Ontario: limitation period applies to adding third party defendants to a main claim

Klein v. Stiller considers whether the plaintiff undertook sufficient due diligence to discover her slip and fall claim against a security firm.  What makes this otherwise standard limitations issue noteworthy is Master Dash’s commentary on the potential implication of the Occupiers’ Liability Act on a statute-barred claim.

The plaintiff argued that there would be no harm in adding the security firm to her action despite the expiry of the presumptive limitation period because it was already a third party defendant.  Master Dash was not satisfied that this was a valid justification to add the firm (it’s not), but considered the practicalities of adding the firm.

He noted that section 6 of the Occupiers’ Liability Act exempts occupiers from liability for damage caused by work they reasonably entrusted to an independent contractor.  It could potentially  exempt the defendants to the main claim from liability; if so, they would have no reason to seek indemnity  from the security firm by third party proceeding.  There would then be no third party claim against the security firm, and so the third party claim against the security firm couldn’t be a reason to allow the plaintiff to add it to the main action.

This makes sense.  The problem is that its premise is invalid.  The analysis assumes that there could be a circumstance where a plaintiff could add a party to a claim despite the expiry of the limitation period, in this case because of the Occupiers Liability Act or the fact of third party claim.  Not so: with the abolition of the the doctrine of special circumstances (for claims subject to the Limitations Act, but maybe not for claims subject to the Trustee Act), without exception a plaintiff cannot add a party to an action once the claim is statute-barred .