COURT OF APPEAL FOR ONTARIO
CITATION: Lower William Properties Ltd. v. Santaguida, 2026 ONCA 581
DATE: 20260813
DOCKET: COA-25-CV-0315
van Rensburg, Dawe and Madsen JJ.A.
BETWEEN
Lower William Properties Ltd., Upper William Properties Ltd., Forty Three William Properties Ltd., 10393398 Canada Inc. (o/a Le Mien Craft Noodle House), 45 William Ltd., William Monopoly Properties Ltd., 8791376 Canada Inc. and SJ.NJ Group Inc. (formerly, Cacao 70 Canada Inc.)
Plaintiffs
and
Domenic Santaguida*, 1155324 Ontario Inc. (c.o.b. “Vittoria Trattoria”)*, 2361212 Ontario Limited*, Mervin Blostein*, 11456253 Canada Inc. (c.o.b. “Toiture Audet Inc.”), John Doe Roofing Contractor(s), Sebastien Lamarche Champagne, Magella Doe, Martin Luc Anctil, Jacob Charron, Elite Armour Inc., Martin Groulx, Toiture Audet Inc., Toitures Audet Inc. and Guillaume Audet
Defendants (Respondents*)
and
Maurizio Martignano
Third Party (Appellant)
Philip Ghosh and James Zeppieri, for the appellant
Josiah T. MacQuarrie, for the respondents
Heard: November 10, 2025
On appeal from the order of Justice Robyn M. Ryan Bell of the Superior Court of Justice, dated February 20, 2025, with reasons reported at 2025 ONSC 1132.
van Rensburg J.A.:
Introduction
[1] The respondents were sued after a fire at their restaurant in 2019 spread to neighbouring buildings. They commenced third party proceedings against the appellant, claiming contribution and indemnity based on alleged deficiencies in the architectural services he had provided during a 2001 renovation to the restaurant. The appellant moved for an order declaring that the third party claims are barred by the expiry of the 15-year ultimate limitation period pursuant to s. 15 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and dismissing the third party claims. The motion judge dismissed the motion and declared that the third party claims are not barred by the limitation periods under the Limitations Act, 2002. The appellant appeals the order.
[2] The appellant’s motion to determine the limitation period issue was brought under r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, without evidence and based on the facts alleged in the pleadings, which, for the purpose of the motion, were assumed to be true. In general, limitation period issues are fact-dependent and do not lend themselves to determination at the pleadings stage. Accordingly, it is appropriate to address limitations issues on a pleadings motion only “where pleadings are closed and the facts relevant to the limitation period are undisputed”: Toussaint v. Canada (Attorney General), 2023 ONCA 117, at para. 11, citing Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, 154 O.R. (3d) 587, at para. 31.
[3] In this case, it appears that the r. 21 motion was brought on the assumption that there were no facts in dispute relevant to the appellant’s limitations defence: the parties accepted that the ultimate limitation period had expired in respect of any claim the plaintiffs or the respondents might have asserted directly against the appellant, and the operation of s. 15 is not subject to discoverability, which would involve determinations of fact. The parties and the motion judge proceeded on the basis that the issue was one of statutory interpretation that could be determined on the pleadings.
[4] As I will explain, I have concluded that it is premature to adjudicate the appellant’s limitation period defence based on the pleadings alone, and without the benefit of focused arguments on the issues of statutory interpretation that arise in this case.
[5] The analysis and the determination of whether the ultimate limitation period would apply to bar the third party claims should be informed by, and may well depend on, how the claims for contribution and indemnity are characterized. In particular, a distinction that may be relevant to the analysis is whether the third party claims seek contribution and indemnity in respect of duties the appellant is alleged to have owed to the plaintiffs, or whether they assert claims in respect of duties alleged to have been owed by the appellant to the respondents, or both. We did not receive argument on this issue, nor is the proper characterization of the third party claims obvious on the pleadings.
[6] I would therefore allow the appeal and set aside the motion judge’s declaration. I would allow the third party claims to proceed while permitting the appellant to continue to assert his limitation period defence to the third party claims.
[7] My reasons will explain why the proper characterization of the third party claims may be important to the analysis and then identify certain issues that may be relevant when the limitation period defence is determined at a later date. They will proceed as follows: First, I will set out the background facts. Second, I will provide a brief summary of the motion judge’s reasons. Third, I will set out the positions of the parties as argued in the appeal. Fourth, in my analysis, I will (a) set out the relevant statutory provisions; (b) address two types of claims for contribution and indemnity: those that are based on duties owed by the third party to the plaintiff, and those based on duties owed by the third party to the defendant; and (c) identify issues that arise in interpreting ss. 15 and 18 of the Limitations Act, 2002, including (i) the challenge in reconciling a plain reading of the provisions with the legislative purpose of s. 15; (ii) whether, in light of its legislative history and other factors, s. 18 applies to all claims for contribution and indemnity or only to claims that are based on duties owed by the third party to the plaintiff; (iii) if s. 18 does not apply, when the “act or omission” in respect of contribution and indemnity occurred; and (iv) if s. 18 does apply, whether the expiry of the ultimate limitation period in respect of the plaintiffs’ claims against the appellant might afford a defence.
Facts
[8] On April 12, 2019, a fire occurred in the Byward Market in Ottawa, causing extensive damage to a number of buildings. The fire is alleged to have started on the roof of a restaurant located at 35 and 37 William Street. 35 William Street is owned by the respondent 2361212 Ontario Limited (“236”). 37 William Street was owned by the respondent Mervin Blostein. The respondent 1155324 Ontario Inc. (c.o.b. “Vittoria Trattoria”) (“Vittoria Trattoria”), has owned and operated a restaurant at 35 William Street since 1996, and expanded into 37 William Street in 2001.
