CITATION: Demide v. Attorney General of Canada et al., 2015 ONSC 3000

COURT FILE NO.: 411-2010

DATE: 2015/05/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BLESSING DEMIDE (Plaintiff)

And:

THE ATTORNEY GENERAL OF CANADA and 632219 ONTARIO INC. o/a TWIN CITY INTERLOC INC. (Defendants)

BEFORE: Justice I. F. Leach

COUNSEL: Travis Weagant (articling student), for the plaintiff

Matthew Sullivan, for the defendant Attorney General of Canada

Joel Belisle, for the defendant 632219 Ontario Inc. o/a Twin City Interloc Inc.

HEARD: November 19, 2014

ENDORSEMENT

[1] Before me is a motion brought by the co-defendant Attorney General of Canada (“Canada”) for leave to amend its pleading so as to advance specified crossclaims against the co-defendant 632219 Ontario Inc. o/a Twin City Interloc Inc. (“Twin City”).

[2] The plaintiff takes no position in relation to the motion, and its counsel assumed only a “watching brief” in that regard.

[3] The motion is opposed by Twin City, which argues that the contemplated crossclaims are barred by expiry of the applicable limitation period.

Background

[4] The parties were admirably candid and co-operative in confirming that the evidence before the court, as to the relevant circumstances and facts underlying the limitation period issue, was not in dispute.

[5] That background is set forth in the following chronology:

• On November 6, 2007, a broker acting for Twin City and/or its insurer issued a certificate of insurance to “Public Works & Government Services, Correction Services of Canada, 1575 Homer Watson Blvd, Kitchener, ON N2P 2C5”, (the municipal address of GVI). The document indicates it was intended to certify that the policies of insurance listed therein had been issued to the named insured, (Twin City Interloc Inc.), “for the policy period indicated, notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain”, with the indicated insurance afforded by the policies described being “subject to all the terms, exclusions and conditions of such policies”. The certificate also expressly indicated that it was being issued “as a matter of information only”, and that it conferred “no rights upon the certificate holder”. In particular, the document expressly confirmed that it did “not amend, extend or alter the coverage afforded by the policies” listed in the certificate. The policies identified in the certificate included a “Commercial General Liability” policy issued to Twin City, with limits of $2 million for each occurrence, for the period from July 20, 2007, to July 20, 2008. The indicated number of that policy was 564495317.

• On November 8, 2007, Canada entered into a contract with Twin City for the performance of specified outdoor maintenance services. In particular:

o The contract, (formally numbered “Contract No. 21401-086025/001/KIN”), was to remain in effect between November 9, 2007, and November 8, 2008.

o Twin City was to perform the specified services “at Correctional Services Canada located at the Grand Valley Institution for women, Kitchener, Canada”.

o Although the title of the contract refers to “snow removal”, and the general statement of work clause refers to “snow removal services”, other provisions of the contract and attached specifications make it clear that the services to be provided by Twin City were to include snow removal and clearing, as well as the spreading of salt and/or sand, in relation to specified areas that included roadways, parking areas and sidewalks.

o Particular duties of Twin City included carrying out “snow clearing and/or removal … in such a manner and with such equipment as to ensure and maintain continuous and unobstructed use of all … sidewalks”, and an obligation “to spread salt during icy conditions throughout parking lot, exits and entrances, and to ensure pedestrian traffic areas are sanded and made safe for personnel walking to and from the different buildings”. (I note that, despite the apparent breadth of Twin City’s obligation to maintain “all” sidewalks and/or pedestrian areas at the GVI, other evidence filed on the motion indicates that Twin City’s requested operations were in fact more limited in scope, apparently because of security related concerns. During the hearing before me, it seemed common ground that Twin City’s involvement, in relation to a walkway, would depend on the particular walkway in question.)

o Provisions found in paragraph 12.2 of the contract indicated that Twin City was to obtain and maintain, throughout the duration of the contract, commercial general liability insurance with policy limits of no less than $2 million per accident or occurrence, with endorsements including the naming of Canada as an additional insured “but only with respect to liabilities that may arise from [Twin City’s] own negligence, in the performance of the contract”. Further provisions specified, amongst other things, how the interest of Canada as an additional insured was to be indicated in the aforesaid contract of general liability insurance, and that the policy obtained by Twin City was to apply to each insured “in the same manner and to the same extent as if a separate policy had been issued to each”.

• On or about December 22, 2007, Twin City’s insurer issued a policy of insurance, having policy number 564495317, providing coverage for the period from December 22, 2007, to July 20, 2008, with policy declarations indicating that the insured’s name was “Twin City Interloc Inc. (as per Named Insured Endorsement)”.

• On February 17, 2008, (according to allegations set forth in the plaintiff’s successive pleadings, but very much denied by both defendants), the plaintiff slipped and fell at the Grand Valley Institution for Women, (“the GVI”), while she was an inmate there. There apparently were no witnesses to the alleged accident.

• On March 11, 2008, the plaintiff reported the alleged slip and fall incident to authorities at the GVI, and completed a “Report of Inmate Injury” form. It contains references to the plaintiff falling down and “hitting the cement floor” with various parts of her body, and having both her legs cross “to the floor”. However, the plaintiff’s narrative also describes how the fall happened after officers asked her to “vacate the unit” in which she had been sleeping, after which she “walked into slippery black ice” on a “very bad winter day”, and that the plaintiff had her accidental fall “at the front of a walkway near [her] living unit”.

• On February 16, 2010, the plaintiff, (then self-representing), issued a notice of action, naming “Grand Valley Institution for Women and Correctional Service Canada” as defendants.

• On March 15, 2010, the plaintiff, (still self-representing), issued her original statement of claim. The pleading includes allegations indicating that the plaintiff experienced a slip and fall at “premises” generally identified as the GVI. The pleading contains no precise indication of where the slip and fall was alleged to have taken place on the GVI property or “premises”. There are various alleged defendant failings in relation to “the floor”. However, there also are various alleged defendant failings in relation to “ice and snow”.

• On or about March 20, 2010, the plaintiff served her original statement of claim on Canada.

• Canada served its statement of defence on April 15, 2010. Apart from a general reference to “the premises” at GVI, the pleading does not address where the alleged slip and fall was said to have occurred.

• On July 26, 2010, the plaintiff, (now represented), served Canada with a fresh as amended statement of claim. The style of cause was amended, so as to name “The Attorney General of Canada, The Correctional Service of Canada, and Grand Valley Institution for Women” as defendants. All references to a “floor” of any kind were deleted from the amended pleading. Instead, the amended pleading contained allegations that the slip and fall accident occurred at the GVI property after the plaintiff was asked by officers to “leave the Unit” in which she had been sleeping, and after she “exited the Unit”, when she then “slipped on black ice, which had accumulated on the ground”. Thereafter, the pleading contains a further reference to “the ground on which [the plaintiff] fell”, followed by various alleged failings of the defendants in relation to “the walkway”, and to “the ingress and egress to the unit”. (The allegations contain no less than 12 references to “the walkway”.) In addition to the earlier reference to black ice, which had accumulated “on the ground”, the amended pleading makes reference to “the accumulation of snow and ice” on the said “walkway”.

• On August 4, 2010, Canada filed a statement of defence to the fresh as amended statement of claim. Apart from a general reference to “the premises” at GVI, the amended defence pleading does not address where the alleged slip and fall was said to have occurred.

• On November 3, 2011, Canada delivered a “List of Documents”, in professed compliance with s.8(1) of the Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604.[^1] Included in Canada’s Schedule “A” list of “all the relevant documents that [were] in the Defendant’s possession, control or power and that the Defendant [did] not object to producing for inspection”, were a “Plan of the Institution produced by Twin-City Interloc Inc., contracting company for ice and snow removal”, and “Invoice maintenance records from Twin-City Interloc Inc. for ice and snow removal maintenance”.

• On January 26, 2012, the litigation proceeded to oral discovery examinations. During the course of the plaintiff’s examination, she was asked to indicate, by way of oral answers to questions and placement of an “X” on a map or diagram, the precise location of her alleged slip and fall accident. The resulting information confirmed that the plaintiff was focused on a location other than the walkway just outside of her living unit. She was instead focused on a location “going into the main walkway … off the road”. The supporting affidavit filed by Canada characterizes the relevant area as the sidewalk of the GVI’s “inner courtyard”. Cross-referencing the “Site Plan” attached as “Annex B” to the contract between the defendants, and a more detailed and “close up” drawing of the location where the accident occurred, (which forms part of the exhibit material attached to a supporting affidavit found at Tab 2Q of Canada’s amended motion record), the “inner courtyard” seems to be a reference to the large, open and roughly square area of the institution that is surrounded by a road, (connected to the other roads leading in and out of the institution grounds), bordering walkway or sidewalk, and various detached buildings set back from that walkway surrounding the “inner courtyard”. (The various buildings are reached via smaller/shorter walkways or sidewalks which radiate outwards from the walkway or sidewalk surrounding that inner courtyard.)

• On July 15, 2013, counsel for Canada, (with Canada’s Department of Justice), “upon being advised of the plaintiff’s intention to add Twin City Interloc Inc. as a defendant to the action”, requested and received a copy of the aforesaid snow removal and outdoor maintenance contract from her client.

• On September 24, 2013, the plaintiff was granted leave to further amend her pleading, in order to alter the style of cause and add Twin City as a defendant to the action, with supporting allegations. Twin City did not take a position on the plaintiff’s motion to add Twin City as a defendant to the action, but reserved the right to plead a limitation defence.

