Limitation Defences at Certification: Reichert v. Canada (AG), 2026 BCCA 9

Why this Decision Matters

In Reichert, the British Columbia Court of Appeal confirmed that judges can consider the applicable limitation period in deciding whether to certify a proposed class action. Ordinarily, s. 6(1) of the Limitation Act prevents plaintiffs from suing more than two years after they discover the harm. Previous decisions had held that limitation defences should only be considered in “exceptional circumstances” at the certification stage.

Background

In 2011, the RCMP internally raised concerns about the care provided to RCMP members by a registered psychologist under the RCMP’s health benefit plan. The RCMP accessed and disclosed the health records of RCMP members to make a complaint to the College of Psychologists of British Columbia. After discovering that the RCMP had disclosed their personal records to support the complaint, several impacted members complained to the Canadian Privacy Commissioner in July 2013. In October 2015—more than two years later—they filed a proposed class action based on statutory and common law privacy rights and negligence.

At certification, the chambers judge refused to certify the class, concluding that a class proceeding was not the preferable procedure because the limitation period the claim had potentially expired and other recourse was available. The chambers judge observed that the RCMP members had sued more than two years after their initial complaint to the RCMP in July 2013, but that, unlike the limitation period for a claim in court, the RCMP’s disability pension process had no such limitation.

The plaintiffs appealed, arguing that the chambers judge erred by, among other things, considering limitation issues at the certification stage.

The Court of Appeal’s Decision

The Court of Appeal dismissed the appeal, finding the chambers judge made no errors in his analysis of preferable procedure.

Limitation Periods May be Relevant to Preferability at Certification

Section 4(1) of the Class Proceedings Act (“CPA”) requires the court to certify a class proceeding where five criteria are met, one of which is that a class proceeding would be the “preferable procedure to resolve the common issues”.

Past decisions had declined to consider limitation defences at the certification stage, deferring these defences until after certification. In Reichert, the plaintiffs argued that the chambers judge had failed to do the same, relying on cases that say that limitations periods should only be considered at certification in “exceptional circumstances.”

However, the Court of Appeal held that “exceptional circumstances” did not apply to all five certification criteria equally, and particularly to the preferability analysis under s. 4(1)(d). Instead, the Court of Appeal explained that “it may be appropriate to consider whether limitation issues may make a class proceeding more or less advantageous than the alternatives” (para. 50).

Limitation periods are relevant to two of the three objectives of class proceedings: access to justice and judicial economy. The Court of Appeal held that it was appropriate for the chambers judge to consider which proceeding—a class proceeding with limitation period issues, or pension claims not subject to a limitation period—would better facilitate access to justice. The Court of Appeal observed the principle had already been applied in reverse circumstances. In Lewis v. West Jet, 2022 BCCA 145 a class proceeding was preferable because the limitation period for class claims was longer than the limitation period individuals would face in the proposed alternative.

Ultimately, the Court of Appeal found no error in the chambers judge’s consideration of the limitation issue under s. 4(1)(d).

The Big Takeaway

While limitation periods might only be considered at certification under s. 4(1)(a) in exceptional circumstances, Reichert confirms that courts can properly consider limitation periods in determining whether a class proceeding is preferable to other alternatives under s. 4(1)(d).