[9] In 2021, a number of actions were commenced in the Superior Court against the respondents and other defendants for damages in relation to the fire. The statements of claim plead that the fire was caused by the negligence of contractors working on the roof of the restaurant at the time, for which the respondents are alleged to be vicariously liable. The statements of claim also plead negligence of the respondents in respect of the hiring and supervision of the roofing contractors, and nuisance. In each statement of defence and crossclaim, the respondents plead that the restaurant roof was left unsupervised for a period of time by their roofing contractors, and that the fire began shortly thereafter. They assert that the fire quickly spread to the adjacent buildings, bypassing the firewall between 35 and 37 William Street due to a gap between the attic and the roof structure. By crossclaim, the respondents claim contribution and indemnity from their co-defendants. The statements of defence and crossclaims specifically plead reliance on the Negligence Act, R.S.O. 1990, c. N.1.
[10] On October 30, 2023, the respondents commenced third party claims against the appellant in several of the actions. The third party claims plead that the appellant was retained by Vittoria Trattoria and/or 236 to provide architectural services in 2001, including design, construction, oversight, and inspection of the renovation and expansion of the restaurant. The third party claims allege that “the renovation and expansion at the [restaurant] conducted in 2001 included amongst other things, the installation of a fire separation wall between the [restaurant] and the neighbouring building at 41 William Street”, and that, pursuant to provisions of the Building Code, “the fire separation was required by law to have a continuous 2 hour fire separation.” The pleading alleges that, “[c]ontrary to the Building Code requirements, the fire separation wall installed was not continuous”, and that the fire, which originated in the attic space between 35 and 37 William Street, “progressed through a gap in the fire separation with 41 William Street between the two roof attics.” The third party claims plead that “to the extent the Plaintiff in the Main Action has suffered the alleged losses or damages, which these defendants have denied, such losses or damages were caused and/or contributed to by the negligence, breach of contract, breach of duty and/or breach of statutory duty of the Third Party.” The third party claims assert that it was an express or implied term of the architectural services agreement that the appellant would perform the work in a professional manner in compliance with all applicable laws and regulations, including the Building Code. The third party claims do not plead the Negligence Act.
[11] In his defence to each of the third party claims, the appellant pleads that Vittoria Trattoria undertook renovations at the restaurant as its own contractor; that, subsequent to the commencement of the renovations, he was retained to prepare design materials for Vittoria Trattoria so that it could obtain building permits; and that the renovation was completed in or around 2001. In addition to denying liability on the merits, the appellant pleads and relies on the expiry of the ultimate limitation period under s. 15 of the Limitations Act, 2002. I note that no contractual limitation period is pleaded.
[12] None of the plaintiffs’ actions name the appellant as a defendant, nor did the respondents sue the appellant for their own losses (that is, for relief other than for contribution and indemnity). The parties agree that the expiry of the ultimate limitation period under s. 15 would have precluded the plaintiffs in the various actions from suing the appellant, and the respondents from suing the appellant for their own loss or damage resulting from the fire. The ultimate limitation period in respect of such claims would have expired on January 1, 2019, more than three months before the fire occurred.
Decision of the Motion Judge
[13] The appellant brought motions under r. 21 to dismiss or strike the third party claims in each of the actions, asserting that the claims were barred by the expiry of the s. 15 ultimate limitation period.
[14] The motion judge disagreed. She interpreted ss. 15 and 18 of the Limitations Act, 2002, when read together, as providing for a 15-year ultimate limitation period in respect of the respondents’ claims for contribution and indemnity, running from the date they were served with the plaintiffs’ statements of claim. In other words, although the third party claims alleged negligence and breaches of contractual and other duties that had taken place more than 15 years earlier, the ultimate limitation period began to run in respect of the claims for contribution and indemnity on various dates when each of the statements of claim were served on the respondents.
[15] The motion judge came to this interpretation on a plain reading of the statutory provisions. She noted that a claim for contribution and indemnity under s. 1 of the Negligence Act is a statutory claim, founded on principles of restitution and unjust enrichment, rather than a claim in tort; that the “acts or omissions” on which the claims for contribution and indemnity are based are “the failures by the other concurrent tortfeasors to pay their fair share of the injured party’s damages”, citing Placzek v. Green, 2009 ONCA 83, 307 D.L.R. (4th) 441, at para. 42; and that it would be unfair to bar a person’s right to make a claim for contribution and indemnity before they are in a position to pursue a third party claim, that is, before the statement of claim has been served. The motion judge observed that this is the unfairness that s. 18 guards against by expressly deeming the date of service of the statement of claim as the actual commencement date for the ultimate limitation period.
Standard of Review
[16] As this is an appeal from a determination of a question of law under r. 21.01(1), the standard of review is correctness: Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, at para. 34; Das v. George Weston Limited, 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 65, leave to appeal refused, [2019] S.C.C.A. No. 69. The issue in this appeal is whether the motion judge was correct in her determination that it was plain and obvious that the third party claims are not barred by the expiry of the ultimate limitation period.
Positions of the Parties
[17] The appellant submits that the motion judge erred by not interpreting the relevant statutory provisions using the approach outlined in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27. Rizzo requires the court to read the words of an Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. The court must adopt an interpretation of the statute that best fulfills the objects of the legislation and avoids any inconsistency between its different provisions and other absurd consequences: Rizzo, at paras. 21, 27.
[18] The appellant contends that the intention of the legislature in providing for an ultimate limitation period would be defeated if it could be avoided whenever the claim is for contribution and indemnity. This would result in the open-ended liability that the ultimate limitation period was intended to avoid. The appellant argues, further, that it is absurd that the plaintiffs in the various actions would be barred by the ultimate limitation period from bringing a claim with respect to his work in 2001, but that the respondents would not be barred from making the same claim in a third party proceeding. The appellant also argues that the motion judge’s analysis ignored provisions of the Negligence Act which are relevant to claims for contribution and indemnity between joint or concurrent tortfeasors.
