Citation: Smith v. Atlantic Wholesalers Ltd., 2012 NSSC 14
Date: 20120110
Docket: Syd No. 115217
Registry: Sydney
Between:
Beverly Smith
Plaintiff
and
Atlantic Wholesalers Limited, carrying on business
as Super Valu
Defendant
and
APM Construction Services Inc.
Third Party
Judge: The Honourable Justice Michael J. Wood
Heard: December 6, 2011 (in Chambers), in Halifax, Nova Scotia
Final Written
Submissions: December 13, 2011
Written Decision: January 10, 2012
Counsel: J. W. Stephen Johnston, for the Third Party Applicant
Peter Rumscheidt, for the Defendant Respondent
By the Court:
I. Overview
[1] On October 21, 1999, the plaintiff, Beverly Smith, suffered a fall while shopping at the Super Valu Store in Sydney, Nova Scotia. This store was operated by the defendant, Atlantic Wholesalers Limited (“Atlantic”). Ms. Smith alleges that her fall was the result of Atlantic’s negligence and she commenced these proceedings by issuing an originating notice and statement of claim in October, 2001.
[2] APM Construction Services Inc. (“APM”) was apparently involved in a construction project inside the Super Valu store at the time of Ms. Smith’s fall. In January, 2010, Atlantic issued a third party statement of claim against APM alleging that Ms. Smith’s fall was caused or contributed to by APM and seeking contribution and indemnity from them.
[3] This is a motion for summary judgment brought by the third party, APM, pursuant to Civil Procedure Rule 13.03(1), which provides as follows:
Summary judgment on pleadings
13.03 (1) A judge must set aside a statement of claim, or a statement of defence, that is deficient in any of the following ways:
(a) it discloses no cause of action or basis for a defence or contest;
(b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court;
(c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own.
[4] The motion is based upon the submission that the applicable limitation period for the bringing of the third party action had expired prior to its commencement. If this assertion by APM is correct, then the claim will be clearly unsustainable and fall within the scope of CPR 13.03(1)(c).
[5] A judge considering a motion for summary judgment on pleadings must consider only the pleadings themselves and must assume that the facts as stated can be proven. In this case the third party claim issued by Atlantic incorporates by reference the plaintiff’s statement of claim and, therefore, I will take as proven (for purposes of this motion) the facts set out in both of those pleadings. Those facts are as follows:
(i) On October 21, 1999, the plaintiff, Beverly Smith, was shopping at the defendant, Atlantic’s store in Sydney, Nova Scotia.
(ii) Ms. Smith slipped and fell in the store and suffered damages as a result.
(iii) APM was engaged in the construction of a project inside Atlantic’s store at the material time.
(iv) The plaintiff’s fall was caused by Atlantic’s failure to maintain the premises, allowing water or foreign material to accumulate on the floor and failing to post warning signs.
(v) The plaintiff’s fall was caused or contributed to by the failure of APM to keep the floor free of water, substances or debris, failure to clean up material when it knew or ought to have known of its presence and failure to post warning signs.
[6] The plaintiff’s statement of claim was issued on October 19, 2001 and Atlantic’s third party claim against APM was issued on January 27, 2010.
[7] It is clear from reviewing the pleadings that Atlantic’s allegations against APM in the third party claim are essentially the same as the plaintiff’s claims against Atlantic. Although the third party claim does not specifically plead the provisions of the Tortfeasors Act, R.S.N.S. 1967, c. 307, counsel for Atlantic advised in his submissions that the claim was being made under that legislation.
[8] The issue raised on this motion for summary judgment is whether the limitation period applicable to the third party claim had expired prior to January 27, 2010. If so, the third party action is clearly unsustainable and summary judgment ought to be granted.
II. Positions of the Parties
[9] APM asserts that the limitation period for the third party contribution claim is the same as would apply to a claim by the plaintiff directly against APM. Under s. 2(1)(e) of the Limitation of Actions Act, R.S.N.S. 1989, c. 258, this would be six years from the date on which the cause of action arose, which is October 21, 1999. This period would expire on October 21, 2005.
[10] Atlantic says that the cause of action against APM does not accrue until there is a finding of liability in the plaintiff’s claim against it. Since there has been no such finding, the defendant submits that the cause of action has not accrued and, therefore, the six year limitation period has not yet begun to run.
