Ministerial Order M098 to take effect April 15
On March 26, 2020, the Minister of Public Safety and Solicitor General suspended all limitation periods as a result of the COVID-19 pandemic pursuant to Ministerial Order No. M086 (the “Original Order”):
Every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in Provincial Court, Supreme Court or Court of Appeal is suspended.
On April 8, 2020, the Minister of Public Safety and Solicitor General issued Ministerial Order No. M098 (“Order M098”). Effective April 15, 2020, Order M098 will repeal and replace the Original Order. Order M098 continues the suspension of all limitation periods and other mandatory time limits, but has varied the limitation period suspension so that it does not apply to mandatory limitation periods and mandatory time limits established under the Builders Lien Act SBC 1997, c. 45 (the “BLA”), and division 5 [Builders Liens and Other Charges] of Part 5 [Property] of the Strata Property Act, SBC 1998, c. 43. The operative sections of Order M098 are as follows:
Limitation periods in court proceedings
2 (1) Subject to subsection (2), every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal is suspended.
(2) Subsection (1) does not apply to a mandatory limitation period and any other mandatory time period established under the following enactments:
(a) the Builders Lien Act;
(b) Division 5 [Builders Liens and Other Charges] of Part 5 [Property] of the Strata Property Act.
Order M098 will not be retroactive. Order M098 will continue in effect until the state of emergency which was declared by the Province on March 18, 2020 is lifted or until a further order is made.
Filing a Claim of Lien
With Order M098 in effect, lien holders must continue to register their claims of lien and certificates of pending litigation as they normally would. The Land Title and Survey Authority of British Columbia continues to operate and the Supreme Court of British Columbia still permits the commencement of proceedings by the electronic filing of a Notice of Civil Claim.
Builders lien claimants must ensure that their claims of lien are filed within the usual forty-five day period after the date on which a certificate of completion is issued, the head contract is completed, abandoned or terminated, or the improvement is completed or abandoned, each of which may be applicable depending on the circumstances.
Commencement of Proceedings
The effect of Order M098 is that the one-year limitation period under the BLA for commencing an action to enforce a claim of lien continues to apply. Furthermore, the twenty-one day period for commencing an action after service of a Notice to Commence continues to apply and has not been affected by the Original Order or Order M098. Lien claimants, contractors and/or material suppliers must ensure they are closely following and adhering to the mandatory time limits for perfecting a lien.
Holdback funds, Shimco Liens and Trust Claims
Neither the Original Order nor Order M098 have affected the fifty-five day release period for holdback funds, and so construction industry participants should be able to safely continue with the release of holdback funds after all appropriate searches are conducted.
Furthermore, the two-year limitation period for common-law Shimco lien claims against holdback funds have not been affected.
Finally, the one-year limitation period for trust claims continues to apply and has not been affected.
Order M098 has reinstated the deadlines and timelines in the BLA that were previously suspended by the Original Order. Order M098 helps alleviate concerns of construction industry participants regarding the timing of the filing of liens, the flow of project funds and the release of holdback payments.
The temporary suspension of deadlines in the BLA under Original Order may have already affected individuals and participants in the construction industry. If you believe there is a risk that a limitation period has run out or may soon run out now that Order M098 is in effect, we suggest you contact a lawyer to determine what steps may be necessary.