Canadian Appeals Monitor

Information and Commentary on Upcoming and Recent Appeal Court Decisions

ABCA Cements Limitation Period for Third Party Contribution Claims and Weighs in on Still Unsettled Test for Summary Dismissal

Posted in Case Comments, Civil Litigation
Laurie Baptiste

There has been a longstanding dispute, or at least uncertainty, about the limitation period for third party claims for contribution in Alberta stemming back over 40 years or so, despite numerous efforts of the courts and the Alberta legislature to remedy it. The judgment in Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc, has ended all uncertainty, hopefully for good. This decision affects litigation of all variety and is very important as it provides firm confirmation of the limitation period for third party claims for contribution, which are common and important to many actions.

The Court in this case also provided brief comments on the proper test for summary dismissal, noted to be a “still somewhat unsettled” area of the law. However, it is an area of increasing importance as both parties and the courts turn more and more frequently to summary judgment to bring a faster and cheaper conclusion to lawsuits without having to go through a full trial.

Background and Decision Below

The plaintiff, Whitecourt Power Limited Partnership (“Whitecourt”), is the owner of a generator at an electrical generating plant in Northern Alberta. Whitecourt hired the defendant Interpro Technical Services Ltd. (“Interpro”) to carry out a scheduled overhaul of its generator. In connection with that, Elliott Turbomachinery Canada Inc. (“Elliott”) was retained to clean and balance the turbine rotor (a significant component of the generator). After the overhaul, Whitecourt noticed a serious vibration problem and eventually issued its claim against Interpro for ~$6.7 million in damages alleged to have been suffered as a result of Interpro’s overhaul of the generator.

In its defence, Interpro alleged that some of the work was performed by other contractors, including Elliott. Interpro issued a third party claim against Elliott, claiming mainly contribution at common law and under the Tort-feasors Act, RSA 2000, c T-5 (“TFA”), and also for breach of an alleged independent duty of care. Elliott applied to set aside the third party claim because it was filed out of time or, alternatively, for summary dismissal of the third party claim. The Master and the Queen’s Bench judge were not persuaded to set aside or summarily dismiss the third party claim. Elliott appealed.

The Limitation Period for Third Party Claims for Contribution – The Final Chapter

In considering whether the claim for contribution under the TFA was time-barred, the Court noted the recent amendments which had been made to the Limitations Act, RSA 2000, c L-12. Those amendments had come into force on Dec. 17, 2014 (although, they were made retroactive to 1999) and expressly and purposefully clarified when the discovery limitations period begins for a claim for contribution under the TFA. The Court quoted Hansard to highlight that the clarifications had been brought forward by the Law Society, which had worked with members of the Alberta bar on the wording of the amendments.

The Court confirmed that the Limitations Act now clarifies that defendants have two years from the later of the date when served with the statement of claim and discoverability to seek contribution and indemnity from other third party tort-feasors. The Court held that the amendments now make it clear who, as between the plaintiff and the defendant, “ought to have known” that the third party was jointly liable for the claimant’s injury in order to satisfy the discoverability requirements under the Limitations Act – the defendant.

To be even more precise, the Court confirmed that expiration of the limitation period as between the plaintiff and the third party no longer prevents the defendant from claiming contribution from another tort-feasor under the TFA. This, consequently, seems to finally put to bed the issue of the “late-suing plaintiff”, and the long history of this issue, as described in Dean v Kociniak, 2001 ABQB 412 (“Dean”). That was a problem which arose for defendant tort-feasors when plaintiffs sued very late in the limitation period, meaning that the defendant may not find out about the claim and be in a position to advance a claim for contribution until the limitation period had already expired.

The Court further confirmed that the earliest possible date that the limitations period can begin is the date of service of the statement of claim, absent a right of contribution independent of the claimant’s suit (which did not arise in this particular case). Further, that there “must be circumstances when the discoverability limitation period post-dates service of the statement of claim” (at para. 41). The Court found this would be the case with respect to discoverability of both statutory and common law claims for contribution (at para. 42).

The Court rather delicately stated (at para. 36) that the amendments made to the Limitation Actovercome the difficulties addressed by this court in Howalta and in Arcelormittal Tubular Products Roman SA v Fluor Canada Ltd, 2013 ABCA 279 (CanLII), 556 AR 188, and state the law as it was interpreted in Dean per Slatter J (as he then was)” [emphasis added]. Given that the decision in the Arcelormittal Tubular case was issued in August 2013 and given that, in it, the ABCA held (effectively) the opposite of what was clarified by the new amendments and the law as it was interpreted in Dean, it is clear that the Alberta legislature acted relatively swiftly to correct the prior erroneous decision of the ABCA on this point.