[19] The respondents submit that the motion judge did not err in her interpretation of unambiguous provisions of the Limitations Act, 2002, and in her conclusion that, on a plain reading of ss. 15 and 18, the ultimate limitation period in respect of their third party claims began to run on the dates they were served with the underlying statements of claim. The respondents contend that this result is consistent with the purpose of s. 18, which is to provide a clear and cohesive scheme that balances a plaintiff’s right to sue with a defendant’s need for certainty and finality. The motion judge’s interpretation guards against the injustice that would occur if a limitation period were to run before the respondents’ claim against the appellant could be discovered with reasonable diligence.
Analysis
a. Relevant statutory provisions
[20] I begin by outlining the relevant provisions of the Limitations Act, 2002.
[21] Section 4 provides for the basic limitation period:
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
[22] “Proceeding” is not defined in the Act. However, the definition in the Rules of Civil Procedure applies: Placzek, at fn. 1, citing Meady v. Greyhound Canada Transportation Corp., 2008 ONCA 468, 90 O.R. (3d) 774 (C.A.), at para. 11. A “proceeding” thus means “an action or application”: r. 1.03(1). An “action” is a proceeding that is not an application and includes a proceeding commenced by statement of claim, notice of action, counterclaim, crossclaim or third or subsequent party claim: r. 1.03(1).
[23] A “claim” means “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”: Limitations Act, 2002, s. 1. There is no “claim” without loss, injury or damage. A claim is pursued in a court proceeding to obtain a remedy for a loss caused by the act or omission of the person against whom the claim is made: Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681, 21 C.L.R. (5th) 1, at para. 26; see also Kaynes, at paras. 50-58.
[24] Section 5 stipulates when a claim is discovered. It provides:
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[25] Section 5(2) provides for a presumption that a claim is discovered on the day on which the act or omission on which the claim is based took place. To overcome the presumption, a plaintiff is required to prove only that the claim was not in fact discovered on that date: Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 26-27.
[26] Section 15 provides for a 15-year ultimate limitation period:
- (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.
[27] A universal ultimate limitation period was introduced into Ontario’s limitations law for the first time with the coming into force of the Limitations Act, 2002 on January 1, 2004. Accounting for the transition provisions, the 15-year limitation period commences on the later of the day on which the act or omission on which the claim is based took place and January 1, 2004: York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, at paras. 17, 20, leave to appeal refused, [2007] S.C.C.A. No. 154.
[28] The ultimate limitation period applies “[e]ven if the limitation period established by any other section of [the] Act in respect of a claim has not expired”. Unlike the basic limitation period, the 15-year ultimate limitation period does not depend on when a claim is discovered. Nor does it require that injury, loss or damage be suffered before it starts to run. Instead, it runs from “the day on which the act or omission on which the claim is based” took place. The ultimate limitation period is subject to certain exceptions that interrupt its running or exempt certain claims from its application, none of which are relevant here.
[29] Section 18 of the Limitations Act, 2002 provides:
- (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place.
(2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise.
[30] Section 18 does not establish its own limitation period for contribution and indemnity claims. As “proceedings” in respect of a “claim”, they are subject to the basic limitation period in s. 4 (together with s. 5 providing for when a claim is discovered) and the ultimate limitation period in s. 15. I agree with the observation of Monahan J. (as he then was) that s. 18 is “merely an interpretive provision. It specifies the date upon which the act or omission is deemed to have taken place [and] is not a substantive provision purporting to limit the commencement of legal proceedings”: Murphy v. Hart, 2018 ONSC 1648, 141 O.R. (3d) 282, at para. 33.
b. Two types of third party claims for contribution and indemnity
[31] Claims for contribution and indemnity can be pursued by way of counterclaim, crossclaim, or third or subsequent party claims.
[32] Third party claims are asserted pursuant to r. 29 of the Rules of Civil Procedure. Rule 29.01 provides that a defendant may commence a third party claim against any person who is not a party to the action and includes a claim against a person who is or may be liable to the defendant for all or part of the plaintiff’s claim.
[33] As Brownstone J. (as she then was) noted in Wekerle v. Arbour, 2025 ONSC 1456, at para. 33, r. 29.01 is merely a procedural mechanism. It confers the ability to bring a claim but does not supplant the substantive law and still requires that there be a viable legal basis for the defendant’s claim. “A third party claim, like any action, must have a substantive component – it must assert a cause of action”: Hengeveld v. The Personal Insurance Company, 2019 ONCA 497, 146 O.R. (3d) 182, at para. 19.
[34] It is not unusual for a third party claim to plead a claim for “contribution and indemnity”, for “contribution or indemnity”,[1] and frequently also for “other relief over”, as a general way to assert a claim that the third party is liable to the defendant for some portion or all of any damages awarded to a plaintiff in the main action. But what precisely is meant by this in a particular case may require careful consideration.
[35] The words “contribution and indemnity” can mean different things depending on the context.[2] The distinction that is important for the purpose of this discussion is between claims for contribution and indemnity where the defendant asserts a claim against another person in respect of a duty owed by that person to the plaintiff, and claims for contribution and indemnity that depend on a duty, contractual or otherwise, owed by the third party to the defendant and not to the plaintiff.
i. Claims for contribution and indemnity in respect of duties owed by the third party to the plaintiff
[36] Typically, the cause of action in respect of the former type of claim for contribution and indemnity is a statutory claim under the Negligence Act, which provides for the joint and several liability of joint or concurrent tortfeasors to a plaintiff. Section 1 of the Negligence Act provides:
- Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.
[37] Section 5 of the Negligence Act allows for persons who are or may be responsible for the damages claimed by the plaintiff to be added as party defendants or third parties:
- Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties.