III. Analysis
(A) The Situation in Nova Scotia - MacKenzie v. Vance
[11] Consideration of limitation issues in claims for contribution and indemnity under the Tortfeasors Act are relatively rare in Nova Scotia. This may well be due to the decision of the Nova Scotia Supreme Court (Appeal Division) in MacKenzie v. Vance, Colchester County Hospital and McMillan, (1977) 19 N.S.R.(2d) 381.
[12] In MacKenzie, the plaintiff, Vance, allegedly suffered damages as a result of medical care provided by Dr. MacKenzie and initiated legal proceedings against him. MacKenzie attempted to issue third party proceedings against the hospital and a nurse. The limitation for claims arising out of the provision of medical or hospital services was one year from the date that the services terminated. MacKenzie had continued to provide some treatment to the plaintiff, such that the action was within time when it was commenced against him. However, by that point, the one year limitation against the nurse and hospital had expired. This meant that MacKenzie was attempting to bring a third party indemnity claim against the nurse and hospital at a point when the plaintiff had no right to so directly. The Court described the issue before it in the following terms:
The neat and narrow point for determination is whether a party against whom a plaintiff’s cause of action is barred by The Statute of Limitations can be brought in as a third party by a defendant for the purpose of allowing the latter to claim contribution and/or indemnity from such third party in the event the plaintiff succeeds against the defendant.
[13] The Court also noted the apparent lack of authority on the issue at para. 39:
There are no reported cases that counsel or I could locate either in the courts of this province or in the Supreme Court of Canada in which the issue here has been considered; hence it is at large before this court.
[14] This is noteworthy in light of the decision of the Supreme Court of Canada in Stetar v. Poirier,[1975] 2 S.C.R. 884, which had been decided two years earlier. I will discuss the significance of the Stetar decision later in my decision.
[15] The Court in MacKenzie reviewed a series of English authorities and concluded that the right of contribution between tortfeasors was not a cause of action in tort, but a right sui generis, which was conferred by statute and accrues only when the liability of the claimant has been determined. The rationale for the Court’s conclusion that the limitation period with respect to the third party claim had not begun to run is found in the following passage:
40 I propose to follow the English authorities to which I have referred primarily because they involved legislation similar to s. 2(c) of The Tortfeasors Act of this province. In addition, however, if the submissions of counsel for the respondents are correct it follows, as mentioned earlier, that at the time Mr. Vance commenced action against Dr. MacKenzie the latter, through no fault of his own, could not have joined as third parties the nurse and the hospital. Such a situation appears to me unjust and unfair and could conceivably result in a miscarriage of justice.
41 In my view the cause of action by s. 2(c) of The Tortfeasors Act to a defendant tortfeasor to claim contribution from any other tortfeasor is a right sui generis conferred by The Tortfeasors Act and accrues (as Denning L.J. said in the Wimpey case) when the liability of the first tortfeasor (the defendant) has been ascertained by judgment against him or admission.
42 In my opinion, to hold that the proposed third parties can rely on the one-year limitation period would lead to the absurd result that the cause of action given by The Tortfeasors Act to the appellant would be barred before it accrued, not by anything done by the appellant Dr. MacKenzie but by the whim of the plaintiff in the conduct of his proceedings.
[16] This decision has been relied on several times in Nova Scotia for the proposition that a Tortfeasors Act indemnity claim is sui generis. However, the only decision that appears to apply the conclusion concerning limitation periods is Saint Matthews Church v. C.W. Stone Contractors, [1994] N.S.J. No. 274. In that decision, Justice Grant quoted with approval the conclusions of the Court in MacKenzie without any further analysis of the issue.
[17] On its face, the MacKenzie decision appears to support the position of the defendant, Atlantic, that the cause of action against APM does not accrue (and the limitation period start to run) until liability has been established against it. APM argues that the decision should no longer be followed for two reasons. First, because ss. 2(4) and 3 of the Limitation of Actions Act show that the Legislature did not intend that limitations for indemnity claims be calculated from the date of liability on the defendant. Second, that MacKenzie should not be followed in light of the conclusions of the Alberta Court of Appeal in Canada Deposit Insurance Corp. v. Prisco (1996) 181 A.R. 161 which criticized the decision of the Nova Scotia Court.
