Whitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc. is the first Court of Appeal decision to consider the recent amendments to the Limitations Act establishing a limitation period specific to claims for contribution under the Tort-feasors Act. These are the paragraphs discussing the amendments:
[33] By amendment assented to on December 17, 2014 the Limitations Act now provides for limitation periods specific to claims for contribution under theTort-feasors Act.
[34] Section 3 of the Limitations Act provides:
(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 theTort‑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), …
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.
(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.
[35] The applicable Hansard (Bill 8 Justice Statutes Amendment Act, 2014, December 8, 2014) states:
Bill 8 proposes amendments to … clarify … when the discovery limitations period begins for a claim for contribution under the Tort-feasors Act. So when a plaintiff brings an action, they don’t have to list all the possible defendants who may have been responsible for the injury. However, the current law allows a defendant to bring a claim against another person that they believe is also responsible for the same injury to the plaintiff. This proposed change clarifies how the limitation period runs when a defendant brings a claim against another person responsible for the same injury to the plaintiff, and these wording changes are intended to further clarify this change. These clarifications were brought forward to us by the Law Society of Alberta, and the drafters of this amendment worked closely with the Law Society to ensure that every lawyer was satisfied with the new wording of this section.
[36] In short, subsection 1.1 creates a specific limitation period for tort-feasors’ claims against each other, when previously the common law informed that issue. Subsection 1.2 clarifies that expiry of the limitation period as between the plaintiff and the third party no longer prevents the defendant from claiming contribution from another tort-feasor under the Tort-feasors Act. It gives the defendant two years from the later of the date served and discoverability to seek indemnity from other tort-feasors. Those subsections overcome the difficulties addressed by this court in Howalta and in Arcelormittal Tubular Products Roman SA v Fluor Canada Ltd, 2013 ABCA 279 (CanLII), 556 AR 188, and state the law as it was interpreted in Dean per Slatter J (as he then was). The amendments are deemed to have come into force on March 1, 1999.
[37] The amendment makes clear who as between plaintiff and the defendant “ought to have known” that the third party was jointly liable for the claimant’s injury in order to satisfy the discoverability requirements of the Limitations Act. For statutory contribution under the Tort-feasors Act, the answer must now be the defendant. This also accords with Dean, in which the court said that discoverability was when the defendant ought to have known that the third party had a duty to contribute because of their joint liability. If so, the plaintiff’s knowledge of the third party’s joint liability is irrelevant.
[38] The mechanics of litigation associated with third party claims (r 3.44) or statutory claims for contribution (r 3.43) appear to dictate that the statement of claim must be extant before a claim for contribution can be filed. In other words, service of the statement of claim is always the earliest date the limitations period can begin (absent a right of contribution independent of the claimant’s suit, which does not apply on these facts).
[…]
[41] We note that subsection 3(1.1)(a)(i) contemplates discoverability later than service of the statement of claim. “Under the presumption against tautology, ‘[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose’ …. To the extent that it is possible to do so, courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant”: Placer Dome Canada Ltd v Ontario (Minister of Finance), [2006] 1 SCR 715 at para 45, 2006 SCC 20 (CanLII). Applying this presumption, there must be circumstances when the discoverability limitation period post-dates service of the statement of claim.