By Attorney Jeremy Power
Though it may be inconvenient and costly for construction professionals to keep project files for long periods of time, it is imperative that they do so. In each province, the provisions of their respective Limitation Act (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, construction professionals should have their complete project file available to them.
Below, we provide a list of general guidelines for construction professionals in Ontario and British Columbia, as well as a tabulated reference guide per province for each type of record.
- The statutory regime in Ontario is the Limitations Act, which states that a proceeding “shall not be commenced after the second anniversary of the day on which the claim is discovered.” This means that a claimant has a general limitation period of two years that starts on the discovery of the claim, NOT the wrongful act or omission.
- The regime then lays out that there is 15 years “ultimate limitation period.” The ultimate limitation period is the “15th anniversary of the day on which the act or omission on which the claim is based took place.”
Based on the guidance provided by Ontario’s Limitations Act, construction professionals in Ontario should keep their records for 16 years; 15 to account for the ultimate limitation period and one year for service.
- The statutory regime in B.C. is similar to Ontario in that there is a two-year general limitation period, and a 15-year ultimate limitation period. However, this is only the case since 2013.
- Before June 1, 2013, the ultimate limitation period in B.C. was 30 years.
Therefore, records created after June 1, 2013, should be kept for 16 years, logically following the reasoning in the Ontario slide. Records created before June 1, 2013, should be retained until:
a) 31 years from the date of last entry (application of 30-year ultimate limitation period plus one year for service); or
b) June 1, 2029 (the end date prescribed in the Act plus one year for service) whichever comes first.
Depending on the nature of documents (e.g. records of accidents, payroll, personal information, criminal records, etc.) the retention period may vary.
As discussed above, limitation legislation generally allows claims to be brought up to an absolute maximum of 15 to 30 years from the date of the incident. However, there are some exceptions: where a physical altercation has occurred at work, such as assault, battery, or sexual abuse (or you suspect such an altercation may have occurred), records should be kept indefinitely. Such a claim, in particular, the injury it causes, may not be “discovered” by the employee until years after the fact.
To illustrate the differences in retention periods for different provinces and different types of documents, we have put together this table showing a general overview of relevant periods (in years) for various construction and employment-related matters for each province (excluding Quebec.)
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The Rule of Thumb
The general rule of thumb is however long the period of liability for a claim, plus one year. There are several different factors and deadlines that need to be taken into account, and we suggest reaching out to your lawyer for advice on the specific legislative requirements for your documents.
Written by Jeremy Power, a lawyer in Cotney Construction Law’s Toronto office. Cotney Construction Law is an advocate in the roofing industry and General Counsel of Canadian Roofing Contractors Association. To contact Jeremy, please email firstname.lastname@example.org.