[18] Section 3 was added to the Limitation of Actions Act after the decision in MacKenzie and provides discretion to the court to extend the time limitation by up to four years, based upon an assessment of the circumstances and, in particular, the relative prejudice to the parties. The third party submits that this discretion would have allowed the Court in MacKenzie to alleviate the prejudice to the defendant without the necessity of dealing with the issue of commencement of the limitation period for third party indemnity claims.
[19] Section 2(4) of the Limitation of Actions Act provides as follows:
(4) Notwithstanding Section 38, where an action for recovery of damages occasioned by or arising out of the ownership, maintenance, operation or use of a motor vehicle is commenced within the time limited by clause (f) of subsection (l) and a counterclaim is made or third-party proceedings are instituted by the defendant in respect of damages arising out of the same accident, the lapse of time limited by said clause (f) shall not be a bar to the counterclaim or third-party proceedings.
[20] The provision specifically permits third party indemnity claims to proceed despite the fact that the limitation period, which would have been applicable to a claim by the plaintiff against that third party, had expired. This is essentially the conclusion of the Court in MacKenzie; however, counsel for APM argues that by limiting this provision to motor vehicle accident claims the Legislature intended to preclude the application of such a principle to other types of actions.
[21] This issue was raised in Canada Deposit Insurance Corp where the Alberta Court of Appeal considered the effect of s. 60(1) of the Alberta Limitation of Actions Act. This section provided legislative relief from limitations for third party actions in personal injury or injury to property cases in terms that were essentially the same as s. 2(4) of the Nova Scotia legislation. The appellant argued that a similar exemption ought to be read into the legislation so as to apply to the claim before the Court, which was not within the express scope of s. 60(1). The Court responded as follows:
With respect, I consider the requested relief an inappropriate exercise of the judicial role. It would be inappropriate first to solve a problem for the defendant here by doing serious damage to the scheme of the Limitation of Actions Act. And it would be inappropriate for me under the pretence of interpretation to enact a special limit for defendants in case like this, especially when one acknowledges that by offering the limited relief expressed in s. 60(1) of the Act the Alberta Legislature can be taken as having decided, unfortunately, not to consider some form of relief for other cases. The problem for the defendant was created by that Legislature, and its solution lies in the same place. ...
[22] This analysis would seem to support APM’s argument that by enacting s. 2(4), the Nova Scotia legislature could be taken to have decided not to extend similar relief to other categories of claim. Although this section was in existence in 1977 it was not discussed by the Court in MacKenzie.
(B) The Situation Elsewhere in Canada - Criticism of MacKenzie v. Vance
[23] The issue of limitation periods applicable to third party indemnity claims has been considered by courts elsewhere in Canada. Not all have agreed with the approach taken in MacKenzie. Professor Lewis N. Klar wrote an extensive annotation of the decision (2 C.C.L.T. 63) in which he discusses two different fact situations involving a third party claim for indemnity. In the first scenario, the plaintiff had sued the proposed contributor, but the claim was dismissed based on expiry of the limitation period. The defendant then proposed to join the contributor as a third party. In the other scenario, the plaintiff had never sued the potential contributor and the limitation period for doing so had expired. The defendant sought to add the contributor as a third party.
[24] Klar argues that the two scenarios involved the same principles and that the position of the proposed contributor should be the same in each case. In other words, the rights as between the defendant and proposed third party should not be affected by whether the plaintiff had previously sued the third party unsuccessfully.
[25] Klar notes that the Supreme Court of Canada in Stetar dealt with the first scenario and concluded that a third party could not be joined in a claim for contribution where the plaintiff’s claim against them had been dismissed. Klar further argues that the decision in Stetar is binding in both scenarios and, by implication, the decision in MacKenzie was wrong. Klar’s description of the defect in the Court’s analysis is found in the following passage (at p. 66):
Third, although I would agree with Macdonald J.A. that the cause of action given by The Tortfeasors Act to a defendant tortfeasor to claim contribution from any other tortfeasor is a right sui generis and accrues when the liability of the claimant has been ascertained by judgment or by admission, I would respectfully submit that this does not answer the issue at hand. The right to claim contribution, although independent from the plaintiff’s right to seek damages, is dependent upon the claimant proving that the defendant against whom contribution is claimed is a party who is liable or would have been liable to the plaintiff. In this way, the defences and issues which are relevant to the plaintiff’s independent action against the defendant becomes relevant to the claimant’s independent action against the defendant. Although the two actions are separate, the claim for contribution relies on the plaintiff’s rights for its success.
