Supreme Court of Nova Scotia

Citation: Sears v. Top O’ the Mountain Apartments Limited, 2021 NSSC 80

Date: 20210303

Docket: Hfx No. 450230

Registry: Halifax

Between:

 

David Calvin Sears

Plaintiff

v.

Top O’ the Mountain Apartments Limited and Universal Realty (2012) Limited

Defendants

v.

Duel Properties Incorporated

Third Party

 

Judge:	The Honourable Justice Scott C. Norton
Heard:	January 27, 2021 in Halifax, Nova Scotia
Written Decision:	March 3, 2021
Subject:	Limitations of Actions Act, S.N.S. 2015, c.22 Tortfeasors Act, R.S.N.S. 1989, c. 471 Nova Scotia Civil Procedure Rule 13.04 Limitations of actions defence, statutory interpretation, third party defence, contribution and indemnity, summary judgment
Summary:	The Plaintiff claimed for damages for personal injuries resulting from a slip and fall.  The Defendants were the owner of the property where the injury occurred and its agent. The Third Party was contracted to provide snow and ice control services for the property.     The Third Party sought summary judgment on the evidence under Rule 13.04 on the basis that the Defendants’ claim against it for contribution and indemnity was out of time. The Defendants sought to disallow the Third Party’s limitation defence pursuant to s. 12(3) of the Limitation of Actions Act.   Given that this was the first decision of this Court to consider the application of the LAA to a defendant’s claim for contribution and indemnity against a third party, the Court referred to Hansard and the Department of Justice Discussion Paper to assist in interpreting the applicable legislative provisions.
Issues:	Should the Third Party’s defence pursuant to the LAA be disallowed?
Result:	The Court held: 1.       Where a motion for summary judgment based on a limitation period and a motion to disallow a defence based on a limitation period are both before the Court at the same time, the Court should first determine the motion to disallow. 2.       Section 15 of the Limitation of Actions Act applies to claims for contribution and indemnity in contract as well as in tort. 3.       The date that the Defendants were served with the Notice of Action is the date that the claims for contribution and indemnity were discovered for the purposes of s. 8(1)(a) of the Limitation of Actions Act. 4.       The Third Party Notice filed on May 1, 2020 was after the two-year limitation period expired on May 12, 2018. 5.       The claims by the Defendants against the Third Party for contribution and indemnity are claims “in respect of personal injury” for the purposes of s. 12(3) of the Act. 6.       It is just to disallow the Third Party’s defence based on the limitation period and allow the Defendants’ claims against the Third Party to proceed. 7.       The motion of the Defendants was allowed. 8.       The motion of the Third Party was dismissed. 9.       The Defendants were entitled to costs in relation to both motions in the total amount of $1,500.

 

SUPREME COURT OF Nova Scotia

Citation: Sears v. Top O’ the Mountain Apartments Limited, 2021 NSSC 80

Date: 20210303

Docket: Hfx. No.  450230

Registry: Halifax

 

Between:

 

David Calvin Sears

Plaintiff

v.

 

Top O’ the Mountain Apartments Limited and Universal Realty (2012) Limited

 

   Defendants

v.

 

Duel Properties Incorporated

Third Party

Judge:	The Honourable Justice Scott C. Norton
Heard:	January 27, 2021, in Halifax, Nova Scotia
Final Written:	March 3, 2021
Counsel:	Angus Smith, for the Plaintiff – not participating Leah Grimmer, for the Defendants Lisa Richards, for the Third Party

 

By the Court:

Introduction

[1]             The underlying proceeding is a claim by the Plaintiff, David Calvin Sears (“Sears”),  for damages for personal injuries resulting from a slip and fall.  The Defendants, Top O’ the Mountain Apartments Limited (“Top”) and Universal Realty (2012) Limited (“Universal”), are, respectively, the owner of the property where the injury occurred and its agent. The Third Party, Duel Properties Incorporated (“Duel”), was contracted to provide snow and ice control services for the property.

[2]             Before the Court are two motions. The Third Party seeks summary judgment on the evidence under Rule 13.04 on the basis that the Defendants’ claim against it for contribution and indemnity is out of time, while the Defendants seek to disallow the Third Party’s limitation defence pursuant to s. 12(3) of the Limitation of Actions Act, SNS 2015, c.22 (“LAA” or the “Act”).

[3]             As a preliminary point of procedure, when two such motions are before the Court at the same time, it is proper to first decide the motion to disallow the defence, even if, as here, it was filed after the motion for summary judgment because the summary judgment motion presupposes that the moving party is entitled to rely on the limitations defence.

[4]             This is the first decision of this Court to consider the application of the LAA to a defendant’s claim for contribution and indemnity against a third party.

Background and Proceedings

[5]             The Plaintiff, Sears, alleges that he slipped and fell on January 20, 2015, at a property located at 36 Abby Road in Halifax, Nova Scotia. (the “Property”).  Sears was a resident of the apartment building that is located on the Property.  Sears did not participate in the motions before the Court.

[6]             The Third Party, Duel, is a provider of snow and ice control services.  It is alleged that Duel entered into a contract with the Defendants for snow and ice control services for the Property for the 2014-2015 winter season.  It is further alleged that the contract contains an indemnity clause that requires Duel to indemnify the Defendants for any “damages, losses, costs, claims, demands, actions, suites [sic] or proceedings which may arise directly or indirectly or as a result of the negligent or wrongful acts or omissions” of Duel.

[7]             On December 7, 2015, the Plaintiff sent an email to Universal advising of his slip and fall the previous January.  In the letter he advised that he had sustained an injury to his shoulder that would require surgery.  The letter indicated a loss of income to date of $6,577.

[8]             On February 9, 2016, a copy of the email was sent by Universal to Duel with a cover letter stating: “As you hold liability for the snow removal for 2015 we have forwarded your contact information to this tenant.  We ask that you please follow up with their claim”. The same day, Universal sent the Plaintiff the contact information for Duel.

[9]             On April 13, 2016, the Plaintiff filed a Notice of Action and Statement of Claim against the Defendants, which was served on their registered agent, John McCulloch, on May 12, 2016.  Mr. McCulloch, who is not a lawyer, filed a defence on May 31, 2016 on behalf of the Defendants.  The Defendants retained Counsel in February 2019.  An amended Defence was filed March 20, 2020.  On May 1, 2020, the Defendants filed a Notice of Claim Against Third Party against Duel.  Duel filed a defence on September 29, 2020, pleading, inter alia, that the claim against it was barred by the passage of time pursuant to the LAA.

[10]         On November 30, 2020, Duel filed a motion pursuant to Nova Scotia Civil Procedure Rule 13.04 for an Order for Summary Judgment based on evidence, arguing that the Third Party Claim should be dismissed as it was filed after the expiry of the limitation period under the LAA.   The day before the hearing, with consent of the Third Party, the Defendant filed a motion pursuant to s. 12(3) of the LAA to disallow the limitation defence pleaded by the Third Party.  Both parties relied on the evidence filed with the Court on the summary judgment motion to support their arguments on the motion to set aside the defence.

Section 12

[11]         Section 12 of the LAA provides as follows:

Disallowance or invocation of limitation period

12 (1) In this Section, “limitation period” means the limitation period established by

(a) clause 8(1)(a); or

(b) any enactment other than this Act.

(2) This Section applies only to claims brought to recover damages in respect of personal injuries.

(3) Where a claim is brought without regard to the limitation period applicable to the claim, and an order has not been made under subsection (4), the court in which the claim is brought, upon application, may disallow a defence based on the limitation period and allow the claim to proceed if it appears to the court to be just having regard to the degree to which

(a) the limitation period creates a hardship to the claimant or any person whom the claimant represents; and

(b) any decision of the court under this Section would create a hardship to the defendant or any person whom the defendant represents, or any other person.

…

(5) In making a determination under subsection (3), the court shall have regard to all the circumstances of the case and, in particular, to

(a) the length of and the reasons for the delay on the part of the claimant;

(b) any information or notice given by the defendant to the claimant respecting the limitation period;

(c) the effect of the passage of time on

(i) the ability of the defendant to defend the claim, and

(ii) the cogency of any evidence adduced or likely to be adduced by the claimant or defendant;

(d) the conduct of the defendant after the claim was discovered, including the extent, if any, to which the defendant responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts that were or might be relevant to the claim;

(e) the duration of any incapacity of the claimant arising after the date on which the claim was discovered;

(f) the extent to which the claimant acted promptly and reasonably once the claimant knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to a claim;

(g) the steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such advice the claimant may have received;

(h) the strength of the claimant’s case; and

(i) any alternative remedy or compensation available to the claimant.

(6) A court may not exercise the jurisdiction conferred by this Section if the claim is brought more than two years after the expiry of the limitation period applicable to that claim.

(7) This Section does not apply to a claim for which the limitation period is 10 years or more. 2014, c. 35, s. 12.

[12]         In order to succeed on their motion under s. 12(3), the Defendants must establish:

(a)              The date that the Defendants’ claim against the Third Party was discovered;

(b)             That the claim was

(i)           Filed within two years of it being discovered; or,

(ii)         The claim is in respect of a claim for personal injuries;    and

1)                  It was filed within two years after the expiry of the limitation period, and,

2)                  It is just to disallow the limitation defence following an analysis of relevant hardship between the Defendants and the Third party.

Positions of the Parties

[13]         The Defendants, in support of their motion, say the contractual claim for contribution and indemnity cannot be out of time because the claim does not arise until there is a judgment or settlement of the Plaintiff’s claim. 

