Proposed class proceedings and limitation periods: Lessons from Flynn v. British Columbia

In Flynn v. British Columbia, 2026 BCCA 414, the British Columbia Court of Appeal upheld the chambers judge’s decision striking a proposed class action as statute-barred.^[1]

The decision provides two key takeaways for litigants:

• in B.C., the mere commencement of a proposed class proceeding does not suspend the running of limitation periods for proposed class members; and
• a limitations defence may be addressed on a pre-certification application to strike where it is plain and obvious on the face of the pleadings that the limitation period has expired.

Background: the Massey Action

In July 2020, a proposed class action was filed against the Province of British Columbia and several forestry companies, alleging that their timber harvesting and watershed management activities caused flooding near Grand Forks, which resulted in damage to residents’ homes and businesses (the “Massey Action”). Before any application for certification had been filed, the Massey Action was dismissed by consent.

Gregory and Deborah Flynn, the appellants, were members of the proposed class in the Massey Action and were aware of that proceeding. About a year after the consent dismissal of the Massey Action, they filed a new class action advancing substantially the same claim against the same respondents (the “Flynn Claim”).

The respondents applied under Rule 9-5(1) of the Supreme Court Civil Rules to strike the Flynn Claim as statute-barred, arguing that the period for commencing an action had expired. The chambers judge granted their applications and struck the Flynn Claim without leave to amend.

Takeaways

1. Commencing a proposed class proceeding does not stop the limitation clock

Under section 6 of B.C.’s Limitation Act, most civil claims must be commenced within two years after the day on which the claim is “discovered.”

Section 8 sets out that a claim is “discovered” on the first day on which the person knew or reasonably ought to have known that:

• injury, loss or damage occurred;
• the injury, loss or damage was caused or contributed to by an act or omission;
• the act or omission was that of the person against whom the claim is made; and
• a court proceeding would be an appropriate means to seek to remedy the loss.

The appellants argued that, while they knew about the Massey Action in July 2020, the limitation period had not expired because they did not know at that point that bringing their own court proceeding would be an appropriate means to seek a remedy.

Instead, they claimed that as members of the proposed class in the Massey Action, it would not have been appropriate for them to commence their own action. They argued that holding otherwise would require every member of a proposed class proceeding to file their own individual claim within the limitation period to preserve their rights in the event the proposed class action did not proceed.

The Court rejected this argument, pointing to two provisions in the Class Proceedings Act which govern the running and suspension of limitation periods.

• Section 38.1: suspends the running of a limitation period once a certification application has been filed.
• Section 39: suspends it once a proceeding has been certified.

Neither occurred in the Massey Action. As a result, the limitation period continued to run.

The appellants also argued that section 8(d) of the Limitation Act includes a subjective element in assessing whether a court proceeding is an “appropriate means” of seeking a remedy. The Court found it unnecessary to decide this issue in this case, as the appellants had pleaded their subjective knowledge of the Massey Action. Whether section 8(d) includes a subjective element remains an open question.

2. A limitations issue can be decided on a pre-certification strike application

This decision confirms that there is no presumption that certification must be the first procedural matter heard in a class proceeding and that a limitations issue may be proper grounds on which to strike a claim pre-certification.

Here, the Court found it was appropriate to decide the limitations issue on an application to strike under Rule 9-5(1)(a) of the Supreme Court Civil Rules. For defendants, this confirms that—in the right circumstances—a limitations defence may be raised early and can be used to dispose of a proposed class action prior to certification.

What this means for litigants

Flynn v. British Columbia confirms that merely commencing a proposed class proceeding does not suspend limitation periods for potential class members and that a clear limitations defence may, in appropriate circumstances, be determined before the certification stage.

^[1] Flynn v. British Columbia, 2025 BCSC 1922 (unreported).