Recent amendments to the Alberta Limitations Act create
more certainty and change the law with respect to certain types of
third-party claims and notices to co-defendants where a defendant
who is a tortfeasor seeks contribution from another tortfeasor who
would also be liable to the plaintiff, whether that person is
already a party to the action or not ("Contribution
The most important change to the Act resolves a serious problem
that arose as a result of the decision of the Alberta Court of
Appeal in Arcelormittal Tubular Products Roman S.A. v Fluor
Canada Ltd. et. al, 2013 ABCA 279 (leave to appeal to the SCC
dismissed). This decision reversed the effect of a number of
lower-court decisions, so that no Contribution Claim could be made
where the limitation period between the plaintiff and the potential
third party had expired. As a result, a defendant could lose the
right to make a Contribution Claim even before being served with a
claim or being aware of a plaintiff's claim. It is important to
note that a Contribution Claim can arise when a party is served
with any type of originating claim, like a Statement of Claim or
third-party notice ("Claim").
The amendments create a minimum period of two years from service
of a Claim in which to bring a Contribution Claim. In most cases,
service of a Claim on a defendant will likely trigger the
limitation period, although in certain cases the limitation period
may be longer.
The practice of delaying the service of a Statement of Defence
so that a Contribution Claim can also be delayed is not affected by
this change unless the third-party claim is not brought within
the new limitation period for making Contribution Claims. This
practice creates a potential risk. Where insurers, independent
adjusters or lawyers are delaying the filing of a Statement of
Defence or third-party claim (e.g. in an effort to resolve a
matter) they must now take care to ensure that such a Claim is
brought prior to expiry of the new two year limitation even if the
Rules of Court would allow the third-party claim to be filed after
that period. The procedural Rules do not extend the period in the
The new limitation periods are retroactive: they are deemed to
have come into force on March 1, 1999 (SA 2014 c13 s4) unless a
matter has been settled or certain orders or judgments have been
issued. This raises the possibility that Contribution Claims
already served may be out of time and subject to being dismissed.
These could be claims brought on behalf of or against an insured.
We recommend that you discuss any concerns about this with a member
Gowlings Insurance Defence Group.
The amendments also provide for a two year period of
discoverability if the defendant who is reasonably diligent does
not learn of a potential Contribution Claim until after being
served with a Claim. In this circumstance the limitation period
could be extended past two years from when the Claim was
There is also a limitation for Contribution Claims where no
Claim has been served. This applies in very limited circumstances
where a party has made a payment to a potential plaintiff to settle
a matter and wants to make a Contribution Claim, even thought the
potential plaintiff has never brought a Claim.
There are other types of third-party claims that are not covered
by these amendments.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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