This appeal concerns whether a third party claim brought by defendants against a third party was statute barred under the Limitations Act, 2002.
The motion judge dismissed the third party claim based on issue estoppel and abuse of process, relying on a prior decision dismissing similar claims against a different third party.
The Court of Appeal held that issue estoppel did not apply due to lack of mutuality of parties, and that abuse of process was inappropriately applied given changes in the law and unfairness to the defendants.
However, the appeal was dismissed on the merits: the third party claim was statute barred because the defendants discovered their claim when served with the main action and it was not legally appropriate to delay commencing the third party claim pending resolution of a forum challenge.
