Kammy K. Digambar

The appellants, six defendants in a construction dispute, appealed a motion judge's decision dismissing their request to permanently stay the action.

They argued that a partial settlement between the plaintiff (respondent) and three other defendants (including an insurer) was not immediately disclosed, constituting an abuse of process.

The settlement involved the plaintiff assigning claims to the insurer and contemplating a Pierringer Agreement.

The motion judge found the settlement did not significantly alter the litigation dynamics to require immediate disclosure and that disclosure, if required, was immediate.

The Court of Appeal upheld the motion judge's finding that the settlement did not significantly alter the litigation dynamics, emphasizing that the claims against the settling parties were fundamentally distinct from those against the appellants, and the use of the term "Pierringer Agreement" was not determinative without a substantive change in adversarial positions to cooperative ones.

The appeal was dismissed.

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.

The third party brought a motion for summary judgment to dismiss the defendants' third party claim for contribution and indemnity as statute-barred under s. 18 of the Limitations Act, 2002.

In a previous motion in the same action, another third party successfully struck the defendants' third party claim on the basis that the two-year limitation period commenced upon service of the statement of claim, without regard to discoverability.

The court held that the defendants were precluded by the doctrine of issue estoppel from relitigating the limitation period issue.

The motion was granted and the third party claim was dismissed.

The plaintiff brought a motion to extend the set down date for a complex product liability action and to place the proceeding and a related action into case management.

The defendants opposed the extension, arguing that the plaintiff had failed to comply with multiple court-ordered timetables and that the delay warranted dismissal due to prejudice, including the loss of documents and witnesses.

The court held that while the plaintiff’s prosecution of the action had been slow, its explanations for delay were plausible and it had taken ongoing steps to advance the litigation.

The court found that the evidence of prejudice was weak and largely speculative, and that the plaintiff had established a prima facie absence of actual prejudice to the defendants.

The set down date was extended, but the request to place the matter into case management was refused.