[26] Klar concludes by pointing out there is the potential for significant prejudice and inequity whether you accept the analysis in MacKenzie or Stetar, and he invites the legislatures to respond by expressly indicating which of the conflicting solutions is to be preferred. APM argues that Nova Scotia has done so by enacting s. 2(4) of the Limitation of Actions Act; however, this was done prior to the decision and so could not have been in response to it.
[27] The Supreme Court of Canada decision in Stetar arose out of a motor vehicle accident. In addition to the other driver, the plaintiff sued the local municipality for failure to keep the public road in a reasonable state of repair. The plaintiff’s action against the municipality was dismissed for failure to give the required notice under the Municipal Government Act. The issue became whether the defendant driver could recover in a claim for contribution against the municipality under the Alberta tortfeasor legislation. The rationale for the Court’s decision is found at para. 32 of the decision:
It is contended that it is unjust to require Stetar to pay in full the claims of the Poiriers and Car Rentals when they, by their delay, have made it impossible for Stetar to recover contributions from the County. It is fundamental, however, to tort law that a plaintiff can proceed against any one of a number of joint or several tortfeasors; there is no duty upon him to sue all those whom he believes contributed to his hurt. He may elect to recover the full amount of his damage from a tortfeasor only partly to blame and that tortfeasor, prior to enactment of s. 4(1)(c) of The Tort-Feasors Act, had no right to contribution from any other person: Merryweather v. Nixan (1799), 8 Term Rep. 186, 101 E.R. 1337. Section 4(1)(c) and its counterpart in other jurisdictions have ameliorated the common law in that the right to contribution has now been recognized; however, even in those cases in which for some reason the right to contribution does not exist, the victim retains the right of full recovery from the tortfeasor whom he has sued. I am accordingly of the view that Stetar has no enforceable claim for contribution against the County in respect of any amount paid by Stetar to Poirier and Car Rentals in the first action and to Mrs. Poirier and children in the second action.
[28] Shortly after the MacKenzie decision, the Alberta Court of Appeal had an opportunity to consider the same issue in J.R. Paine & Associates Ltd. v. Strong, Lamb & Nelson Ltd. (1979), 18 A.R. 112. The Court concluded that the expiry of the plaintiff’s limitation period against the potential third party would be a complete bar to the defendant’s claim for contribution. The decision discusses both MacKenzie and Stetar in the following paras.:
It is therefore clear, at least when the plaintiff has proceeded to judgment and the action is by one tortfeasor against another, that the expiration of the limitation period between the plaintiff and that other tortfeasor is a bar to the action. A decision of the Nova Scotia Court of Appeal, however, holds that a defendant not yet found liable may take third-party proceedings for contribution despite the expiration of the limitation period between the plaintiff and the proposed third party. That case is MacKenzie v. Vance (1977), 19 N.S.R. (2d) 381, 2 C.C.L.T. 63, 74 D.L.R. (3d) 383, in which the defendant doctor in a malpractice action sought to issue a third-party notice against the hospital and a nurse though the limitation period between them and the plaintiff had expired. The relevant portion of the Nova Scotia Tortfeasors Act, R.S.N.S. 1967, c. 307, is identical to the Alberta Act. After a lengthy review of the authorities, MacDonald J.A., giving the judgment of the court, held the third-party proceedings not to be barred. He pointed out the anomaly that otherwise the defendant’s right to contribution would be barred before it had even accrued. At p. 399 [N.S.R.], he said:
In my opinion, to hold that the proposed third parties can rely on the one-year limitation period would lead to the absurd result that the cause of action given by the Tortfeasors Act to the appellant would be barred before it accrued, not by anything done by the appellant Dr. MacKenzie but by the whim of the plaintiff in the conduct of his proceedings.
