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Being Aware of Limitation Periods

What is a “limitation period” and what happens if I miss it?  Does ICBC have an obligation or duty to warn me about that issue?

Under British Columbia law, there is a deadline of two years within which a lawsuit must be commenced to pursue fair, financial compensation for injuries and losses arising from a motor vehicle collision.  This is called a limitation period.  If the legal action is not commenced within this two-year period then your rights might forever be lost.

In case of Dewolfe v Jones (2016 BCSC 2008) Mr. Justice Gaul was asked to determine whether the plaintiff’s claim was barred by the two-year limitation period as the Notice of Civil Claim (the document, when “filed” with the Court Registry, “commences” the lawsuit) was not filed until nearly four years after the collision.

The plaintiffs argued that they missed the deadline because during a May 11, 2006, conversation with an ICBC adjuster they were led to believe that the claim “could be settled at anytime we felt ready to do so” and that they should contact the adjuster “whenever we’re ready to settle”. The plaintiff argued further that the May 11, 2006 conversation amounted to the adjuster making an “affirmative statement implying the absence of any limitation period” and therefore the defendant should be estopped (legal term for “prevented”) from being able to rely on the limitation period defence.

ICBC argued that no such statement was made and that the action was a nullity as it was not commenced within the two-year period.

Ultimately, Justice Gaul found that the plaintiffs’ claim was barred by the two-year limitation period:

[41]         The plaintiffs say the circumstances in the present case differ from those in Tolentino. In that case an insurance adjuster advised the claimant that it was not necessary for him to have a lawyer and that she would discuss settling his claim with him after she had obtained the necessary medical records. There was no discussion of any limitation period applicable to the claim. The adjuster did not attempt to contact the plaintiff as it was her belief he would be contacting her. The plaintiff did not contact the adjuster again until after the limitation period had expired. The plaintiff argued promissory estoppel where he understood that the adjuster would collect the necessary information and then get back to him to “work something out”.

 [42]         At para. 24 of her judgment, Fisher J. considered the following reasons submitted by the plaintiff that it would be unfair to allow the defendants to rely on the limitation defence:

1. [The plaintiff] was a layperson and [the adjuster] was an experienced adjuster far more knowledgeable about the legalities of the claim;

2. The adjuster] assured [the plaintiff] that he did not need a lawyer and could settle the claim with her when there was only six months remaining before the expiry of the limitation period;

3. liability was not in issue;

4. in the context of [the adjuster’s] knowledge about the limitation period, and to some extent her special relationship to him as a first party insurer in respect of Part 7 benefits, her words implied that there would be no legal impediments to settling the claim; and

5. no steps were taken to contact [the plaintiff] before the limitation period expired.

 [43]         The court concluded at para. 25 there was no promise made that the plaintiff could reasonably rely on:

 [25]      … I agree that [the adjuster] was more knowledgeable than [the plaintiff] about the legalities of the claim but I am not satisfied that her communication to him reasonably implied that there would be no legal impediments to settling his claim. Although liability was not in issue and the adjuster expected the case to settle, the parties had not begun negotiations in any meaningful way. There was no discussion about time limits. The relevant discussion was not in relation to Part 7 benefits. There are no words or conduct from which I can infer that the implicit admission of liability for the bodily injury claim was intended to apply whether or not the matter settled and regardless of time. The adjuster intended only that she and [the plaintiff] would be in a position to discuss settlement within a relatively brief period of time, once she obtained the additional medical records.

 [44]         The reasons advanced by the plaintiff in Tolentino bear striking similarities to those presented by the plaintiffs in the present case. However, the DeWolfes assert their circumstances are distinguishable because in Tolentino the court found there were no words or conduct from which the court could infer a representation, whereas in their case there was an “affirmative statement” by Ms. Johal. Respectfully, I do not agree with the plaintiffs’ argument. In both cases, the adjuster raised the possibility of settlement at a later date, but neither made an express representation or statement about the waiver of a limitation period or that the matter would settle regardless of time. In my opinion, the circumstances in Tolentino and the matter at hand are similar in this regard and I am unable to find by inference or otherwise, that a representation amounting to a promise not to rely upon the limitation period was made to the plaintiffs in this case.

[45]         In my view, the plaintiffs’ circumstances are also different from those in Brar v. Roy, 2004 ABQB 383, aff’d, 2005 ABCA 269, a case cited in Tolentino, where the court found the defendant was estopped from relying on a limitation period defence in an automotive insurance matter. In Brar, liability had been conceded and the parties entered into settlement negotiations with several offers exchanged between them. On the eve of the expiry of the limitation period, the defendant made an unconditional, open-ended offer. There was no discussion of a limitation period. The plaintiff accepted the offer shortly after the limitation period had expired. The court found that the plaintiff reasonably believed the defendant had accepted liability and that the ongoing negotiations would continue until a settlement was reached, and the defendant could not rely on the limitation defence (at para. 25).

 [46]         As previously noted, in assessing whether the statement of the adjuster can be construed as affecting the legal relations of the parties, the court may draw inferences from the context of the negotiations between the parties. In Brar, the parties were engaged in ongoing negotiations on the quantum of damages and, since liability had been conceded, there were no other legal impediments to settlement. In the DeWolfes’ case, the alleged representation took place during preliminary discussions, well before the parties had engaged in any serious negotiations on quantum. In fact, the evidence of Mr. DeWolfe and the CWMS notes on the DeWolfes’ file indicate the DeWolfes were not ready to settle.

 [47]         Furthermore, when considering whether an admission of liability supports the inference that a limitation period has been waived, it is important to keep in mind the comments of the Court in Maracle at pages 58-59:

 An admission of liability is frequently made in the course of settlement negotiations. This is often a preliminary step in order to clear the way to enter into a discussion as to quantum. Indeed, when an offer to pay a stated amount is made by one party to the other, an admission of liability is usually implicit. In this type of situation, the admission of liability is simply an acknowledgment that, for the purpose of settlement discussions, the admitting party is taking no issue that he or she was negligent, liable for breach of contract, etc. There must be something more for an admission of liability to extend to a limitation period. The principles of promissory estoppel require that the promissor, by words or conduct, intend to affect legal relations. Accordingly, an admission of liability which is to be taken as a promise not to rely on the limitation period must be such that the trier of fact can infer from it that it was so intended. There must be words or conduct from which it can be inferred that the admission was to apply whether the case was settled or not, and that the only issue between the parties, should litigation ensue, is the issue of quantum. Whether this inference can be drawn is an issue of fact. […]

 [48]         In my opinion, Ms. Johal did not state or infer that liability had been accepted by the defendants to the extent that the only remaining issue was the quantum of damages. The parties had not entered into negotiations, only discussions in which Ms. Johal came to the conclusion that the plaintiffs did not want to consider settlement at that point.

 [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”.

 [50]         Although case authorities such as Esau v. Co-Operators Life Insurance Company Limited, 2006 BCCA 249, have commented on the advisability of insurers informing their clients of limitation periods, for better or worse the law remains unchanged. In my view, ICBC had no obligation or duty to raise the limitation period issue with the plaintiffs. Consequently, the plaintiffs’ assertion that they were unaware of that period is insufficient to ground a claim of promissory estoppel.

 * IMPORTANT NOTE – There are many different limitation periods and other deadlines that can apply to legal claims in general, and claims arising from motor vehicle collisions in particular, some requiring immediate notification.  If you have a potential legal claim, consult with a lawyer IMMEDIATELY to learn what limitation periods and other deadlines might apply.

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