Editor’s Note and Update – April 1, 2020
On March 31, 2020, British Columbia formally extended its declaration of a state of emergency in relation to COVID-19 through the end of the day on April 14, 2020. (Link: https://news.gov.bc.ca/releases/2020PREM0018-000607)
We recently wrote about changes to BC’s filing and deadline requirements amid the COVID-19 state of emergency (to read that post, click here). The COVID-19 pandemic has brought about a host of unprecedented changes to the way we live and work, and the court system has been no exception. The latest measure, announced on March 27, 2020 by the Minister of Public Safety and Solicitor General of British Columbia by Ministerial Order No. M086 (the “Order”) will see British Columbia following in the footsteps of provinces such as Ontario and suspending “every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal”.
Per the Limitation Act, SBC 2012, c 13, s. 6(1), a court proceeding in respect of a claim must not be commenced more than two years after the day on which the claim is discovered. While there are some exceptions, the majority of claims in British Columbia are subject to this two-year limitation period. The necessity of limitation periods has been recognized by courts across Canada for bringing needed stability to society by enabling potential defendants to plan their affairs in a safe assumption that stale claims cannot be raised against them, minimizing the risk that evidence relevant to the claim will be lost, and incentivizing plaintiffs not to “sleep on their rights”: Novak v Bond,  1 SCR 808; Borek v Dr. Derek Stirling Hopkins, 2020 BCSC 304. Limitation periods are a cornerstone of the legal system and their suspension is an extraordinary measure.
Section 10 (1) of the Emergency Program Act provides that the Minister of Public Safety and Solicitor General of British Columbia may do all acts and implement all procedures that he or she considers necessary to prevent, respond to, or alleviate the effects of any emergency or disaster. The Order reflects the reality that, as a result of the pandemic and necessary public health measures to be taken in response to it, it may not be possible for a person involved in legal or administrative proceedings to take steps required by legislation, and that the delay of proceedings may cause problems to persons seeking to enforce their legal rights.
However, it’s worth noting that Ministerial Order M086 is more limited in scope than it appears on its face.
Other Forums and Other Time Periods
Firstly, the Order appears to only automatically suspend limitation periods with respect to commencing proceedings in the Provincial, Supreme, and Appeal Courts, and is silent with respect to the suspension of limitation periods and time periods for proceedings that need to be brought in other forums, such as administrative tribunals. The Order does appear to give statutory decision makers, such as tribunals, the power to decide to waive, suspend, or extend applicable time periods; however, whether a time period to commence a proceeding is suspended will likely depend on the individual tribunal/statutory decision maker.
Moreover, this may also mean that there is no automatic suspension of the time period in which to commence an arbitration, or other dispute resolution procedures parties may have agreed to. This could be important if, for example, there is a mandatory arbitration clause in your contract, because if you fail to commence arbitration proceedings on time, you may be left without recourse as you may not be able to proceed in a court pursuant to the Arbitration Act, s. 15.
There are also likely other limitation periods and time periods, statutory or otherwise, that will not be caught under Ministerial Order M086, given its limited applicability to commencing proceedings in the BC Courts.
Length of Suspension
Finally, the suspension of limitation periods under the Order is effective March 26, 2020, is not retroactive, and only lasts until the declared state of emergency is over.
A public health emergency was declared in British Columbia on March 17, 2020 in response to the COVID-19 pandemic by provincial health officer Dr. Bonnie Henry and Health Minister Adrian Dix pursuant to the Public Health Act, SBC 2008, c 28. Subsequently, on March 18, 2020, the Minister of Public Safety and Solicitor General, Mike Farnworth, declared a provincial state of emergency. The initial length of the state of emergency is 14 days, which can be rescinded earlier or renewed for up to another 14 days and so on. As such, the initial 14 days ends on April 1, 2020. While it’s possible that the state of emergency may be renewed, if it is not, then the suspension set out in the Order is quite short-lived.
While the suspension of limitation periods at this time is an extraordinary step that may provide a measure of flexibility to claimants during this public health emergency, it’s worth considering your upcoming limitation periods with some caution.
As the time the Order was announced, the Courts were still accepting the filing of new claims in a limited capacity, such as e-filing and dropboxes available to the public. As of today, the Courts of British Columbia have not yet provided updated direction regarding the Order. If you have a limitation period expiring soon, it may be prudent to file in Court regardless, or at least keep a very close eye on whether the state of emergency is renewed and how long it ultimately lasts for.
If your upcoming limitation period is for anything other than a Court proceeding, such as an arbitration or a proceeding before an administrative tribunal, then you may want to proceed as usual, subject to what individual statutory decision makers have decided.
Consideration should also be given to possible issues involving the service of claims due to restrictions under COVID-19.
We continue to closely monitor the progressing COVID-19 situation and will provide updates as they are available. To learn more about the Order and how it may impact your claim, please contact Claire Haaf or Jordanna Cytrynbaum.