• On September 30, 2013, the plaintiff served her amended fresh as amended statement of claim. The two named defendants were now “The Attorney General of Canada” and “632219 Ontario Inc. o/a Twin City Interloc Inc.” (References to The Correctional Service of Canada and the GVI as defendants were deleted, although references to GVI as the location of the accident were maintained.) A paragraph was added, identifying Twin City, and alleging that “at all material times, Twin-City was responsible for the winter maintenance of the Defendant premises, and as such, it owed the Plaintiff, Blessing Demide, a duty of care”. Remaining portions of the earlier pleading, referring to various alleged failings of “the Defendants”, effectively now applied to Twin City as well.

• On November 1, 2013, Twin City served its statement of defence and crossclaim. In addition to its various pleaded defences, Twin City indicated its intention to seek contribution and indemnity from Canada pursuant to the Negligence Act, R.S.O. 1990, c.N.1, as well as “under the common law and equity”.

• On November 7, 2013, counsel for Canada wrote to counsel for Twin City via email, attaching a reference copy of the aforesaid snow removal contract, highlighting the provisions requiring Twin City to add Canada as an additional named insured to the third party liability insurance Twin City was to have obtained, and suggesting that Twin City’s crossclaim against Canada therefore was inappropriate. (According to the records and computer system of Twin City’s insurer, no inquiries were made prior to November of 2013 to determine whether Canada had been named as an additional insured on Twin City’s policy of insurance. Canada filed no evidence to indicate or suggest that it made such inquiries of Twin City, Twin City’s broker or Twin City’s insurer prior to November of 2013.)

• On February 6, 2014, during the course of the oral discovery examination of Twin City’s representative, Twin City’s representative asserted that Twin City was not responsible for maintenance of the walkway or sidewalk surrounding the inner courtyard, on which the plaintiff allegedly had her slip and fall accident. This prompted counsel for Canada to request further information and confirmation from Nicki Smith, the Deputy Warden of GVI at the time of the plaintiff’s alleged slip and fall, and the official assigned to assist counsel for Canada with obtaining information relevant to this litigation.

• On February 7, 2014, counsel for Twin City wrote to counsel for Canada via email, attaching a copy of a declaration page for a policy of liability insurance taken out by Twin City, and noting/confirming that Canada in fact had not been named as an additional insured in relation to that policy. (Others had been named as additional insureds, but not Canada.) The declaration page in question was dated August 9, 2013, but referred to the same insurance policy number, (564495317), referred to in:

o the certificate of insurance issued to “Public Works & Government Services – Correction Services of Canada”, at the GVI address, on November 6, 2007, (for a policy of insurance said to run from July 20, 2007, to July 20, 2008); and

o the policy of insurance, filed as an exhibit by Twin City, for the period from December 22, 2007, to July 20, 2008.

• On February 12, 2014, Nicki Smith advised counsel for Canada that, according to staff working within the GVI maintenance department, Twin City did in fact plough, sand and salt the walkway or sidewalk at the location where the plaintiff’s slip and fall is said to have occurred.

• On February 13, 2014, (at 10:24am), counsel for Canada sent a further email to counsel for Twin City, noting the date of the supplied declarations page, and requesting instead the declaration page corresponding to the policy of insurance in place for the duration of the contract between the parties covering the 2007-2008 period; i.e., the period during which the plaintiff was alleged to have experienced her slip and fall accident. The email included reminders that, pursuant to the parties’ contract, Twin City had an obligation to add Canada as an additional insured to that policy, so as to provide indemnification to Canada in the event Twin City was found negligent in its performance of duties.

• On February 13, 2014, (at 12:04pm), counsel for Canada sent a further email to plaintiff counsel and counsel for Twin City, indicating, “just as a head’s up”, that she “may be instructed to crossclaim against Twin City”. In particular, counsel for Canada indicated the following reason for the possible crossclaim: “While I still do not see negligence as against Twin City, the contract between Twin City and Grand Valley requires that my client be reimbursed for any acts of negligence committed by Twin City”. An additional justification for the contemplated crossclaim was said to be the need for testimony at trial from Twin City’s apparently reluctant representative which, in the opinion of counsel for Canada, “would be difficult to accomplish if Twin City was no longer a party”.

• On May 20, 2014, new counsel for Twin City sent an email to counsel for Canada, forwarding a copy of the relevant insurance policy, and confirming that Canada in fact was not listed as an additional insured, despite the provisions of the contract. It was noted and emphasized that, in any event, the obligation to add Canada as an additional insured was limited to liabilities arising from Twin City’s own negligence, (which would make the failure to obtain such insurance irrelevant if there was a finding of no negligence on the part of Twin City, which apparently was the shared expectation of counsel for Twin City and counsel for Canada). Canada takes the position that it first became aware of Twin City’s apparent breach of contract, (in relation to agreed insurance arrangements), through this email.

• On May 27, 2014, counsel for Twin City sent a letter to plaintiff counsel and counsel for Canada via fax and courier. The letter indicated Twin City’s intended opposition to any request or motion for leave to amend Canada’s pleading to assert the contemplated crossclaim, on the basis it would be meritless and “statute barred for being out of time”. The letter attached a formal Request to Admit, served by Twin City upon Canada, pursuant to Rule 51.02.

• On May 30, 2014, plaintiff counsel sent an email to Twin City’s counsel. Although the correspondence and information contained therein strike me as being of a “without prejudice” nature, the plaintiff appeared content to have it placed before the court. (Plaintiff counsel was served with all the motion material herein. However, as noted at the outset, plaintiff counsel appeared at the hearing to confirm expressly that the plaintiff took no position in relation to the motion.) The email sent by plaintiff counsel on May 30, 2014, was a response to a settlement offer made by Twin City, proposing dismissal of the plaintiff’s claim against Twin City on a without costs basis. Plaintiff counsel indicated the plaintiff’s willingness to accept the offer, subject to additional conditions, including the ongoing provision of Twin City address information to facilitate the service of any necessary summons to appear at trial, and Canada not crossclaiming against Twin City.

• On June 11, 2014, Canada delivered a formal Response to Request to Admit, through which it admitted the truth of certain facts, which included the following:

o Canada was aware of the existence of the contract between Canada and Twin City on the date it was entered into, (i.e., November 8, 2007).

o Canada was aware of the existence of the contract between Canada and Twin City on the date of the slip and fall alleged by the plaintiff, (i.e., on February 17, 2008);

o Canada was aware of the existence of the contract on the date the statement of claim was served upon it, (i.e., March 20, 2010);

o Canada was aware of the existence of the contract between Canada and Twin City at the time of the oral discovery examinations of the plaintiff and Canada’s representative, (i.e., on January 26, 2012);

o Canada’s contract with Twin City was the only agreement for winter maintenance services at GVI.

• On June 12, 2014, counsel for Canada sent an email to counsel for Twin City, indicating that she now had instructions to proceed with amendment of Canada’s defence to add a crossclaim.

• On Friday, August 1, 2014, (the Friday before an extended holiday week-end), counsel for Canada sent counsel for Twin City a courier package, containing a cover letter and Canada’s original motion record herein, formally seeking leave to add the desired crossclaim against Twin City. Included in the stated grounds for the motion was an indication that Canada had “recently learned of a breach of contract by the co-defendant”, (i.e., a reference to delayed discovery).

• On Tuesday, August 5, 2014, counsel for Twin City received the aforesaid cover letter and original motion record from Canada’s counsel, and it was filed with the court.

• On or about September 2, 2014, Canada filed its amended motion record herein, which replicated the original motion record but included a Schedule “A” to the notice of motion, (i.e., Canada’s contemplated amended pleading). The schedule was referenced in the original notice of motion, but not included in the original record, apparently through inadvertence.

• On or about November 7, 2014, Canada filed its factum and book of authorities, in support of the motion. The factum makes specific reference to Canada’s position that its crossclaim was being brought “within the two year time limit proscribed by s. 4 of the Limitations Act”, [sic], as Canada “discovered the [sic] Twin City’s breach of contract on May 20, 2014, when counsel for Twin City informed counsel for [Canada] that, contrary to their contract, Twin City had not arranged for Canada to be listed as a named insured in Twin City’s insurance policy”.

• On or about November 12, 2014, Twin City filed its responding motion record, factum and book of authorities, supplementing the evidence filed by Canada as to the history of the matter, and setting forth its detailed arguments as to why Canada’s contemplated crossclaim was barred by an applicable limitation period, including detailed argument as to why the contemplated crossclaim should not be saved by discoverability considerations. That argument included repeated reference to authority highlighting the need of a party relying on discoverability to lead evidence sufficiently demonstrating that it did not know, and could not have known, with reasonable diligence, what needed to be known before expiry of an otherwise applicable limitation period.

• Canada thereafter did not file any further material by way of reply, apart from tendering, at the hearing before me, on November 19, 2014, a copy of section 15 of the Limitations Act, 2002, S.O. 2002, c.24. Nor was there any suggestion that an adjournment of the hearing was required or requested.

Party Positions

[6] Against that factual backdrop, Canada seeks leave to amend its defence pleading, and deliver its proposed amended statement of defence and crossclaim.

[7] As noted above, full particulars of that desired pleading were set out in the relevant schedule included in Canada’s amended motion record.

[8] However, the intended crossclaim prayer for relief reads as follows:

The Defendant, The Attorney General of Canada, claims against the co-Defendant, 632219 Ontario Inc., o/a Twin City Interloc Inc.:

a. Damages, contribution and indemnity and legal costs pursuant to the contract terms as contained in the Snow Removal Contract No. 21401-086025/011/KIN as between 632219 ONTARIO INC. o/a TWIN CITY INTERLOC INC. and Grand Valley Institution for Women for defending the within claim and crossclaim and for any amounts for which this Defendant may be found to be responsible as a result of the co-Defendant’s negligence in the main action;

b. Contribution and indemnity pursuant to the Negligence Act, R.S.O. 1990, c.N.1 as amended, for any amounts for which this Defendant may be found to be responsible to the Plaintiff in the main action;

c. Contribution and indemnity under the common law and equity for any amount which this Defendant may be found responsible to the plaintiff;

d. Its costs of this main action, plus all applicable taxes;

e. Its costs of this Crossclaim, plus all applicable taxes; and

f. Such further and other relief as to this Honourable Court seems just.