[38] The effect of these provisions is to make all persons whose fault or negligence caused or contributed to the plaintiff’s damages jointly and severally liable to the plaintiff, and liable to each other in accordance with their respective degrees of negligence or fault.[3] The purpose of the legislation is to facilitate full recovery of a plaintiff’s losses, while providing a mechanism for those who contributed to the loss to share the financial responsibility in proportion to their respective degrees of fault: Martin v. Listowel Memorial Hospital (2000), 2000 CanLII 16947 (ON CA), 51 O.R. (3d) 384 (C.A.), at para. 34.
[39] The reference to “fault or neglect” in s. 1 includes any “breach of statute or other act or omission giving rise to a liability in tort whether negligent or not”: Dominion Chain Co. v. Eastern Construction Co. (1976), 1976 CanLII 698 (ON CA), 12 O.R. (2d) 201 (“Giffels (Ont. C.A.)”), at p. 206, aff’d on other grounds Giffels Associates Ltd. v. Eastern Construction Co. 1978 CanLII 39 (SCC), [1978] 2 S.C.R. 1346 (“Giffels (S.C.C.)”). The Negligence Act does not confer a right of contribution between those whose only legal wrong is a breach of contract; however, if the defendants could also be liable in tort, there is a right of contribution under the Act: Giffels (Ont. C.A.).
[40] The central feature of a third party claim for contribution and indemnity under the Negligence Act is that the claim is “derivative” of the third party’s liability to the plaintiff: it does not depend on a separate duty owed by the third party to the defendant. Indeed, the claim has been described as one tortfeasor raising against another “a cause of action of the plaintiff”: Canada Deposit Insurance Corp. v. Prisco (1996), 1996 CanLII 17968 (AB CA), 181 A.R. 161 (C.A.), at para 10 (emphasis in original). It is sufficient that the third party owed a duty to the plaintiff, making the third party someone who, if sued by the plaintiff, would have been liable in respect of the damage the plaintiff suffered: Hengeveld, at paras. 19, 21-22.
[41] Accordingly, the liability of each tortfeasor to the plaintiff is a precondition of the right of one tortfeasor to claim over against another under the Negligence Act. A claim for contribution cannot be made under the Negligence Act “by one person against another in respect of loss resulting to a third person unless each of the former two came under a liability to the third person to answer for his loss”: Giffels (S.C.C.), at p. 1354. This principle has been followed in numerous cases: see e.g., R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 136; Canada Colors & Chemicals Ltd. v. Tenneco Canada Inc. (1995), 1995 CanLII 10679 (ON CTGD), 21 O.R. (3d) 438 (Div. Ct.); HSBC Securities (Canada) Inc. v. Davies, Ward & Beck (2005), 2005 CanLII 1626 (ON CA), 74 O.R. (3d) 295 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 145; and, more recently, Nuyork Investments Ltd. v. Toronto Hydro-Electric System Ltd., 2021 ONSC 3235; Mizen Holdings Corporation v. Toronto (City) et al., 2023 ONSC 1882, at para. 52.
[42] At the time of its enactment, the Negligence Act contained no provisions concerning limitation periods. As a result, issues arose where a limitation period in respect of the plaintiff’s claim against the third party expired between the time the plaintiff sued the defendant and when the defendant sought to sue a third party. As the defendant’s claim was derivative of the plaintiff’s, the expiry of the limitation period applicable to the plaintiff’s claim would defeat the defendant’s claim for contribution and indemnity. The unfairness in this was obvious: the plaintiff’s ability to choose who and when to sue should not have the effect of defeating a claim by the targeted defendant for contribution and indemnity from the third party that the plaintiff, for whatever reason, did not pursue in a timely manner.
[43] A provision was added to the Negligence Act to address this issue. Under s. 8 of the Act, claims for contribution and indemnity as between joint or concurrent tortfeasors were protected and could not be defeated by the expiry of a statutory limitation period:
- Where an action is commenced against a tortfeasor or where a tortfeasor settles with a person who has suffered damage as a result of a tort, within the period of limitation prescribed for the commencement of actions by any relevant statute, no proceedings for contribution or indemnity against another tortfeasor shall be defeated by the operation of any statute limiting the time for the commencement of action against such other tortfeasor provided,
(a) such proceedings are commenced within one year of the date of the judgment in the action or the settlement, as the case may be; and
(b) there has been compliance with any statute requiring notice of claim against such tortfeasor.
[44] The effect of s. 8 was that, subject to giving any required statutory notice to the second tortfeasor, a claim for contribution and indemnity between joint or concurrent tortfeasors was timely, as long as the plaintiff’s underlying action against the first tortfeasor was timely and the contribution and indemnity proceedings were commenced within one year of the judgment in or settlement of the plaintiff’s action. The section recognized the then applicable commencement date for claims for contribution and indemnity under the Negligence Act – the date of judgment in the action or settlement – and served to override, for the purpose of Negligence Act claimants, the legal principle that precluded a claim for contribution between tortfeasors if the plaintiff did not have a direct claim against the third party because of the expiry of a relevant limitation period.
[45] Section 8 was repealed by the Limitations Act, 2002. However, in Waterloo Region District School Board v. CRD Construction Ltd., 2010 ONCA 838, 103 O.R. (3d) 81, Feldman J.A., for a five-judge panel of this court, interpreted s. 18 of the Limitations Act, 2002 as having the same effect as s. 8 of the Negligence Act, referring to the unfairness that would result if the defendant’s claim against the third party were defeated by the plaintiff’s failure to sue the third party.
