Category: Limitation Periods and Time Limits

Plaintiffs’ Claims Dismissed For Not Commencing Litigation Within Two Year Limitation Period

In DeWolfe v. Jones, a driver and passenger were injured in a motor vehicle accident in 2005. The husband and wife elected to deal directly with ICBC on their own, and did not retain counsel. More than four years later, both Plaintiffs commenced legal proceedings. Almost two years later, both Plaintiffs filed Amended Notices of Civil Claims.


ICBC’S lawyer filed Responses to both claims, alleging that both claims were statute barred, as the Plaintiffs did not commence legal proceedings within the two year period of time from the date of the accident. A Summary Trial application pursuant to Rule 9-7 of the Supreme Court Civil Rules was brought to dismiss both of the Plaintiffs’ claims.


Counsel for the Plaintiffs sought to rely on the doctrine of promissory estoppel. To succeed in such an argument, it would need to be shown that the other party, by words or conduct, made a promise or assurance that was intended to affect the legal relationship between the parties, and to be acted on ; and, in reliance on the representation, the Plaintiffs acted on it or in some way changed their position. In order for promissory estoppel to apply, the Court would also need to be of the view that it would be unconscionable to allow the Defendant to resile from its’ position.


Counsel for the Plaintiffs relied on a statement made by the adjuster, however the Court was not of the opinion that the Defendants would be estopped from relying on the limitation defence available to them.


In dismissing the Plaintiffs’ claims, the Court commented :


[31]         The plaintiffs in the present case suggest that the main concern is not that Ms. Johal was silent as to any applicable limitation period, but that she made an “affirmative statement denying the existence or application of any limitation period.”


[35]         In these circumstances, the plaintiffs submit it should be inferred that a promise was made that the limitation period would not be enforced.


[49]         Finally, even if the plaintiffs were able to establish that liability had been admitted and a promise made, I am of the view that they are unable to demonstrate they relied on such an assurance to waive the limitation period. In her examination for discovery, Mrs. DeWolfe admits that the main reasons why she did not commence her legal action earlier was that she simply did not realize there was a time frame in which she had to do so, and that “life just got busy”.


[51]         In my opinion, although the parties had discussed the possibility of settling the plaintiffs’ claims, there were no serious negotiations towards that end. At no point did ICBC concede to the plaintiffs that the defendants were responsible for the Accident and in my view there is no persuasive evidentiary foundation to infer that only the quantum of damages remained as an issue to be settled between them.


[52]         Finally, I am not convinced that the plaintiffs relied to their detriment on any assurances made by Ms. Johal or any other representative of ICBC.

Is ICBC Under A Legal Obligation To Advise You Of Limitation Periods ?

When a person has been injured in a motor vehicle accident in British Columbia, and they choose not to retain the services of a lawyer, problems can sometimes develop.


The most serious problem that can arise for unrepresented claimants is that they are simply unaware of certain time limits or limitation periods that, if not met, can be fatal to their claim.


For example, a victim of a hit and run accident must notify ICBC within six months of the date of the accident, and preferably sooner, of their intention to bring a claim pursuant to section 24 of the Insurance (Vehicle) Act. Failure to do so will likely result in the dismissal of their action, and they will receive no compensation for their injuries. Further, unrepresented claimants from a hit and run accident are under a legal obligation to make “reasonable efforts” to ascertain the identity of the driver and/or owner of the vehicle that struck them. This includes notifying ICBC, notifying the police, placing posters at the scene of the accident and online asking for witnesses, placing an ad in the newspaper, and speaking to residents and merchants in the area.


No problem, right ? You religiously pay your insurance premiums to ICBC, you rarely have to make a claim for injuries, but when you do, ICBC will be there to inform you of relevant time limits and limitation periods to help guide you through the process so that your claim is not lost, right ? Think again. Contrary to popular belief, ICBC is actually under no legal obligation to advise you of time limits, limitation periods, and or/your legal obligations that may affect your hit and run claim with them. Although the Courts have been critical of such a practice, it has been held that ICBC does not have to advise you of relevant time limits, limitation periods, and/or your legal obligations with respect to hit and run claims.


Take another scenario, where you are an unrepresented claimant, and the matter is quickly approaching two years since the date of the accident. You have had some discussions with the ICBC adjuster about possibly settling your claim, however you have been unable to reach a settlement. Communication stops. Unaware of the two year limitation period to file a Notice of Civil Claim to preserve your action, your matter goes beyond the two year mark. You then contact the ICBC adjuster again to try to settle your claim, only to be informed that you are out of time, and that your ICBC claim is lost forever, resulting in no compensation to you for your injuries and/or economic loss.


