Practically speaking, it is often inconvenient and costly for building professionals to keep project files; understandably, they do not wish to retain files any longer than necessary. In British Columbia, the provisions of the Limitation Act, S.B.C. 2012, c. 13 (the “Act”) should guide building professionals in the formation of their records retention policy.
The Act establishes limitation periods for civil actions, which arguably indicate the duration of time that project files should be kept. The Act does not contain any requirements with respect to record retention, however, to fully defend claims made against them, building professionals should have their complete project file available to them.
Purpose of Limitation Period Legislation
When considering time requirements for record retention, it is helpful to understand the policy rationale underlying limitation period legislation.
The purpose of such legislation is to ensure that civil actions are brought in a timely manner, while affording the plaintiff a reasonable opportunity to seek legal advice, consider settlement, and, if necessary, bring a claim. Any claim that is not commenced within the “basic limitation period” is vulnerable to a limitations defence which, if successful, will result in the defendant being immune from liability.
The limitation period runs from the time the cause of action arises. In order to protect the rights of the plaintiff, the running of a limitation period can be postponed or suspended in certain circumstances.
To avoid stale claims and the prospect for open-ended liability, the Act prescribes an “ultimate limitation period”, which establishes an outside time limit for asserting a claim even where one or more of the tolling provisions would otherwise extend the running of time.
Overview of the Act as it Pertains to Record Retention
Two-Year Basic Limitation Period
The requirement for record retention turns upon the basic and ultimate limitation periods.
The basic limitation period for most claims expires two years after the claim is “discovered”. A claim has been discovered when the person ought to have known all of the following:
- an injury, loss, or damage has occurred;
- an act or omission caused or contributed to the injury, loss, or damage;
- the act or omission was caused by the person against whom the claim is made or may be made; and
- a court proceeding would be an appropriate means to seek to remedy the injury, loss, or damage.
15-Year Ultimate Limitation Period
The Act, which came into effect on June 1, 2013, shortened the ultimate limitation period from 30 years to 15 years. This period starts to run from the date the act/omission occurs, not the date of discovery.
For example, if a plaintiff discovers a claim 18 years after an act/omission by the defendant, the claim will be statute-barred, even if the plaintiff has not yet suffered any damages. However, if a defendant has wilfully concealed a claim, the Act postpones the ultimate 15-year limitation period and deems the act or omission to have taken place on the day the claim was discovered.
Records Created Before June 1, 2013
Under the transition provisions of the Act, the maximum exposure to liability for acts/omissions that occurred before June 1, 2013 will end on June 1, 2028. Additionally, a claimant has one year to serve the defendant under the British Columbia Supreme Court Rules, which is added to this time period.
Therefore, records created before June 1, 2013 should be retained until:
- 31 years from the date of last entry (application of 30-year ultimate limitation period plus one year for service); or
- June 1, 2029 (the end date prescribed in the Act plus one year for service) whichever comes first.
Records Created After June 1, 2013
If a professional has created records after June 1, 2013, those records should be retained for at least 16 years from the date of last entry (application of 15-year ultimate limitation period plus one year for service).
What Does this Mean for Insurers?
In most instances, the project file is necessary for the defence of a claim against a building professional. Without the file, the insured, and their insurer, may be prejudiced or at a disadvantage in the defence of the claim. Brokers should encourage their clients to retain their complete project files for the relevant period of time.
A prudent records retention policy for building professionals may be summarized as follows:
For records created before June 1, 2013: retain records for 31 years from the date of last entry or until June 1, 2029, whichever comes first.
For records created after June 1, 2013: retain records for at least 16 years from the date of last entry.