[46] While the parties to this appeal referred to Waterloo Region in their submissions, no one suggested that this decision was determinative of the issues in this appeal. This is understandably so: the case did not deal with the ultimate limitation period; when s. 8 of the Negligence Act was in force, there was no universal ultimate limitation period; and the “fairness” or policy reasons for interpreting s. 18 as having the same effect as s. 8 do not have the same force in relation to the ultimate limitation period. Moreover, in Waterloo Region, unlike in the present case, the limitation period at issue did not expire before the loss took place – a fact that, as I will explain below, may be relevant.
[47] Finally, I conclude this discussion of claims for contribution and indemnity that depend on shared liability to a plaintiff by noting that some cases have recognized that Negligence Act principles may apply to claims for contribution and indemnity where the liability to the plaintiff is based on contract. See Copeland J.’s (as she then was) discussion of relevant cases in Toronto Hydro v. Gonte and City of Toronto, 2018 ONSC 4315, 78 M.P.L.R. (5th) 104, at paras. 84-85. See also Paramount Resources Ltd. v. Grey Owl Engineering Ltd., 2024 ABCA 60, 66 Alta. L.R. (7th) 25, at paras. 32-36; Ryan v. Dew Enterprises Ltd., 2014 NLCA 11, 347 Nfld. & P.E.I.R. 274, at paras. 54-55. While claims for contribution and indemnity in respect of duties owed by a third party to a plaintiff typically fall under the Negligence Act, they may also be based on contract or otherwise.
ii. Claims for contribution and indemnity in respect of duties owed by the third party to the defendant
[48] Claims for contribution and indemnity can be asserted in a third party claim that are not derivative of the plaintiff’s claim against the third party. Typically, such claims depend on an alleged breach of a duty, whether tortious, contractual or arising by statute, owed by the third party to the defendant.
[49] In Dean v. Kociniak, 2001 ABQB 412, 289 A.R. 201, at para. 16, Slatter J. (as he then was) explained:
There are, broadly speaking, two different kinds of claims for contribution and indemnity. The first kind is a claim for contribution and indemnity by one joint tort-feasor against another. This type of claim is purely a creation of statute. The other type of claim for contribution arises at common law where one person has a duty, usually contractual, to indemnify another.
[50] After explaining the statutory basis for contribution and indemnity between joint tortfeasors under the Alberta Tort-Feasors Act, R.S.A. 1980, c. T-6 (which is roughly equivalent to the Ontario Negligence Act), Slatter J. explained the rights of contribution and indemnity that can arise at common law. He stated, at para. 18:
Other rights of contribution or indemnity can arise at common law. They depend on circumstances where one of the potential defendants owes a duty recognized by the common law to [indemnify] or contribute to the other potential defendants. The duty to indemnify may arise by contract…. A common-law right to indemnify can also arise where the tort-feasor being asked to contribute owes a duty to the other tort-feasor which is independent of the duty owed to the Plaintiff. For example, an auditor may owe a duty to its corporate client not to be negligent. It may also owe a duty to other persons, such as directors, shareholders, or bankers which is independent of its duty to its corporate client. In these circumstances, the duty to contribute does not depend on the Tort-Feasors Act…. [Citations omitted].
[51] Such claims for contribution and indemnity do not depend on the third party and the defendant both owing the plaintiff a duty. The obligation to contribute or to indemnify in relation to such claims is based on the breach of a duty, whether arising in contract, tort or statute, owed by the third party to the defendant, which has exposed the defendant to the plaintiff’s claim.
[52] The proper characterization of the third party claims in these proceedings – whether they are claims based on duties owed by the appellant to the plaintiffs, duties owed to the respondents, or both – is necessary before the appellant’s limitation period defence can be adjudicated. Determining the true character of the third party claims may well require evidence: see e.g., Marsh v. Century Conundrum, 2014 ONSC 1154, at paras. 21-26.
c. Issues that arise in interpreting ss. 15 and 18 of the Limitations Act, 2002
[53] In this section of the reasons, I will identify and discuss some of the issues that may arise in interpreting ss. 15 and 18 of the Limitations Act, 2002, when the appellant’s limitation period defence is considered and determined in this case. The specific issues are: (i) the challenge in reconciling the legislative purpose of s. 15 with a plain reading of ss. 15 and 18; (ii) whether, in light of its legislative history and other factors, s. 18 applies to all claims for contribution and indemnity or only those that are based on duties owed by the third party to the plaintiff; (iii) if s. 18 does not apply, when the “act or omission” in respect of contribution and indemnity occurred; and (iv) if s. 18 does apply, whether the appellant may nevertheless have a defence to the third party claims under s. 15. I will discuss each of these issues in turn.
i. Is the legislative purpose of s. 15 reconcilable with a “plain reading” of ss. 15 and 18?
[54] One issue that may arise when considering the appellant’s limitation period defence is how to reconcile the purpose of s. 15 with a “plain reading” of ss. 15 and 18.
[55] Over the course of more than three decades, numerous reports proposing reforms to Ontario’s limitation period laws were published. A feature of these reports was the recognition of the function of a statute of limitations as an “act of peace”. While it was recognized that limitation periods should be extended based on a claimant’s lack of knowledge of a cause of action, there was also consistent support for having a generally applicable ultimate limitation period that would operate regardless of a potential claimant’s knowledge.
[56] As early as 1977, the Ontario Ministry of the Attorney General’s Discussion Paper on Proposed Limitations Act (Toronto: Ministry of the Attorney General, 1977) recognized the desirability of an ultimate limitation period, stating that “[a]n ultimate bar is in accordance with the purpose of limitation legislation: that at some point in time the possibility of litigation should be dead”: at p. 42. A 1991 report also advocated for an ultimate limitation period, based on five reasons: (1) the “ever increasing” expense of retaining records on the “slight chance” that a claim would be brought; (2) the prohibitive cost of maintaining insurance for an indeterminate period; (3) the difficulty in proving the standards and practices at the relevant time, when many activities which may give rise to liability are subject to dramatic changes in standards and practices over time; (4) the increased costs of defending proceedings years after the event, when evidence and witnesses may no longer be readily available; and (5) the social costs imposed by having an indeterminable period of time in which claims might be brought: Limitations Act Consultation Group, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: Ministry of the Attorney General, 1991), at pp. 34-40 (the “1991 Report”).
