A diverse mix of industries are supporting proposed reforms to the law that sets out time limits for British Columbians to sue within the civil justice system, but some opponents say the reforms will make the courts more difficult for citizens to access.
This month, the B.C. government released a final consultation paper and invited public comments until November 15 on reforming B.C.’s Limitation Act, which hasn’t been updated since 1975.
Under the current law, citizens can – depending on the type of legal action – file a suit within two-, six- or 10-year timeframes.
For example, a civil action for personal injury has a two-year limitation period, but an action for recovery of a debt has a six-year limitation period.
Under the proposed reforms, all legal actions would have a single two-year limitation period – known as a “basic” limit.
While the basic limit would apply to most cases, special circumstances allow for the extension of that limit to an “ultimate” limitation period.
For example, if an architect provides negligent advice to a client in 2000 that results in building damage in 2005, the client currently has 30 years to file the claim from the time he or she discovers the damage.
Under the proposed reforms, that client would have 10 or 15 years from the time the negligent advice was given – which is considered the “act or omission” – to file suit against the architect.
Erik Magraken, a partner with the personal injury law firm MacIsaac & Co., said the current definition of discovery – which is the moment that a litigant realizes or discovers that he or she has an issue that should be addressed in the courts – can be “all over the map.”
And because the clock starts running on limitation periods at the moment of discovery, these time constraints can also be all over the map.
Magraken said the reforms mean that it will no longer be up to the courts to decide when a limitation period begins.
“Right in the statute they’re going to say here’s when the clock starts running for you [to file a suit],” said Magraken.
He noted that a debate is occurring in the law community about the proposed reduction of the 30-year ultimate limitation.
“We really don’t want people being sued 30 years after they’ve done something wrong,” he explained, “but you don’t want to take away people’s rights to sue if they only discovered the problem 30 years down the road.”
Various groups, including the Architectural Institute of BC, the Association of Professional Engineers and Geoscientists of BC and the Institute of Chartered Accountants of BC, support most of the proposed reforms to the Limitation Act, but they have differing opinions about when limitation periods should begin.
Some industries have recommended the ultimate limitation period run from the wrongful act, or in the case of a construction defect, from completion of construction of the project.
Noting that the end dates of projects in their industry are not so easily defined, natural resource management professionals suggested in their submission to government that the ultimate limitation period should run from the time a completion certificate for a project is issued.
In a submission to government, the Law Society of British Columbia said abandoning the current model used to define when a limitation period begins “has the effect of rewarding defendants whose acts or omissions cause damage down the road over those defendants whose acts or omissions result in immediate harm.”
The society said, for example, that the reforms would provide a benefit to those who insulate buildings with cancer-causing agents at the expense of those who suffer harm as a result of such acts.
Nonetheless, the majority of industries appear to favour most of the proposed reforms to the Limitation Act.
In an email to Business in Vancouver, the British Columbia Dental Association (BCDA) said it believes that changing the ultimate limitation period from 30 years to 10 years will continue to ensure patients’ rights while alleviating some of the costs related to having to store dental records for 30 years.
The BCDA also said that the proposed changes will ensure consistency in law among health-care professionals.
Currently, the act contains a special six-year ultimate limitation period for medical claims that creates a discrepancy between dentists who treat in hospital and their medical counterparts.
The care provided by dentists is done in collaboration with physicians, said the BCDA, yet the 30-year ultimate limitation period applies to the dentist and not the physician.
Philip Hochstein, executive director of the Independent Contractors and Businesses Association of BC, told BIV that a simplification of the Limitation Act is long overdue.
“[The reforms] won’t deny anybody access to their rights; they’ll just have to be more prompt about filing lawsuits,” he said.
He added that contractors will have access to cheaper and better insurance if the limitation periods are reduced and a stronger definition of discovery is created.
“Insurers would have more certainty over what they’re in fact insuring – you’re not building as much risk into the premium because the risk is more clearly defined.”