Again, in such a situation, the Courts have held that ICBC is under no legal obligation to advise you that a Notice of Civil Claim must be filed by the two year mark, or else your claim will be lost, and you will receive no compensation.


If you ever find yourself injured in a motor vehicle accident as the result of someone else’s negligence, you are wise to seek a free consultation with an ICBC injury lawyer, so that you can be made well aware of time limits and limitation periods pertaining to your claim, as well as your legal obligations.

Claim Payment Proposal Has Effect Of Extending Two Year Limitation Period, Court Rules

In Coombs v. LeBlond Estate, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for various forms of damages, including pain and suffering. However, the Statement of Claim (as it was known at that time), was not filed until after the two year limitation period for doing so. Approximately two months before the expiry of the two year limitation period, a representative of ICBC had sent a letter and enclosures to the Plaintiff. ICBC’S lawyer made an application for dismissal of the Plaintiff‘s claim, arguing that it was filed too late, and was thus statute barred. The issue for the Court to decide was whether or not such a letter and enclosures had the effect of extending the two year limitation period. Both Plaintiff‘s counsel and ICBC’S lawyer agreed that the letter and enclosures constituted a confirmation of the Plaintiff‘ action, however ICBC’S lawyer argued that the Plaintiff could not rely on the letter and enclosures, as they were marked, “without prejudice”. The Court dismissed the Defendant‘s application, stating that the words “without prejudice” in a document does not automatically mean the document is privileged, unless it satisfies the British Columbia Court of Appeal decision in Belanger, with one such criterion being the document must contain the terms of settlement offered. The Court ruled that no such criterion existed in the case at bar.


[23]         The act of marking a document with the clause “without prejudice” alone is insufficient to determine whether a document is privileged. Rather, the two conditions stated in Belanger must be present for a “without prejudice” letter to be privileged. There must be:

(a)      a dispute or negotiation between two or more parties, and;

(b)      terms of settlement offered.

[24]         There is no issue with condition (a) in the present case. The privilege issue turns on whether terms of settlement were offered by ICBC in their letter.

[25]         In my view, neither the letter of December 8, 2008 nor the attached claim payment proposal contain such terms. The defendants stress that there are terms attached, but they are not, in my view, terms of settlement.


[29]         Here the effect of the letter, the cheque, and the claim payment proposal is to confirm the cause of action. It also informs the plaintiff as to ICBC’s view that the money represents a reasonable offer of settlement. It does not, however, impose any terms for the settlement of the action. It provides only that there be an acknowledgement of the receipt of the monies and that they would be deducted from any future recovery.

[30]         In my view, even if the plaintiff had executed the claim payment proposal, the terms contained in it are not the sort of terms contemplated by the Court of Appeal in Belanger or this court in Rogic as being terms of settlement of the dispute or negotiation.

[31]         Accordingly, the application of the defendants is dismissed.


Settlement Negotiations And Other Factors Act To Postpone Limitation Period, Court Rules

Depending on the nature of your claim, there can be strict limitation periods and time limits for you to perform a certain action, such as commencing legal proceedings, notifying ICBC or municipalities of your claim, or serving legal documentation on the Defendants. Failure to do so can result in your claim being lost forever. The applicable limitation periods for British Columbia civil matters are set out in the Limitation Act, and other time limits are found in various statutes and the British Columbia Supreme Court Civil Rules. Generally speaking, most civil matters in British Columbia have a two year limitation period within which to commence legal proceedings.  In certain circumstances, the limitation period can be postponed.

In Iezzi v. R., the Plaintiff commenced legal proceedings, claiming she had been accidentally infected with Hepatitis C by a syringe as she worked as a foster parent. She did not sue until eight years after the incident. The Ministry of Children and Family Development argued that the matter was statute barred, as it was not brought within the applicable two year period. The Court, however, ruled that ongoing settlement negotiations and other factors caused the relevant limitation period to be postponed.


[10]           Section 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266 (“Act ”), provides for a limitation period of two years.  Section 6(4) of the Act provides for the postponement of the running of the limitation period as follows: 


Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant, and those facts within the plaintiff’s or claimant’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.


