Civil procedure

Access to Justice – Person who are not required to pay fees

BCSC Rule 20-5

Rule 20-5 – Persons who are not required to pay fees

1. 
   Court may order that no fees are payable
   
2. 
   Application of order
   
3. 
   How to apply
   
4. 
   Review, variation or rescission of order
   
5. 
   No fee payable
   

Persons who are not required to pay court-filing fees – as a way to pay for the civil justice system

• 
  ‘Pay as you play’ approach
  
• 
  BC historically has charged for every day in court one uses
  
• 
  Each Province devises it’s own rational and fee structure to use the courts – but equally, each province has it’s own system and own rules meant to allow those persons who can’t afford the filing fees to be excused from paying them
  

This rule is BC’s rule to essentially relieve someone who can’t afford paying the filing fees to access justice

• 
  Trial lawyers case being considered – this rule used to have as it’s animating language that if someone is receiving social assistance or otherwise impoverished they don’t have to pay
  
  • 
    SCC didn’t like the word impoverished – the court’s gave BC a lot of difficulty for it – too high a standard and too harsh
    
    • 
      Today, reads ‘without undue hardship’
      
• 
  In the context of litigation where a lawyer is going to be retained, the amount of $ in filing fees is utterly miniscule – the only things the rules of court exclude are fees payable to the Crown. They still have to pay for lawyers, expert evidence, essentially the other 95-6% of what it will cost them
  

4. Limitation Periods & Abuse of Process Doctrines

Topics:

Limitation Periods: Commencement, Postponement, Effect of Confirmation & the Discoverability Principle

Res Judicata – Issue Estoppel, Cause of Action Estoppel

Abuse of Process – Collateral Attack

Types of Proceedings – Actions & Petitions
Cases:

Limitation Act 1996 & 2012

Novak v Bond

Brooks v Jackson

The Owners, Strata Plan v Squamish Whistler Express

Penner v Niagara

UVIC Students Society v CFS

Stewart v Clark

Limitation Periods

Limitation period – the time period a litigant has to commence a legal proceeding before he/she loses the legal right to do so
HISTORICAL

Limitations are founded on the public good; Certainty of finality of litigation provides stability, peace.

• 
  “Quiet of the Community”: Knowledge that your rights or titles will not be called into question.
  
  • 
    But Negligent omission of assertion of right = loss of right
    
• 
  If rights were interminable, evidence would inevitably lost, witnesses would die, would prejudice the party being sued.
  
  • 
    People should not have an indefinite threat looming over their head (Damocles)
    

What does limitations help with?

• 
  Limitations also help the courts, avoids difficulties with witnesses, evidence.
  
• 
  Limitations help the commercial world where contracts are silent on certain issues. Limitations also encourage settlement in order to make sure commerce moves along unperturbed
  
  • 
    Businesses operate on risk aversion. Companies need to internalize litigation costs in order to allocate resources efficiently. Being sued out of the blue is bad for market security
    
  • 
    Shareholders need to be able to valuate the business appropriately.
    

PROCEDURAL

Limitation periods set out time frame for pursuance of a suit. Failure to bring suit may result in loss although courts may allow it.

• 
  Bringing a suit against someone may allow them to reopen a civil action that may have been statute barred.
  
• 
  Limitation Defence must be pleaded: Not an automatic win. Judge will evaluate nature of claim and time that has expired.
  

BC Limitations Act

• 
  OVERVIEW
  

• 
  Limitation Act had not been updated since 1975. So law reform bodies had called for action in 1990 and 2002
  
• 
  Goals of the New Act
  
  • 
    Harmonize with other provinces who had modern interpretation law
    
  • 
    Harmonize across Canada
    
  • 
    Improve clarity and make it easier to understand
    
  • 
    Set clear rules on discoverability and postponement
    

• 
  KEY CHANGES
  

• 
  Standard Basic Limitation period established (2 years)
  
  • 
    Some forms of action excluded
    
  • 
    Low time frame expedites potential litigation
    
• 
  Ultimate Limitation period adjusted from 30 years down to 15
  
  • 
    Discoverability rules modified and clarified to accommodate new ULP rules
    

• 
  Changed from former “Accrual Model” to current “Act or Omission” model to calculate ULP
  

*** major change

• 
  New system operates more in favour of defendants (less time), old system more in favour of plaintiffs (more time)
  
• 
  Applies to all civil court proceedings and self-help remedies, not just “Actions”
  

*Note: New Act still preserves postponement rule for minors & persons under disability b/c it’s historically been the responsibility of the Crown to protect the legal interests of this group.