[9] As noted above, counsel for Canada and counsel for Twin City both confirmed and emphasized, during the course of the hearing before me, that the facts underlying the limitation period issue were not in dispute, and that the applicable legal principles also were not controversial.

[10] Moreover, both emphasized that the “only real issue” was whether Canada’s desired crossclaim against Twin City was barred by an applicable limitation period or saved by discoverability concerns, having regard to the evidence filed by the parties. (There was no suggestion that the relief sought by Canada on its motion was otherwise inappropriate.)

[11] I have considered the detailed written and oral submissions of the parties in their entirety, and the following overview of the competing positions of Canada and Twin City is not intended to suggest otherwise.

[12] Described in broad terms, however, submissions on behalf of Canada included the following:

• Canada emphasizes that the desired pleading amendments would not prejudice the plaintiff, and that there similarly would be no resulting prejudice to Twin City but for the limitation period.

• Having regard to the provisions of the Limitations Act, 2002, supra, including the combined effect of ss. 4, 5 and 18, Canada recognizes the existence of a basic two year limitation period applicable to claims for contribution and indemnity, subject to discoverability, and that there is a rebuttable presumption that such claims are discovered on the day on which “the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought”.

• However, it was suggested that, for limitation period purposes, it was reasonable in this case to focus on service of the plaintiff’s amended fresh as amended statement of claim, in September of 2013, rather than the plaintiff’s two earlier pleadings, (neither of which, according to Canada, implicated Twin City as having joint responsibility for the plaintiff’s alleged slip and fall accident). The plaintiff’s final pleading was said to be the one that raised the prospect of Twin City’s joint liability in relation to the plaintiff’s claim. Canada’s motion to amend its pleading, and pursue crossclaims sounding in tort and/or contract, was brought within two years of that amended pleading being served.

• In any event, operation of the applicable limitation period was said to be delayed and extended sufficiently in this case by lack of discoverability, particularly in relation to the contemplated crossclaim based on Twin City’s alleged breach of contract. In that regard, Canada relied in particular on prolonged uncertainty as to the precise location of the alleged slip and fall accident, (which in turn was said to have a bearing on whether a claim against Twin City was reasonable or advisable), and delayed revelation of Twin City’s failure to have Canada added as an additional insured to its applicable policy of commercial general liability insurance, (in accordance with the “snow removal” contract described above). Canada says that it discovered Twin City’s alleged breach of contract “with certainty” only on May 20, 2014, (i.e., when Twin City’s counsel confirmed that Canada was not listed as an additional insured on the relevant policy of insurance), and emphasizes that Canada’s motion herein then was brought swiftly; i.e., within a few months of that date.

• In the result, Canada says its contemplated crossclaim clearly is not barred by the applicable limitation period, and that its intended pleading amendments therefore should be permitted.

[13] Described in similarly broad terms, submissions on behalf of Twin City included the following:

• Whether Canada’s desired crossclaim is advanced in tort or contract, the relief being sought is still essentially a claim for contribution and indemnity.

• Pursuant to legislation and appellate authority, differential application of limitation periods, based on characterization of a claim for contribution and indemnity as sounding in tort or contract, is to be avoided.

• Although certain portions of Twin City’s factum suggested that claims for contribution and indemnity were subject to a rigid two year limitation period running from the day on which “the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought”, counsel for Twin City agreed during the hearing before me that operation of the relevant limitation period, (presumptively running from that date of service), was indeed subject to discoverability.

• However, Twin City says that, in this case, the relevant date of deemed discovery, and presumptive commencement of the basic two year limitation period, is March 25, 2010; i.e., the day on which Canada was served with the plaintiff’s original statement of claim, seeking damages from Canada for the alleged slip and fall accident.

• Moreover, although lack of discoverability might delay or effectively extend operation of that limitation period, Twin City says Canada has failed to tender evidence sufficient to establish that it did not know and could not have known, with reasonable diligence, before the expiry of the ostensible limitation period, of its contemplated crossclaims against Twin City for contribution and indemnity. To the contrary, Twin City says the available evidence indicates Canada knew or ought to have discovered its contemplated crossclaims more than two years before bringing this motion.

• In the result, Twin City says the contemplated crossclaim is barred by the applicable limitation period, such that Canada therefore should not be permitted to amend its pleading in the manner suggested.

[14] In essence, Canada and Twin City each asked that I resolve the limitation period issue in its favour.

[15] At no time was it suggested that facts relating to the limitation period issue were in dispute and/or turned on credibility determinations, that further evidence would be forthcoming in relation to the limitation period issue, or that the limitation period issue was a matter that in any way required trial for its resolution.

Analysis

[16] With the above in mind, I now turn to more detailed consideration of whether Canada should be granted leave to amend its pleading, so as to advance its contemplated crossclaim against Twin City.

THRESHOLD PROCEDURAL ISSUE – APPLICABLE RULES

[17] As a threshold matter, I think it advisable to address the procedural context in which the matter came before me.

[18] It was not something that seemed to trouble counsel, who spent little or no time on that aspect of the matter before embarking on detailed argument as to why I should find that Canada’s contemplated crossclaims were or were not discoverable during the applicable limitation period.

[19] However, it was a matter that independently has caused me concern.

[20] In its notice of motion, Canada indicates reliance on the following Rules dealing with pleading amendments:

• Rule 5.03, (which deals with the joinder of necessary parties, and the court’s ability to order the adding of any party who “ought to have been joined as a party, or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding”);

• Rule 26, (which deals generally with amendment of pleadings, and requires the court to grant leave to amend pleadings “on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment”); and

• Rule 28, (which specifically deals with crossclaims, including the time for delivery of a statement of defence and crossclaim).

[21] In its factum and book of authorities, Canada emphasized the provisions of Rules 28.01 and 28.04, which read in part as follows:

28.04 (1) A defendant may crossclaim against a co-defendant who,

(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;

(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,

(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or

(ii) a related transaction or occurrence or series of related transactions or occurrences; or

(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

(2) A defendant who claims contribution and indemnity from a co-defendant under the Negligence Act shall do so by way of crossclaim.

28.04 (1) A statement of defence and crossclaim shall be delivered,

(a) within the time prescribed by rule 18.01 for delivery of the statement of defence in the main action or at any time before the defendant is noted in default; or

(b) subsequently with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.

[Emphasis added.]

[22] As highlighted by Canada in its written material, Rule 28.04(1)(b) is mandatory, unless the plaintiff would be prejudiced by delayed assertion of a contemplated crossclaim.

[23] As noted above, Canada and Twin City both agreed that the plaintiff in this case would not be prejudiced by the pleading amendments desired by Canada.

[24] Moreover, in responding to Canada’s motion, Twin City did not bring any formal cross-motion for summary judgment, pursuant to Rule 20, requesting dismissing of the contemplated crossclaim, if otherwise permitted, because it is barred by an applicable limitation period.

[25] In the circumstances, it would be all too easy to:

• focus on the obligatory nature of Rule 28.04(1)(b) dealing specifically with delayed assertion of a crossclaim, (which arguably takes precedence over more general rules relating to the amendment of pleadings, such as Rule 26.01, which permit wider consideration of prejudice, including that which might flow from permitting amendments that assert a claim barred by an applicable limitation period);

• find that the specific and narrow litmus test for granting leave pursuant to that rule, (absence of prejudice to the plaintiff), has been satisfied;

• rely on Canada and/or Twin City’s failure to provide formal notice of a request for summary judgment; and

• permit the amendments desired by Canada, without prejudice to Twin City’s ability to then plead reliance on a limitation period in its defence to crossclaim, and bring a subsequent formal motion pursuant to Rule 20 for summary judgment dismissing Canada’s crossclaim on that basis.

[26] In my view, however, dealing with the motion in that rather facile way would represent a triumph of form over substance, ignore the manner in which the parties effectively presented the limitation period issue for resolution, and needlessly commit the matter to further expense and delay.

[27] As noted above, counsel for Canada and Twin City both represented that the facts relevant to the limitation period issue, (extensively canvassed in the parties’ material), were not in dispute. There also was no suggestion whatsoever that the record relevant to the limitation period was incomplete, that it would be any better at trial, or that there was any genuine issue requiring a trial as far as operation of the limitation period was concerned.

[28] To the contrary, as noted above, both Canada and Twin City asked me to resolve the issue of discoverability, and possible application of the relevant limitation period, in their respective favour.

[29] Although Rule 20 and authorities interpreting that rule were not expressly cited or relied upon by the parties, it therefore seems to me that the limitation period essentially was presented by Canada and Twin City as a matter amenable to determination by summary judgment.

[30] Does or should the absence of a formal motion or cross-motion for summary judgment in relation to the limitation period issue preclude me from addressing and resolving that issue, in the context of this motion?

[31] Numerous decisions in the wake of Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, have confirmed that the court does not require a cross-motion for summary judgment when it can decide the issue that was the subject matter of another party’s motion for summary judgment.

[32] For example, in King Lofts Toronto I Ltd. v. Emmons, [2014] O.J. No. 133 (C.A.), our Court of Appeal rejected arguments that the judge at first instance had erred in granting summary judgment in favour of a party who had not given advance notice of a request for summary judgment. In doing so, it noted that resolving a matter amenable to summary judgment, by granting summary judgment despite the absence of a formal cross-motion in that regard, was consistent with the “culture shift” mandated by The Supreme Court of Canada, requiring judges to sensibly manage the court process in a manner consistent with the principles of proportionality.