[14]         With regard to the claim for contribution and indemnity in tort against the Third Party, the Defendants acknowledge that the claim was discovered when the Defendants were served with the Plaintiff’s Notice of Action.  Since a claim for contribution under the Tortfeasors Act, R.S.N.S. 1989, c. 471, is derivative of the Plaintiff’s action against the Defendants for personal injury, and the limitation period for the Plaintiff’s claim has expired, the hardship analysis provisions of s. 12 are engaged, and the Court should determine that it is just to disallow the limitation defence.

[15]         The Third Party, responding to the motion, says the limitation period is the same whether the Defendants’ claim for contribution and indemnity is made in tort, pursuant to the Tortfeasors Act, or in contract, pursuant to the alleged indemnity provision (the existence of which the Third Party admits only for the purpose of the limitation argument).

[16]         The Third Party says the claim against it was discovered when the Defendants received the Plaintiff’s email on January 11, 2016. At that time, the Defendants had all the knowledge necessary to become aware of a potential claim against the Third Party.  Alternatively, the Third Party says the claim was discovered on February 9, 2016, when the Defendants sent the letter to the Third Party attaching the Plaintiff’s email.  In either case, the Third Party says the two-year limitation period expired as late as February 9, 2018, and, since the Third Party Notice was not filed until May 1, 2020, the possible two-year extension under s. 12 of the LAA is not available to the Defendants (s. 12(6)).  In the further alternative, the Third Party says that if the Court accepts the Defendants’ position that the claim was not discovered until the Defendants were served with the Notice of Action on May 12, 2016, then the hardship provisions of s. 12 are engaged and the Court should determine that it is just to allow the limitation defence by the Third Party.

[17]         Neither party provided the Court with any authority directly on point.  As far as Nova Scotia jurisprudence is concerned, it appears that this is the first time the provisions of the LAA have been considered in the context of a claim for contribution and indemnity against a Third Party.

[18]         Neither party provided the Court with any excerpts from the Nova Scotia Legislature debates from when the new limitation legislation was introduced, or made reference to the government discussion paper that sheds light on the intent of the legislature as to how the discoverability of a claim for contribution would be dealt with under the legislative scheme.

The Principles of Statutory Interpretation

[19]         The modern principle of statutory interpretation dictates that  “[t]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). In Sparks v. Holland, 2019 NSCA 3, the Court of Appeal noted that applying the modern principle typically involves answering three questions:

[28]      This Court typically asks three questions when applying the modern principle. These questions derive from Professor Ruth Sullivan’s text, Sullivan on the Construction of Statutes, 6th ed (Markham, On: LexisNexis Canada, 2014) at pp. 9-10.

[29]      Ms. Sullivan’s questions have been applied in several cases, including Keizer v. Slauenwhite, 2012 NSCA 20, and more recently, in Tibbetts.  In summary, the Sullivan questions are:

            1.  What is the meaning of the legislative text?

            2.  What did the Legislature intend?

            3.  What are the consequences of adopting a proposed interpretation?

[20]         In Sullivan on the Construction of Statutes, 6th ed. (Markham, On: LexisNexis Canada, 2014) at §9.1, Professor Sullivan states that “[t]he modern principle emphasizes the importance of purposive analysis in statutory interpretation.”  She identifies the propositions underlying purposive analysis at §9.3:

A purposive analysis of legislative texts is based on the following propositions:

(1)        All legislation is presumed to have a purpose. It is possible for courts to discover or adequately reconstruct this purpose through interpretation.

(2)        Legislative purpose must be taken into account in every case and at every stage of interpretation, including initial determination of a text's meaning.

(3)        In so far as the language of the text permits, interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat or undermine legislative purpose should be avoided.

This approach to statutory interpretation does not necessarily make purpose the most important consideration in interpreting legislation. It merely ensures that the legislature's purposes — including both the purpose of the Act as a whole and the purpose of the particular provision to be interpreted — are identified and taken into account in every case.

[21]         These are the principles I must apply when interpreting the LAA. 

The Limitation of Actions Act

[19]   The LAA came into force on September 1, 2015. 

[22]         The purpose of limitation periods was reviewed by Chipman J. in Dyack v. Lincoln, 2017 NSSC 187:

[27]  In M.(K.) v. M.(H)., [1992] 3 S.C.R. 6, at paras. 22-24, the Supreme Court of Canada identified three rationales that underlie limitations legislation. They have been described as the certainty, evidentiary and diligence rationales:

Statutes of limitations have long been said to be statutes of repose. … The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. …

The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim. …

Finally, plaintiffs are expected to act diligently and not "sleep on their rights"; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion. …

[28]  There are also economic and public interest reasons for limitations legislation:

People who provide goods and services may be adversely affected by the uncertainty of potential litigation.  Economic consequences will directly flow.  A potential defendant faced with possible liability of a magnitude unknown may be unable or unwilling to enter into other business transactions.  Others may be unaware of a specific claim until many years after an event upon which the claim is based.  The cost of maintaining records for many years and obtaining adequate liability insurance is ultimately passed on to the customer.

[29]  Finally, there are judgmental reasons for limitation periods:

If a claim is not adjudicated until many years after the events that give rise to it, different values and standards from those prevailing at the time the events occurred may be used in determining fault.  Because of changes in cultural values, scientific knowledge, and societal interests, injustice may result.  Can it be said that the conduct of the “reasonable person” as perceived by a court today would accord with the view taken by a judge of an earlier generation?

[30]  Accordingly, limitations legislation serves many important purposes. Over the last two decades, Alberta, Saskatchewan, Ontario, New Brunswick and Nova Scotia have all reformed their limitations legislation to serve those purposes more effectively. Furthermore, in 2005, the Uniform Law Conference of Canada (ULCC) adopted the Uniform Limitations Act, a model uniform limitations statute based on the modernized legislation enacted in Alberta, Ontario and Saskatchewan.

[31]  Nova Scotia is the most recent province to overhaul its limitations legislation. In drafting the Discussion Paper on Limitation of Actions Act the Nova Scotia Department of Justice relied on the discussion papers and modernized legislation of other provinces, along with the ULCC’s Uniform Limitations Act.

[23]         As noted in Dyack, Nova Scotia is one of several jurisdictions that have reformed their limitations legislation. Under the new streamlined structure, most claims are subject to a two-year “basic” limitation and a longer “ultimate” limitation period.  The basic limitation period starts to run from the day the claim is discovered and not, as under traditional limitations law, from the day on which the cause of action accrued (that is, when all of the elements of a wrong existed). The ultimate limitation period, on the other hand, begins to run from the date that the act or omission giving rise to the claim occurred, regardless of when the claim was discovered. 

[24]         Excerpts from Hansard shed light on the purpose of the new legislation.  On October 30, 2014, Minister of Justice Lena Diab made the following comments on second reading:

Madam Speaker, I move that Bill No. 64, Limitation of Actions Act be now read a second time. It is my pleasure to rise this afternoon and give the honourable members of this House as well as the general public a few of the reasons why this Act needs to be amended at this time. The current legislation is not only archaic, it is outdated and it is confusing. It hasn't been amended probably since its inception, so we are talking over 100-plus years ago.

It sets out various time limits to bring actions forward, depending on the basis of the claim. I am not going to bore everybody in the House with various time limits that are set out for each and every claim, but there are a number of them, depending on which action a person wishes to launch.

The current legislation is creating uncertainty and confusion on both sides and can lead to complex and costly litigation. This is true for lawyers. It's true for self-represented litigants, so these are people who are representing themselves in court, and for companies that are operating in multiple jurisdictions where the legislation may be different across various provinces in Canada.

Madam Speaker, the new bill proposes standard limitation periods for all claims. Specifically, it establishes a two-year, basic limitation period for most civil claims, such as those that involve personal injury, breach of contract, et cetera. What that means is you have got two years to start an action from the date a person discovers that they have a legal action. It also creates an ultimate limitation period of 15 years for legal claims which may not be discovered right away. What that means is, 15 years from the day on which the act or the omission, which the act is based upon, has occurred. That is the ultimate limitation period.

This is in line with what is happening in many other jurisdictions. It's also in line with the model put forward by a national law reform body called The Uniform Law Conference of Canada, that proposes a more modern model for all jurisdictions. New Brunswick, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia have already adopted modern limitation legislation. We want to develop a consistent approach to limitations law across the country.

Perhaps most importantly, Madam Speaker, this bill does not impose time limits for victims of sexual assault and domestic violence who want to file law suits. There is one exception in the bill where time limits will not apply. The existing Act gives a one-year limitation period for sexual assault claims. There are a variety of exceptions that could suspend the limitation period, but they are difficult to understand and to apply. So I'm pleased that we are able to put forward a bill that better protects and respects the rights of victims in this case.

In addition to eliminating time limits for victims of sexual assault and domestic violence, the bill also does not set limits for assaults involving dependants or people in intimate relationships. As in the current Act, there will be no time limits for any claims involving children. This means limitation periods are suspended until children turn the age of 19. Time periods also don't run while a claimant is incapacitated, so the ultimate limitation period is suspended if there is willful concealment of a wrong. That is the case at the moment, as well.

Finally, Madam Speaker, I want to highlight the benefits for small businesses and professionals who may be involved in lawsuits. I want to say that if someone has done something wrong, they should be held accountable. However, the law should also set limits so that people cannot be sued into infinity. That is where the 15-year ultimate limitation period comes in. This will allow businesses and professionals to have more certainty and long-term stability.

