Civil procedure

Defendant Responds to Pleadings

Counterclaims

Rule 3-7 (11) – p.10

• 
  D can assert any claim against the P by counter claim subject only to the power of the court to exclude the D’s claim where it cannot conveniently be dealt with in the P’s action
  
• 
  Separate independent claim
  
• 
  Can be any claim based on a different cause of action
  
• 
  Even if P’s claim is dismissed, discontinued or stayed - the counterclaim survives and can continue independently
  
• 
  If both go to trial there will be 2 judgments
  

Third Parties Claims / Contribution & Indemnity

Rule 3-5 – p.7 Third party proceeding is a form of a pleading by which a defendant asserts a claim against someone other than the plaintiff in the event the defendant is found liable to the plaintiff

Object of Third Party Claims

The purposes of third party proceedings include

1. 
   To avoid a multiplicity of actions about the same subject matter:
   

1. 
   Avoids inconsistent finding of fact; and 

   
2. 
   Limits total cost of litigation in terms of time and money 

   
1. 
   To Allow the third party to participate in the defence of the underlying matter (i.e. defend the plaintiffs original 
claim 

   
2. 
   To ensure that the defendant’s rights with respect to the third party are decided before the plaintiff can force 
the defendant to pay the full amount the judgment 

   

Grounds for Bringing a Third Party Claim

According to Rule 3 – 5 (1), a third party claim may be pursued in three different scenarios

1. 
   Where the party bringing the claim in entitled to contribution or indemnity from the proposed third party
   

1. 
   Contribution is when a portion is paid 

   
2. 
   Indemnity is when the defendant is suing a 3^rd party not for what is owed but because it is closely 
enough linked it would be easier that a running a new suit 

   
3. 
   The third party must be or have been liable to the plaintiff at the time the cause of action arose 

   

2. 
   Where the party bringing the claim is entitled to relief against the proposed third part which is connected to the underlying subject matter of the action; or 

   
3. 
   Where the question or issue between the party bringing the claim and the proposed third party is substantially the same as a question or issue which relates to the relief claimed in, or the subject matter to the action; and the question or issue should properly be determined in the action (i.e. in the opinion of the court). 

   

Who can bring a Third Party Claim?

Rule 3 -5 (1) says that party who is not a plaintiff can bring a third party claim against another person, regardless of whether the proposed third party is already a party to the action or not.

*Note

• 
  Parties provide their lists of documents 35 days after the pleading period 

  
• 
  Third party notice has to be brought within 42 days of being served 

  
• 
  Leave very little time to discover a third party 

  

Strata Plain LMS 1751 v. Scott Management Ltd (2010)

[Third Parties; Postponement of Limitation Period with contribution & indemnity in New Act]

FACTS

Scott Management was appealing orders that set aside third party notices issued by them against the respondents in a leaky condo case. They were stopped originally due to the lengthy time S took to add an additional 17 “respondents” to the suit.

The judge found the limitation period long since expired against multiple parties on multiple occasions. Scott claimed that since in law the cause of action for contribution does not accrue until the defendant tortfeasor has been found liable, no prejudice would occur.
ISSUE

When does the right to contribution and indemnity occur? How is it affected by limitation dates?

RULE

If P has a cause of action against both the D and the third party at the time of the tort action, an independent right of contribution is created between the D and third party (so long as it is not expired) that has nothing to do with the P’s inability or lack of desire to enjoin the third party to the claim.

New Act s.21(c) - The ultimate limitation period will commence on the day on which the claimant for contribution or indemnity is served with the paperwork for the original claim
ANALYSIS

This case was decided before the new amendments to the limitation act which essentially sets the enjoinder requirements for contribution and indemnity much earlier in the process. It now happens when one reasonably would know that they have the right to sue for contribution or indemnity. Here, that would have been years ago. Unfortunately, there was no legislation that prevented this as at the time the limitation act applying to indemnity started running once the defendant was found guilty, which had not yet happened. Also, the trial judge was overruled on the prejudice idea as while this was clearly a long time and prejudice was occurring, they could have pursued it regardless based on the laws at the time.

HOLDING

Third party proceedings against Sealed and Intertek reinstated.

[19] The terms “contribution” and “indemnity” both refer to a restitutionary remedy rooted in unjust enrichment that provides a right of contribution toward a P’s damages as b/w concurrent tortfeasors. A claim for indemnity seeks recovery of the entire amount that a tortfeasor has paid to the plaintiff. A claim for contribution seeks only a portion of that amt. For the sake of brevity, in these reasons I use the term “contribution” to refer to both.