[15] I am satisfied that there was a postponement of the limitation period to sometime between the Spring of 2008 and the Fall of 2008 as a result of a number of factors.  There were negotiations with the Ministry during 2006 and until April 2008 regarding a possible settlement of damages flowing from the Hepatitis C infection and from the breach of contract.  It would have been unwise to interrupt those by the commencement of an action.  While negotiations were ongoing and while there was still a hope that a settlement could be reached, a reasonable person would believe that it was not necessary to commence an action for damages flowing from the Hepatitis C infection.  It was not until the April 1, 2008 meeting with a Ministry representative that the final position of the Ministry regarding a possible settlement was received.  Even then, Ms. Iezzi advised the Ministry that she had “no desire to go to a lawyer” although she also did advise that “I have been left with no other choice”.  It was only at that point that negotiations came to a conclusion and that Ms. Iezzi was left with no other alternative.


[16] It was not until sometime between April 2008 and September 2008 that Ms. Iezzi obtained the actual documentation relating to the Hepatitis C status of MW.  Before commencing an action, a reasonable person would first ascertain the exact knowledge the Ministry had about the Hepatitis C status of MW when she was placed as a foster child.  A reasonable person would not want to rely on the unsubstantiated information that was available from an employee of the Ministry.  A reasonable person would first wish to see the actual documentation before proceeding.  That documentation was not available to Ms. Iezzi until she ascertained in a document that was made available to her that the Ministry was aware that MW had Hepatitis C when MW was placed with her because the Ministry was in possession of the records available from the Juvenile Detention Centre.


[17] Until that information was available, it would have been foolhardy and unreasonable for a person to conclude that an action should be commenced and that there was a reasonable or any possibility of success.  Until the actual documentation was available to her, Ms. Iezzi had only the hearsay statements from her resource worker.  It was reasonable not to proceed until a determination could be made that there was a reasonable prospect of success and that there was a reasonable prospect of there being sufficient funds available if an action was successful to justify the action being commenced in the first place.


[18] I also consider that Ms. Iezzi was under intense stress.  I am satisfied that I should take into account a number of circumstances in dealing with whether the running of the limitation period should be postponed.  First, she had lost her house.  Second, she had lost her health as a result of the Hepatitis C infection.  Third, she had lost her livelihood because she could no longer take foster children.  At the same time to require her to face the intense stresses and strains involved in suing the Province is unrealistic.


[19] Taking into account all of the circumstances surrounding the commencement of this action in October 2009, I am satisfied that the application of the Defendant should be dismissed.

Waiting For Police Report Insufficient Basis For Postponing Limitation Period

It should be remembered that each case has its’ own unique set of facts, and in certain circumstances where a limitation period has been missed, the Court may very well rule that the claim would be lost.


In Telus Corporation v Araneda, the Plaintiff wished to sue the Defendant for property damages arising out of a motor vehicle accident. Legal proceedings were commenced nine days after the two year mark. The Plaintiff argued that they were waiting for the police report to properly ascertain the identity of the Defendant, however the Court ruled that this was insufficient to postpone the limitation period.


[20]         On the day of the accident, Telus, through its employee Dale Summers, knew it had a claim for property damage and knew the name of the tortfeasor was immediately ascertainable from a reliable source, the RCMP.


[21]         In saying so, I reject Telus’ argument that a large enterprise should be judged on its “ individual circumstances” and that its step-wise approach to the management of its legal claims is akin to the situation in Strata Plan LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of Appeal upheld a judge of this Court who had found that an action brought by a strata corporation against an individual one day outside the limitation period was not statute-barred because the strata corporation was obliged to pass a resolution before it could initiate the action, and doing so took some time.


[22]         Telus was not impeded by a statutory prerequisite, and there is no reason in principle why a large organization should be judged by a more accommodating standard than would apply to any competent individual. As in Meeker, Telus knew on the first day of the accident that it had suffered actionable harm and that the name of the person involved was ascertainable.


[23]         It is regrettable that the limitation period went by in this case. As some of the case law demonstrates Courts frequently go some distance to ensure that cases are tried on their merits. The policy inherent in limitation periods, however, must also be respected. Applying the relevant legal principles to the present case, Telus has not established that it is entitled to postponement, and the action must be dismissed.

Court Refuses Plaintiff’s Application To Renew Statement Of Claim

Rule 3-2(1) of the British Columbia Supreme Court Civil Rules allows the Court to renew originating legal documentation, in certain circumstances, after the limitation period has expired.


In Mackie v. McFayden, the Plaintiff properly commenced legal proceedings, properly served the documentation on the Defendant driver, but failed to serve the documentation on the Defendant owner within one year of filing the original documentation. The Court refused to allow a renewal of the originating documentation, thereby causing the Plaintiff’s claim to be dismissed.