In this case, since discoverability is largely a question of fact, the issue of knowledge of the existence of a claim warranting a third party claim for contribution was an issue of merit which required a trial so summary dismissal was not appropriate.

The Test for Summary Judgment – Expanded by Hryniak

In reviewing the lower courts’ decision on Elliott’s application for summary dismissal of the third party claim against it, the ABCA commented on the proper approach to summary judgment. The Court noted that the application of Hryniak v Mauldin, 2014 SCC 7, in Alberta was “still somewhat unsettled” (at para. 11). Then the Court adopted the expanded formulation of the test as stated in Hyrniak, as had been adopted in the prior decision of the ABCA in Ostrowercha, over the more restrictive formulation of the test as stated by the ABCA in Amack v Wishewan (see our previous blog posting on this topic here, entitled “Melting Pot or Mosaic? The Ongoing Culture Shift since Hryniak”).

The Court also touched on the issue of the extent of fact-finding powers of the court in summary judgment applications, noting the view of the Master was that summary judgment could not be granted in Alberta if there were conflicting affidavits. However, the Court appeared to support the broader view of the Chambers Judge, finding that she “appreciated that the court was not as restricted in its fact findings as the Master had suggested” [emphasis added] (para. 11). We are sure to hear more on this issue; some authorities suggest that legislative change is needed “so that the sun that rose in the east with Hryniak” does not “set in the west” due to such evidentiary issues: Rai v 1294477 Alberta Ltd, 2015 ABQB 349, at para. 13.

In this case, the Court found no reviewable error in the findings of the Chambers Judge that there were issues going beyond the courts’ ability to determine in summary form and that a fair and reasonable adjudication was not possible in the circumstances – complex litigation where there were contract and tort claims, multiple parties and no written contract.

Case Information

Whitecourt Power Limited Parntership v Elliott Turbomachinery Canada Inc, 2015 ABCA 252, per Paperny and Rowbotham JJ.A. and Eidsvik J., on appeal from an Order of Nation J.

Date of Decision: July 24, 2015


Chevron Corp v. Yaiguaje: SCC Decision Highlights Increased Litigation Risk for Canadian Companies for Misdeeds of their Foreign Affiliates

Posted in Case Comments, International rights
Neil FinkelsteinBrandon KainMarc-Andre RussellDharshini SinnaduraiShea Small

The Supreme Court of Canada’s most recent decision in Chevron Corp. v. Yaiguaje has significantly increased the litigation risk for companies with assets in Canada from plaintiffs seeking to enforce foreign judgments obtained against the foreign affiliates of such companies. The SCC decision in Chevron will have significant cross-border implications, as enforcement in Canada can now be pursued against foreign companies and their Canadian affiliates even if neither party to the original dispute has a “real and substantial” connection to Canada. Continue Reading

You Only Get to Eat What You Kill: Real Estate Brokers as Hunters and Brokerage Contracts as Hunting Licences

Posted in Case Comments, Civil Litigation, Real Property
Laurie Baptiste

Anyone involved or interested in commercial real estate should be aware of the relatively recent decision of the Supreme Court of Canada (SCC) in Société en commandite Place Mullins v Services immobiliers Diane Bisson inc, mentioned briefly in two prior blog posts, here and here. Although the Supreme Court reviewed a decision of the Quebec Court of Appeal involving a standard brokerage agreement in Quebec, the decision may arguably have wider application, including in Alberta.

In a unanimous decision authored by Wagner J. the Court explains well what constitutes an “agreement to sell” in the context of a conditional real estate deal and some of the circumstances in which a brokerage will be entitled to be paid its commission.

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What’s the “Connection”? Ontario Court of Appeal Confirms Continuing Divide Between Jurisdiction and Choice of Law

Posted in Case Comments, Contracts
Paul Davis

Two companies based in different provinces enter into a contract. One company sues the other for breach of that contract. If the contract does not say which province’s laws govern the agreement, how does a court determine which law to apply? The Ontario Court of Appeal recently addressed this question – the choice of law rule for contracts – in Lilydale Cooperative Limited v. Meyn Canada Inc. (“Lilydale”).[1]

Fire in A Poultry Plant Continue Reading

The SCC Monitor (30/07/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Kate Findlay

Following our last post, the Supreme Court has released its decision in Strickland v. Canada (Attorney General), 2015 SCC 37. The Court’s decision in Strickland, referenced in more detail in this blog post, speaks to the circumstances in which a federal court can decline to exercise its jurisdiction to grant judicial review remedies. The appellants in Strickland sought a declaration that the Federal Child Support Guidelines were invalid and ultra vires the Divorce Act, R.S.C. 1985, c. 3. The Federal Court declined to exercise its jurisdiction holding that the matter should be brought before a provincial superior court. The Federal Court of Appeal and Supreme Court both upheld the Federal Court’s decision. The Supreme Court held that provincial superior courts can grant judicial review relief against federal entities in appropriate circumstances. The Court also held that a court should decline to hear an application for judicial review if an adequate alternative remedy exists elsewhere, as was found to exist in the superior court in this instance.