[57] Following these reports, several bills were introduced that did not proceed beyond first reading. Bill 99,[4] in 1992, which incorporated the recommendations of the 1991 Report, provided for a 30-year ultimate limitation period, with shorter ultimate limitation periods for specific circumstances, including a ten-year ultimate limitation period for claims based on a deficiency in the design, construction or general review of an improvement to real property. Bill 163,[5] in 2000, and Bill 10,[6] in 2001, both included a single 15-year ultimate limitation period.
[58] Finally, in 2002, Schedule B to Bill 213[7] was introduced, proposing what would later become the current Limitations Act, 2002. It had only minor changes from Bill 10 and was unanimously adopted.
[59] During the second reading of Bill 213, then Attorney General David Young, stated that the 15-year ultimate limitation period would balance the needs of claimants to have sufficient time to commence a legal proceeding, with the needs of defendants for certainty – that, after a fixed period of time, further claims would be barred. He also referred to the limited, specific instances in which the ultimate limitation period would not apply or run (as provided for under s. 15(4)).[8]
[60] In York Condominium Corporation No. 382, at para. 32, Weiler J.A. identified that “[t]he purpose of the Act as a whole is to balance the right to access to justice by bringing a lawsuit with the right to certainty and finality in the organization of one’s affairs” and that “[t]he purpose of the ultimate limitation period is to balance the concern for plaintiffs with undiscovered causes of action with the need to prevent the indefinite postponement of a limitation period and the associated costs relating to record-keeping and insurance resulting from continuous exposure to liability.”
[61] In this case, the motion judge concluded that, reading ss. 15 and 18 together, the third party claims were timely. Characterizing the third party claims as claims for contribution and indemnity under the Negligence Act, the acts or omissions of the appellant were his failure to contribute, which were deemed to have taken place when the respondents were served with the plaintiffs’ claims. While the ultimate limitation period would have expired if the plaintiffs or respondents had sued the appellant directly in respect of their own losses, it had not expired in respect of the respondents’ third party claims.
[62] The motion judge expressed the view that it would be unfair to bar a person’s right to claim contribution and indemnity before they have a reasonable opportunity to bring the claim, and that this is the unfairness that s. 18 guards against. While I agree that this is the case in respect of the operation of the basic limitation period (an unfairness identified in Waterloo Region), it is also unfair for a party who has received the benefit of s. 15 in respect of an act or omission that took place more than 15 years earlier to face ongoing potential liability in respect of the same act or omission when asserted as a claim for contribution and indemnity.
[63] It is difficult to discern any rationale for effectively extending the ultimate limitation period where the claim seeks contribution and indemnity. Arguably the effect would be to override s. 15 in such circumstances, subverting the purpose behind an ultimate limitation period.
[64] The interpretation of statutory provisions should be consistent, where possible, with their legislative purpose. As Weiler J.A. stated in York Condominium Corp. No. 382, at paras. 13-14:
Having determined the ordinary meaning, the court must go on to consider the context of the provision, the purpose and scheme of the legislation as well as the consequences of adopting the ordinary meaning and any other relevant indicators of legislative meaning. If, after undertaking this analysis, the words of the provision are reasonably capable of more than one meaning, a real ambiguity exists.
The court must adopt an interpretation that best fulfills the objects of the legislation. Having regard to this broader context, the court may modify or reject the application of the presumption that favours an interpretation in accordance with the ordinary meaning. However, the interpretation adopted must be plausible in the sense that it is one that the words are reasonably capable of bearing. [Citations omitted.]
[65] In determining whether the third party claims are statute-barred, any interpretation of ss. 15 and 18 of the Limitations Act, 2002 must be informed, to the extent possible, by the purpose of s. 15, which is to avoid the indefinite postponement of a limitation period and continuous exposure of a potential defendant to liability.
ii. Does s. 18 apply to all claims for contribution and indemnity or only to those between joint or concurrent wrongdoers?
[66] Given that claims for contribution and indemnity are “proceedings” in respect of a “claim”, the basic and ultimate limitation periods apply to them. As noted earlier, the effect of s. 18, for the claims it applies to, is to deem the day the act or omission on which the claim for contribution and indemnity is based to have occurred when the claimant was served with the plaintiff’s underlying claim. It does so for the purposes of both the basic limitation period and the ultimate limitation period.
[67] One issue that may need to be determined in this case, when the limitation period defence is dealt with at a later date, is whether s. 18 applies to all claims for contribution and indemnity, or whether it is limited to claims between wrongdoers who would have been, if sued, jointly and severally liable to the plaintiff because they each owed duties to the plaintiff.
[68] There are arguments on both sides.
[69] In support of the application of s. 18 to all claims for contribution and indemnity are broad statements in some of the case law. For example, in Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378, 115 O.R. (3d) 641, Sharpe J.A. noted that the departure of the Limitations Act, 2002 from the Negligence Act tortfeasor-only model in its application to claims by one “wrongdoer” against another “whether the right to contribution and indemnity arises in respect of a tort or otherwise”, reflected a conscious decision to expand the scope of the provision beyond the tort context. He stated at para. 24:
This is consistent with the often-repeated goal of creating a clear, cohesive scheme for addressing limitation issues. As mentioned, the purpose of the Act is to balance the plaintiff’s right to sue with the defendant’s need for certainty and finality. Carving out exceptions to the general rule in s. 18 for certain types of claims in contribution and indemnity would undercut that purpose. It would expose defendants from whom contribution and indemnity is sought to unpredictable limitation periods, undermining the defendant’s ability to defend the claim.