[19]        The law regarding the renewal of the writ is relatively straightforward. Five factors are to be considered:


1. Whether the application to renew was made promptly;

2. Whether the defendant had notice of the claim before the writ expired;

3. Whether the defendant is prejudiced;

4. Whether the failure to effect service was attributable to the defendant; and

5. Whether the plaintiff, as opposed to his solicitor, is at fault.


Imperial Oil Ltd. V. Michelin North America (Canada) Inc. (2008), 81 B.C.L.R. (4th) 99 (C.A.).


[22]        In this case, the application for renewal of the writ was not made promptly. The writ expired in April 2008; the application for renewal was made eighteen  months later.


[23]        There is no evidence to suggest that Ms. McFayden has had notice of this claim.


[24]        Mr. Klear submits that there is prejudice to Ms. McFayden. While ICBC will defend the claim, it may seek indemnification for damages paid to the plaintiff.


[25]        Whether or not that is the case, prejudice may be presumed simply by the passage of time without the defendant McFayden having to prove actual prejudice: Mountain West Resources Ltd. v. Fitzgerald (2005), 37 B.C.L.R. (4th) 134 (C.A.). In this case, the writ has been outstanding for nearly three years.


[26]        There is no evidence that the failure to renew the writ is the fault of the defendant McFayden.


[27]        On the other hand, it would appear that the plaintiff’s solicitors (as opposed to the plaintiff) neglected to proceed with the application to renew the writ. Importantly, no explanation whatsoever is offered for this delay. The plaintiff may have his own remedy in these circumstances: Skolnick v. Wood, [1981] 2 W.W.R. 649. However, given the defendant Olson’s position that there is no cause of action against Ms. McFayden, the plaintiff may not need to seek such relief.


[28]        Balancing all of these factors, I am persuaded that the writ should not be renewed. Thus, the plaintiff’s motion is dismissed in its entirety.

Letter From ICBC Does Not Constitute Confirmation Of Any Action, Court Rules

In Nguyen v. Johnson, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, as well as various other types of damages. Unfortunately, the Plaintiff filed originating legal documentation more than two years after the date of the accident, thus after the expiry of the customary two year limitation period. ICBC’S lawyer brought a summary trial application seeking to have the claim dismissed. Counsel for the Plaintiff argued that there had been a confirmation of the cause of action, which would have the effect of extending the two year limitation period. Specifically, counsel for the Plaintiff argued that payments by ICBC for the car owner’s deductible, as well as rental car payments, constituted a confirmation of the cause of action. The Court dismissed this line of argument, however, as any such payments were not made directly to the Plaintiff, who had no property interest in the car she was in that was involved in the accident, which was owned by her husband. Counsel for the Plaintiff also argued that a letter from an ICBC adjuster constituted a confirmation of the cause of action, however the Court again dismissed this argument.


[12]           The reimbursement of the deductible, however, would clearly fall within section 5(6) if the repayment had been to the plaintiff.  The biggest problem that the plaintiff has with respect to s.5(6), whether the argument is based on repairs to the car, payment to rental agencies, or return of the deductible is that none of those payments were to the plaintiff or her agent; they all were payments made in respect of the vehicle in which the plaintiff had no property interest whatsoever.  She was not the owner and she did not suffer the loss of the vehicle.  Her husband was the owner, and the payments and confirmations were of his cause of action, if any, and not of the cause of action that she may have had.


[17]           Counsel for both sides cited a number of cases dealing with the interpretation of s.5(2)(a)(i) of the Limitation Act.  In Podovinikoff v. Montgomery, (1984), 58 B.C.L.R. 204, 14 D.L.R. (4th) 716 (CA), the court upheld a decision holding that a letter from the Insurance Corporation constituted a confirmation of a cause of action.  The letter that was held to constitute a confirmation was one that indicated:


The writer has attempted to reach you by telephone regarding settlement of your personal injury claim.


The Court of Appeal agreed that the mention of settlement was sufficient in that case to constitute a confirmation of a cause of action.

[20]           Although I am concerned with respect to the letter of February 19, 2004, in that it closes with the words, “I looking forward to working with you to resolve this matter, “ I do not find that that amounts to an acknowledgment that there will be a settlement or an offer or an acknowledgment of liability.  Taken as a whole, the letter is an unequivocal denial of liability.  It is an indication that further investigations will take place, and working with Mr. Doran to resolve the matter does not carry with it any implication that it will be resolved with payment to the plaintiff.


[21]           In the circumstances I do not find that the letter constitutes confirmation of any cause of action.