In his reasons for judgment, MacDonald J.A. did not refer to Parkland v. Stetar, supra, decided earlier by the Supreme Court of Canada. With respect, I am of the view that there is no difference in principle between a proceeding by a defendant for contribution after he has been found liable and a proceeding by a defendant for contribution in the event he is found liable. In my respectful opinion, the matter is concluded by Parkland v. Stetar, whether or not an anomaly results from the rule of law so expounded.
[29] It is clear that the Alberta Court of Appeal felt that the Stetar decision was conclusive on the issue and chose not to follow MacKenzie since it appeared that the Nova Scotia Court did not have the benefit of the earlier Supreme Court opinion on the issue.
[30] In 1996 the Alberta Court of Appeal released their decision in Canada Deposit Insurance Corp. Once again, the question was whether a third party claim for contribution was governed by the limitation period applicable to the plaintiff’s potential claim against that third party. The Court was asked to abandon the rule in Paine, but chose not to do so for the following reasons:
The appellants successfully sought leave to argue that we should abandon the rule in Paine. I would not, and for these three reasons:
(1) I am unable to distinguish the decision of the Supreme Court in Parkland v. Stetar, (1974), upon which this Court relied in Paine. The appellant relies heavily upon the contrary decision of the Nova Scotia Court of Appeal in MacKenzie v. Vance, (1977). But that Court failed to consider Stetar.
(2) The role of this Court is not to write statutes but to interpret them. If our interpretation is wrong, it is for the Legislature to set the matter straight, not us. The interpretation of the Tort-Feasors Act accepted and applied by the Court in Paine has been accepted law in Canada at least since the decision of the House of Lords in Wimpey & Co. v. British Overseas Airways Corp., (1955). Indeed, after that leading case, the Alberta Legislature amended the Limitation of Actions Act by adding s. 60(1) in 1966. See S.A. 1966, c. 49. I take this as affirmation of the interpretation, because the amendment offered only limited relief from the rule in Wimpey.
(3) Any amendment to overcome possible prejudice requires consideration of what time limit should bind a defendant. That is a policy question for the Legislature.
[31] As it did in Paine, the Alberta Court of Appeal specifically rejected the analysis in MacKenzie on the basis that the Court had failed to consider Stetar.
[32] Both the Manitoba Court of Appeal and Saskatchewan Court of Appeal have commented favourably on the reasoning of the Court in MacKenzie. In Campbell v. Bartlett and Young, (1979) 2 Sask. R. 139, the Saskatchewan Court of Appeal said:
... These cases were among those considered in MacKenzie v. Vance (1977), 19 N.S.R. (2d) 381, 2 C.C.L.T. 63, 74 D.L.R. (3d) 383 (C.A.). I agree with the conclusion reached by Macdonald J.A. in MacKenzie v. Vance that the statute, in this case the Contributory Negligence Act, gives a defendant tortfeasor a cause of action to claim contribution from another tortfeasor and that this is a right sui generis conferred by the Act and accrues when the liability of the defendant has been ascertained by judgment against him or by admission.
[33] In Investors Group Trust Co. v. Gordon, (1998) 131 Man. R. (2d) 243, the Manitoba Court of Appeal discussed the conflict between the Canada Deposit Insurance Corporation and MacKenzie decisions and concluded:
I prefer the manner in which Morse J. and the Nova Scotia Court of Appeal dealt with this issue, because their decisions carry with them a right of practicality and common sense. By interpreting the legislation in the manner in which they have, the dispute can and will be settled one way or another in one proceeding. On the contrary, if the third parties’ submissions are accepted, the defendants’ cause of action could not and would not arise until judgment had been obtained against the defendants. It is only then that the action would come at issue between the defendants and the third parties. Another trial would have to be held basically on the same facts as in the main action.
[34] It is important to note that in neither of these cases did the Court discuss the potential application of the Stetar decision, and in each case there was legislation exempting the third party indemnity claim from the operation of the limitation period. As a result, the comments endorsing the MacKenzie decision are less persuasive than those which are critical of it emanating from the Alberta Courts.
[35] After considering the above authorities, I have concluded that there is an inconsistency between the appeal decision in MacKenzie and the prior Supreme Court of Canada decision in Stetar.
