads the claimant as to the appropriateness of a court proceeding as a means of remedying the injury, loss or damage, the act or omission on which the claim is based is deemed to have taken place on the day on which the claim is discovered under Part 2. 4 Factors Affecting Limitation Periods Counterclaim or other claim or proceeding 22 1 If a court proceeding has been commenced in relation to a claim within the basic limitation period and ultimate limitation period applicable to the claim and there is another claim (the "related claim") relating to or connected with the first mentioned claim, the following may, in the court proceeding, be done with respect to the related claim even though a limitation period applicable to either or both of the claims has expired: a proceedings by counterclaim may be brought, including the addition of a new party as a defendant by counterclaim; b third party proceedings may be brought; c claims by way of set off may be advanced; d new parties may be added or substituted as plaintiffs or defendants. 2 Nothing in subsection (1) gives a person a right to commence a court proceeding under subsection (1) (a) or (b) in relation to a claim for contribution or indemnity after the expiry of a limitation period applicable to that claim. 3 Subsection (1) does not enable a person to make a claim against another person if a claim by the other person a against the first mentioned person, and b relating to or connected with the subject matter of the proceeding, is or will be defeated by the first mentioned person pleading a provision of this Act as a defence. 4 Subsection (1) does not interfere with any judicial discretion to refuse relief on grounds unrelated to the expiry of a limitation period. 5 In any court proceeding, the court may, on terms as to costs or otherwise that the court considers just, allow the amendment of a pleading to raise a new claim even though, at the time of the amendment, a court proceeding could not, under section 6, 7 or 21, be commenced with respect to that claim. Completion of enforcement process 23 1 Despite any other provision of this Act, if, on the expiration of the limitation period established by section 7 with respect to proceedings on a judgment, an enforcement process is outstanding, the judgment creditor or the judgment creditor's successors may do any of the following: a continue proceedings on an unexpired writ of execution, but the writ may not be renewed; b commence or continue proceedings against land on a judgment registered under Part 5 of the Court Order Enforcement Act , but the registration may not be renewed unless those proceedings have been commenced; c continue proceedings in which a charging order is claimed. 2 If a court makes an order staying execution on a judgment, the running of the limitation periods established by this Act for proceedings on that judgment is postponed or suspended for so long as the order staying execution is in force. Limitation periods extended if liability acknowledged 24 1 If, before the expiry of either of the limitation periods that, under this Act, apply to a claim, a person acknowledges liability in respect of the claim, a the claim must not be considered to have been discovered on any day earlier than the day on which the acknowledgement is made, and b the act or omission on which the claim is based is deemed to have taken place on the day on which the acknowledgement is made. 2 An acknowledgement of liability in respect of a claim for interest is also an acknowledgement of liability in respect of a claim for a the outstanding principal, if any, and b interest falling due after the acknowledgement is made. 3 An acknowledgement of liability in respect of a claim to realize on or redeem collateral under a security agreement or to recover money in respect of the collateral, if made by a person in possession of the collateral, is an acknowledgement of liability in respect of the claim by any other person who later comes into possession of the collateral. 4 An acknowledgement by a trustee of liability in respect of a claim is an acknowledgement of liability in respect of the claim by any other person who is or who later becomes a trustee of the same trust. 5 An acknowledgement of liability in respect of a claim to recover or enforce an equitable interest in personal property, if made by a person in possession of the personal property, is an acknowledgement of liability in respect of the claim by any other person who later comes into possession of the personal property. 6 Subsection (1) does not apply to an acknowledgement, other than an acknowledgement referred to in subsection (7), (8) or (9), unless the acknowledgement is a in writing, b signed, by hand or by electronic signature within the meaning of the Electronic Transactions Act , c made by the person making the acknowledgement or the person's agent, and d made to the person with the claim, the person's agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada). 7 In the case of a claim for payment of a liquidated sum, part payment of the sum by the person against whom the claim is or may be made or by the person's agent is an acknowledgement by the person against whom the claim is or may be made of liability in respect of the claim. 8 A debtor's performance of an obligation under or in respect of a security agreement is an acknowledgement by the debtor of liability in respect of a claim by the creditor for realization on the collateral under the security agreement. 9 A creditor's acceptance of a debtor's payment or performance of an obligation under or in respect of a security agreement is an acknowledgement by the creditor of liability in respect of a claim by the debtor for redemption of the collateral under the security agreement. 10 This section applies to an acknowledgement of liability in respect of a claim for payment of a liquidated sum even though the person making the acknowledgement refuses or does not promise to pay the sum or the balance of the sum still owing. 5 Suspension of Limitation Periods Limitation periods suspended if claimant becomes person under disability 25 1 Subject to section 26, if a person with a claim becomes a person under a disability, the basic limitation period and ultimate limitation period applicable to the claim do not run while the person continues to be a person under a disability. 2 If the running of the basic limitation period applicable to a claim has been suspended by subsection (1), the basic limitation period resumes running when the person with the claim ceases to be a person under a disability, and that basic limitation period is the longer of the following: a the length of time that, when the person with the claim became a person under a disability, remained in the basic limitation period applicable to the claim; b one year from the time that the person with the claim ceased to be a person under a disability. 