[33] That decision has been followed and applied repeatedly, in cases such as Landrie v. Congregation of the Most Holy Redeemer (2014), 2014 ONSC 4008, 120 O.R. (3d) 768 (S.C.J.), Zhu v. Matadar, [2015] O.J. No. 78 (S.C.J.), Nemeth v. Yasin, 2015 ONSC 558, [2015] O.J. No. 347 (S.C.J.), and Cross Bridges Inc. v. Z-Teca Foods Inc., 2015 ONSC 2632, [2015] O.J. No. 2022 (S.C.J.).

[34] The jurisdiction to grant summary judgment in the absence of a formal cross-motion for such relief similarly was recognized, (although not exercised), in cases such as Farmers Oil & Gas Inc. v. Ontario (Ministry of Natural Resources), [2015] O.J. No. 127 (S.C.J.), and Brown v. Baum, 2015 ONSC 849, [2015] O.J. No. 1150 (S.C.J.).

[35] An obvious distinction between the situations addressed by those various decisions, and the matter now before me, is the absence of a formal motion for summary judgment, pursuant to Rule 20, by either Canada or Twin City.

[36] That is not a distinction without importance.

[37] In particular, a formal motion for summary judgment by at least one side expressly and formally focuses the parties on the question of whether there is a genuine issue requiring trial, (in relation to a claim or defence), and on whether there is any need for the court to exercise the powers extended by Rule 20.04 to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence. It also inherently requires the responding party to put its best forward, making it likely that both sides have done so, in relation to the issue in question.

[38] Moreover, when at least one party has invited the court to make a summary judgment determination, there is nothing in the wording of Rule 20.04(2) to limit the possibility of summary judgment to a decision in favour of the moving party alone. See Whalen v. Hillier, 2001 CanLII 24070 (ON CA), [2001] O.J. No. 926 (C.A.), at paragraph 13.

[39] For all these reasons, I think a court certainly should be very reluctant to embark on summary judgment determinations on its own initiative, in the absence of a motion for summary judgment by at least one of the parties affected by the determination.

[40] In my view, however, that is not really the situation before me.

[41] Again, despite the absence of any formal notice of motion by either side, requesting summary judgment pursuant to Rule 20, in relation to the limitation period issue and discoverability in particular, each side effectively asked me to decide that issue in their favour now, without committing the issue to trial. This was reflected not only in the parties’ court filings, but in the oral submissions by counsel.

[42] Both parties therefore implicitly, if not expressly, proceeded on the basis that the limitation period issue was amenable to resolution by way of a summary determination, without the need for a trial in that regard.

[43] Moreover, it seems to me that their doing so was appropriate in the circumstances, (although an express and formal motion pursuant to Rule 20 certainly would have been preferable).

[44] Again, there was no dispute at all concerning the extensive factual record relevant to operation the limitation period, no suggestion that it would be any better at trial, and no other direct or indirect suggestion that resolution of the limitation period needed to be resolved at trial.

[45] Moreover, prior to argument of the motion, Twin City clearly indicated its reliance on authority, (considered in more detail below), obliging a party relying on discoverability to overcome a defendant’s assertion of an otherwise applicable limitation period to lead evidence sufficient to demonstrate the exercise of due diligence, and explain why a claim was not discovered or discoverable during the ostensible limitation period. In the circumstances, Canada therefore knew, or should have known, that it had an obligation to “put its best foot forward” in that regard.

[46] In Hyrniak v. Mauldin, supra, the Supreme Court of Canada encouraged the use of summary judgment to resolve cases in an expeditious manner provided that can achieve a fair and just adjudication.

[47] Speaking for the court, the comments of Justice Karakatsanis in that regard included the following, (at paragraphs 1, 2 and 27 of the Hyrniak decision):

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. …

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. …

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

[48] Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Appliance and Furniture, Inc. v. Hyrniak, 2014 SCC 7, [2014] 1 S.C.R. 87, (a companion action to Hyrniak v. Mauldin, supra), that summary judgment would be appropriate where a matter “can be resolved in a fair and just manner”, which will be the case when the process:

i. allows the judge to make the necessary findings of fact;

ii. allows the judge to apply the law to the facts; and

iii. is a proportionate, more expeditious and less expensive means to achieve a just result.

[49] Justice Karakatsanis went on to say, in the same paragraph, that if there appeared to be a genuine issue requiring a trial, based only on the record before a judge hearing a summary judgment motion, that judge must then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. If so, those powers may then be used at the judge’s discretion, “provided that their use is not against the interest of justice”.

[50] In my view, (as suggested by the submissions of the parties themselves), the limitation period issue raised and addressed by the parties in this particular context “can be resolved in a fair and just manner”, based on the criteria outlined by the Supreme Court of Canada, and the absence of a formal motion for summary judgment by either side should not prevent the summary determination of the issue effectively requested by the parties.

[51] In particular, it seems to me that it would be pointless and wasteful, in terms of time and expense, to defer resolution of the issue, (which the parties now have argued at length on the basis of an extensive and undisputed factual record), to trial or a later and inevitable formal motion for summary judgment by Twin City, based on expiry of the applicable limitation period.

[52] Doing so, in the particular circumstances before me, would commit the parties to further unnecessary and disproportionate pre-trial and trial procedures that the “culture shift”, emphasized by the Supreme Court of Canada, was intended to avoid.

[53] As noted above, it also would elevate form over substance.

[54] For these reasons, to the extent resolution of the limitation period issue raised and argued by the parties requires an effective summary judgment determination, I am content to proceed on an exceptional basis as the parties suggested, despite the absence of a formal notice of motion requesting summary judgment.

[55] Of course, if the matter procedurally is governed in part by rules other than Rule 28.04, such as Rules 5.03 and 26.01, (as Canada suggests), that too would permit a wider measure of judicial discretion and/or a wider consideration of possible irreparable prejudice flowing from the amendments, (including prejudice to Twin City from the assertion of crossclaims barred by an applicable limitation period).

[56] Either way, I think it appropriate to consider and resolve the limitation period issue now.

LEGISLATIVE PROVISIONS

[57] Matters of prescription and limitations in relation to proceedings involving the federal Crown are addressed in section 32 of the Crown Liability and Proceedings Act, supra, which reads as follows:

32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose. [Emphasis added.]

[58] In Ontario, where the contemplated crossclaim by Canada arises, one therefore turns to the Limitations Act, 2002, supra, which includes the following provisions:

Basic Limitation Period

4. 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.

Discovery

5. (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 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).

Presumption

(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. …

Ultimate limitation periods

15. (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.

General

(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. …

Day of occurrence

(6) For the purposes of this section, the day an act or omission on which a claim is based takes place is,

(a) in the case of a continuous act or omission, the day on which the act or omission ceases;

(b) in the case of a series of acts or omissions in respect of the same obligation, the day on which the last act or omission in the series occurs;

(c) in the case of an act or omission in respect of a demand obligation, the first day on which there is a failure to perform the obligation, once a demand for the performance is made. …

Contribution and Indemnity

18. (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.

Application

(2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise.

[59] As emphasized by Twin City, our Court of Appeal has indicated that the common law doctrine of special circumstances, (previously used to extend limitation periods in relation to claims asserted by way of pleading amendments), has not survived passage of the Limitations Act, 2002, supra. Matters concerning the operation of limitation periods, including possible postponement of their expiry, must now be decided giving effect to the “new” limitation period legislation. See, for example, Joseph v. Paramount Canada’s Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401.

NATURE OF CROSSCLAIM

[60] In the course of its written and oral submissions, Twin City emphasized that, for the purposes of the Limitations Act, 2002, all substantive aspects of Canada’s contemplated crossclaim, (i.e., not including claims for costs), properly should be characterized as claims for contribution of indemnity.

[61] That characterization was not really disputed by Canada, and I agree with Twin City’s position in that regard.

[62] Certainly, sub-paragraphs (a), (b) and (c) of the contemplated crossclaim prayer for relief all make express reference to “contribution and indemnity”, alternatively grounded in:

• the contract between Canada and Twin City;

• the Negligence Act, supra; or

• common law and equity.

[63] Beyond the labels employed by Canada itself, it seems to me that, regardless of the varied grounds on which Canada says it had a right to assert the suggested crossclaim, the purpose of its various components is contribution and indemnity, as described by our Court of Appeal in Waterloo Region District School Board v. CRD Construction Unit (2010), 2010 ONCA 838, 103 O.R. (3d) 81 (C.A.), at paragraph 10:

The purpose of contribution and indemnity is to provide a mechanism to ensure that all those who caused or contributed to the plaintiff’s loss or damage should share the financial responsibility for that loss. Therefore, the basis of the claim is that each person who is held liable to the plaintiff for all or part of the loss is also liable to contribute or is entitled to receive contribution proportionally to or from the other tortfeasors.

[64] Although that quotation refers to proportionate contributions from other “tortfeasors”, the basis on which responsibility for contribution and indemnity may arise, (and possible distinctions between whether such rights and obligations sound in tort or contract in particular), is now irrelevant when it comes to application and operation of the Limitations Act, 2002, supra.

[65] This is indicated by the provisions of the legislation itself. In particular:

• subsection 18(1), which specifically addresses claims for contribution and indemnity, employs the broad term “alleged wrongdoer”, (as opposed to the more narrow concept of “tortfeasor”, for example), to describe those who may assert such claims or be targeted by such claims, and therefore the broader nature of contribution and indemnity claims to which s.18(1) was intended to apply; and

• subsection 18(2) expressly confirms that s.18(1) “applies whether the right to contribution and indemnity arises in respect of a tort or otherwise”. [Emphasis added.]