• 
  NAVIGATING THROUGH TRANSITIONAL RULES FOR OLD & NEW ACT – [see flowchart, p.25 PLTC]
  

• 
  FEATURES OF THE LIMITATION ACT
  

1. 
   OLD ACT Limitation Act (1996) – before June 1, 2013
   

Former Accrual Method

Former model for beginning of calculation of time. Time to calculate ULP begins at the time the cause of action arose. This means the ULP cannot commence before damages have occurred.

• 
  Ex: Architect designs building, 10 years later someone is injured. He can bring claim 30 years after when someone got injured.
  

Under the FORMER ACT, time doesn’t begin to run against the P or the D with respect to the action, until certain factors were known:

• 
  The identity is known to the P; and
  
• 
  That the knowledge are such that a reasonable person would regard those facts as showing that:
  

A) on the cause of action would apart from the expiration of the limitation period have a reasonable prospect of success, and

B) the person whose means and knowledge are in question aught to be able to bring an action.

2. 
   NEW ACT (p.67) - Limitation Act (2012) – on/after June 1, 2013
   

Act or Omission Method: Ultimate Limitation Period

• 
  Under the new act, the ULP begins to run “on the day on which the act or omission, on which the claim is based took place” (s.21)
  

• 
  Under this “act or omission” method of calculation, the ULP may commence before all elements of a cause of action are in place.
  

• 
  Most notably, it means the ULP may begin to run, and possibly even expire, before any damage has occurred.
  

Basic Limitation Period

1. 
   When does the limitation period start to run?
   

General Rule - The first day a claim is discovered (s.6), which is the first day when a person KNEW or REASONNABLY OUGHT TO HAVE KNOWN (s.8):

1. 
   that injury, loss, or damage had occurred
   
2. 
   that the injury, loss or damaged was caused by or contributed by an act or omission
   
3. 
   that the act or omission was that of the person against whom the claim is may or be made
   
4. 
   that having regard to the nature of injury, loss or damage, a court proceeding would be an appropriate means to seek remedy
   

2. 
   Exceptions to the General Rule
   

• 
  A limitation period can be extended if a potential defendant acknowledges liability in respect of the claim – s.24(1)
  
• 
  Other factors affecting LP (counterclaims, other claims, proceedings) – s. 22
  

3. 
   Exemptions to Limitation Periods Entirely
   

• 
  s.2 – exempted court proceedings
  
• 
  s.3 – exempted claims (ex – sexual assault claims, assault or battery to minor, etc)
  

Components of Limitation Act

1. 
   Limitation periods (basic limitation period 2 yrs)
   
2. 
   Notice periods
   
3. 
   Ultimate Limitation period (15 yrs)
   

• 
  *Note: Some causes of action have no limitation periods  s.2, s.3
  

• 
  Different Rules for LP for some Scenarios
  

1. 
   When a person acknowledges liability or confirms a claim, limitation legislation can provide that the time running prior to the confirmation or acknowledgment does not count in the reckoning of the limitation period  LP extended s.24(1)
   
2. 
   Where a person is a minor, under a disability, or otherwise incapable of commencing a proceeding, the running of time is usually postponed or suspended until the legal disability recognized by this exception either disappears or is otherwise taken into account  s.10, s.18
   
3. 
   In some cases, the limitation period may be tolled or held in abeyance b/c the parties are attempting to settle the case. This is meant to encourage settlement w/out the parties having to be concerned about losing the right to sue b/c of an expired limitation period  more details below
   
4. 
   Also claims of sexual assaults are not subject to limitation periods  more details below
   

• 
  Issues of sexual assault, assault, battery
  

• 
  Sexual assaults are not subject to limitations act  may have suffered trauma when very young or when relationship with tortfeasor is so close they don’t realise they’ve suffered harm.
  
