Ontario Court of Appeal allows cross-claim, despite being beyond limitation period

A defendant can still file a cross-claim for contribution and indemnity even after the limitation period of the plaintiff naming that individual has expired, Ian Gold, a founding partner of Thomas Gold Pettingill Lawyers, told delegates of the Ontario Insurance Adjusters’ Association (OIAA)’s annual conference.
Gold delivered a presentation on casualty claim developments on Feb 9. During the seminar, he pointed to the Ontario Court of Appeal case, Waterloo Region District School Board v. CRD Construction Ltd.
In this case, a severe storm blew down the walls of a new school gymnasium that was under construction in 2002. At that time, the Professional Engineering Act provided a 12-month limitation period for the engineer that provided the engineering services for the construction of the gym.
In 2008, the Waterloo school board commenced an action. Since the limitation period had expired against the engineer, the school board named various contractors that had constructed the gymnasium.
The named defendants filed various cross-claims against the engineer seeking contribution and indemnity, Gold said.
“And that was the question before the court: Could these defendants, even though it was beyond the limitation period, advance a claim for contribution and indemnity beyond the limitation period against the engineer? And the court said, ‘Yes,'” Gold said.
Under the Limitation Act, claims for contribution and indemnity have a two-year limitation period from the time a defendant was served with a statement of claim, Gold said.
“There may be a knee-jerk reaction to say, ‘Oh, the limitation period is over and those [plaintiffs] weren’t smart enough to sue me,” he said. “Well, one of those named defendants might be smart enough, and you have to worry about that for two years.”