[66] These points were among those emphasized by our Court of Appeal in Canaccord Capital Corp. v. Roscoe (2013), 2013 ONCA 378, 115 O.R. (3d) 641 (C.A.).

[67] Speaking for the panel in that case, Justice Sharpe reviewed the legislative history of section 18 of the Limitations Act, 2002, supra, and explained why and how those provisions were a deliberate, marked and significant departure from the previous legislative approach to the imposition of time limits on commencement of claims for contribution and indemnity. In particular:

• The provisions were part of a fundamental and comprehensive reform of the law of limitations in Ontario aimed at creating a clear and comprehensive reform of the law of limitations.

• The wording of section 18 was significantly different from the provisions it replaced, as it clearly departed from the longstanding model established by the pre-reform provisions of the Negligence Act. Those provisions applied only to claims for contribution and indemnity as between tortfeasors, and permitted such claims to be brought within one year of settlement or judgment in the underlying action, despite the expiry of any limitation period governing the claim of the injured party against the other tortfeasor.

• Use of the word “wrongdoer” rather than “tortfeasor”, the express provision of s.18(2) making the section applicable to claims for contribution and indemnity whether the right “arises in respect of a tort or otherwise”, and a significant shortening of the applicable limitation period to two years from the date the first alleged wrongdoer was served with the underlying claim, all reflected a legislative intention to encourage “resolution of all claims arising from the wrong at the same time”, by encouraging the first “wrongdoer” to commence proceedings for contribution and indemnity as soon as possible.

• Carving out exceptions to the general rule in section 18, (e.g., for claims of contribution and indemnity sounding in contract rather than tort), would “undercut” that legislative intent and purpose; e.g., by exposing defendants from whom contribution and indemnity is sought to unpredictable limitation periods, thereby undermining the defendant’s ability to defend the claim.

• The legal theory grounding a claim for contribution and indemnity therefore is not relevant for deciding whether section 18 is triggered. The specific provisions therein apply when there is a claim for contribution and indemnity, no matter what legal theory underlies the claim.

[68] Section 18 of the Limitations Act, 2002, supra, therefore applies to all substantive aspects of Canada’s contemplated crossclaim in this case, including those aspects set forth in sub-paragraph (a) of the contemplated crossclaim prayer for relief, seeking “damages, contribution and indemnity and legal costs pursuant to the contract terms as contained in the Snow Removal Contract”.

[69] In my view, that is clearly a claim by Canada for contribution and indemnity proportionate to Twin City’s degree of responsibility, (if any), for the plaintiff’s alleged slip and fall accident.

[70] In particular, I note that, while Canada says that Twin City breached a contractual obligation to have Canada made an additional insured to Twin City’s policy of commercial general liability insurance, (with Canada thereby experiencing damages in the way of self-funded defence costs and uninsured liability exposure), any obligation of Twin City in that regard was expressly limited, by sub-paragraph 12.2.2(a) of the contract, to ensuring that Canada was included as an additional insured “only with respect to liabilities that may arise from [Twin City’s] own negligence, in the performance of the Contract”.

[71] The contractual obligation relied upon by Canada, in support of its crossclaim, therefore would not give rise to a claim for contribution and indemnity from Twin City in relation to all possible uninsured loss experienced by Canada as a result of the plaintiff’s claim.

[72] Rather, any such damages inherently would be limited to, and commensurate with, Canada’s need to incur self-funded defence costs and/or uninsured liability exposure attributable to Twin city’s proportionate share of any negligence giving rise to the plaintiff’s claim. To me, that brings Canada’s contractual claims for contribution and indemnity very much in line with its claims for contribution and indemnity based on Twin City’s alleged negligence.[^2]

OPERATION OF SECTION 18 - DISCOVERABILITY

[73] Before turning to an application of the relevant legislative provisions to the case before me, I think it advisable to comment in more detail on section 18 in particular, and the question of whether or not the limitation period applicable to claims for contribution and indemnity is subject to discoverability.

[74] As noted above, the motion material filed by Twin City suggested that this would be an issue, with Twin City taking the position that section18 operated as a deeming provision, providing a two year limitation period for the exercise of due diligence and the bringing of potential crossclaims, running from deemed discovery on the date a claim’s service, with that two year period not being capable of further extension by additional discovery considerations. In other words, Twin City’s factum suggested that section 18 of the Limitations Act, 2002, supra, operated to create a presumed limitation period that was said to be conclusive rather than rebuttable.

[75] Counsel for Canada understandably therefore made submissions in that regard during the course of his initial comments at the hearing before me. In doing so, he relied exclusively on various provisions of the Limitations Act, supra, (i.e., without any reference to case law), to argue that the deeming aspects of section 18 merely created a truly rebuttable presumption of discoverability within the relevant two year period effectively identified by the section for contribution and indemnity claims, and did not preclude the possibility of further discoverability extensions in relation to such claims.

[76] However, when counsel for Twin City then made his responding oral submissions, he indicated agreement with counsel for Canada on that point. Counsel for Twin city focused instead on Twin City’s position that Canada had failed to rebut the presumption that the contemplated crossclaims were indeed discoverable, with the exercise of due diligence, more than two years before the bringing of Canada’s motion for leave to amend its pleading.

[77] In the result, the parties effectively agreed that the specific limitation period for contribution and indemnity claims, created by the Limitations Act, 2002, supra, was subject to possible further extension by the discoverability principle.

[78] Although the parties were content to proceed on that basis, I am mindful that their position in that regard is not a view shared by a number of my colleagues in the Superior Court of Justice.

[79] Their contrary view is canvassed and expressed forcefully in the thoughtful analysis set forth by Justice Perell in a relatively recent decision of this court; i.e., Miaskowski v. Persaud, 2015 ONSC 1654, [2015] O.J. No. 1208 (S.C.J.), released on March 12, 2015.

[80] That decision obviously was rendered well after the hearing before me in this matter.

[81] However, for reasons outlined by Justice Perell, he applies the same view of section 18, (i.e., that it creates a limitation period for contribution and indemnity claims that it is not subject to discoverability), taken in decisions predating the hearing before me, which were not raised or mentioned during the course of counsel submissions. See, for example: Lilydale Co-operative Ltd. v. Meyn Canada Inc., 2010 ONSC 4114, [2010] O.J. No. 3142 (S.C.J.), Boutz v. DTE Industries Ltd., 2013 ONSC 7085, [2013] O.J. No. 5304 (S.C.J.); Welch v. Peel Standard Condominium Corp. No. 755, 2013 ONSC 7611, [2013] O.J. No. 5669 (S.C.J.); and Scotia Mortgage Corp. v. Chmielewski, 2013 ONSC 856, [2013] O.J. No. 524 (S.C.J.).

[82] Strictly speaking, it is not necessary for me to decide whether or not the specific limitation period for contribution and indemnity claims, created by the Limitations Act, 2002, supra, is subject to possible further extension by the discoverability principle.

[83] I say that because, for the reasons outlined in more detail below, I am satisfied that Canada’s contemplated crossclaim is barred by the applicable limitation period on either view.

[84] However, with the greatest of respect to Justice Perell and other colleagues who have taken a different view of the relevant legislation, I think the approach to section 18 taken by the parties in the case before me is correct.

[85] In other words, I think section 18, properly read in context with other provisions of the Limitations Act, 2002, supra, merely creates a truly rebuttable presumption, (and not a conclusive one), that all matters relevant to advancement of a claim for contribution and indemnity were discovered on the day the first wrongdoer is served with the claim in respect of which contribution and indemnity is sought. That in turn creates a presumption that the basic limitation period will expire two years from that date, unless it is proven that such matters were not discovered or capable of discovery through the exercise due diligence until some later date.

[86] I say that for a number of reasons.

[87] First, I think such a conclusion accords with a plain reading of the relevant legislative provisions. In that regard:

• As noted by Justice Perell at paragraph 93 of his decision in the Miaskowski case, in none of the other cited cases where the question of whether section 18 is subject to the discoverability principle is addressed, (directly or indirectly), is there any detailed analysis of the language of the statute. The view that section 18 creates a conclusive rather than truly rebuttable presumption for contribution and indemnity claims is itself expressed in a somewhat conclusive manner.

• In contrast, Justice Perell does carry out such an analysis. In particular, at paragraphs 81 and 82 of his decision, he emphasizes that section 18 uses the word “deemed”, which “as a declarative concept is a firmer or more certain assertion of the discovery of a claim than the rebuttable presumption of discovery contemplated by s.5 of the Limitations Act, 2002”. In that regard, he also notes that “the deeming provision in s.18 does not contain the moderating language ‘unless the contrary is proved’ that is found in s.5(2) of the Act”. At paragraph 94 of his decision, Justice Perell expresses his resulting opinion that, “by using language of a deeming provision without any reference to the deeming of the claim being rebuttable, the legislature intended to impose an absolute two year limitation period with respect to claims for contribution and indemnity”.

