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This video provides an explanation of the transition rules in British Columbia's new Limitation Act.
In order to understand the transition rules,
it's helpful to have a comparison of how time ran in the basic and ultimate limitation periods
under the former Act
as compared to the new Act.
Under the former Act
there were two different ultimate limitation periods:
a general 30-year ultimate limitation period, which applied to most claims
a general 30-year ultimate limitation period, which applied to most claims
and a 6-year ultimate limitation period,
which applied to medical malpractice
and negligence claims against doctors,
hospitals and hospital employees.
The ultimate limitation period under the former Act
began to run from the "accrual"
of the legal claim.
Accrual occurred once all of the elements of the legal claim a present.
For example,
in a negligence claim, the ultimate limitation period would not start to run
until both a negligent act
and the damage had occurred because these are both elements of a claim
in negligence.
Under the former Act
there were three different basic limitation periods:
2 years,
6 years and 10 years.
The length of the basic limitation period
depended upon what type of legal claim was being made.
The basic limitation period ran from discovery in some cases,
but in other cases it started to run from the date that all of the individual
elements of the legal claim were present,
or the "accrual" of the legal claim.
Now, under the new Act,
there is a single 15-year ultimate limitation period
which applies to all claims.
The ultimate limitation period
runs from the act or omission on which the legal claim is based.
There is a 2-year basic limitation period that applies to all claims
unless the new Act specifies otherwise.
The 2-year basic limitation period runs from the date
that the person discovers they have a legal claim.
With this comparison of the basic and ultimate limitation periods in the
former and new Acts in mind,
let's move on to the transition rules.
Section 30 of the new Act
contains a transition clause.
This transition clause ensures that people who have legal problems that existed before
June 1, 2013
June 1, 2013
can still rely on the legal advice that was given to them
before the new Limitation Act came into force.
Remember, June 1, 2013 is the date that the new Act came into force.
When you look at the transition rules you may be wondering,
when do these apply, and how do they work?
There are a few things to keep in mind,
the first of which is that the transition rules only apply to
pre-existing claims. A pre-existing claim is defined in the new Act
as a claim that is based upon act or omission
that occurred before June 1, 2013,
but for which a court proceeding was not started
before June 1, 2013.
before June 1, 2013.
The transition rules apply
to pre-existing claims if three things happen:
first,
the former ultimate limitation period
the governed the claim under the former Limitation Act
has not yet expired;
second,
the act or omission on which the legal problem is based
must have occurred before June 1, 2013;
must have occurred before June 1, 2013;
third, the person has to discover
that they have a claim
on or after June 1, 2013.
So, to summarize,
you must have a former ultimate limitation period that has not yet expired,
an act or omission
that occurred under the former Act,
and discovery that occurred under the new Act.
If these three criteria are met the transition rules will apply.
Before we continue, please note that the transition rules do not apply
if the act or omission occurred under the former Act,
but discovery also occurred under the former Act.
If this is the case,
then a former Limitation Act continues to apply in its entirety.
Similarly, if the act or omission occurs on or after June 1, 2013,
Similarly, if the act or omission occurs on or after June 1, 2013,
and discovery also occurs on or after June 1, 2013, then the new
Act applies
and the transition rules will not apply.
So what are the transition rules?
The transition rules
govern two situations depending upon whether a plaintiff's claim would have been
governed by the 30-year
or 6-year ultimate limitation period under the former Act.
We will be looking at how the transition rules apply if a plaintiff's claim is
against a doctor,
hospital
or hospital employee
and would have been governed
by the 6-year ultimate limitation period under the former Act.
If this is the case, the transition rules say that the former 6-year ultimate
limitation period continues to apply.
Time begins to run as it had under the former Act --
from the date that all of the elements of the legal claim a present, or "accrued."
In a medical malpractice or negligence claim,
this will be the date of damage.
In essence, where a plaintiff's claim against a doctor, hospital
or hospital employee,
there is no change to how the ultimate limitation period runs under the transition rules.
But when does the basic limitation period begin?
The transition rules say that the 2-year basic limitation period applies
from the date of discovery,
unless the new Act
specifies otherwise.
Here's an example to illustrate how the transition rules work for medical claims
where the former ultimate limitation period was 6 years.
Mary had a surgery on her stomach on June 1, 2012.
However it's not until June 1, 2014, that she becomes very sick
and discovers that a sponge was left inside her stomach
during the surgery.
Let's assume for this example that the date of damage is the date that Mary gets
very sick.
The act or omission date is the date of Mary's surgery,
which occurred under the former Act on June 1, 2012.
Discovery occurred on June 1, 2014 -- under the new Act --
so the transition rules apply.
Let's assume that Mary plans to sue her doctor for damages.
Since this claim would have been governed by the former 6-year ultimate limitation period,
Since this claim would have been governed by the former 6-year ultimate limitation period,
the transition rules say
that the 6-year ultimate limitation period will continue to apply,
running from the "accrual" date.
The accrual date is the date that all of the legal elements were present -- in this case
the date that the damage occurred.
So, the 6-year ultimate limitation period begins
on June 1, 2014.
on June 1, 2014.
The transition rules also tell us that the 2-year basic limitation period
under the new Act applies running from discovery.
So, Mary will have two years beginning June 1, 2014,
to sue her doctor.