A review of the Limitation Act, S.B.C. 2012, c. 13
An application is brought by the Defendant in Arbutus Environmental Services Ltd. v. South Island Aggregates Ltd., 2017 BCSC 1 for an Order that the Plaintiff’s claim be dismissed as it is statute-barred by the provisions of the Limitation Act, S.B.C. 2012, c. 13.
As noted in the Plaintiff’s Amended Notice of Civil Claim, the claim concerns ownership of a 2006 John Deer 200CLC Excavator (the “Excavator”), in which the Plaintiff claims it legally owned. The Defendant South Island Aggregates Ltd. (“SIA) took possession of the Excavator in 2013 and consigned or sold it to the Defendant Finning. On or about Sept. 3, 2013 the Plaintiff attempted to secure possession of the Excavator from Finning and Finning refused to release it to the Plaintiff. Finning thereafter sold the Excavator to a third party.
The Plaintiff claims that as a result of the loss of use of the Excavator, it has suffered damages in the sum of $73,000, which represents the value of the equipment, and an additional $127,500 for the cost of leasing up to Sept 30, 2016.
The analysis in this decision is to review various principles to determine if the Plaintiff’s action is statute barred.
Statutory Provisions
[5] The key statutory provisions are s. 6(1), s. 8 and ss. 24(1) and (6) of the Limitation Act:
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.
…
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.
…
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.
…
(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).
Analysis
- SIA has not acknowledged liability in respect of the plaintiff’s claim which would satisfy the requirements of s. 24(6) of the Limitation Act.
- Section 8 of the Limitation Act, S.B.C. 2012, c. 13 is key
- The issue is the date the plaintiff “knew or reasonably ought to have known” of all of the four conditions set forth in ss. 8(a) to (d) of the Limitation Act.
- It is apparent that on or about September 3, 2013, the plaintiff knew of the first three conditions: a loss or damage had occurred; the loss or damage was caused by an act (the taking and consignment of the Excavator); and the act was that of SIA (with Finning as consignee).
- Was s. 8(d) satisfied on or about September 3, 2013 ?
- The question then is: Did the plaintiff on or about September 3, 2013 “[know] or reasonably ought to have known … that, having regard to the nature of the … loss or damage, a court proceeding would be an appropriate means to seek to remedy the … loss or damage”?
- The Plaintiff claims that it was not privy to the claim and/or cause of action as the parties were involved in ongoing negotiations
- It was a fact however that the Plaintiff was aware that on or about Sept. 3, 2013 the Defendant Finning refused to release the Excavator to the Plaintiff
- The Plaintiff “knew or reasonably ought to have known that “an appropriate means to seek to remedy … the loss or damage” would be a court proceeding.”
The Court’s decision:
“The fact that negotiations may lead to a resolution of a dispute does not displace a person’s right to seek a remedy through the courts. If the plaintiff did not know, it “reasonably ought to have known” that a court proceeding “would be an appropriate means to seek to remedy … the loss or damage” having regard to the fact that, in the plaintiff’s view, SIA had wrongfully taken possession of the Excavator and, without the plaintiff’s permission, consigned it to Finning.
[20] Section 8 of the Limitation Act serves to govern the start of the applicable limitation period. While considerations of when a court proceeding is “an appropriate means to seek to remedy the injury, loss or damage” may defer the start of the applicable limitation period based on individual circumstances say, going to the ability to bring a claim, a plaintiff’s decision to negotiate is not sufficient to delay the start of the applicable limitation period.
[21] In Novak v. Bond, [1999] 1 S.C.R. 808, the Supreme Court of Canada considered the postponement provisions in s. 6(4) of our Province’s previous limitation legislation: Limitation Act, R.S.B.C. 1996, c. 266. Section 6(4) of the prior legislation reads:
(4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that
(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and
(b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.
[22] Subsection 6(4) of the earlier legislation also had subjective and objective components. In Novak, Chief Justice McLachlin, writing for the majority, stated at 849:
Whether a particular circumstance or interest has the practical effect of preventing the plaintiff from being able to commence the action must be assessed in each individual case. Section 6(4)(b) requires that the circumstances and interests of the individual plaintiff be taken into account. What is a serious, substantial, and compelling interest in one case may not be so in another case. Purely tactical concerns play no role in this analysis because they do not relate to the practical ability of the plaintiff to bring an action, as assessed by a reasonable person who takes into account all his or her circumstances and interests. See Trueman v. Ripley, [1998] B.C.J. No. 2060 (QL) (S.C.).
[Emphasis in original]
[23] Negotiations “do not relate to the practical ability of a plaintiff to bring an action”. Section 8(d)’s language “having regard to the nature of the injury, loss or damage” from the perspective of what the plaintiff knew or reasonably ought to have known, may require consideration of certain subjective circumstances of a plaintiff; however, the language does not reflect a legislative intent that matters that “do not relate to the practical ability of the plaintiff” to bring an action should be viewed as a subjective individual circumstance. If a plaintiff is negotiating, the plaintiff must know, or reasonably ought to know, that “a court proceeding would be an appropriate means to seek” redress.
[24] Following an industry practice also does not relate to the practical ability to bring a claim. Again, if a plaintiff chooses to follow an industry practice in approaching a claim, the plaintiff must know, or reasonably ought to know, that “a court proceeding would be an appropriate means to seek” redress. Moreover, industry practice cannot displace the will of the Legislature.
[25] Section 8 of the Limitation Act is intended to protect persons who could not reasonably have known that a claim existed or may not have had the practical ability to bring the claim. Where a claim is known, as in the case at bar, a plaintiff cannot rely on negotiations or industry practice to say that the claim has not been discovered as contemplated by s. 8.
[26] The Limitation Act, with its shortened limitation period for many claims (from six years to two years) evinces a legislative intent that society has a particular interest in the timely resolution of disputes. If negotiations have not resolved the dispute, as the expiration of the two year period approaches, the plaintiff must bring court proceedings or lose the right to do so.
[27] If parties to a dispute wish to attempt to resolve matters beyond the otherwise stipulated limitation period, an acknowledgement of liability in respect of the claim meeting the requirements set forth in s. 24 of the Limitation Act may be obtained. A plaintiff may also file a claim and then negotiate or negotiate further in order to preserve the ability to maintain an action while avoiding the possibility of significant expense.
[28] In sum, the plaintiff’s argument that negotiations between the parties to a dispute or industry practice may serve to defer the start of the applicable limitation period fails.”
CONCLUSION
[32] The Court orders the plaintiff’s action be dismissed as statute-barred.
[33] South Island Aggregates Ltd. is entitled to its costs at Scale B.
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