Ministerial Order Confirms All BC Builders Lien Act Limitation Periods Continue to Apply

Ministerial Order M098 clarifies that the British Columbia construction industry will be able to operate without the potential uncertainties introduced by the Original Order.

On March 27, 2020, the Government of British Columbia issued an order that suspended all limitation periods as a result of the COVID-19 pandemic (the “Original Order“). [1] The Original Order was issued by the Minister of Public Safety and Solicitor General via Ministerial Order No. M086. The authority pursuant to which the Original Order was issued arises out of Section 10 of the British Columbia Emergency Program Act.

The Original Order may have had significant impacts on BC’s construction industry with respect to claims of lien, holdbacks, lien-enforcement actions, and the many other issues that may arise under the British Columbia Builders Lien Act (“BLA“). The broad wording of Section 2 appeared to apply to at least some of the limitation periods and filing deadlines as set out in the BLA.

On April 8, 2020, the Solicitor General and Minister of Public Safety repealed the Original Order and issued a new order addressing some of the ambiguity that the Original Order created (the “Replacement Order“). [2] The Replacement Order, Ministerial Order No. M098, came into force on April 15, 2020.

Specifically, the Replacement Order states:

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.

The Replacement Order, Ministerial Order No. M098, expressly exempts from the suspension of limitation periods – in other words continues the application of – the BLA and all limitation periods in any way relating to the BLA, including the 45-day claim of lien filing and 55-day holdback periods.

As well, the Replacement Order exempts Division 5 of Part 5 of the British Columbia Strata Property Act (“SPA“), which deals specifically with builders’ lien issues with respect to stratified property.

This means that all limitation periods and deadlines with respect to the following BLA matters are unaffected by the suspension of limitation periods as a result of the COVID-19 pandemic:

1. The 1-year limitation period to commence a lien-enforcement action in the Supreme Court of British Columbia (section 33 of the BLA);
2. The 1-year limitation period with respect to BLA trust claims (section 14 of the BLA);
3. The 2-year limitation period with respect to Shimco actions [3] by which plaintiffs may advance a common-law claim against the holdback fund, in the event money was in fact held back and has not yet been paid out;
4. The 45-day claim of lien filing period (section 20 of the BLA and Section 88(1) of the SPA);
5. The 1-year limitation period to register a certificate of pending litigation with respect to a lien-enforcement action (section 33 of the BLA);
6. The 21-day limitation period with respect to a notice to commence an action (section 33 of the BLA); and
7. The 55-day holdback period (section 8 of the BLA and section 88(2) of the SPA).

For clarity, all limitation periods and deadlines with respect to claims of lien, trust claims and lien-enforcement actions pursuant to the BLA and/or Division 5, Part 5 of the SPA are exempt from the Replacement Order, meaning that all relating limitation periods and deadlines remain in full force and effect.

Lien holders may continue to register claims of lien and certificates of pending litigation because 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.

In the event you have held off on taking steps (potentially as a result of uncertainty surrounding the applicability of the Original Order on the BLA), and there is a risk that a limitation period is running out or has run out, we recommend that you immediately contact a lawyer to determine what steps, if any, you are able to take to remedy the situation.

Update May 14, 2020: 

The Supreme Court of British Columbia announced that it is preparing to resume some regular operations as set out in its COVID-19 Notice #19, released May 13, 2020. [4]

All civil matters scheduled for hearing between March 19 and May 29, 2020, including hearings involving the construction industry, were adjourned due unless the Court otherwise directed.

As of June 1, 2020, judicial case conferences, trial management conferences and chambers matters already scheduled for hearing on the trial list will resume by telephone. Trials scheduled to start on or before June 5, 2020 are adjourned unless the Court otherwise directs. All civil trials scheduled to begin on or after June 8, 2020 will resume unless the Court otherwise directs.

While COVID-19 Notice #19 confirms that the suspension of limitation periods will remain in place, as noted above the suspension of limitation periods does not apply to the BLA or Division 5, Part 5 of the SPA. All BLA and SPA (Division 5, Part 5) limitation periods and deadlines remain in full force and effect.

[1] The Original Order

[2] The Replacement Order

[3] Schoenhalz v. ICBC, 2016 BCSC 661.

[4] Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (COVID-19 Notice #19)

[5] Civil and Family Matters – Resumption of Trial Management Conferences and Trials (COVID-19 Notice #20): 

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