• 
  It’s manifestly unfair to deny them redress when they realise too late that they had a cause of action.
  

• 
  Pro: Very compassionate and fair for people who have been affected (Especially at a young age)
  
• 
  Con: If too much time expires, it becomes harder to find relevant evidence and witnesses, all of the policy reasons that apply to trying to establish some finality seem to apply.
  

• 
  Limitation Act as a Defence
  

Limitation Act provides a defense: Has a practical benefit. Nothing wrong with a P trying to sue outside of limitation act, defendant has affirmative defense available to them.

• 
  They are relying on limitation act – suggesting that purported claim has been extinguished by law.
  
• 
  *Note: If someone brings something to your notice in writing, you shouldn’t respond in writing.
  
  • 
    Acknowledgement or confirmation of the existence of a claim might restart the clock on the limitations act
    
  • 
    Positive acknowledgement orally might give cause for concern, but technically it is confined to writing.
    

• 
  Limitation Act & Negotiatons/Settlement
  

Limitations act is suspended during negotiations/settlement. Contrary to fundamental to fairness if the person keeps stringing you along until time runs out.

• 
  In order to meet limitation act, notice of civil claim must be filed at court prior to expiration. No technical need to give it to the defendant right away. Must serve defendant within 12 months.
  
  • 
    Can ask for another 12 month extension, thereby allowing you essentially another 2 years possibly past limitations act to serve defendant.
    

• 
  System set up this way in order to allow a lawyer or citizen to find additional evidence, find more research to corroborate your clients story or disprove it. Best to establish things in advance in order to prevent unnecessary expense to other party.
  
  • 
    May also rely on a material change in the law as a result of changes in statutes or case law that can benefit the client.
    
    • 
      Retrospective/Retroactive legislation may determine whether you receive benefit
      
    • 
      Courts might re-evaluate actions and effects based on changes in the law
      

Rules - Limitation Act (2012)

p.67

• 
  Basic Limitation Period
  

S.2 – Exempted Court Proceedings (appeal, judicial review application, etc)

S.3 – BLP Exempt Claims

S.6 – 2 Year BLP “after the day on which claim is discovered”

S.7 – 10 year BLP for court proceeding to enforce/sue on judgment

s.8 – General Discovery Rules: “a claim is discovered by a person on the first day on which the person knew or ought to have known all of the following…”

s. 10 – Special rules for minors (discovery rules in s.18)

S.38 – Limitation period for debts owed to government – 6 years

• 
  Ultimate Limitation Period  s.21 – 15 year ULP
  

Novak v Bond (1999)

[Postponement of Limitation Period; Limitation Act (1996)]

FACTS

N saw B doctor, about lump in breast. B told N it was not cancer. Another doc determined she had cancer. N thought about suing, but talked to priest and decided not to. So had no cancer for 4 years, then found the cancer had spread b/c of the undiagnosed cancer 5 years earlier.

s.3(2)(a) Limitation Act 1996 (*note: Old legislation is now repealed) – an action for damages from personal injury must be brought w/in 2 yrs of date the right to bring the action arose.
*s.6 allows running time to be postponed in certain circumstances.
*s.7 allows running time to be postponed if P is under a legal disability.
*s.8 provides an ultimate limitation period of 6 years for proceedings against medical practitioners.

RULE

Delay beyond prescribed limitation period is only justifiable if the individual Ps interests and circumstances are so pressing that a reasonable person would conclude that the P could not reasonably bring an action at the time his or bare legal rights crystallized.

ANALYSIS

(Mclachlin) - Time should not stop to run respect to someone’s claim until a reasonable person against an objective standard would conclude that it would be reasonable to bring the lawsuit

• 
  So at what point time would it be reasonable to bring an action?
  