(C) Stare Decisis
[36] The doctrine of precedent is an important foundation of our common law jurisprudence. One aspect of that is the principle of stare decisis, which requires a court to follow and apply decisions made by courts above it. This means that a judge of the Nova Scotia Supreme Court must follow decisions of both the Nova Scotia Court of Appeal and the Supreme Court of Canada.
[37] In this case, stare decisis requires that I follow both the MacKenzie and Stetar decisions. That is problematic since I have concluded that these decisions are not consistent. The principles in Stetar would lead me to conclude that the limitation period for third party indemnity claims starts when the plaintiff’s limitation period against that third party begins to run. MacKenzie clearly indicates that this limitation period does not commence until liability is imposed on the defendant. The position of the defendant is that this decision is directly on point and binding in the circumstances of this case.
[38] Since the Supreme Court of Canada is the highest judicial authority in Canada, I believe I must give effect to its decision in preference to that of the Nova Scotia Court of Appeal to the extent that they conflict. For this reason, I conclude that the limitation period for the third party indemnity claim begins when the plaintiff’s cause of action against that party accrues, and not when liability is imposed on the defendant.
[39] There is a further, but related, principle that supports the decision not to follow MacKenzie despite the fact that it emanates from the Nova Scotia Court of Appeal. The English Court of Appeal in Young v. Bristol Aeroplane Co., [1944] K.B. 718, described three exceptions to the rule of stare decisis. These are summarized in the following passage from Cross and Harris, Precedent in English Law, (4d) (Clarendon Press, Oxford, 1991) at p. 143:
The exceptions as summarized by Lord Greene MR in the course of his judgment in Young’s case are, first, ‘The court is entitled and bound to decide which of two conflicting decisions of its own it will follow’; secondly, ‘The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords’; thirdly, ‘The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, for example, where a statute or rule having statutory effect which would have affected the decision was not brought the attention of the earlier court’. Something must now be said about each of these exceptions to stare decisis.
[40] The third exception, dealing with decisions reached per incuriam, was discussed in detail by Cross and Harris at pp. 148-9:
We have seen that the example of a decision given per incuriam by Lord Greene MR was a case in which a statute or rule having statutory effect is not brought to the attention of the court. Lord Greene had already given judgment in the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith in which a previous judgment of the court was ignored because it contravened the terms of a rule of the Supreme Court. Lord Greene characterized that judgment as one “delivered without argument and delivered without reference to the crucial words of the rule and without any citation or authority’. It has since been doubted whether a decision on the interpretation of a statute given without reference to a well-recognized general rule of statutory construction can be said to have been given per incuriam. But the most important development under this head has been the clear recognition of the fact that a decision given in ignorance of a case which would have been binding on the court is given per incuriam. The following is what must probably be treated as the leading statement of the principle:
As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence. [Morrelle Ltd. v. Wakeling [1955] 2 QB 389 at 406]
[41] As this passage indicates, a decision is considered to be per incuriam and therefore, an exception to the stare decisis rule if it is made without consideration of existing binding authority. The principles in the Young case have been applied in Canada. For example, in the Manitoba Court of Appeal decision in R. v. Neves, 2005 MBCA 112 at para. 77:
First, if the decision was rendered per incuriam, it may be overruled. Such a decision is one that was given in ignorance or forgetfulness of a statute or binding authority, inconsistent with the decision, and that, had it been considered, would have resulted in a different decision. See Huddersfield Police Authority v. Watson, [1947] 2 All E.R. 193 (Eng. K.B.), Young v. Bristol Aeroplane Co., [1944] K.B. 718 (Eng. C.A.), John Deere Ltd. v. Firdale Farms Ltd. (Receiver of) (1987), 50 Man. R. (2d) 45 (Man. C.A.), and Al’s Steak House & Tavern Inc. v. Deloitte & Touche (1997), 102 O.A.C. 144 (Ont. C.A.). When the Garoufalis court said that ability to pay was irrelevant, there was no statute or binding authority to the contrary. The court’s ruling was, therefore, not per incuriam.