The new bill strikes a fair balance that respects the rights of everyone involved. It will also support internal trade and labour mobility among provinces by making our laws similar to other jurisdictions. Again, as I said, our closest neighbour, New Brunswick, has already adopted this more modern legislation.

To summarize, this legislation is about creating laws that are more consistent and clear. These are laws that will better support vulnerable Nova Scotians, small business owners and professionals. Thank you very much, Madam Speaker. I look forward to comments from my colleagues in the House.[1]

                                                                                                       [Emphasis added]

[25]         This statement is consistent with remarks made by the Department of Justice in its Discussion Paper on Limitation of Actions Act[2], circulated as part of the drafting process. The Department noted at pp. 1-2:

The overall goal of limitation of actions legislation is to balance the interests of claimants to have access to the courts to resolve their legal rights, against the rights of defendants to have final closure as to potential claims, to avoid the use of stale evidence, and to avoid the need to preserve evidence indefinitely. Another goal is to expect claimants to act diligently and bring their claims in a timely fashion.

The goal of this Revision Project is to bring coherence and simplicity to limitation laws in Nova Scotia and to achieve consistency with other jurisdictions where possible.

There are some exceptions to the basic rules, but these are kept to a minimum.

                                                                                                       [Emphasis added]

Contribution and indemnity claims under the LAA

[26]         When the Department of Justice set out to draft new limitations legislation, it had the benefit of the discussion papers and modernized legislation of other provinces, along with the Uniform Law Conference of Canada’s Uniform Limitations Act.  The Department acknowledged its reliance on these sources at p. 1 of the Discussion Paper:

In recent years, some Canadian jurisdictions have enacted legislation based on some radically different principles. These provinces are Alberta, Ontario, Saskatchewan and New Brunswick. Also, the Uniform Law Conference of Canada (ULCC) prepared similar modern legislation. This legislation has the potential to introduce considerably more clarity and fairness to an area of law known for its obscurity and irrationality.

The most recent review of this area of law is being conducted by the Manitoba Law Reform Commission and the British Columbia Ministry of Attorney General.

In light of the work done in recent years in other Canadian jurisdictions, the Department of Justice saw no need to reinvent the wheel. The Department examined the recent legislation (the “modern limitation regimes”) and analyzed whether they are suitable for Nova Scotia. …

[27]         The Department noted at p. 2 that its draft Act was “based closely on the ULCC Uniform Act which in turn is based on the Alberta and Ontario legislation and incorporates some of the various amendments made or suggested by other jurisdictions along the way.”

[28]         Section 2(1) of the LAA defines “claim”, “claimant” and “defendant” as follows:

Interpretation

2 (1) In this Act,

(a) “claim” means a claim to remedy the injury, loss or damage that occurred as a result of an act or omission;

(b) “claimant” means a person who has a claim, regardless of whether the claim has been brought;

(c) “defendant” means a person against whom a claimant has a claim, regardless of whether the claim has been brought.

[29]         Section 8 sets out the basic and ultimate limitation periods, and clarifies when a claim is discovered:

8 (1) Unless otherwise provided in this Act, a claim may not be brought after the earlier of

 

 

(a) two years from the day on which the claim is discovered; and

(b) fifteen years from the day on which the act or omission on which the claim is based occurred.

(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known

(a) that the injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

(c) that the act or omission was that of the defendant; and

(d) that the injury, loss or damage is sufficiently serious to warrant a proceeding.

(3) For the purpose of clause (1)(b), the day an act or omission on which a claim is based occurred is

(a) in the case of a continuous act or omission, the day on which the act or omission ceases; and

(b) in the case of a series of acts or omissions concerning the same obligation, the day on which the last act or omission in the series occurs.

[30]         Section 15 deals with claims for contribution and indemnity:

Contribution and indemnity

15 In the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer is served with the claim in respect of which contribution and indemnity is sought, or incurs a liability through the settlement of the claim, is, for the purpose of clause 8(1)(b), the day on which the act or omission on which the claim for contribution and indemnity is based occurs.

[31]         Section 15 has not been judicially considered.  It is therefore necessary to consult other sources to determine how it was intended to be interpreted and applied.

[32]         In the section of the Discussion Paper discussing the current s. 15, the Department wrote:

This Section provides that the ultimate limitation period for a claim for contribution and indemnity starts when the person claiming for contribution was made a defendant under a claim on which the claim for contribution could be based.

This provision follows the approach in Ontario and Saskatchewan which only use the one trigger of when the process is served.

The ULCC Uniform Act and the Alberta Act provide for the additional trigger of when the first alleged wrongdoer “incurs a liability through settlement of that claim”. The Department is not recommending this additional trigger because it is difficult to foresee the incurring of liability through a settlement of the claim without first being served with the claim, in which case the first trigger would apply apparently in all cases.

Ontario and Saskatchewan link the trigger to both the discovery and ultimate limitation periods. The Manitoba Commission recommends a trigger for both the basic and ultimate limitations.  For the basic limitation the trigger, [sic] it would be the determination of the claimant’s liability for the original loss. For the ultimate limitation, it would be when the claimant is served with a claim that starts an arbitration or incurs a liability through a settlement agreement in respect of which contribution and indemnity are sought.

The Department recommends following the Ontario and Saskatchewan approach to use the one trigger of service to start the limitation and to apply this to the ultimate limitation period. The Department invites comments on the other approaches.

                                                                                     [pp. 20-21. Emphasis added]

[33]         Since the Department elected to follow the Ontario and Saskatchewan approach, it is necessary to review the legislation in those jurisdictions.  The relevant provisions of the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, are as follows:

Definitions

1 In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; 

…

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 

Discovery

5 (1) A claim is discovered on the earlier of,

(a)  the day on which the person with the claim first knew,

(i)  that the injury, loss or damage had occurred,

(ii)  that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii)  that the act or omission was that of the person against whom the claim is made, and

(iv)  that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b)  the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 

…

Ultimate limitation periods

15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section. 

General

(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.

…

Contribution and indemnity

18 (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place. 

Application

(2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise.

                                                                                                       [Emphasis added]

[34]         The relevant provisions of the Saskatchewan Limitations Act, S.S. 2004, c. L-16.1, are as follows:

Interpretation

2 In this Act:

(a) “claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

            …

Basic limitation period

5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered.

Discovery of claim

6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known:

(a) that the injury, loss or damage had occurred;

(b) that the injury, loss or damage appeared to have been caused by or contributed to by an act or omission that is the subject of the claim;

(c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and

(d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(a) to (d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved.

Ultimate limitation periods

7(1) Subject to subsections (2) to (4), with respect to any claim to which a limitation period applies, no proceeding shall be commenced after 15 years from the day on which the act or omission on which the claim is based took place.

…

Contribution and indemnity

14(1) In the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim with respect to which contribution and indemnity is sought is deemed to be the day on which the act or omission on which that alleged wrongdoer’s claim is based took place.

(2) Subsection (1) applies whether the right to contribution and indemnity arises with respect to a tort or otherwise.

                                                                                                       [Emphasis added]

[35]         There are two significant differences between the Acts in these provinces and the Nova Scotia LAA.  The Ontario and Saskatchewan legislation both include a provision creating a presumption that a claim is “discovered” – as that concept is defined in the Act –  on the day on which the act or omission on which the claim is based took place.  For the purposes of a claim for contribution and indemnity, then, it is presumed that the claim is discovered on the day on which the first alleged wrongdoer was served with the claim with respect to which contribution and indemnity is sought.  The second difference is that both the Ontario and Saskatchewan Acts include a subsection which states that the contribution and indemnity provision applies whether the right to contribution and indemnity arises with respect to a tort or otherwise. In other words, the section applies to claims based in contract as well as in tort.

[36]         Returning to the Nova Scotia Act, s. 15 again states:

Contribution and indemnity

15 In the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer is served with the claim in respect of which contribution and indemnity is sought, or incurs a liability through the settlement of the claim, is, for the purpose of clause 8(1)(b), the day on which the act or omission on which the claim for contribution and indemnity is based occurs.

[37]         Since there is no presumption provision in the Act, neither s. 15 nor any other section of the Act provides any guidance as to when a claim in contribution and indemnity is “discovered” for the purposes of s. 8(1)(a).  Instead, s. 15 dictates that, for the purposes of the ultimate limitation period, the day on which the first alleged wrongdoer is served with the claim in respect of which contribution and indemnity is based is deemed to be the day on which the act or omission on which the claim for contribution and indemnity is based occurs. The day on which the “act or omission” occurs, however, is relevant to the discoverability analysis under s. 8(2).  Section 8(2) states:

8(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known

            (a) that the injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

            (c) that the act or omission was that of the defendant; and

(d) that the injury, loss or damage is sufficiently serious to warrant a proceeding.  

                                                                                                 [Emphasis added]

[38]         As the Defendants are advancing claims for contribution and indemnity in both tort and contract, it is necessary to determine whether s. 15 applies to both kinds of claim. Put differently, does the act or omission on which the claim for contribution and indemnity is based take place on the day the first wrongdoer is served with the plaintiff’s claim, regardless of whether the contribution and indemnity claim is grounded in tort or contract?  The answer depends on the Court’s interpretation of a “claim by one alleged wrongdoer against another”.