Back then, it’s at that point in time when the cause of action arose (when cancer developed), the 2 year clock starts ticking.

• 
  NOW, the limitation period starts at when the claimant knew or ought to know that they have suffered an injury…
  

How Should s.6(4)(b) be interpreted?

• 
  Q is whether a reasonable person, knowing the facts w/in the P means of knowledge and having taken the appropriate advice a reasonable person would take on those facts, would regard those facts as showing both that the action would have a reasonable prospect of success (6(4)(a)) and s.6(4)(b) are satisfied
  
• 
  Running of limitation period is postponed when P shows practical considerations arising from his or her circumstances and own interests render him unable to bring action
  
• 
  What must be present for circumstances in order to delay time period?
  

Serious, significant and compelling circumstances.

Whether a particular circumstance or interest has the practical effect of preventing the P from being able to commence the action must be assessed in each indiv case

Time does not start to run until D is known to P and 6(4)(a) and (b) are satisfied

HOLDING - N allowed to bring the action – action was not time barred

Discoverability & Postponement in the Limitation Act

• 
  Basic Limitation Period: Default 2 Year Period
  

s.8 - The basic limitation period will start to run on the day which the claimant knew, or reasonably ought to have known:

1. 
   of  the injury loss or damage;
   
2. 
   that the injury, loss or damage was caused or contributed to by an act or omission;
   
3. 
   that the act or omission was that of the defendant; and
   
4. 
   that a court proceeding would be an appropriate means to seek to remedy it.
   

*Special discoverability and postponement rules are set out in s.12 through 20 of the new act. Sections 12 through 17 set out special discovery situations for adults of full capacity in circumstances such as fraud, a future interest in trust property or a demand obligation.

• 
  Notice Periods
  

• 
  May require P to give written notice to D that an action may be commenced 

  
• 
  May require that notice be given within a time frame (after the occurrence of an event) or may restrict the 
bringing of the action until a certain time has passed after giving notice 

  
• 
  They allow Ds to begin collecting and preserving evidence and to avoid the unfairness that would result if record 
or info were lost due to the passage of time 

  
• 
  Under S. 286 of the Local Government Act – a municipality is in no case liable for damage unless notice in writing 
sets out the time, place and manner in which the damage has been sustained in delivered to the municipality within two months from the date on which the damage was sustained 

  

Contribution and Indemnity - s.16 and 21(c)

• 
  s.16 and 21(c) deserves special notice as it dramatically changes the limitation period for a claim of contribution and indemnity. Discovery of a claim for contribution and indemnity for the purposes of the BLP (section 16) will be the later of:
  
  • 
    the day on which the contribution claimant is served with the original pleading; or
    
  • 
    the day the claimant knew or reasonably ought to have known that a claim for contribution could have been made.
    
• 
  The ULP will commence on the day on which the claimant for contribution or indemnity is served with the paperwork for the original claim (section 21(c)).
  
• 
  3^rd party proceedings: P sues D  D turns around and blames it on third party. (Contribution and Indemnity)  relates to how a third party would understand their liability.
  

Minors - s.18 and 21(d)

• 
  The discoverability rules for minors, contained in s.18 and 21(d) of the new act, essentially reflect the provisions of the current act (section 7).
  
• 
  Neither basic nor ultimate limitation period cannot run until the minor attains the age of 19.
  
• 
  Potential defendants continue to have the ability to end this postponement by serving a notice to proceed in accordance with section 20 of the new act.
  
  • 
    Defendant can force a childs claim into court before age of 19 by filing a “notice to proceed” (S.20)
    
  • 
    Forces their litigation guardian to take it now instead of waiting until child turns 19
    

Person Under Disability – s.19 and 21(e)

• 
  Sections 19 and 21(e) set out discoverability for adult persons under a disability.
  
• 
  Like the former act, s. 19 preserves the postponement of BLP for a person under a disability.
  
• 
  And in a departure from the former act, under the new regime, an adult person under a disability will also have the running of the ULP postponed for the duration of the disability.
  
• 
  As with minors, potential defendants can end the postponement through serving of a notice to proceed.
  