[42] The Ontario Court of Appeal in Al’s Steak House & Tavern Inc. v. Deloitte & Touche (1997),102 O.A.C. 144 does not refer to Young’s case, but applies the same principles in deciding whether a prior Court of Appeal decision ought to be followed. The Court concluded that the members of the court who made the earlier decision had not been referred to existing Supreme Court of Canada jurisprudence on the issue. The Court’s conclusion on this point is found at para. 45 of the decision:
In my view, the decision in Sjouwerman was decided per incuriam and should not be followed. I have reviewed the factums filed in this court and neither makes reference to the decision of the Supreme Court in Canada (National Harbours Board) which was binding on the Court. I am satisfied that if the Court of Appeal had been referred to that case as well as the other decisions of the Supreme Court concerning tort liability of Crown agents it would have applied that authority and decided the Sjouwerman case differently: see Miliangos v. George Frank (Textiles) Ltd. (1975), [1976] A.C. 443 (U.K. H.L.), at 477 per Lord Simon (dissenting on another point).
[43] The decisions in Young, Neves and Al’s Steak House all involved the issue as to whether an appellate court should follow a prior decision of its own, which was said to be made per incuriam. They do not specifically say that this option is available to a lower court in deciding whether to follow an otherwise binding appellate decision. Logically, I believe that the exceptions in Young’s case to the rule of stare decisis ought to be equally applicable to a lower court’s consideration of appellate decisions, and I will do so.
[44] I recognize that it should be a very rare occurrence, where a lower court does not apply an appellate decision. As indicated in the passages quoted from the Neves and Al’s Steak House decisions, this should only occur where the appellate decision would have been decided differently had existing binding authority been brought to that court’s attention. It is obviously difficult to determine how a decision might have been changed had additional information been provided to the court. It is not enough to show that there were other arguments which might have prevailed had they been presented. It is necessary to show that there was existing binding authority which would have lead the court to a different conclusion.
[45] I am assisted in my analysis by the decisions of the Alberta Court of Appeal in J. R. Paine and Canada Deposit Insurance Corp., which essentially conclude that the outcome in MacKenzie would have been different had it been aware of the Stetar decision (see para. 19 in J. R. Paine and para. 34 in Canada Deposit Insurance Corp.).
[46] I am satisfied that if the Supreme Court decision in Stetar had been before the Nova Scotia Court of Appeal in MacKenzie, the decision would have been different, and the Court would have concluded that the limitation period for the indemnity claim commenced upon the accrual of the plaintiff’s cause of action against the proposed third party. To use the language of Young’s case, the decision was per incuriam and should not be followed.
III. Conclusion
[47] For the above reasons, I am satisfied that the limitation period for a third party indemnity action in Nova Scotia starts to run at the time that the plaintiff’s cause of action against the proposed third party accrues. As far as that party is concerned, the limitation is identical whether it is a claim directly by the plaintiff or an indemnity claim by the third party.
[48] In the present case, Ms. Smith’s fall took place on October 21, 1999 and therefore any claim initiated by her in negligence against either Atlantic or APM would have to be filed by no later than October 21, 2005. This means that the third party action by Atlantic against APM should have been initiated within that same time frame. Since it was not, it is barred by virtue of the operation of the Limitation of Actions Act. On this basis, I have concluded that the third party action by Atlantic against APM is clearly unsustainable and summary judgment ought to be granted dismissing that claim.
[49] At the conclusion of the hearing I invited counsel to make submissions on the issue of costs in advance of knowing the outcome. Both counsel felt that the matters in issue were sufficiently novel that if they lost no costs should be awarded. On the other hand, each felt that if they were successful costs ought to be awarded. In the circumstances of this case, I see no reason to depart from the normal rule that costs ought to follow the event. As a result, APM is entitled to have their costs of this proceeding. Under Tariff C for a motion in Chambers of less than an hour, the range of costs is $250.00 to $500.00. In addition, since the order is determinative of this portion of the proceeding, I may multiply the amount awarded by two, three or four times, depending upon the complexity of the matter, the importance of the issues and the amount of effort involved.
[50] This matter was somewhat complex; however, neither party filed extensive materials and argument was completed in less than a half hour. In the circumstances, I would award costs of $500.00 but apply a multiplier of three, for a total of $1,500.00, together with disbursements to be taxed.
_______________________________
Wood, J.