[39]         The Ontario Court of Appeal considered this language in Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378, a case involving a contractual indemnity provision. Canaccord, an investment dealer, sought indemnity from Roscoe, one of its investment advisors, for an amount that Canaccord paid to settle a claim for damages brought by Thomas and Kathleen Cavanagh, two of Roscoe’s former clients. Canaccord funded a joint defence and did not cross-claim against Roscoe for indemnity. In July 2009, Canaccord settled the claim with the Cavanaghs. In January 2010, Canaccord wrote to Roscoe requesting indemnification pursuant to Roscoe’s employment agreement. Roscoe denied liability. In June 2011, almost three years after the delivery of the Cavanaghs’ statement of claim, Canaccord commenced an indemnity action against Roscoe. In May 2012, Roscoe brought a motion for summary judgment, arguing that Canaccord’s action was barred under s. 18 of the Limitations Act.

[40]         To facilitate the Court’s analysis, Sharpe J.A. reviewed the history of the province’s legislation governing the limitation period applicable to claims for contribution and indemnity:

[16] A brief review of the evolution of the legislation governing the limitation period applicable to claims for contribution and indemnity will facilitate my analysis of s. 18. The legislature first dealt specifically with claims for contribution and indemnity as between tortfeasors in 1948. An Act to amend The Negligence Act, S.O. 1948, c. 61, s. 3 amended The Negligence Act, R.S.O 1937, c. 115, and extended the limitation period for claims for contribution and indemnity by one tortfeasor against another by providing that such a claim could be brought within one year of the date of judgment or settlement disposing of the underlying tort claim despite the operation of any limitation period against the other tortfeasor: see HSBC Securities (Canada) Inc. v. Davies, Ward & Beck (2005), 74 O.R. (3d) 295 (C.A.), at para. 56. This provision was included in successive versions of the Negligence Act and remained in force for over 50 years until the Act was passed in 2002 and repealed the provision: Justice Statute Law Amendment Act, 2002, S.O. 2002, c. 24, Sched. B, s. 25.

[17] Section 18 of the Act reflects two significant changes relating to the limitation period applicable to claims for contribution and indemnity. First, s. 18 was part of a fundamental and comprehensive reform of the law of limitations in Ontario aimed at creating a clear and cohesive scheme for addressing limitation issues, one that balances the plaintiff’s right to sue with the defendant’s need for certainty and finality. Second, the wording of s. 18 is significantly different from the provision it replaced.

[18] Although the Act was passed in 2002 and only came into force in 2004, it was the culmination of numerous reports and bills beginning in the 1960s with a view to reforming the law of limitations.

[19] In 1969, the Ontario Law Reform Commission (the “OLRC”) highlighted the need to reform Ontario’s limitation legislation: see Ontario Law Reform Commission, Report of the Ontario Law Reform Commission on Limitation of Actions (Toronto: Department of the Attorney General, 1969). The OLRC identified the proliferation of special statutory limitation periods in over 60 different statutes and drew attention to the problem of “far too many special limitations periods”: at p. 12. It lamented how “Ontario’s limitation laws ha[d] become out of touch with current needs” and emphasized the “difficulties with regard to the time at which limitation periods begin to run”: at p. 12. The OLRC described the purpose of limitation periods as follows, at p. 9:

Lawsuits should be brought within a reasonable time. This is the policy behind limitation statutes. These laws are designed to prevent persons from beginning actions once that reasonable time has passed. Underlying the policy is a recognition that it is not fair that an individual should be subject indefinitely to the threat of being sued over a particular matter. Nor is it in the interests of the community that disputes should be capable of dragging on interminably. Furthermore, evidentiary problems are likely to arise as time passes. Witnesses become forgetful or die: documents may be lost or destroyed. Certainly, it is desirable that, at some point, there should be an end to the possibility of litigation in any dispute. A statute of limitation is sometimes referred to as an “Act of peace”.

[20] The second change is in the specific wording of s. 18, which contains two features that are consistent with and, in my view, driven by that general overall purpose. Significantly, s. 18 departs from the model established in 1948 in the Negligence Act. The provision in the Negligence Act applied only to claims for contribution and indemnity as between tortfeasors. It allowed such claims to be brought within one year of settlement or judgment in the underlying action, despite the expiry of any limitation period governing the claim of the injured party against the other tortfeasor. In contrast, s. 18 applies not only to claims as between tortfeasors but also to claims for contribution and indemnity by one “wrongdoer” against another, “whether the right to contribution and indemnity arises in respect of a tort or otherwise.” Moreover, s. 18 significantly shortens the limitation period governing contribution and indemnity claims to two years from the date the first alleged wrongdoer was served with the underlying claim, thereby encouraging resolution of all claims arising from the wrong at the same time.

[21] The changes adopted in s. 18 seem to first have appeared in a report produced in 1991 for the Ministry of the Attorney General: see Consultation Group on the Limitations Act, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: Ministry of the Attorney General, 1991). The consultation group that authored the report recommended that the date of the act or omission for triggering the standard two year limitation period for contribution and indemnity against another tortfeasor be the date when the tortfeasor was served with the claim by the plaintiff: at p. 42. In describing the problem with focusing on the date of judgment or settlement, the consultation group wrote, at p. 42:

Under the present law… [t]he limitation period on the claim against the second wrongdoer begins when the first wrongdoer is adjudged to be liable to the plaintiff.

…

The difficulty with the present law is that the first wrongdoer can wait to commence legal proceedings against the second wrongdoer until long after the limitation period between the second wrongdoer and the plaintiff has expired, even though the first wrongdoer’s claim is based on the second wrongdoer’s liability to the plaintiff. If the second wrongdoer had been sued by the plaintiff in a timely manner, the second wrongdoer may have been able to defeat the plaintiff’s claim. But, years later, the second wrongdoer may have lost his or her evidence or the plaintiff may no longer exist.

[22] The consultation group acknowledged that this approach had not been recommended in the OLRC’s comprehensive report in 1969, but stated that “in the context of a comprehensive review of limitations policy, especially with emphasis upon the discovery principle, it [did] not seem unfair to encourage the first wrongdoer to commence proceedings for contribution as soon as possible”: at p. 43. The consultation group concluded that by moving the limitation starting point to the date of the plaintiff’s claim, “the limitation policy shorten[ed] the second wrongdoer’s exposure to potential liability and increase[d] the second wrongdoer’s ability to defend the claim”: at p. 43.

[23] The recommendation of the consultation group was adopted in draft legislation that did not proceed beyond first reading in 1992 (Bill 99, An Act to revise the Limitations Act, 2nd Sess., 35th Leg., Ontario, 1992), 2000 (Bill 163, An Act to revise the Limitations Act, 1st Sess., 37th Leg., Ontario, 2000) and 2001 (Bill 10, An Act to revise the Limitations Act, 2nd Sess., 37th Leg., Ontario, 2000). Finally, the Act, which incorporated the consultation group’s recommendation, was passed in 2002: Justice Statute Law Amendment Act, 2002, S.O. 2002, c. 24, Sched. B.

                                                                                                       [Emphasis added]

[41]         Applying the principles of statutory interpretation, Sharpe J.A. rejected the argument that s. 18 did not apply because the claim against Roscoe was based in contract:

[25] The often-quoted basic principle of statutory interpretation is that expressed in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[26] The claim Canaccord asserts against Roscoe in its statement of claim is that he “indemnify” Canaccord for the amount it paid to settle the Cavanagh claim. The source of the Canaccord claim is the claim the Cavanaghs asserted against both Canaccord and Roscoe as wrongdoers jointly liable to pay damages caused by the alleged breach of duty they owed the Cavanaghs as their investment dealer and advisor. It follows that Canaccord’s claim against Roscoe falls squarely within the grammatical and ordinary meaning of the language of s. 18 as “a claim by one alleged wrongdoer against another for contribution and indemnity”.

[27] When s. 18 is read harmoniously with the scheme and object of the Act and the intention of the legislature, the conclusion that Canaccord’s claim against Roscoe is governed by s. 18 gains added strength. As I have noted, the Act reflects a marked departure from the past when different limitation periods were found in different statutes and based upon the characterization of the specific cause of action pleaded. The Act achieved a significant reform by eliminating that plethora of limitation periods and replacing them with a “basic limitation period” based upon the discovery of the claim.

[28] Section 18 creates a specific rule for determining when a claim for contribution and indemnity is discovered. Section 18 provides that a claim for contribution and indemnity is discovered on the day the first alleged wrongdoer is served with the claim in respect of which contribution and indemnity is sought. In other words, once the party seeking indemnity is served with the injured party’s statement of claim, the claim is discovered and the two-year limitation period starts to run. Section 18(2) makes clear that this special rule for claims for contribution and indemnity “applies whether the right to contribution and indemnity arises in respect of a tort or otherwise” (emphasis added). The legal theory grounding the contribution and indemnity claim is not relevant for deciding whether s. 18 is triggered; the provision applies when there is a claim for contribution and indemnity, no matter what legal theory underlies the claim.

[29] I therefore cannot agree that the fact that Cavanagh’s claim is based upon the employment agreement rather than upon the Negligence Act excludes the claim from the reach of s. 18. In my respectful view, to so hold would be to ignore a fundamental feature of the Act. It is, on its face, a claim for indemnity brought by one alleged wrongdoer against another and the fact that it is grounded in contract has no bearing on the question of whether or not it falls within the reach of s. 18. I agree with Roscoe that the motion judge’s interpretation creating one start date for limitation period for claims for contribution and indemnity based upon the Negligence Act, R.S.O. 1990, c. N.1 and a different start date for limitation period for claims for contribution and indemnity based upon contract is inconsistent with the overall aim of the Act to achieve clarity and uniformity.

