Prior to the amendment, which became law on December 14, 2014,
the limitation period for a defendant seeking contribution from a
third party where the third party may be liable to the plaintiff,
started from the time that the plaintiff knew or ought to
have known of its claim against that third party. The difficulty
created with this approach is that the defendant was often at the
mercy of the plaintiff's limitation period relative to the
third party even though the defendant may not have yet been sued.
This limited the defendant's ability to bring third parties
into the lawsuit where the limitation period between the plaintiff
and the third party had expired.
In Whitecourt Power, the Alberta Court of Appeal
interpreted the amendment for the first time. In doing so, the
Court held that the earliest date the limitation period could start
for a third-party claim that alleged a breach of a duty owed
between the third party and the plaintiff was the date the
defendant was served with a statement of claim. The Court also
found that the wording of the Limitations Act amendment
meant a defendant may not discover its claim for contribution until
sometime after it received the statement of claim.
This change in the law is likely going to be significant for
industries where defendant companies are often confronted with the
question of whether there are any third parties that should be
accountable for the plaintiff's claim, or potential claim. To
focus on construction as an example, there are often multiple
layers of contractors on a project, which is further complicated by
the fact that owners or general contractors are frequently unaware
of the universe of entities providing labour, materials and
As a defendant operating in such industries, knowing which party
to bring into a lawsuit, how to properly frame the claim for
contribution against a third party, and by when, can all be
challenging tasks. As far as the "when" is concerned, the
recent decision of Whitecourt Power, and the
Limitations Act amendment that gave rise to it, appear to
better position defendants faced with a limitations argument from
Christopher Petrucci appeared as lead counsel for the plaintiff, Whitecourt, before the Master and the Court of Appeal.
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