And, at para. 28, Sharpe J.A. concluded that “[t]he legal theory grounding the contribution and indemnity claim is not relevant for deciding whether s. 18 is triggered; the provision applies when there is a claim for contribution and indemnity, no matter what legal theory underlies the claim.”
[70] There are, however, reasons for interpreting s. 18 as not applying to all claims for contribution and indemnity, but only to claims as between parties who would each be potentially liable to the plaintiff because they owed duties to the plaintiff.
[71] First, s. 18 uses the term “wrongdoer” to describe the person asserting a claim for contribution and indemnity as well as the person against whom the claim is made. While s. 18 does not use the term “tortfeasor”, which could suggest its application is restricted to claims for contribution and indemnity under the Negligence Act, the reference to “a claim by one alleged wrongdoer against another”, may suggest that both the claimant and the person against whom the claim for contribution and indemnity is asserted must be “wrongdoers” in relation to a claim by the plaintiff, whether the claim is in tort or otherwise.
[72] Second, the legislative history of s. 18 suggests that this section was intended to address the issue that was formerly covered by s. 8 of the Negligence Act, while expanding its application to claims as between wrongdoers beyond those made in tort. The changes adopted in s. 18 were first discussed in the 1991 Report. The report referred to issues with the law under the Negligence Act, as it then stood, stating, at p. 42: “the difficulty with the present law is that the first wrongdoer can wait to commence legal proceedings against the second wrongdoer until long after the limitation period between the second wrongdoer and the plaintiff has expired, even though the first wrongdoer’s claim is based on the second wrongdoer’s liability to the plaintiff.” It recommended that “in an action by a tortfeasor for contribution and indemnity against another tortfeasor” the limitation period should commence earlier – when the first tortfeasor is served with the claim by the plaintiff, rather than upon judgment in, or settlement of, the plaintiff’s claim.
[73] Third, the deeming provision in s. 18 responds to a problem that, prior to the Limitations Act, 2002, arose in determining the limitation period for claims as between joint or concurrent tortfeasors, where the act or omission relied on was the failure of one tortfeasor to contribute their fair share to the plaintiff’s damages upon the plaintiff obtaining judgment against the other tortfeasor: see Placzek, at para. 43. Deeming the “act or omission” to take place when the other tortfeasor is served with the plaintiff’s claim has the beneficial effect for Negligence Act claims identified by Feldman J.A. in Waterloo Region: the period for bringing the claim for contribution and indemnity coincides much more closely with the basic limitation period for bringing all actions, and it contemplates that all claims arising out of the incident that caused the injury will be tried and disposed of together: at para. 29.
[74] Finally, I note that Canaccord involved a claim for contribution and indemnity between an employer and its employee who had both been sued by the plaintiffs. As Sharpe J.A. explained, at para. 26:
The source of the [employer’s] claim is the claim the [plaintiffs] asserted against both [the employer and the employee] as wrongdoers jointly liable to pay damages caused by the alleged breach of duty they owed the [plaintiffs] as their investment dealer and advisor. It follows that [the employer’s] claim against [the employee] falls squarely within the grammatical and ordinary meaning of the language of s. 18 as ‘a claim by one alleged wrongdoer against another for contribution and indemnity’.
[75] He noted, further, at para. 29, that the claim “is, on its face, a claim for indemnity brought by one alleged wrongdoer against another and the fact that it is grounded in contract has no bearing on the question of whether or not it falls within the reach of s. 18.”
[76] Accordingly, Canaccord dealt with a claim “by one wrongdoer against another”, where both were alleged to be liable to the plaintiff. The fact that the claim for contribution and indemnity between the two “wrongdoers” was based on an alleged breach of contract did not take it outside the scope of s. 18 which applies to claims for contribution and indemnity between wrongdoers by “tort or otherwise”. In other words, despite the broad wording employed in Canaccord, the case is not necessarily authority that s. 18 applies to all claims for contribution and indemnity, irrespective of whether they are between joint or concurrent wrongdoers or based on a separate duty alleged to have been owed by the third party to the defendant.
[77] This brief discussion is not intended to be exhaustive, but to raise what may be a relevant consideration: whether, in determining whether the ultimate limitation period bars the third party claims, s. 18 applies to all claims for contribution and indemnity or is limited to claims between wrongdoers who would have been jointly and severally liable to the plaintiff.
iii. If s. 18 does not apply, when does the “act or omission” in respect of a claim for contribution and indemnity occur?
[78] Section 15 provides that “no proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place”.
[79] If s. 18 is limited to claims for contribution and indemnity in respect of duties owed by a third party to a plaintiff, and the third party claims in this case do not constitute such claims, what is the “act or omission” on which the third party claims are based? Is it the failure of the appellant to contribute (which would take place only after the respondents were called upon with respect to the plaintiffs’ claims)? Or is it the alleged breach of duty owed by the appellant to the respondents in the performance of the architectural services?
[80] There are again arguments on both sides.
[81] On the one hand, deeming the act or omission to be the failure of a third party to contribute or indemnify would promote unity between claims based on duties owed by the third party to the defendant and claims based on duties owed by the third party to the plaintiff.
[82] On the other hand, treating such claims as the same fails to account for their distinct legal bases. While the only act or omission that could be relied on in respect of duties owed by a third party to a plaintiff would be the failure to contribute (since the third party’s duty was owed to the plaintiff, not to the defendant), in a case where the claim for contribution and indemnity is based on a breach of duty owed by the third party to the defendant, the act or omission is arguably what the third party did or did not do in respect of that duty. This is more consistent with the policy underlying s. 15, and would ensure that the same result follows whether the claim was asserted by the respondents in respect of their own losses or whether as a third party claim for contribution and indemnity.
iv. If s. 18 does apply, does the expiry of the ultimate limitation period in relation to the plaintiffs’ claims against the appellant afford a defence?
