When a Two Year Limitation Period is Actually Three

In British Columbia many legal claims are subject to a two year limitation period.  Once a lawsuit is started in the BC Supreme Court a Plaintiff has a year to serve the claim on the Defendants being sued.   This period, totalling potentially three years, is considered when adding new parties to an existing lawsuit as demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Jamal v. Young) the Plaintiff was involved in a series of collisions and sued for damages.  The Plaintiff sought to add more parties to one of the claims beyond the expiration of the two year limitation period.  The application was opposed with the Defendants arguing the passage of time and limitation period was prejudicial.  The Court granted the application noting the relevant period to consider prejudice in these circumstances is three years.  Master Elwood provided the following useful summary of the law:

[17]         Applying the Teal factors to an application to add a defendant following the expiry of a limitation period, the Court held that the “proper period of delay to consider” is the elapsed time following the expiry of the limitation period plus one year for service of the writ (now the notice of civil claim): Amezcua, at paragraph 36.

[18]         Until the time for service of a filed notice of civil claim expires, parties connected to the claim can still expect to be sued and should govern themselves accordingly. Until that time, no presumed or actual prejudice to the proposed defendant from the passage of time can be attributed to the plaintiff’s delay. This was explained by Lambert J.A. in MacIntosh v. Nilsson Bros. Inc., 2005 BCCA 297, at paragraph 8:

[8] …  The prejudice that must be presumed should surely be restricted to situations where the period which has passed since the cause of action arose is the length of the limitation period plus one year for service of the Writ. Because, within that time, a Writ could have been filed within the limitation period and served after the limitation period expired for up to a year, without any prejudice to the defendant. And the same is true, as pointed out by Mr. Justice Macdonald, with respect to actual prejudice by destruction of evidence or failure of recollection. If these occur within the limitation period plus the year allowed for service of the Writ, then any prejudice to the defendant sought to be added is not caused by the plaintiff. The defendant should not have conducted himself, herself, or itself in such a way as to pass the detriment caused by the passage of time on to the plaintiff.

[19]         Put another way, where prejudice is said to arise from the plaintiff’s failure to name a proposed defendant sooner, the delay only becomes relevant and necessary for the plaintiff to explain following the expiry of a limitation period plus one year.