[30] While the specific point before us on this appeal is a matter of first impression, interpreting s. 18 to embrace all claims for contribution and indemnity, whether arising in tort or contract, accords with the interpretation this court gave s. 18 in Waterloo Region District School Board v. Truax Engineering Ltd., 2010 ONCA 838, 103 O.R. (3d) 81, per Feldman J.A., writing for a five judge panel. The issue in that case was whether by replacing the 1948 model, s. 18 had reverted to the situation in which a claim for contribution and indemnity is barred by the expiry of the limitation period governing the claim of the injured party against the party from whom contribution is sought. The court rejected that proposition, holding, at para. 24, that:

a claim for contribution and indemnity, whether in tort or otherwise, now has a two-year limitation period that is presumed to run from the date when the person who seeks contribution and indemnity is served with the plaintiff’s claim that gives rise to its claim over. This is the only limitation period in the Act that applies to claims for contribution and indemnity. [Sharpe J.A’s emphasis].

Feldman J.A. went on to state, at para 26:

If the court were to conclude that, despite the clear wording of s. 18, there is a further limitation period that applies to claims for contribution and indemnity against a concurrent tortfeasor in negligence, and that such claims must also be brought before the expiry of the limitation period applicable to the plaintiff’s claim against that tortfeasor, the effect of a universal limitation period for contribution and indemnity claims in s. 18 would be abrogated and the clarity and efficacy of the section undermined. [Emphasis added]

[31] She then cited Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19, [2010] 1 S.C.R. 649, at para. 36 where the Supreme Court explained the streamlining purpose of Alberta’s new limitations regime:

The Act was intended to create a comprehensive and simplified limitations regime to replace the previous Limitation of Actions Act, R.S.A. 1980, c. L-15, As the Alberta Court of Appeal noted in Daniels v. Mitchell, 2005 ABCA 271, 51 Alta. L.R. (4th) 212, at para. 30:

[A] main purpose of the [Limitations Act] was the simplification of limitations law, by the imposition of one period (two years) for nearly all causes of action…. [D]ebates in the Legislative Assembly repeatedly emphasized that the new legislation would simplify and clarify the system while eliminating inconsistencies and special treatment for certain defendants.

Thus, the purpose of the Act was to streamline the law of limitations by limiting the number of exceptions and providing a uniform limitation period for most actions.

[32] Similarly, in IPEX Inc. v. Lubrizol Advanced Materials Canada Inc., 2012 ONSC 2717, 4 B.L.R. (5th) 148, at para. 19, Belobaba J. held that an indemnity claim based in contract and tort is “primarily a claim for indemnity” and therefore governed by s. 18.

[33] There is a suggestion in the reasons of the motion judge that s. 18 does not apply because it is a claim only for “indemnity” and not “contribution and indemnity”. I agree with Roscoe that that is a distinction without a difference. The difference between contribution and indemnity is simply the extent of the recovery: see Hardisty v. 851791 N.W.T. Ltd., 2004 NWTSC 70, 26 C.C.L.T. (3d) 305, at para. 3.

[34] Finally, I agree with Roscoe that the motion judge erred in her interpretation of the employment agreement to the extent that she held that Canaccord’s claim only arose under the contract at the point of a judgment of a court, a decision of an administrative body, an arbitration award or a settlement. The employment contract provides that the obligation to indemnify is triggered, inter alia, if “any claim is made against the Company”. This coincides with the language of s. 18 and accordingly, it is not necessary for me to consider the situation that would arise if the language of the contract and the language of s. 18 differed.

[35] I add here that one of the motion judge’s concerns was to avoid an interpretation that would, as a practical matter, require Canaccord to claim indemnity in the Cavanagh action and prevent Canaccord and Roscoe from presenting a common front. There are two answers to that concern.

[36] First, the concern is inconsistent with one of the intended features of s. 18. As noted by Feldman J.A. in Waterloo Region District School Board, at para. 29, by linking the limitation period governing contribution and indemnity claims to the claim of the injured party, “it is contemplated that all claims arising out of the incident that caused the injury will be tried and disposed of together.” It is clearly in the interest of justice to have all related claims dealt with at the same time and that is encouraged by interpreting s. 18 to embrace all claims for indemnity as between the wrongdoers who are or may be responsible for the loss.

[37] Second, the Act provides at least a partial answer for those wrongdoers who wish to present a common front and postpone the litigation of their claims inter se. Section 22 permits parties to agree to toll the limitation period. There is nothing in the correspondence between counsel for Roscoe and Canaccord that could amount to a tolling agreement pursuant to s. 22.

[38] In my view, when the words of s. 18 are read in their full context, bearing in mind their grammatical and ordinary sense, the scheme and object of the Act and the legislature’s purpose, it is clear that the provision applies and precludes Canaccord from asserting this claim for indemnification against Roscoe.

                                                                                                       [Emphasis added]

[42]         Although s. 15 of the Nova Scotia Act does not include a subsection clarifying that it applies whether the right to contribution and indemnity arises with respect to a tort or otherwise, the reasoning in Canaccord is still persuasive in the Nova Scotia context.  Had the legislature intended to restrict s. 15 to claims in tort, it could easily have used the word “tortfeasor”, as used in the Tortfeasors Act. Instead, it chose to use the broader term “wrongdoer”.  Like Canaccord’s claim against Roscoe, Top and Universal’s contractual claim against Duel falls squarely within the grammatical and ordinary meaning of the language of s. 15 as “a claim by one alleged wrongdoer against another for contribution and indemnity”.

[43]         In addition, the Nova Scotia Limitation of Actions Act, like the Ontario Limitations Act, was intended to create a comprehensive and simplified limitations regime. The Nova Scotia Act, like the Ontario Act, has only one limitation period that applies to claims for contribution and indemnity.  If the Court were to conclude that there is a separate trigger for the ultimate limitation period applicable to claims for contribution and indemnity in contract, it would undermine the clarity and efficacy of that section. It would also result in two different limitation periods in cases of concurrent liability in tort and contract, which is inconsistent with the clarity and simplicity the legislature sought to achieve. 

[44]         The legislature also intended, when drafting the Act, that it would be consistent with limitations law across the country. Interpreting s. 15 to apply to contribution and indemnity claims in both tort and contract would be consistent not only with the law in Ontario and Saskatchewan, but also with Alberta, as will be seen below. 

[45]         For all of these reasons, I find that s. 15 applies to claims for contribution and indemnity in contract as well as in tort.

When is a contribution and indemnity claim discoverable under the LAA? 

[46]         As noted earlier, there is no guidance in the LAA as to the trigger for the basic limitation period for a claim for contribution and indemnity. Accordingly, it falls to the Court to decide when a claim is discoverable, applying the criteria in s. 8(2). Helpfully, prior to legislative amendments in 2014, Alberta’s Limitations Act was also silent as to when the basic limitation period began to run for contribution and indemnity claims, leaving it to the Court to determine. 

[47]         In Dean v. Kociniak, 2001 ABQB 412, Slatter J. considered the effect of the newly enacted Limitations Act on third party claims in both tort and contract.  He began by defining a “claim for contribution and indemnity”:

16  There are, broadly speaking, two different kinds of claims for contribution and indemnity. The first kind is a claim for contribution and indemnity by one joint tort-feasor against another. This type of claim is purely a creation of statute. The other type of claim for contribution arises at common law where one person has a duty, usually contractual, to indemnify another.

17  At common law, a Plaintiff who had been injured by the acts of a number of tort-feasors was under no obligation to sue all of them. The Plaintiff could sue any one of the tort-feasors, and recover 100 percent of his or her damages from that tort-feasor. The tort-feasor held liable then had no right to claim contribution from the other joint tort-feasors according to their relative responsibility. For example, a tort-feasor who was only 10 percent at fault might be found liable for 100 percent of the damages, but would then have no claim against the tort-feasor who was 90 percent at fault. All common-law jurisdictions have remedied this inequity by enacting statutes like the Alberta Tort-Feasors Act, R.S.A. 1980, c. T-6, which provide for a right of contribution. This right of contribution is purely statutory.

18  Other rights of contribution or indemnity can arise at common law. They depend on circumstances where one of the potential defendants owes a duty recognized by the common law to identify or contribute to the other potential defendants. The duty to indemnify may arise by contract. … In these circumstances, the duty to contribute does not depend on the Tort-Feasors Act: Canada Deposit Insurance Corporation v. Prisco, [1998] 3 W.W.R. 256, 54 Alta. L.R. (3d) 334, 206 A.R. (290) (C.A.) at paragraphs 7-8.

[48]         Justice Slatter explained that a claim for contribution under s. 3(1) of the Tort-Feasors Act, unlike a claim at common law, is derivative in nature:

19  From the pleadings quoted above, it is obvious that the claim of the Yellow Cab Defendants in both the Third Party Notice and the second action rest largely on the provisions of the Tort-Feasors Act, R.S.A. 1980, c. T-6 and largely on s. 3(1)(c) which reads as follows:

3(1) When damage is suffered by any person as a result of a tort, whether a crime or not,

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is or would, if sued, have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise, but no person is entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability regarding which the contribution is sought.