• With great respect, I disagree with that view, as it seems to approach section 18 as if it were a self-contained deeming provision, and ignores the opening words of s.18(1). In my opinion, those words make it clear that section 18 was not intended to operate as a “stand alone” limitation period, with independent application, or a provision to be viewed and read separately and in contrast to s.5(2). Rather, section 18 expressly was enacted “For the purposes of subsection 5(2) and 15”, [emphasis added]; i.e., to inform and dictate the meaning to be given to certain concepts referred to in ss.5(2) and 15, when applying those sections. In particular, when applying s.5(2) to claims for contribution and indemnity, s.18(1) dictates that the “day [of] the act or omission” referred to in s.5(2) shall be the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought. Subsection 18(1) thereby dictates the relevant presumed starting point for the basic two year limitation period, in relation to the operation of s.5(2); a presumption that is still capable of being rebutted by proof to the contrary, pursuant to the provisions of s.5(2). In particular, I see nothing in the language of s.18(1) that displaces or alters the natural meaning to be given to the other language of s.5(2). Section 18 itself does not have or require language of presumption or proof to the contrary, in relation to operation of the basic limitation period, but this is because its inclusion in section 18 would have been unnecessary and redundant, given that such wording already is found in s.5(2), with which it is expressly and inextricably linked. In my opinion, reading s.18(1) in conjunction with s.5(2), as the legislation intended, and substituting into s.5(2) only those concepts whose substitution is dictated by s.18(1), one finds that s.5(2) effectively reads as follows in relation to claims for contribution and indemnity: “An alleged wrongdoer with a claim against another alleged wrongdoer for contribution and indemnity shall be presumed to have known of the matters referred to in clause 5(1)(a) on the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought, unless the contrary is proved.” [Emphasis added.] The presumption applicable to such claims is therefore rebuttable, not conclusive.

• Moreover, that conclusion is reinforced by the fact that the opening words of s.18(1) refer not only to s.5(2) but also to section 15; i.e., the “ultimate limitation period” of 15 years. As with s.5(2), s.18(1) informs and dictates the meaning to be given to certain concepts referred to in section 15. In particular, s.18(1) informs the meaning to be given to “the day on which the act or omission on which the claims is based took place”, for the purposes of s.15(2). In my opinion, reading s.15(2) in conjunction with s.18(1), as the legislation intended, and substituting into s.15(2) only those concepts whose substitution is dictated by s.18(1), one finds that s.15(2) effectively reads as follows, in relation to claims for contribution and indemnity: “No proceeding shall be commenced in respect of any claim for contribution and indemnity after the 15th anniversary of the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought”. I fail to understand how s.18(1) can be interpreted as creating a conclusive and “absolute” two year limitation period for contribution and indemnity claims, running from the date on which the first alleged wrongdoer was served with the underlying claim in respect of which contribution and indemnity is sought, when the legislature clearly contemplated the possibility that the operation of section 15 might be required to put an end to such possible claims fifteen years after service of the claim in respect of which contribution and indemnity is sought. In my opinion, the obvious conclusion is that the legislature thought section 15 might be needed in relation to claims for contribution and indemnity for the same reason section 15 might be needed in relation to other claims; i.e., because operation of the applicable limitation period might be extended beyond the contemplated two year basic limitation period by considerations of discoverability.

[88] Second, I cannot and do not disagree with Justice Perell’s view that an absolute two year limitation period for contribution and indemnity, (with no allowance whatsoever for possible lack of discoverability, even when capable of proof), would provide certainty and efficiency, which was definitely one of the policies underlying the reforms introduced in the Limitations Act, 2002, supra. However, one could say that in relation to making any limitation period absolute. As Justice Sharpe emphasized in Canaccord Capital Corp. v. Roscoe, supra, at paragraph 17, the overall goal of the legislation was the creation of a clear and comprehensive scheme for addressing limitation issues that would balance a defendant’s need for certainty with the plaintiff’s right to sue. A review of the legislation suggests that, with indicated exceptions, the Legislature generally tried to strike that balance by imposition of a presumptive two year limitation period, capable of extension by demonstrable lack of discovery, (proof of which was the obligation of the claimant). Although the legislature clearly felt that claims for contribution and indemnity warranted a measure of exceptional treatment, to encourage resolution of all claims arising from the wrong at the same time, it seems to me that the approach chosen by the legislature in that regard was the introduction of a modified presumption; i.e., one that moved the presumed starting date of the basic two year limitation period forward considerably, (from the much later starting dates permitted under the previous legislation), to the date on which the party seeking contribution and indemnity was served with the claim in respect of which contribution and indemnity is sought. Such a party, who fails to approach the possibility of contribution and indemnity claims with due diligence during the ensuing presumptive two year limitation period, from that much earlier date, does so at that party’s considerable peril. However, I see nothing in the legislation that suggests the legislature intended to go an extra step; i.e., by absolutely precluding any possibility whatsoever of an extension of time for a party capable of proving that a contemplated claim for contribution and indemnity was indeed incapable of being discovered, even with reasonable due diligence, within two years of the party being served with a statement of claim. As emphasized by our Court of Appeal in Pepper v. Zellers Inc., 2006 CanLII 42355 (ON CA), [2006] O.J. No. 5042 (C.A.), the discoverability principle ensures that a person “is not unjustly precluded from litigation before he or she has the information to commence an action provided that the person can demonstrate he or she exercised reasonable or due diligence to discover the information”. In my view, the court should be reluctant to adopt a legislative interpretation that effectively permits the possibility of such an injustice, unless that is the outcome clearly dictated by the legislation. As demonstrated by the ultimate limitation period provisions of section 15, the legislature has the ability to make such an intention quite clear, when it has that intention.

[89] Third, I similarly do not disagree with Justice Perell’s view that it would be a rare case that a defendant, exercising due diligence within two years of being served with a claim, would not know the parties against whom to claim contribution and indemnity. However, rarity is not impossibility, and in my view, the rarity of such a possibility underscores the somewhat modest concession to fairness, (from a claimant’s point of view), of the Legislature making the limitation period for contribution and indemnity claims subject to discoverability.

[90] Finally, it seems to me that comments by our Court of Appeal on the limitation period applicable to claims for contribution and indemnity, even if made in obiter, (as noted by Justice Perell), reflect the approach to legislative interpretation suggested above; i.e., focusing on s.18 not in isolation but in the context of how it interacts with other provisions of the legislation, resulting in the basic limitation period applicable to claims for contribution and indemnity being presumptive and not absolute.

[91] In other words, members of our Court of Appeal seem to accept that a holistic approach to the legislation, reading section 18 in its overall context, leads to a conclusion that the presumed commencement of the basic limitation period for contribution and indemnity claims is not necessarily its actual commencement, but merely a presumption capable of being rebutted by a claimant’s adequate proof of reasonable due diligence and lack of discoverability.

[92] For example, Justice Simmons appears to draw that very distinction at paragraph 24 of Placzek v. Green, [2009] O.J. No. 236 (C.A.), when she observed that:

When read in combination with s.4 and s.15, s.18 establishes the date of service of the injured party’s statement of claim as the presumed commencement date for the basic two-year limitation period and the actual commencement date for the ultimate 15-year limitation period with respect to contribution and indemnity claims”. [Emphasis added.]

[93] Similarly, at paragraphs 23-24 of Waterloo Region District School Board v. CRD Construction Ltd., supra, Justice Feldman, after making reference to ss. 4, 5(2) and 15 of the Limitations Act, 2002, supra, observed that:

Reading the relevant sections together, a claim for contribution and indemnity, whether in tort or otherwise, now has a two year limitation period that is presumed to run from the date from the date when the person who seeks contribution and indemnity is served with the plaintiff’s claim that gives rise to its claim over. [Emphasis added.]

[94] In my opinion, use of the word “presumed” in these passages is significant, and the context makes it clear that neither Justice Simmons or Justice Feldman was intending to suggest that section 18 created a “conclusive” presumption, (the term employed in Scotia Mortgage Corp. v. Chmielewski, supra), rather than a rebuttable one, (i.e., a presumption capable of being displaced by proof of lack of discoverability, despite the exercise of reasonable due diligence).

[95] For all these reasons, to the extent necessary, I find that the basic limitation period applicable to claims for contribution and indemnity is indeed subject to discoverability, and that the parties before me were correct to approach this motion in that manner.

[96] However, as noted above, I also am satisfied, for the reasons that follow, that Canada’s contemplated crossclaims are barred in any event by the applicable basic limitation period for contribution and indemnity claims; i.e., whether the applicable basic limitation period is subject to discoverability or not.

APPLICATION

[97] With the above in mind, I turn finally to an application of the relevant legislative provisions to the limitation period issues in this case.

[98] For the reasons outlined above:

• all substantive aspects of Canada’s contemplated crossclaim must be characterized as claims for contribution and indemnity, and are therefore covered by the same basic limitation period mandated by the combined operation of ss. 4, 5(1), 5(2) and 18;

• pursuant to section 4, the contemplated crossclaim must not be commenced more than two years after the claim was discovered; and

• pursuant to section 5(2), as modified and informed by s.18(1), Canada is presumed to have known of all matters referred to in s.5(1), and therefore to have discovered the crossclaim, on the day on which Canada was served with the plaintiff’s claim, in respect of which contribution and indemnity is sought, unless the contrary is proved.

[99] In my view, the day on which Canada was “served with the claim in respect of which contribution and indemnity is sought”, is March 20, 2010.

[100] As I have mentioned, counsel for Canada suggested that the relevant date in that regard should be taken as September 30, 2013; i.e., the date on which Canada was served with the plaintiff’s amended fresh as amended statement of claim. That was said to be the date on which Canada received formal notification that there was a prospect of Twin City being found jointly liable in relation to the plaintiff’s claim.

[101] With respect, that is not the correct focus for determining the presumed commencement date of the applicable basic limitation period.

[102] Again, s.18(1) speaks to “the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought”. [Emphasis added.]

[103] The claim in respect of which Canada is seeking contribution and indemnity is the plaintiff’s claim that Canada is responsible for damages caused by the plaintiff’s alleged slip and fall accident at the GVI on February 17, 2008. That claim was served on Canada on March 20, 2010.

[104] In my opinion, the fact that various allegations made by the plaintiff in support of that claim have been modified, through various amendments to the plaintiff’s original pleading, does not alter that conclusion. Canada is still facing that original claim, and it is in relation to that claim by the plaintiff that Canada seeks contribution and indemnity from Twin City.