3 If the running of the ultimate limitation period applicable to a claim has been suspended by subsection (1), the ultimate limitation period resumes running when the person with the claim ceases to be a person under a disability, and that ultimate limitation period is the longer of the following: a the length of time that, when the person with the claim became a person under a disability, remained in the ultimate limitation period applicable to the claim; b one year from the time that the person with the claim ceased to be a person under a disability. Notice to proceed if limitation periods suspended under section 25 26 1 If, under section 25, the running of the basic limitation period applicable to a claim and the running of the ultimate limitation period applicable to the claim are suspended in relation to a person under a disability and that person has a caregiver, a person against whom the claim is or may be made may deliver a notice to proceed to a the caregiver, and b the Public Guardian and Trustee. 2 A notice to proceed delivered under this section must meet all of the following requirements: a it must be in writing; b it must be addressed to the caregiver and to the Public Guardian and Trustee; c it must specify the name of the person under a disability; d it must specify the circumstances out of which the claim arises or may be alleged to arise, with as much particularity as is necessary to enable the caregiver to investigate whether the person under a disability has the claim; e it must give warning that the following apply to limit the period within which a court proceeding may be commenced in relation to the claim: i section 21; ii because of the delivery of the notice, section 25 (2) and (3); f it must specify the name of the person on whose behalf the notice is delivered; g it must be signed by i the person on whose behalf the notice is delivered, or ii the person's solicitor. 3 If a notice to proceed a complies with the requirements of subsection (2) of this section and any requirements prescribed under subsection (6) of this section, and b is delivered in relation to a claim in accordance with subsection (1) of this section and with any requirements prescribed under subsection (6) of this section, section 25 (2) and (3) applies to the limitation periods applicable to the claim as if the person with the claim ceased, on the date of the delivery of the notice, to be a person under a disability. 4 Subsection (3) of this section operates to benefit only the person on whose behalf the notice referred to in that subsection is delivered and only with respect to a claim arising out of the circumstances specified in the notice. 5 A notice to proceed delivered under this section is not an acknowledgement for the purposes of section 24 and is not an admission for any purpose. 6 The minister may make regulations prescribing the form, content and mode of delivery of a notice to proceed under this section. 6 General Non-judicial remedies 27 1 In this section, non-judicial remedy means a remedy that a person is entitled, by law or by contract, to exercise in respect of a claim without court proceedings. 2 If a claimant is prevented from commencing a court proceeding in relation to a claim as a result of the expiry of a limitation period under this Act, the claimant is not entitled to exercise against the person against whom the claim is or may be made, or against any other person, any non-judicial remedy that the claimant would, but for this section, be entitled to exercise in relation to the claim. Adverse possession 28 1 Except as specifically provided by this or any other Act, no right or title in or to land may be acquired by adverse possession. 2 Nothing in this Act interferes with any right or title to land acquired by adverse possession before July 1, 1975. Power to make regulations 29 The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act . Transition 30 1 In this section: effective date means the day on which this section comes into force; former Act means the Limitation Act , R.S.B.C. 1996, c. 266, as that Act read immediately before the effective date; former limitation period means, with respect to a pre-existing claim, a limitation period that applied to the pre-existing claim before the effective date; pre-existing claim means a claim a that is based on an act or omission that took place before the effective date, and b with respect to which no court proceeding has been commenced before the effective date. 2 A court proceeding must not be commenced with respect to a pre-existing claim if a a former limitation period applied to that claim before the effective date, and b that former limitation period expired before the effective date. 3 Subject to subsection (2), if a pre-existing claim was discovered before the effective date, the former Act applies to the pre-existing claim as if the right to bring an action occurred at the time of the discovery of the pre-existing claim. 4 Subject to subsection (2), if a pre-existing claim was not discovered before the effective date, a in the case of a pre-existing claim referred to in section 3 of this Act, that section applies to the pre-existing claim, b subject to paragraph (a) of this subsection, in the case of a pre-existing claim referred to in section 8 (1) (a) or (b) of the former Act, Part 2 of this Act and section 8 of the former Act apply to the pre-existing claim, or c in the case of any other pre-existing claim, i subject to subparagraph (ii) of this paragraph, this Act applies to the pre-existing claim, and ii Part 3 of this Act applies to the pre-existing claim as if the act or omission on which the pre-existing claim is based occurred on the later of A the effective date, and B the day the act or omission takes place under section 21 (2) of this Act. 5 Nothing in this section restricts the right of a person to bring a court proceeding at any time in relation to a claim referred to in section 3 (1) (i), (j) or (k) of this Act, whether or not the claimant's right to bring the court proceeding was at any time governed by a limitation period. Repeal 31 [Note: See Table of Legislative Changes for the status of sections 31 to 46.] Section(s)  Affected Act 31  Limitation Act , R.S.B.C. 1996, c. 266 Consequential and Related Amendments 32-44 Section(s)  Affected Act 32  Adult Guardianship and Planning Statutes Amendment Act, 2007 33  Age of Majority Act 34  Apology Act 35  Business Practices and Consumer Protection Act 36  Environmental Management Act 37  Family Law Act 38  Financial Administration Act 39  Forest Act 40  Infants Act 41  Insurance Act 42  Insurance Amendment Act, 2009 43  Miscellaneous Statutes Amendment Act (No. 2), 2000 44  Settlement of International Investment Disputes Act Amendments to this Act 45-46 Section(s)  Affected Act 45-46  Limitation Act , S.B.C. 2012, c. 13 Commencement 47 This Act comes into force by regulation of the Lieutenant Governor in Council.