[83] If s. 18 is limited to claims for contribution and indemnity under the Negligence Act or otherwise in respect of duties owed by a third party to a plaintiff, and the third party claims in this case are properly characterized as such, then, as a result of the deeming effect of s. 18, the third party claims may well be timely. That is, as between the respondents and the appellant, the ability to assert the claims would not be barred by s. 15. The question remains, however, whether the appellant could nevertheless raise, as a defence to the claim for contribution and indemnity, the expiry of the ultimate limitation period in respect of any claim that could be asserted by the plaintiffs.
[84] Again, the foundation of the claim for contribution and indemnity under the Negligence Act is the exposure of joint and concurrent wrongdoers to joint and several liability to the plaintiff. The claim of the respondents would be derivative of the plaintiffs’ claims. Arguably, if there is no possibility of a claim by the plaintiffs against the appellant, then the claim for contribution and indemnity under the Negligence Act would be defeated.
[85] Pursuant to the Giffels line of cases, a claim for contribution and indemnity can succeed under the Negligence Act only if the plaintiff had a potential claim against the third party at the time it sustained its damages: HSBC Securities, at paras. 48, 91. In Giffels, the third party against whom contribution was sought was never liable to the plaintiff because the damage occurred outside the limited period of a contractual guarantee.
[86] In Canada Colors, Moldaver J. (as he then was), for the Divisional Court, described the issue, at p. 447, as follows:
In my view, when considering the applicability of s. 1 of the [Negligence Act], in the context of third party proceedings, the following critical question must be asked: Does the plaintiff now have or did it ever have a cause of action against the third party arising out of the fault or neglect of such party? If the answer to that question is “no”, then irrespective of the reason for this, s. 1 of the Act can have no application.
Moldaver J. concluded that, in that case, the third party claim under the Negligence Act could not be sustained because the third party was “never, ever” liable to answer for the plaintiff’s loss: at p. 450.
[87] In the present case, it is not a question of the plaintiffs having, at one time, a claim against the third party, and having lost it through the lack of timely action. At the time the fire took place, no action could lie against the appellant. The claim was not lost; the right to sue had already been extinguished before the fire took place. Arguably, the expiry of the ultimate limitation period in respect of the plaintiffs’ claims against the appellant before any loss occurred would mean that the respondents could not succeed in a third party claim against the appellant.
[88] Again, the purpose of these reasons is not to suggest that the appellant will have a successful defence if the third party claims are for contribution and indemnity under the Negligence Act, based on the expiry of the ultimate limitation period in relation to any claim by the plaintiffs, but to raise this as an issue that may fall to be determined.
Conclusion
[89] The motion judge’s decision is, in my view, premature. Whether or not the appellant has a defence to the third party claims based on s. 15 of the Limitations Act, 2002 should be informed by an understanding of the nature of the claims – whether they are in respect of duties owed to the plaintiffs as joint or concurrent wrongdoers or whether they are in respect of duties owed by the appellant to the respondents.
[90] The limitation period issue in these proceedings should be determined only after there is an adequate record, so that the true nature of the claims can be determined, and on the basis of full argument on the various issues, some of which I have sought to identify in these reasons.
Disposition
[91] For these reasons, I would allow the appeal. I would set aside the motion judge’s determination that the appellant does not have a limitation period defence to the third party claims and leave that issue to be addressed at a later date, whether at trial or otherwise in the ongoing litigation. If the parties are unable to agree on the costs of the appeal and/or costs in the court below I would direct them to provide this court with their bills of costs and written submissions limited to no more than three pages each within 30 days of the release of this decision.
Released: August 13, 2026 “K.M.v.R.”
“K. van Rensburg J.A.”
“I agree. J. Dawe J.A.”
“I agree. L. Madsen J.A.”
1In pleadings the terms “contribution and indemnity” and “contribution or indemnity” are often used interchangeably to mean the same thing. In the Negligence Act, the reference is to claims for “contribution or indemnity”, while s. 18 of the Limitations Act, 2002 refers to “contribution and indemnity”. In these reasons, I refer to claims whether for “contribution and indemnity” or “contribution or indemnity” collectively as claims for “contribution and indemnity”.
2Some authors distinguish “contribution” and “indemnity” as referring to the extent of the claim – whether the claimant asserts a claim in respect of all or just part of its exposure to the plaintiff: see e.g. David Cheifetz, Apportionment of Fault in Tort (Aurora, Ontario: Canada Law Book, 1981), at p. 18. Others characterize “contribution” as a claim between joint or concurrent wrongdoers where liability is apportioned according to their respective degrees of fault, and “indemnity” as a claim between wrongdoers where the liability of one is primary and the liability of the other is secondary. Under this conception, unlike in the case of “contribution”, the determination of “indemnity” is based not on comparative fault, but on the nature of the relationship between the parties: see e.g. Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (Toronto: Ministry of the Attorney General, 1988), at p. 5.
3This is of course subject to any express or implied contract between such persons departing from the statutory proportionate fault principle.
4Bill 99, An Act to revise the Limitations Act, 2nd Sess., 35th Leg., Ontario, 1992.
5Bill 163, An Act to revise the Limitations Act, 1st Sess., 37th Leg., Ontario, 2000.
6Bill 10, An Act to revise the Limitations Act, 2nd Sess., 37th Leg., Ontario, 2001.
7Bill 213, Justice Statute Law Amendment Act, 2002, 3rd Sess., 37th Leg., Ontario, 2002.
8Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37-3, No. 68A (2 December 2002), at p. 3443.