[105] Nor do I think it relevant, to proper identification of the served claim referred to in s.18(1), that Twin City was not formally made a defendant to the litigation prior to September 30, 2013.

[106] The approach suggested by Canada effectively would lead to a result whereby there would be no commencement of a presumed basic limitation period for claims of contribution and indemnity unless and until a plaintiff takes steps to formally add the target of a possible claim for contribution and indemnity to the original proceeding by naming that target as a co-defendant. That clearly was not intended by the Limitations Act, 2002, supra, which casts an independent obligation on those with possible claims for contribution and indemnity to advance their claims in a timely way.

[107] Moreover, the procedural avenues of redress available to such claimants obviously are not limited to crossclaims against those who have been made co-defendants. Alternative possibilities include a timely third party claim, or the commencement of a separate action, (albeit one likely to be consolidated or heard sequentially or simultaneously with the original proceeding commenced by the plaintiff).

[108] In this case, as far as Canada’s contemplated crossclaim for contribution and indemnity is concerned, Canada therefore is presumed by s.5(2) of the Limitations Act, 2002, supra, to have known of the matters referred to in s.5(1) on March 20, 2010, (the day on which the plaintiff served Canada with her original statement of claim), unless the contrary is proved by Canada.

[109] This in turn means that the basic two year limitation period applicable to Canada’s contemplated crossclaim expired on March 20, 2012, (well before the bringing of Canada’s motion herein), unless Canada offers sufficient proof to rebut the presumption created by s.5(2).

[110] Of course, if I am wrong in my view that the applicable basic limitation period is subject to discoverability, (and the presumption of discoverability in relation to claims for contribution and indemnity is indeed conclusive rather than rebuttable), then the applicable limitation period definitely expired on March 20, 2012, without Canada taking any formal steps to advance its claims for contribution and indemnity against Twin City.

[111] Viewed in that light, Canada’s contemplated crossclaim is definitely out of time, and barred by the applicable limitation period.

[112] Does the same result follow, if the applicable basic limitation period is subject to discoverability?

[113] I think it does.

[114] Pursuant to s.5(2) of the Limitations Act, supra, defeating presumed discovery of Canada’s contemplated claims for contribution and indemnity, (and corresponding presumed commencement and expiry of the basic two year limitation period), more than two years prior to Canada taking formal steps to advance such a claim, requires “proof to the contrary”.

[115] The proper approach to such discoverability issues was addressed by our Court of Appeal in Pepper v. Zellers Inc., supra, at paragraphs 18-21, in turn citing, with approval, comments set forth in Wong v. Adler (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460 (Master) at paragraph 45, affirmed (Ont.Div.Ct.). Speaking for the Court of Appeal panel in that case, Justice Lang said this:

The motion judge referred to the proper approach to discoverability on a motion to add a party, which was concisely and clearly set out by Master Dash in Wong v. Adler, [supra]:

What is the approach a judge or master should take on a motion to add a defendant where the plaintiff wishes to plead that the limitation period has not expired because she did not know of and could not with due diligence have discovered the existence of that defendant? In my view, … the motions court must examine the evidentiary record before it to determine if there is an issue of fact or credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such an issue, the defendant should be added with leave to plead a limitation defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontradicted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility.

I agree with Master Dash that the motion judge was entitled to assess the record to determine, as a question of fact, whether there was “a reasonable explanation” on the evidence demonstrating why Ms Aube’s identity could not have been determined through the exercise of reasonable diligence. …

An examination of the evidentiary record in this case shows that the appellants’ material failed entirely to address whether they ought to have known Ms Aube’s identity and what, if any, steps they took to determine that identity. Indeed, the appellants offer no explanation other than to say that no one gave them the information.

Importantly, there was no affidavit from the appellants’ lawyer, only one from the lawyer’s law clerk, which provided no particulars of any steps taken to obtain information and did not explain why no steps were taken. For example, there was no reference to any inquiry of Zellers or of Messrs. Yassouf or Shenouda about the name of the dispensing pharmacist and no explanation about why the two pharmacy operators were not sued until long after the expiration of the limitation period. As this court said in Zaphe [v. Barnes (2003), 2003 CanLII 52159 (ON CA), 66 O.R. (3d) 397 (C.A.)], at para. 35: “In most cases one would expect to find, as part of a solicitor’s affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent.”

[Emphasis added.]

[116] As I have indicated a number of times, the parties before me agreed that the record of evidence relevant to determination of the limitation period issue, including discoverability, was undisputed and raised no issues of fact or credibility.

[117] In my view, it also contains no reasonable explanation as to why Canada took no steps to advance its contemplated claims for contribution and indemnity more than two years before bringing its current motion.

[118] Nor does it contain adequate particulars of the steps or attempts made by Canada to substantiate any assertion that Canada was reasonably diligent in its efforts to discover all information required to advance its contemplated claims for contribution and indemnity.

[119] Apart from the possible implications of its contract with Twin City, it seems to me that there is absolutely nothing to explain why Canada, with the exercise of reasonable or due diligence, could not and did not discover and assert a claim for contribution and indemnity pursuant to the Negligence Act, supra, or at common law and equity, within two years of the plaintiff’s oral discovery examination on January 26, 2012, at the latest.

[120] My considerations in that regard include the following:

• At all material times, Canada inherently possessed or had the ability to access as of right, through its various employees at the GVI, information concerning the physical lay-out of the GVI and the arrangements made and not made to address snow removal, salt and sanding in that obviously closed environment. It knew that Twin City was the only external party entrusted with such activities, at least in relation to certain areas of the GVI facility. It also knew and/or had the means of confirming, through its employees, the precise areas of the GVI facility in respect of which Twin City carried out such activities.

• I accept that the plaintiff’s original statement of claim, served on March 15, 2010, contains no precise indication of where the plaintiff’s alleged slip and fall was alleged to have taken place, and that various allegations contained in that pleading are ambiguous as to whether the alleged accident happened inside, (as reference to the slip and fall happening on a “floor” might suggest), or outside, (as might be suggested by the reference to “ice and snow”). Considered in isolation, that arguably would leave Canada with uncertainty as to the possible involvement and responsibility of Twin City in relation to the accident, as Twin City’s activities were limited to outdoor maintenance.

• However, even before service of the plaintiff’s original statement of claim, Canada was possessed of additional information indicating the location of the alleged slip and fall accident. In particular, it already had been provided with the plaintiff’s report of the accident, on March 11, 2008. In that report, the plaintiff once again made reference to hitting a “cement floor” when she fell, and to various parts of her body falling “to the floor”, which might suggest a slip and fall indoors, (in respect of which Twin City would have no possible involvement). However, in my opinion, the same report from the plaintiff contains other information clearly indicating that the plaintiff was alleging that the slip and fall accident occurred somewhere outside at the GVI. There is no other sensible interpretation to the plaintiff’s indications that the fall happened after she was asked to “vacate [her] unit, and walk into “slippery black ice”, on a “very bad winter day”, where she then fell “at the front of a walkway near [her] living unit”. These are clearly the further particulars replicated and/or reflected in the amended statement of claim delivered by the plaintiff’s lawyer on July 26, 2010; a pleading which supplements the aforesaid accident location indications by references to the plaintiff having “exited” her unit, and falling on the “ground”, because of the accumulation of “snow and ice” on a repeatedly mentioned “walkway”.

• In my view, Canada therefore clearly knew or ought to have known, by July 26, 2010, that the plaintiff’s alleged slip and fall accident occurred somewhere outdoors on the grounds of the GVI, in turn suggesting the possible involvement and responsibility of Twin City depending on the precise exterior location of the alleged accident. Canada itself inherently acknowledged that possibility on November 3, 2011, when it included, in its List of Documents produced to the plaintiff, an indication that “relevant documents” in Canada’s possession included a plan of the GVI, created by Twin City as Canada’s “contracting company for ice and snow removal”, as well as invoice records providing further indications as to what Twin City had done in relation to ice and snow removal maintenance. The latter documents in particular would seem to have no relevance unless Canada itself believed that the alleged slip and fall accident occurred in an exterior location covered by Twin City’s activities at the GVI.

• Having said that, I accept for the purposes of this motion that, even up until January 26, 2012, there reasonably may have been lingering uncertainty on Canada’s part as to whether the plaintiff was alleging that her slip and fall accident took place in an exterior GVI location actually covered by Twin City’s maintenance activities. In particular, the diagram of GVI indicates the presence of various exterior walkways on the grounds of GVI; e.g., substantial walkways adjacent to major roads within the facility, and smaller individual walkways leading right up to residential units. As noted above, the evidence before me suggests that, depending on the walkway in question, Twin City may or may not have had responsibility for maintaining an identified area. The involvement and potential responsibility of Twin City for the alleged accident therefore turned on further information as to the precise location of the accident, and that information really was available only from the plaintiff given that there apparently were no witnesses to the alleged accident.

• One could argue that the exercise of reasonable diligence by Canada might have included, prior to January 26, 2012, an appropriate demand for particulars pursuant to Rule 25.10, requesting that the plaintiff clarify and indicate, with precision, the walkway and location where the slip and fall accidents was alleged to have occurred. However, any and all such uncertainty was resolved during Canada’s oral discovery examination of the plaintiff on January 26, 2012, when the plaintiff pin-pointed the location of her alleged slip and fall with an “X” on a map or diagram of the GVI grounds. At that point, Canada clearly knew where the slip and fall accident was alleged to have occurred, and knew or should have known, from information already available to Canada through the exercise of reasonable and due diligence, that it was an area for which Twin City exercised snow removal, salt and sanding responsibilities, according to staff employed by Canada.

