COVID-19 and the suspension of limitation periods in British Columbia: Possible implications for the distribution of an estate and ongoing estate litigation

June 4, 2020 | Alexander Swabuk

On March 19, 2020, the Supreme Court of British Columbia suspended regular operations to protect the health and safety of court users and to help contain the spread of COVID-19. All civil and family matters scheduled for hearing between March 19, 2020 and May 1, 2020 (the “Suspension Period”) were adjourned, unless the Court otherwise directed. This automatic adjournment extended to all trials, conferences, chambers applications and other hearings. The Court also established a process to hear only urgent or essential matters. On April 16, 2020, the Supreme Court of British Columbia extended the Suspension Period to May 29, 2020.

Limitation periods and filing deadlines

On March 26, 2020, the Minister of Public Safety and Solicitor General issued Ministerial Order no. M086, titled Limitation Periods (COVID-19) Order (the “First Ministerial Order”), which suspended certain limitation periods to commence court proceedings in British Columbia. At the request of the Attorney General, the Minister of Public Safety and Solicitor General made the First Ministerial Order under the Emergency Program Act to protect public health and to recognize that during the COVID-19 pandemic, British Columbians involved in legal or administrative proceedings may be unable to take steps required by legislation.

The First Ministerial Order provided that mandatory limitation periods, and other mandatory time periods 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 were suspended. It also provided that a person, tribunal or other body that has a statutory power of decision may waive, suspend or extend a mandatory time period relating to the exercise of that power.

On April 8, 2020, the Minister of Public Safety and the Solicitor General published Ministerial Order No. M098, titled Limitation Periods (COVID-19) Order No.2 (the “Second Ministerial Order”). Although courts continue to accept filings, the Second Ministerial Order continues the suspension of all limitation periods and other mandatory time limits of various statutes, including the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “WESA”). The Second Ministerial Order will continue in effect until the state of emergency declared by the Province on March 18, 2020 is lifted or until a further order is made.

Implications on the distribution of an estate

Much like its predecessor, the Second Ministerial Order seeks to eliminate the prejudice to parties that would otherwise result from failing to commence their matter or originating application before the expiry of the relevant limitation period.

Accordingly, its application may have a direct impact on the manner in which an estate is to be distributed by a personal representative for the foreseeable future. For example, subsection 155(1) of the WESA provides that “the personal representative of a deceased person must not distribute the estate of the deceased person within the 210 days following the date of the issue of a representation grant except by order of the court.” The underlying purpose of section 155 is to preserve the estate to allow those who wish to make certain claims, time to do so.  Therefore, although a personal representative may still make distributions of an estate (without getting the consent of beneficiaries) so long as the 210 day period has expired, they should be cognizant that, in doing so, they may also leave the estate exposed to a potential wills variation claim being brought at a later date due to the suspension of the corresponding limitation period as a result of the Second Ministerial Order.

For example, pursuant to section 155 of the WESA, a personal representative who has a representation grant dated March 1, 2020 could theoretically still distribute an estate starting on September 27, 2020.  However, the personal representative may be confronted with a wills variation claim well after the September 27, 2020 “deadline” as a result of the Second Ministerial Order. That being said, if there are no potential wills variation claimants or if the personal representative has the consent and release from all potential wills variation claimants, distribution can likely be done with little risk being contemplated.

Filing and service timelines for ongoing litigation

Pursuant to COVID-19 Notice No. 19 dated May 13, 2020, filing and service timelines under the Supreme Court Civil Rules, which were suspended on March 18, 2020, will recommence on May 29, 2020. While Notice No. 19 applies only to timelines set out by the Supreme Court Civil Rules and, therefore, does not impact the 210 day time limit set by the WESA, parties who have already commenced estate-related litigation in the Supreme Court of British Columbia will see their timelines start to run again starting May 29, 2020. As a result, those who are currently involved in litigation should consult with a lawyer in order to determine what time periods still apply in their respective actions.

If you have any questions about commencing or defending an estate claim, contact Miller Thomson’s estate litigation team.

 

Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.

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