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More Than One Way To Skin A Privacy Breach: The Ontario Court of Appeal ‘s Decision in Hopkins v. Kay

Posted in Case Comments, Privacy
Justin Nasseri


Earlier this year, the Ontario Court of Appeal released its decision in Hopkins v. Kay, 2015 ONCA 112, in which it held that the mere existence of a legislative scheme to address privacy-related breaches of personal health information does not preclude a private action from being brought to address said breaches. Continue Reading

Liability for Opinions: Omnicare’s Lessons for Canadian Securities Lawyers

Posted in Case Comments, Civil Litigation, Securities
Mira Novek

When might a wrong opinion give rise to prospectus misrepresentation? The U.S. Supreme Court recently addressed this question in its much-anticipated decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.[1] Its answer provides a useful point of comparison and discussion for Canadian securities lawyers. Continue Reading

“I don’t wanna hear it!” Supreme Court affirms Federal Court’s refusal to exercise jurisdiction in Strickland v Canada (Attorney General)

Posted in Case Comments, Civil Procedure/Evidence
Ryan MacIsaac

Parliament created the Federal Courts system in 1970 to consolidate judicial supervision of federal boards, commissions and tribunals. The goal was to reduce the multiplicity of inconsistent judicial review rulings in provincial superior courts across the country. The Federal Courts Act hence gives the Federal Courts “exclusive original jurisdiction” to grant judicial review remedies against federal boards, commissions and tribunals (e.g., quashing a Minister’s decision). But can superior courts grant such remedies too? And if so, how is a litigant to know when to go to the Federal Court, and when to go to a superior court? The Supreme Court of Canada has provided a framework for answering these questions in Strickland v Canada (Attorney General), 2015 SCC 37.

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Have Mercy! Supreme Court Clarifies Mercy Power under Criminal Code

Posted in Administrative, Case Comments, Criminal
Byron Shaw

In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.[1]

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The SCC Monitor (07/07/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Ryan MacIsaac

It has been a busy couple of weeks since our last post. The SCC has released two judgments and six leave decisions of interest. In addition, a pending judgment of interest will be released this week. One of the released judgments and four of the leave decisions will be of interest to those involved in real estate development, management and sales. The other judgment involves government liability and how to apportion damages where the plaintiff has reached settlements with non-parties relating to the same injury. The remaining leave decisions involve an order to a foreign whistleblower to produce documents in a prosecution for foreign corrupt practices, and the finality of tribunal decisions. Finally, the SCC will release a decision this Thursday that will address when a legal action should move forward in Federal Court versus in a provincial superior court. Continue Reading

The Ontario Court of Appeal Finds Franchise Disclosure Document Fatally Deficient

Posted in Case Comments, Franchise and Distribution
Helen FotinosSam KhajeeiAdam Ship

On McCarthy Tétrault LLP’s Consumer & Retail Advisor blog, Helen Fotinos, Sam Khajeei and Adam Ship recently published a helpful discussion of the Ontario Court of Appeal’s decision in 2240802 Ontario Inc. v Springdale Pizza Depot Ltd., which will be of interest to readers of the Canadian Appeals Monitor.

More Oil for a Slippery Slope: Quebec Court of Appeal Authorizes Class Action Against the Vehicle Manufacturer KIA

Posted in Case Comments, Civil Litigation, Class Actions, Manufacturing, Quebec Court of Appeal
Emira Tufo

On June 12th, in Martel c. KIA Canada inc. (2015 QCCA 1033), the Quebec Court of Appeal reversed a ruling of the Superior Court which had refused to authorize a class action against the vehicle manufacturer, KIA, for allegedly misrepresenting the frequency of servicing necessary for the proper maintenance of its vehicles. Looking for an economical vehicle, the Petitioner, Thérèse Martel, had purchased a KIA based on representations made in its official manual that servicing would be required only every 12,000 km. Having brought her vehicle in for its first inspection, however, Ms. Martel was informed by the dealer that more frequent servicing was required by Quebec’s harsh climate. At her second inspection, she was informed that an oil change was required more frequently still. The Petitioner instituted a motion for the authorization of a class action on behalf of all purchasers of KIA vehicles who had been victims of false representations contained in the manufacturer’s manual.