• 
  Theoretically, adults with handicaps will be permanently postponed, insurance companies may like to settle and get it off the books quickly in order to allocate risk more securely
  
• 
  If someone suffers an injury, and makes it so that they lack capacity – the limitation period never starts running for the duration of the disability.
  

Transition Provisions b/w Old & New Act

 LOOK AT FLOWCHART (more helpful)

• 
  if the relevant act or omission occurs after June 1, 2013, the new act applies;
  
• 
  if the relevant limitation period expired before June 1, 2013, the new act cannot revive it (with the exception of assault or battery of a minor or dependent which now has no limitation period);
  
• 
  if the claim was “discovered” before June 1, 2013, the limitation period under the former act applies;
  
  • 
    Two year limitation periods might be 6 years as per the old act
    
• 
  if the act or omission occurred before June 1, 2013, but was not “discovered” until after that date, then the 2 year BLP runs from the date of discovery, and
  
  • 
    if formerly subject to a 30 year ULP, the new 15 year ULP now applies, running from the later of either June 1, 2013 or the date the act or omission takes place if the claim is one covered by section 21(2) of the Act;
    
  • 
    if formerly subject to a 6 year ULP, the 6 year ULP continues to apply from the date of accrual (which will usually be the date of damage).
    
• 
  For the purposes of the transition rules, discovery is in accordance with the provisions of the new act.
  

Brooks v Jackson (2009)

[Filing action beyond limitation period; discovery rules]

FACTS

P injured birth of child, but injury was not discovered for some time. 1997 baby is born, but 2000 she gets an illness from post-partum blood loss and commences an action in 2002.

• 
  At the time, doc that was acc’d of being negligent he challenged what she would be legally advised
  

HOLDING

If an injury is initially diagnosed as temporary and later gets diagnosed as permanent, the patient may file an action even if it’s beyond the limitation period.

Strata Plain LMS 1751 v. Scott Management Ltd (2010)

[Third Parties; Postponement of Limitation Period with contribution & indemnity in New Act]

FACTS

Scott Management was appealing against two orders from the BCSC which set aside third party notices issued by them against the respondents (sub-contractors “Sealed Air” and “Intertek”) in a leaky condo case. They were stopped originally due to the length in which it took for Scott to try and add an additional 17 “respondents” to the suit (Original construction 93’, Original action 99’). The judge found the limitation period long since expired against multiple parties on multiple occasions. Sealed and Intertek simply want the old reasons held up. Scott claimed that since in law the cause of action for contribution does not accrue until the defendant tortfeasor has been found liable, no prejudice would occur.

ISSUE

When does the right to contribution and indemnity occur? How is it affected by limitation dates?

RULE

If P has a cause of action against both the D and the third party at the time of the tort action, an independent right of contribution is created between the D and third party (so long as it is not expired) that has nothing to do with the P’s inability or lack of desire to enjoin the third party to the claim.

New Act s.21(c) - The ULP will commence on the day on which the claimant for contribution or indemnity is served with the paperwork for the original claim
ANALYSIS

This case was decided before the new amendments to the limitation act which essentially sets the enjoinder requirements for contribution and indemnity much earlier in the process. It now happens when one reasonably would know that they have the right to sue for contribution or indemnity. Here, that would have been years ago. Unfortunately, there was no legislation that prevented this as at the time the limitation act applying to indemnity started running once the defendant was found guilty, which had not yet happened. Also, the trial judge was overruled on the prejudice idea as while this was clearly a long time and prejudice was occurring, they could have pursued it regardless based on the laws at the time.

HOLDING

Third party proceedings against Sealed and Intertek reinstated.

[19] The terms “contribution” and “indemnity” both refer to a restitutionary remedy rooted in unjust enrichment that provides a right of contribution toward a P’s damages as b/w concurrent tortfeasors. A claim for indemnity seeks recovery of the entire amount that a tortfeasor has paid to the plaintiff. A claim for contribution seeks only a portion of that amt. For the sake of brevity, in these reasons I use the term “contribution” to refer to both.