This provision was interpreted by the Court of Appeal in another decision called Canada Deposit Insurance Corp. v. Prisco, [1996] 7 W.W.R. 30, 181 A.R. 161, 38 Alta. L.R. (3d) 97, which I will refer to hereafter as "Prisco". The Court determined that the rights created by s. 3(1)(c) are derivative, in the sense that the claim of a Defendant tort-feasor for contribution from a Third Party tort-feasor is derivative of the claim of the Plaintiff against that Third Party. If the Plaintiff has no possible claim against the Third Party, neither does the Defendant tort-feasor. This rule applies, for example, if the claim of the Plaintiff against the Third Party is barred by a statute of limitations; in that event the Defendant tort-feasor can make no claim for contribution against the Third Party tort-feasor.

20  In Prisco, Kerans, J.A. made it clear that it is only claims for contribution under the Tort-Feasors Act that are derivative in nature. At paragraph 9 he pointed out that:

The appellant Oland's third party notice pleads that those named by it as third parties share any duty Oland may have to the plaintiffs in this suit. The plaintiff's suit against Oland sounds in negligence, and he in his notice alleges that the third parties were fellow tortfeasors. This is not a case where the defendant invokes a duty owed by the third party to the defendants; it is only a claim by the defendant of a breach of a duty owed to the plaintiff. This classification was made in an earlier order that was not the subject of appeal. I must now deal with the consequences of that classification.

(emphasis added)

This distinction must be kept in mind, because at least a portion of the claim for contribution and indemnity made by the City of Edmonton against Creative Carriage arises from contract, and not under the Tort-Feasors Act.

[49]         Justice Slatter went on to review the relevant sections of the Limitations Act:

29  The new Act creates a general limitation period (which I will refer to as the "primary" limitation) of two years from discoverability, with an "ultimate" limitation of ten years from when the claim arises, regardless of discoverability. The primary limitation period is set out in s. 3(1):

3(1) Subject to section 11, if a claimant does not seek a remedial order within

(a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known,

(i) that the injury for which the claimant seeks a remedial order had occurred,

(ii)that the injury was attributable to conduct of the defendant, and

(iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding,

(b) 10 years after the claim arose.

…

32  The new Act does not provide any specific guidance with respect to when the primary limitation starts to run on a contribution claim. With respect to the ultimate limitation period, s. 3(3)(e) reads as follows:

(e) A claim for contribution arises when the claimant for contribution is made a defendant in respect of, or incurs a liability through the settlement of, a claim seeking to impose a liability upon which the claim for contribution can be based, whichever first occurs.

This provision relates to when the claim "arises" for the purposes of the ultimate limitation period. It specifically does not relate to the discoverability of such a claim, with respect to the primary limitation period. This is because the ten-year ultimate limitation does not depend on the discoverability of the claim, and indeed operates notwithstanding a lack of discoverability.

                                                       [Emphasis added]

[50]         According to Slatter J., the key to determining when a claim for contribution is discovered is the proper definition of “the injury” on which the claim is based:

33  Under the new Act, the primary limitation with respect to a claim for contribution depends on the general wording of s. 3(1)(a). To paraphrase, inserting the terminology as discussed in paragraph 30 (supra) the section would read as follows with respect to a contribution claim:

If a defendant does not seek contribution within two years after the date on which a defendant first knew, or in the circumstances ought to have known, that the injury for which the defendant seeks a remedial order had occurred, then the third party is entitled to immunity from the claim for contribution.

The key is the definition of "the injury" in the case of a claim for contribution. Is a reference to "the injury" a reference to the injury suffered by the Plaintiff for which the Defendant now seeks contribution from the Third Party? Alternatively, is "the injury" the potential liability of the Defendant, which triggers the right to contribution from the Third Party?

34  The new Limitations Act defines the term "injury" in s. 1(f):

(f) "injury" means

(i) personal injury,

(ii) property damage,

(iii) economic loss,

(iv) non-performance of an obligation, or

(v) in the absence of any of the above, the breach of a duty.

The definition is not too helpful in this context. If the word "injury" is read as meaning "personal injury", then it would suggest that the time begins to run from when the Defendant knew or ought to have known of the injury to the Plaintiff. However, if the "injury" is the non-performance of the obligation of the Third Party tort-feasor to contribute to the Defendant, or the breach of a duty of the Third Party tort-feasor in not contributing to the claim against the Defendant, that would suggest that the relevant time is when the Defendant knew or ought to have known that a claim had been advanced against him, and that the proposed Third Party tort-feasor was liable to contribute to any damages that might fall upon the Defendant.

35  The first option, that the injury referred to is the injury to the Plaintiff, would appear to be consistent with the decision in Prisco. Prisco decided that the claim for contribution is merely derivative of the Plaintiff's claim against the proposed Third Party. Since the Limitations Act does not purport to amend the Tort-Feasors Act, such an interpretation is possible. It would mean, however, that every claim for contribution would have to be made within two years of the underlying incident in cases like this where the Plaintiff immediately "discovers" her injury. In other words, the problem of the late suing plaintiff identified in Prisco would occur in every case, without the ameliorating affects of s. 60 of the old Limitation of Actions Act. Defendants would have to rely exclusively on R. 66(4), and successful applications for late Third Party Notices would be rare.

…

38  Alternatively, one could argue that the real "injury", complained of by the Defendant is the failure of the proposed Third Party joint tort-feasor to contribute to the damages. It is this injury that warrants the Defendant bringing proceedings against the Third Party, and this interpretation fits more easily with the wording of Clause 3(1)(a)(iii) of the new Act. This does not mean that the new Act has amended the Tort-Feasors Act. The claim under the Tort-Feasors Act remains derivative. This interpretation simply means that the new Limitations Act operates more like R. 66(4), which allows the claim for contribution to be made even if the primary limitation has run against the Plaintiff. The new Act would effectively be read as providing in all cases the relief that old s. 60 provided only in some cases.

39  The new Limitations Act arose from a report prepared by the Alberta Law Reform Institute on limitations. This report was issued in December 1989, several years before the decision of the Court of Appeal in Prisco. The Institute proceeded on the assumption that the "injury" in the case of a claim for contribution was the failure to contribute (not the injury to the Plaintiff) and that it would arise only when the Defendant was held liable to the Plaintiff. The Institute appears to have proceeded on the assumption (Report No. 55, page 72, paragraph 61 and page 87, paragraph 31(b)) that this was the existing state of the law, although as Prisco later confirmed, this was only the case in claims for contribution arising otherwise than under the Tort-Feasors Act. Of course, if the limitation on a claim for contribution does not arise until the Defendant is actually found liable to the Plaintiff, the Defendant will seldom, if ever, lose the claim for contribution to a limitation period even if the Plaintiff has commenced the action very late. It is for this reason that the Institute recommended (Report No. 55, page 71) the inclusion of Clause 3(3)(e), which I have set out in paragraph 32 above. This clause has the effect of starting the running of the ultimate limitation period somewhat earlier, and helps prevent the potential Third Party tort-feasor from being exposed to stale claims for contribution. The Institution's assumptions about the law also would mean that there was no particular reason to save a clause like s. 60 of the old Limitation of Actions Act, as the operation of a new Act would actually be quite generous to defendants who might seek contribution.

…

41  The Limitations Act must of course be interpreted in accordance with its terms, using the traditional methods of statutory interpretation. The report of the Institute is a helpful guide, but it cannot affect the plain meaning of the words of the statute, even if the proper statutory meaning as interpreted by the Court differs from the meaning intended by the Institute: P.-A. Côté, The Interpretation of Legislation in Canada (3d ed.), at p. 418.

42  I have concluded that the proper interpretation of the new Limitations Act as it applies to a claim for contribution is that the "injury" referred to in s. 3(1)(a) is the failure of the Third Party to contribute to the Defendant as called for in the Tort-Feasors Act. In other words, the limitation on the claim for contribution under the Tort-Feasors Act does not begin to run when the limitation begins to run as against the Plaintiff. The new Limitations Act operates instead the same way as R. 66(4).

43  This is more consistent with the plain wording of the statute. To hold otherwise would deprive s. 3(3)(e), which sets out the ultimate limitation period for claims of contribution, of virtually any meaning, at least in the case of claims for contribution under the Tort-Feasors Act, as few claims would ever survive the primary limitation period. Under the interpretation I have found, there is still room for the operation of s. 6, which relates to adding claims to a proceeding. …

44  I also find this interpretation to be more consistent with the overall remedial intent of the new Act, as the opposite interpretation would exacerbate the previous problem of claims for limitation becoming statute barred before the Defendant even finds out he has a need to claim contribution. I have outlined above the history of R. 66 and s. 60 of the Limitation of Actions Act. The legislative history shows a trend towards making relief for the "late suing plaintiff" problem more general. The interpretation of the new Limitations Act that I have identified is consistent with this trend. I believe it would be inconsistent with the intention of the Legislature to adopt a narrower interpretation of the remedial provisions for this particular problem.

45  This interpretation has the added advantage that the limitation period applicable to contribution claims at common law and under the Tort-Feasors Act would begin to run at the same point. The problem of the "late suing plaintiff" is most particularly a problem with the derivative claim for contribution under the Tort-Feasors Act. It did not arise with respect to contribution claims recognized by common law, because the previous law was that time did not run against such claims until judgment had been obtained against the Defendant seeking contribution. Under the new Act, time in all cases will run from when the Defendant knew or ought to have known that there was a claim for contribution. The philosophy of the new Act is to provide general limitation periods applicable to all circumstances; one of the objectives of the new Act was to sweep away the myriad limitation periods and exceptions to them found in the old statutory regime. It is consistent with that objective to find there is only one limitation period applicable to claims for contribution and indemnity of all kinds. I do not necessarily concur with the assumption of the Institute that the injury only arises when the Defendant is actually found liable to the Plaintiff (as opposed to when the Defendant knew or ought to know of the claim and the right to contribution), but I need not consider that point, and I make no further comment on it.