• In my view, apart from the possible implications of its contract with Twin City, Canada accordingly knew, no later than January 26, 2012, all it needed to know in relation to the matters set forth in s.5(1) of the Limitations Act, 2002, supra. More to the point, Canada has not, in my view, offered sufficient “proof to the contrary” to rebut the presumption created by s.5(2) of the legislation. Canada nevertheless took no measures to commence a formal claim for contribution and indemnity from Twin City until August 1, 2014; i.e., more than two years after January 26, 2012.

• All of the above supports a conclusion that Canada’s contemplated claim for contribution and indemnity is out of time, and barred by the applicable limitation period.

[121] Does the existence of Canada’s contract with Twin City alter that conclusion?

[122] I think not.

[123] During the hearing before me, the only proffered justification for survival of Canada’s contemplated claims for contribution and indemnity pursuant to the Negligence Act or the common law and equity was Canada’s suggestion, (addressed and rejected above), that the served claim referred to in s.18(1) should be viewed in this case as the amended fresh as amended statement of claim served by the plaintiff on September 30, 2015.

[124] In other words, during the hearing before me, it was not suggested that claims for contribution and indemnity based on the Negligence Act or common law and equity were not capable of discoverable by Canada, through the exercise of reasonable or due diligence, after January 26, 2012.

[125] At best, Canada’s written motion material may be read as suggesting that such claims were not advanced by Canada, before it learned with certainty that it had not been added as an additional insured, because it made no commercial sense for one insured to sue another insured when both were thought to be covered by the same policy of insurance; i.e., in circumstances whereby the same relevant insurer arguably might then be viewed as indirectly suing itself, for no practical purpose.

[126] In my view, that nevertheless is not a “reasonable explanation” sufficient to rebut the presumption created the by combined operation of ss. 4, 5(1), 5(2) and 18 of the Limitations Act, supra.

[127] Generally, litigious rights and liabilities in our system are determined without reference to the underlying insurance arrangements the litigants may or may not have made to fund the exercise of those rights or underwrite those responsibilities.

[128] Not surprisingly, insurance arrangements therefore are not included in the specified list of matters, set forth in s.5(1) of the Limitations Act, supra, that need to be known before a claim is “discovered” for purposes of the legislation.

[129] Moreover, such an explanation also would only be reasonable if Canada demonstrated, through the provision of adequate evidence setting forth the particulars of timely steps and efforts to obtain such information, that Twin City’s failure to add Canada as an additional insured to Twin City’s policy of commercial liability insurance was something not capable of discovery through the exercise of due diligence more than two years prior to the bringing of this motion.

[130] In my opinion, Canada has failed to do that.

[131] In that regard:

• At all material times, Canada knew or ought to have known of its relevant contract with Twin City, and Twin City’s obligation to arrange insurance coverage for Canada in accordance with paragraph 12.2.2. of that agreement.

• For the reasons set forth above, Canada also knew or ought to have known, no later than January 26, 2012, that Twin City’s conduct in maintaining or failing to maintain the location of the plaintiff’s alleged accident may have caused or contributed to the plaintiff’s injury, loss or damage, thereby exposing Canada to the plaintiff’s claim based on alleged negligence.

• No later than January 26, 2012, Canada therefore knew or ought to have known that the circumstances gave rise to “liabilities that may arise from [Twin City’s] negligence, in the performance of the [snow removal] Contract”, (as referenced in paragraph 12.2.2 of Canada’s agreement with Twin City), and therefore Canada’s expectation of insurance coverage arranged by Twin City pursuant to the contract.

• I accept that Canada may not actually have known about the true state of underlying insurance arrangements more than two years before bringing its motion. In that regard, it seems to me that, without more, evidence of the certificate of insurance issued on November 6, 2007, does not really assist in establishing that Canada had knowledge that Twin City did not make the insurance arrangements contemplated by paragraph 12.2.2 of the parties’ agreement. The certificate predates finalization and execution of the contract. In the circumstance, the certificate may very well have been provided to Canada, during the course of contract negotiation, to confirm the state of Twin City’s insurance arrangements before it was then decided that modification of those arrangements was required by the anticipated contract. (It hardly seems to have been intended indication of the insurance arrangements that would be in place for the duration of the anticipated contract, as the period of coverage indicated in the certificate does not coincide with the period of the contract’s duration, and in fact did not address, in any way, the insurance arrangements that would be in place for a significant portion of the contract period.) Moreover, commonality of the indicated policy number with later documentation seems to have no definite bearing on what parties may or may not have known at any time, in relation to insurance coverage, as the insurer seems to have employed the same policy number over time, in relation to Twin City, even though the indicated periods and extent of coverage apparently were being renewed and extended with or without variations effected through amended declaration pages or otherwise.

• However, that certificate evidence, along with much later evidence of efforts eventually made by Canada’s counsel to secure confirmation of insurance arrangements by requesting information and copies of insurance documentation, (e.g., a policy and/or declarations page), in the wake of being served with Twin City’s crossclaim, is indicative of the sort of steps and measures that were available to Canada to confirm, with certainty, the state of Twin City’s insurance arrangements at any time before, during and after the period of the relevant contract.

• In my opinion, the evidence before me really offers no explanation, let alone an adequate one, as to why Canada could not have known, with the exercise of reasonable and due diligence, more than two years before bringing its motion, of Twin City’s apparent failure to abide by the provisions of paragraph 12.2.2 of the parties agreement, and Canada’s corresponding claim for contribution and indemnity based on that alleged breach of contract.

• The evidence before me instead indicates that Canada took no steps whatsoever to make inquiries or follow up in that regard before November 7, 2013, (at the earliest). There is nothing in evidence to explain that substantial period of delay.

• In the course of oral submissions, Canada’s counsel suggested that the delay in making such inquiries, even after the commencement of litigation and the provision of information indicating and then confirming the relevance of Twin City’s conduct, was attributable to Canada’s preference to conduct its own defence in relation to such matters, (rather than entrusting such a defence to an insurer), and to look to an insurer for reimbursement of its defence costs, and indemnity for damages if and as necessary, at the conclusion of litigation. Such matters were not in evidence. However, even if they were, it seems to me that such an approach runs counter to the “new” legislative policy reflected in section 18 of the Limitations Act, 2002, supra. As emphasized by Justice Sharpe in Canaccord Capital Corp. v. Roscoe, supra, at paragraph 20, that legislative policy was designed to encourage resolution of all claims arising from a wrong at the same time.

[132] In the circumstances, I find that Canada’s contemplated crossclaim is out of time and barred in all respects by operation of the applicable basic limitation period, and is not saved by any proven lack of discoverability.

CONCLUSION

[133] To the extent the combined operation of Rules 5.03, 26 and 28 leave me with discretion to grant or refuse leave to permit Canada’s contemplated amendments, and/or take into account the irreparable prejudice that would be occasioned to Twin City from permitting the advancement of a crossclaim barred by the applicable limitation period, I find that Canada’s motion should be dismissed on that basis.

[134] To the extent that Rule 28.04 is the controlling rule, and mandates the granting of leave permitting Canada to make the amendments, (as the parties agree the granting of leave creates no prejudice vis-à-vis the plaintiff), I grant leave as requested and required, but that granting of leave is followed immediately by the granting of summary judgment dismissing Canada’s crossclaim for contribution and indemnity because, in my view, there is no genuine issue requiring a trial of the limitation period issue in that regard, (having regard to the considerations set forth in Hyrniak v. Mauldin, supra), and the contemplated crossclaim is barred in its entirety by the applicable limitation period.

[135] The practical outcome is the same. Canada should not be permitted, in the circumstances, to assert its contemplated claims for contribution and indemnity from Twin City.

Costs

[136] Before argument of the motion, counsel for Canada and counsel for Twin City agreed that, regardless of which party was successful, costs of the motion should be quantified and fixed at $5,400.00.

[137] However, counsel for Canada took the position that costs should be payable to the successful party forthwith, whereas counsel for Twin City submitted that, if the motion did not succeed, a decision as to who should pay the quantified costs should be reserved to the trial judge. (It was suggested that this would be more fair and appropriate, as it would allow payment of the motion’s costs to be reconsidered in the event Canada’s crossclaim was allowed to proceed now but ultimately failed at trial.)

[138] In the result, Twin City was successful in defeating Canada’s motion, and/or resisting the outcome sought by Canada, and I see no reason why costs should not follow the event.

[139] In accordance with the parties’ agreement, the defendant Canada shall pay the defendant Twin City costs of the motion, fixed at $5,400.00, (inclusive of fees, disbursements and HST).

In my view, those costs also should be payable forthwith, in accordance with the expressed views of counsel for Canada, noted above.

“Justice I. F. Leach”

Justice I. F. Leach

Date: May 22, 2015

[^1]: The said regulations, enacted pursuant to the Crown Liability and Proceedings Act, RSC 1985, c.C-50, apply to, inter alia, proceedings taken in a “provincial court” pursuant to Part II of that Act; i.e., a proceeding, such as the one before me, taken against the federal Crown in “the superior court of the province in which the claim arises”, where that court is granted concurrent jurisdiction with the Federal Court pursuant to s.21 of the Act. Pursuant to s.8(1) of the regulations, where the Crown “would be required under the provincial rules to file or serve a list or an affidavit of documents”, if the Crown were a private person, the Crown is obliged, “subject to the same conditions as apply between subject and subject”, to “file or serve a list of the documents relating to the matter of which the Crown has knowledge”.

[^2]: In that regard, I note that section 1 of the Negligence Act, supra, limits the contribution and indemnity obligation of joint tortfeasors to “the degree in which they are respectively found to be at fault or negligent”.