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The SCC Monitor (18/06/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in Civil Procedure/Evidence, Class Actions, Health, The SCC Monitor
Sam Rogers

The Supreme Court of Canada has recently dismissed two leave applications and granted leave in one case that will be of interest to our readers. These cases touch on: case management and civil procedure in class actions (including when parent companies may be joined in an action); the standard of review and standing of administrative boards and tribunals; and interpretation of the federal Interest Act in regards to mortgage incentives and penalties. Continue Reading

Melting Pot or Mosaic? The Ongoing Culture Shift since Hryniak

Posted in Case Comments, Civil Procedure/Evidence, Procedural Rights, Procedure
Kelli McAllister

Over the past year, courts across Canada have responded to the Supreme Court of Canada’s clarion call in Hryniak v Mauldin (“Hryniak”) for a culture shift to promote access to justice including through summary judgment.[1] The latest word on this front has come from the Alberta Court of Appeal in two recent decisions which seemingly conflict on the threshold to be applied to summary judgment applications.[2] The inherent tension created by Hryniak in Alberta is that the summary judgment rule (Rule 7.3) reflects the 2006 views of the Supreme Court of Canada: that such applications should be used to weed out claims with no chance of success. Post-Hryniak, courts are to consider summary judgment as a legitimate alternative to trial which impliedly sets a lower bar or threshold. An interesting mélange of Ontario and Albertan law has become the order of the day in Alberta – a true cultural melting pot for summary judgment. Continue Reading

Pick Your Poison: the Court of Appeal Clarifies the Distinction between the Oppression Remedy and the Derivative Action

Posted in Corporate Law
Anu Koshal


On May 26, 2015, the Ontario Court of Appeal issued its decision in Rea et al v Wildeboer (“Wildeboer”). The decision clarifies the nature, purpose, and difference between two of the most widely-used shareholder remedies in Canadian corporate law: the oppression remedy and the derivative action. Continue Reading

The Supreme Court rules that the Charter permits courts to award damages against the Crown for wrongful non-disclosure absent proof of malice

Posted in Case Comments, Constitutional, Criminal
Renée Zatzman

Does s. 24(1) of the Canadian Charter of Rights and Freedoms authorize a court of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice?

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Jurisdiction in International Commercial Contracts: New Guidance from the B.C. Court of Appeal

Posted in Case Comments, Conflict of Laws, Contracts, Corporate Law, Transportation
Sam Rogers

We live in an increasingly interconnected world with trade liberalization and globalization continuing unabated. These changes present many opportunities for businesses but also raise new challenges for businesses operating across borders.

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What Lies Beneath: The Unexpected Reach of Litigation Privilege

Posted in Case Comments, Civil Procedure/Evidence
Kate Findlay

In an interesting decision clarifying the reach of litigation privilege, the British Columbia Court of Appeal in No Limits Sportswear Inc. v. 0912139 B.C. Ltd., 2015 BCCA 193, has recently held that litigation privilege extends to communications between formerly adverse parties who have settled their dispute and are cooperating against a remaining co-defendant, even where the pleadings have not yet been amended to reflect this new reality.

Background Continue Reading

The “Bright Line” Rule is dimmed by the Alberta Court of Appeal in Statesman

Posted in Case Comments, Construction and Real Estate, Corporate Law, Professions
Ryan MacIsaac

Joint retainers are common in modern legal practice. But what happens when a dispute is brewing between two parties represented by the same law firm? How is a lawyer to know when the “bright line” of conflict of interest has been crossed? And when the duty of loyalty to a client is breached, when is disqualification of the law firm an appropriate remedy? The Alberta Court of Appeal addressed these issues in Statesman Master Builders Inc v Bennett Jones LLP, 2015 ABCA 142 (“Statesman”). Continue Reading

The SCC Monitor (25/05/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Byron Shaw

On Thursday, May 28, 2015, the Supreme Court of Canada will release judgment on several leave applications currently before the Court, including the following.

Mangal v. William Osler Health Centre (36174)

Mangal is a medical malpractice case in which a woman died in hospital several hours after a caesarean section. The case raises the question of whether a trial judge may adopt new theories of factual causation not advanced by the parties.

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Has the Supreme Court of Canada done away with the concept of apparent bias?

Posted in Case Comments, Civil Procedure/Evidence
Keegan Boyd

In White Burgess Langille Inman v. Abbott and Haliburton Co., a must-read decision for anyone involved in litigation, the Supreme Court of Canada tackles some of the difficult questions associated with how to properly deal with the proposed evidence of potentially biased experts.

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The SCC Monitor (19/05/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in The SCC Monitor
Renée Zatzman

The Supreme Court of Canada has released a number of significant decisions since our last update that are of interest to Canadian businesses and professions, addressing the level of evidence required of a material change to support a securities class action in Quebec, damages for wrongful conviction, and requirements for expert evidence.

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