                                                                                                       [Emphasis added]

[51]         In 2014, the Alberta Limitations Act was amended to provide for limitation periods specific to claims for contribution under the Tort-feasors Act, consistent with Slatter J.’s decision in Dean.  Subsections 3(1.1) and (1.2) state:

3(1.1) If a claimant who is liable as a tort-feasor in respect of injury does not seek a remedial order to recover contribution under section 3(1)(c) of the Tort-feasors Act against a defendant, whether as a joint tort-feasor or otherwise, within

(a) 2 years after

(i) the later of

(A) the date on which the claimant was served with a pleading by which a claim for the injury is brought against the claimant, and

(B) the date on which the claimant first knew, or in the circumstances ought to have known, that the defendant was liable in respect of the injury or would have been liable in respect of the injury if the defendant had been sued within the limitation period provided by subsection (1) by the person who suffered the injury,

if the claimant has been served with a pleading described in paragraph (A), or

(ii) the date on which the claimant first had or in the circumstances ought to have had the knowledge described in subclause (i)(B), if the claimant has not been served with a pleading described in subclause (i)(A),

 or

(b) 10 years after the claim for contribution arose, whichever period expires first, the   defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim for contribution.

3(1.2) For greater certainty, no claim for contribution against a defendant in respect of damage referred to in section 3(1)(c) of the Tort-feasors Act is barred by the expiry of a limitation period within which the person who suffered that damage could seek a remedial order.

[52]         Although the amendments are limited to contribution claims under the Tort-feasors Act, the Alberta Court of Appeal in Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc., 2015 ABCA 252, adopted the test set out in Dean for discoverability of a common law contribution claim:

1. Common Law Contribution Claim

31  Although the Limitations Act is specific about defences to contribution claims brought pursuant to the ultimate 10-year period, ordinary discoverability principles apply to the primary (2-year) period: Dean; De Shazo v. Nations Energy Company Ltd, 2005 ABCA 241 at para 36, 367 AR 267.

32  The test for discoverability is "when the Defendant knew or ought to have known that the Third Party had a duty to contribute to any damages suffered by the Plaintiff, for which the Defendant might be held jointly liable with the proposed Third Party": Dean at para 54 (emphasis added).

                                                                                                       [Emphasis added]

[53]         Justice Slatter’s interpretation of “the injury” in the context of a contribution and indemnity claim is consistent with the approach adopted in the Ontario and Saskatchewan legislation. Both the Ontario and Saskatchewan Acts define when a claim is “discovered” in essentially the same terms as the Nova Scotia Act.  A claim is discovered on the day on which the claimant first knew or ought reasonably to have known:

(a) that the injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

(c) that the act or omission was that of the defendant; and

(d) that the injury, loss or damage is sufficiently serious to warrant a proceeding.

[54]         If it is presumed, under the Ontario and Saskatchewan legislation, that the contribution and indemnity claim is discovered on the day the act or omission on which the claim is based took place (that is, the day the first wrongdoer is served), it follows that the “injury, loss or damage” cannot be the amount the first wrongdoer is ordered to pay out in damages.  “Injury, loss or damage” must mean the failure of the third party to contribute to, or to indemnify the first wrongdoer for, any damages for which the first wrongdoer might be held liable to the plaintiff. In Waterloo Region District School Board v. CRD Construction Ltd., 2010 ONCA 838, Feldman J.A., for the Court, noted that this approach allows all claims arising out of the incident to be tried and disposed of together:

[28]      Section 18 also signals that a defendant who wishes to claim contribution and indemnity should bring the claim not after judgment in the main action, but as part of it. Although in theory a defendant could commence a new action for contribution and indemnity within two years of being served with a statement of claim, the more likely procedure is to bring a cross-claim or third party proceeding in the main action. Even if a new action were commenced, one could envision that, for reasons of economy and efficiency, the actions would likely be joined and tried together.

[29]      The effect of the new provision is that the period for bringing the claim for contribution and indemnity now coincides much more closely with the basic limitation for bringing all actions, and procedurally, it is contemplated that all claims arising out of the incident that caused the injury will be tried and disposed of together. Therefore, to the extent that a claim for contribution and indemnity may be brought beyond the limitation period that applied to the plaintiff's potential claim against a particular tortfeasor, the extension is minimized by the operation of s. 18 and any negative consequences to the tortfeasor by being brought into an action after he or she could have been sued by the plaintiff are minimized as well.

                                                                                                       [Emphasis added]

[55]         I now return to the test under s. 8(2) of the Nova Scotia Act. Under s. 8(2), a claim is discovered on the day on which the claimant first knew or reasonably ought to have known that the injury, loss or damage had occurred, that it was caused by or contributed to by an action or omission, that the act or omission was that of the third party, and that the injury, loss or damage is sufficiently serious to warrant a proceeding.  The question, then, is what is the “injury, loss or damage” in the context of a claim for contribution and indemnity? Significantly, the "injury, loss or damage" must have been caused by or contributed to by the act or omission of the third party, which, as we know from s. 15, occurs on the day the first alleged wrongdoer is served with the claim upon which the third party claim for contribution and indemnity is based.  This means that "injury, loss or damage" does not refer to the injury, loss or damage suffered by the plaintiff. Instead, as held in Dean, the injury, loss or damage must be the third party’s failure to contribute to, or to indemnify the first alleged wrongdoer for, the damages for which the first alleged wrongdoer may be held liable.

[56]           While it is possible to interpret “injury, loss or damage” as the failure to contribute to the damages actually awarded against the first wrongdoer, meaning that the limitation period would not begin to run until judgment is entered against the first wrongdoer, that interpretation has several shortcomings. First, it is inconsistent with the case law and the legislative approach adopted in jurisdictions that have modernized their limitations regime. Second, it creates the potential for multiple proceedings arising out of the same incident. Third, it is inconsistent with the legislature’s goal of balancing the interests of claimants to have access to the courts to resolve their legal rights with the rights of defendants to have final closure as to potential claims, to avoid the use of stale evidence, and to avoid the need to preserve evidence indefinitely. If “injury, loss or damage” is interpreted as the failure to contribute to, or to indemnify the first wrongdoer for, the damages actually awarded against the first wrongdoer, it could be many years after the plaintiff’s injury that judgment is entered and the claim for contribution and indemnity arises. Finally, as the Discussion Paper demonstrates, the Department considered whether to include a section providing that the trigger for the basic limitation period for contribution and indemnity claims is the determination of the claimant’s liability for the original loss. The Department rejected that option in favour of the Ontario and Saskatchewan approach. 

[57]         Applying s. 8(2) to the facts, the Defendants discovered the claims against Duel for contribution and indemnity on the day they were served with the Plaintiff’s claim (May 12, 2016).  Until the Plaintiff’s claim was served, there was no claim upon which the Defendants could base their claims for contribution and indemnity.  Once served, the Defendants knew that the Third Party’s failure to contribute to, or to indemnify the Defendants for, the damages for which the Defendants might be held liable was sufficiently serious to warrant a proceeding. While a claim for contribution and indemnity will not always be discoverable on the day the first alleged wrongdoer is served, the evidence in this case clearly establishes that the Defendants were well aware on the date they were served that they had a claim for contribution and indemnity against Duel, as a fellow tortfeasor and under the indemnity provision of the alleged contract.

[58]         Accordingly, the two-year limitation period for the Defendants to file a claim against the Third Party expired as of May 12, 2018. The Court must now determine whether the Defendants are entitled to an extension of the limitation period as permitted by s. 12 of the LAA.

Section 12

[59]         Recall that section 12 of the LAA provides:

Disallowance or invocation of limitation period

12 (1) In this Section, “limitation period” means the limitation period established by

(a) clause 8(1)(a); or

(b) any enactment other than this Act.

(2) This Section applies only to claims brought to recover damages in respect of personal injuries.

(3) Where a claim is brought without regard to the limitation period applicable to the claim, and an order has not been made under subsection (4), the court in which the claim is brought, upon application, may disallow a defence based on the limitation period and allow the claim to proceed if it appears to the court to be just having regard to the degree to which

(a) the limitation period creates a hardship to the claimant or any person whom the claimant represents; and

(b) any decision of the court under this Section would create a hardship to the defendant or any person whom the defendant represents, or any other person.

…

(5) In making a determination under subsection (3), the court shall have regard to all the circumstances of the case and, in particular, to

(a) the length of and the reasons for the delay on the part of the claimant;

(b) any information or notice given by the defendant to the claimant respecting the limitation period;

(c) the effect of the passage of time on

(i) the ability of the defendant to defend the claim,

and

(ii) the cogency of any evidence adduced or likely to be adduced by the claimant or defendant;

(d) the conduct of the defendant after the claim was discovered, including the extent, if any, to which the defendant responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts that were or might be relevant to the claim;

(e) the duration of any incapacity of the claimant arising after the date on which the claim was discovered;

(f) the extent to which the claimant acted promptly and reasonably once the claimant knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to a claim;

(g) the steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such advice the claimant may have received;

(h) the strength of the claimant’s case; and

(i) any alternative remedy or compensation available to the claimant.

