Accrual vs. Discoverability matters typically accrue when the elements of a of action are in place, discoverability means the plaintiff’s actual or impungned knowledge of the cause action triggers the commencement of the limitation period. Changes We’ve changed acts! New act into force on June 1st, 2013 Old Act New Act Basic Limitation Period Varied action to action, 2, 6 or 10 years Time starts when all elements of cause of action present Some claims could be postponed based on discoverability Two years for all civil claims (with a few exceptions) Starts to run once ptf discovers Section 6 Exceptions Claims by debtor or secured party in possession of collateral to redeem or realize on that collateral ss. 2,3: exempted claims and proceedings where no limitation period applies. Includes from old act Adds: and judicial review of offences under the Offence Act; claims based on existing aboriginal and treaty rights Where limitation governed by a
different statute s. 3(2) Court proceeding to enforce or sue on a judgment for payment of money or return of personal property is 10 years (s. 7) Ultimate Limitation Period 30 year ultimate limitation period based on accrual model. of debt would only restart basic, not effect ultimate 15 years for all civil claims, commencement based on “act or omission” model rather than “accrual” Can be postponed and reset or adult disability, (part payment of debt or written of liability) and wilful (for of judgement it is the award, not the underlying claim) Contracting Out The act is silent on whether parties can contract out or change statutory limitation period… the common-law is also uncertain No change, still uncertain and common-law governs. Hayley: you can probably extend,
but unlikely you could shorten unless they are Demand obligations 6 year limitation period to collect on a demand obliation, commences when the loan is made and delivered 2 year limitation period commences on the day that there is a failure to perform the obligation after a demand has been made s. 14 Realize or redeem on security No specification for when limitation period commences Commences on the first day that the right to enforce the security arises. s. 15 Contribution and Indemnity Judge has discretion re whether to allow contribution and indemnity claims Basic limitation period commences on the later of s.16: The day the claimant for contribution or indemnity is served with the original pleading; or The day the claimant knew or reasonably to have known that a claim for contribution or indemnity could be made Stopping the Clock Commencement postponed: minors, and persons under disability Running suspended: if person becomes under a disability Clock reset: liability is acknowledged. Related Claims Same as new, except applies to claims for indemnification and contribution as well. No limitation period to bring a claim “related to or connected with” a claim that has ed.
already been brought within the basic and ultimate limitation period s.22 i.e. counterclaim, party proceeding, set off, or addition or substitution of new party as plaintiff or defendant. NOT indemnification and contribution Amending Pleadings Court has discretion to allow after expiry of limitation period s. 22(5) Non-Judicial Remedies Cause of action extinguished when limitation period expires s. 9 Cause of action is not extinguished, but when limitation period on claim has expired then cannot bring claim in court AND not entitled to exercise any non-judicial remedies that would other be entitled to. s. 27 remedy” = a remedy that a person is entitled, by law or by contract, to exercise without court Transition
However, clear they were not dealing with very many documents in Guano, not like the volume of documents seen in modern major litigation The rule must be curbed and require some specificity otherwise it becomes totally My thoughts to be that the emphasis on full disclosure of this kind is so that parties can’t get away with covering their tracks by hiding a ‘train of inquiry’ that might lead to something which is now outside the scope of the litigation, Exchange of between counsel is very useful for the chambers judge should an application be made is now key. My Thoughts This is a response to the volumes of documents and information that it is now possible to have in the age The move away from the Guano in the face of the modern realities can also be seen in Privest Property v WR Grace BCCA 1992. In Grace, the BCSC ordered that the defendant allow the plaintiff to
but if it were known, should be included. Puts the emphasis on the receiving disclosure to decide what it all means… and if they miss something, oh well, they had full disclosure so its their own fault. Clearly Guano are a product of their time, the 1800s, where people had a lot less documents than they do now. access millions of documents under a full Guano disclosure The documents were only potentially relevant, and the BCCA overturned the BCSC, by stating that the discovery rule cannot “authorize a search” to determine relevance. be absolutely ridiculous and inefficient, huge costs, if you had to just produce everything on full Guano scale everytime Also now, there is so much more emphasis on ethics in the profession, so is being put on the disclosing party to ensure that trial