March 30th, 2012
Limitation periods are important. If your case is not settled before your limitation period expires a formal lawsuit needs to be filed within time otherwise the right to pursue the claim effectively disappears.
When dealing with ICBC directly it is important not to rely on them for assistance in bringing limitation periods to your attention. They are under no duty to tell you when your limitation is coming up. ICBC is allowed to ‘run the clock’. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In today’s case (Field v. Harvey) the Plaintiff was injured in a 2008 collision. In her dealings with ICBC some discussions were had regarding settlement with ICBC writing a ‘without prejudice‘ letter referencing bills for massage therapy indicating that “we can discuss this at the time of settlement“.
The Plaintiff never did settle her claim. She commenced a formal lawsuit but did so after her limitation period expired. The Plaintiff argued that ICBC should be estopped from relying on the limitation period because of ICBC’s letter discussing settlement. Mr. Justice Bracken disagreed and dismissed the lawsuit. In doing so the Court provided the following words of caution:
 Finally, the defendants argue that ICBC does not have any duty, statutory or otherwise, to inform potential claimants of the specific date on which the right to commence an action upon a claim will expire…
 It is clear from the case law that ICBC was under no obligation to warn the plaintiff that the limitation period had commenced, was not postponed, and would soon expire….
 The plaintiff relies solely on the December 15, 2008, letter for her argument that the defence of estoppel can be applied as a defence to the provisions of the Limitation Act. That letter explicitly states: “[n]othing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period.”
 A reasonable interpretation of this letter in no way evidences a representation or promise, by convention or otherwise, to waive or extend the applicable limitation period. In my opinion, it does quite the opposite by warning the plaintiff that, although all claims are negotiated toward the goal of settlement, time is still running.
 Limitation periods exist, in part, to encourage plaintiffs to bring their actions in a timely manner. The plaintiff has failed to bring her action in a timely manner and has not satisfied this court that there exists a lawful reason for her failure to comply with the provisions of the Limitation Act.