(6) A court may not exercise the jurisdiction conferred by this Section if the claim is brought more than two years after the expiry of the limitation period applicable to that claim.

(7) This Section does not apply to a claim for which the limitation period is 10 years or more. 2014, c. 35, s. 12.

[60]         The first inquiry is whether the claim in question falls within s. 12(2).  The Third Party argues that the claim is one for contribution and indemnity, not personal injuries.  The Defendants say its claim for indemnity and contribution is “a claim brought to recover damages in respect of personal injuries”.

[61]         The Defendants cite the decision of the Supreme Court of Canada in Nowegijick v The           Queen, [1983] 1 S.C.R. 29. While the context of that case is much different, the Court’s comments with respect to the phrase “in respect of” are relevant:

The words “in respect of” are, in my opinion, words of the widest possible scope.  They import such means as “in relation to”, “with reference to” or “in connection with”.  The phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters. [page 40]

[62]         The Defendants’ claim in tort is derivative of the Plaintiff’s claim for damages for personal injuries.  Their claims for contractual indemnity are equally “in relation to” the Plaintiff’s claim for damages for personal injury.  The quantum of the damages to be indemnified or contributed to are those that the Court will assess for the Plaintiff’s injury.

[63]         I find that the Defendants’ claims for contribution and indemnity fall within s. 12(2) of the LAA.

[64]         The Defendants have also satisfied the requirements of s. 12(3) that their claims were brought without regard to a limitation period, an order has not been made under subsection (4), and that they have filed an application with the Court.  Accordingly, the Court may disallow a defence based on the limitation period and allow the claims to proceed if it appears to the Court “to be just”, having regard to the degree of hardship caused to either party.

[65]         In Barry v. Halifax (Regional Municipality), 2018 NSCA 79, Bourgeois J.A. provided direction on how the analysis is to be conducted:

73 Firstly, s. 12(5) requires all the enumerated factors to be considered. Although a judge has the discretion to weigh the significance of particular factors against the others, she does not have the discretion to exclude any factor from consideration....

....

77 Before undertaking a consideration of the various factors, a preliminary observation is in order. Although s. 12(3) requires a court to consider the degree of hardship to both claimant and defendant, it should not be forgotten that this exercise is triggered due to the claimant having missed a limitation period created by virtue of the Act or other enactment. As such, the burden rests on the claimant to establish that any defence arising from the lapsing of that period ought to be disallowed.

78 It is incumbent on a claimant to adduce evidence which addresses the factors contained in s.12(5), in order to inform the s. 12(3) assessment. Although s. 12(5) mandates a judge to “have regard to all the circumstances of the case”, those who fail to provide an evidentiary foundation do so at their peril. Similarly, in response, a defendant (or proposed defendant) is well-advised to provide a sufficient foundation to permit a comprehensive consideration of the factors in s. 12(5) in order to better inform the hardship assessment.

Section 12(5) Statutory Factors

(a) Length of and reasons for delay.

[66]         The delay under consideration here is the delay between the expiry of the limitation period (May 12, 2018) and the date the Third Party Notice was filed (May 1, 2020) as the Defendants could have filed by the limitation date with no basis for objection by the Third Party.

[67]         The Defendants say the delay was occasioned initially by the lack of understanding by their registered agent, a non-lawyer, who filed a defence claiming the right to contribution and indemnity but did not understand the need for formal joinder of the Third Party.  After the matter was referred to counsel in February 2019, further delay was caused by issues identified about the named Defendants and amendments to the Notice of Action and Notice of Defence by the Plaintiff and Defendants respectively. 

[68]         The Third Party acknowledges that it has no knowledge of the reasons for delay.  It says the fact that the Defendants chose not to be represented by legal counsel cannot justify the delay. 

[69]         The law applies equally to parties represented by counsel and those, who by choice or circumstances, represent themselves.

[70]         No specific prejudice or hardship was identified by the Third Party relating to this delay.

(b) Any information or notice given by the defendant (Third Party) to the claimant (Defendants) respecting the limitation period.

[71]         There is no evidence that the Third Party provided any notice to the Defendants respecting the limitation period.

(c)  Effect of the passage of time on the ability of the defendant (Third Party) to defend the claim and the cogency of evidence to be adduced.

[72]         The Third Party argues that it would be deprived of the opportunity to properly investigate the Plaintiff’s claim and collect evidence to defend itself. It filed no evidence of any specific deprivation. It is noteworthy that the Third Party was notified of the fall and injury of Mr. Sears by the Defendants on February 9, 2016, well within the limitation period.  If it chose not to investigate or to inform its insurer at that time, it cannot argue that it was deprived of the opportunity by the delay after the expiry of the limitation period.

[73]         The Defendants point out that the affidavit of Elizabeth Walsh says the Third Party retained all of its snow removal records in paper form and there is no evidence that any relevant records that would have been available within the limitation period are no longer in existence due to the delay.

[74]         The person responsible for snow removal at the Property has retired, but there is no evidence that he is unavailable.

[75]         As the fall and injury were not reported to the Defendants until almost a year after it occurred, there was no opportunity for the Defendants or the Third Party to conduct a contemporaneous investigation of the state of the parking lot at the time of the injury.

(d) Conduct of the defendant (Third Party) after the claim was discovered, including the extent, if any, to which the defendant (Third Party) responded to requests reasonably made by the claimant (Defendants).

[76]         The Court of Appeal in Barry indicated that it is appropriate to consider whether anything in the record suggests the claimant was detrimentally influenced by the actions of the insurer (para. 81). In the present case it appears that the Third Party did not inform its insurer before it was served. There is no evidence of the Defendants being detrimentally influenced by the Third Party or its insurer.

(e) Duration of any incapacity of the claimant (Defendants).

[77]         It is agreed this element is not relevant to the analysis.

(f) Extent to which the claimant (Defendants) acted promptly and reasonably once the claimant (Defendants) knew whether or not the act or omission might be capable of giving rise to a claim.

[78]         The Defendants provided the Third Party with notice of the Plaintiff’s injury in February 2016.  After being served with the Notice of Action in May 2016, the Defendants filed a defence alleging fault lay with the Third Party but did not bring a Third Party claim.  It was not until the Defendants retained counsel in February 2019 that this was noted and there was then further delay occasioned by amendments to the Notice of Action and Defence.  Further delay ensued because the Court was confined to essential services because of the COVID-19 pandemic. 

(g)  Steps taken by claimant (Defendants) to obtain medical, legal or other expert advice.

The Defendants did not seek legal advice until February 2019. 

(h)  Strength of the claimant’s (Defendants’) case.

[79]         While ultimately an issue for the trial judge, the Third Party does not deny that it was hired to provide snow and ice control services to the Defendants for the subject Property. The Occupier’s Liability Act, S.N.S. 1996, c. 27, contains provisions that raise arguable issues for the Third Party to answer. 

(i) Any alternative remedy or compensation available to the claimant (Defendants).

[80]         There is no alternative remedy available to the Defendants.

[81]          The Court is required to assess and balance these considerations. The objective is to achieve a just outcome in all the circumstances, having regard to the respective hardships. I am mindful of the instruction from the Court of Appeal in Barry that it should not be forgotten that this exercise is triggered due to the Defendants having missed a limitation period. As such, the burden rests on the Defendants to establish that any defence arising from the lapsing of that period ought to be disallowed.

[82]         Nonetheless, in the circumstances before the Court, I find that it is just to disallow the limitation defence of the Third Party. The Third Party was given notice in February 2016 of the Plaintiff’s injury and intent to bring a claim, and that the Defendants considered any such claim to be the responsibility of the Third Party. The Third Party could have conducted an investigation at that time, informed its insurer, taken statements, and preserved documents. Although the Defendants cannot excuse their delay in filing a Third Party Notice on the basis that they chose to represent themselves without legal counsel, there is no evidence of any specific hardship or prejudice that the Third Party has or will have in mounting its defence resulting from that delay. Under the Occupier’s Liability Act, the Third Party has specific duties and responsibilities.  If the limitation defence is not disallowed, the Defendants have no recourse for any failure by the Third Party to properly perform its contract that caused or contributed to the injury of the Plaintiff. 

[83]         Having granted the Defendants’ motion to disallow the defence based on the limitation period, the motion by the Third Party for summary judgment is moot and is dismissed.

Conclusion

[84]         In summary, I find:

1.                 Where a motion for summary judgment based on a limitation period and a motion to disallow a defence based on a limitation period are both before the Court at the same time, the Court should first determine the motion to disallow.

2.                 Section 15 of the Limitation of Actions Act applies to claims for contribution and indemnity in contract as well as in tort.

3.                 The date that the Defendants were served with the Notice of Action (May 12, 2016) is the date that the claims for contribution and indemnity were discovered for the purposes of s. 8(1)(a) of the Limitation of Actions Act.

4.                 The Third Party Notice filed on May 1, 2020 was after the two-year limitation period expired on May 12, 2018.

5.                 The claims by the Defendants against the Third Party for contribution and indemnity are claims “in respect of personal injury” for the purposes of s. 12(3) of the Act.

6.                 It is just to disallow the Third Party’s defence based on the limitation period and allow the Defendants’ claims against the Third Party to proceed.

7.                 The motion of the Defendants is allowed.

8.                 The motion of the Third Party is dismissed.

9.                 The Defendants shall be entitled to costs in relation to both motions in the total amount of $1,500 inclusive of disbursements.

[85]         The Defendants shall prepare an Order accordingly.

Norton, J.