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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, and a six-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 were present.
For example, in a negligence claim, the ultimate limitation period would not start to run until
both the 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: two-years, six-years
and ten-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 two-year basic limitation period that applies to all claims, unless the new
Act specifies otherwise. The two-year basic limitation period runs from the date that
the person discovers that 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 clause ensures that people who
have legal problems that existed before June 1st, 2013 can still rely on the legal advice
that was given to them before the new Limitation Act came into force. Remember, June 1st, 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 an act or
omission that occurred before June 1st, 2013, but for which a court proceeding was not started
before June 1st, 2013.
The transition rules apply to pre-existing claims if three things happen:
First, the former ultimate limitation period that 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 1st, 2013.
Third, the person has to discover that they have a claim on or after June 1st, 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 the former Limitation Act continues to apply in its entirety. Similarly,
if the act or omission occurs on or after June 1st, 2013, and discovery also occurs
on or after June 1st, 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 would have previously
been governed by the 30-year ultimate limitation period under the former Act.
If this is the case, the transition rules say that the new 15-year ultimate limitation
period applies.
But when does the ultimate limitation period begin? The rules say that the 15-year ultimate
limitation period will run from the later of two dates; either the effective date or
a special date. In most cases the effective date of the new Act, June 1st, 2013, will
apply.
But, as some types of claims don't fit neatly into the usual act or omission model, for
example, a claim involving a person under the age of 19, the new Act sets out a number
of "special" ultimate limitation period start dates. These can be found in section twenty-one,
subsection two.
For the purpose of the examples in this video let's assume that June 1st, 2013 applies and
that the 15-year ultimate limitation period begins from that date.
So, we've looked at when time in the ultimate limitation period begins to run under the
transition rules. But when does the basic limitation period begin?
The transition rules say that time in the new two-year basic limitation period begins
to run on the date of discovery -- when the person knew or ought to have known that they
had a legal problem -- unless the Act specifies otherwise. The discovery test is found in
section 8 of the new Act.
Let's take a look at a few examples of how the transition rules work:
Example number one:
Mary has a garage built on June 1st, 2012, a year before the new Limitation Act came
into force.
On June 1st, 2015, her garage floor begins to crack and a wall begins to slowly sink.
Assuming that Mary knows of or discovers this damage on June 1st, 2015, when do the limitation
periods begin to run under the transition rules?
We know that the act or omission occurred under the former Limitation Act -- on June
1st, 2012.
However, the act or omission was not discovered until June 1st, 2015, after the new Limitation
Act came into force. The transition rules say that when the act or omission occurred
under the former Act, but discovery occurs under the new Act, the 15-year ultimate limitation
period begins on the effective date of the new Act, which is June 1st, 2013.
So, the ultimate limitation period is 15 years and it will expire on June 1st, 2028. However,
as we mentioned, Mary discovered the damage to her garage on June 1st, 2015. This means
that Mary has two years to begin her legal claim to sue the contractor since the basic
limitation period begins to run upon discovery and expires on June 1st, 2017.
Example number two:
Once again... Mary's garage is built on June 1st, 2012. As in the previous example, the
garage floor starts to crack and a wall begins to sink three years later, on June 1st, 2015.
Let's assume in this example that the damage inside the garage is hidden by a pile of boxes
and on the outside by a large tree beside the garage. As a result Mary does not discover
the damage until June 1st, 2027, when she is unable to open her garage door because
of the sinking of the wall.
When does time begin to run under the transition rules?
Well, as you know, the garage was built on June 1st, 2012, before the new Act came into
force, so the act or omission occurred under the former Act. Discovery occurs after June
1st, 2013. We know that, because the act or omission occurred under the former Act and
discovery occurs under the new Act, the transition rules will apply. The transition rules say
that the ultimate limitation period of 15 years begins on June 1st, 2013.
This means the ultimate limitation period will expire on June 1st, 2028. Since Mary
does not discover the damage until June 1st 2027, she will only have one year to start
her legal claim to sue the contractor. The basic limitation period will be cut off after
one year because of the expiry of the ultimate limitation period.