Category: Contribution and Indemnity

Hengeveld v. The Personal Insurance Company, 2019 ONCA 497

The plaintiff sued an insurance company for spoliation of evidence (failing to preserve an automobile in which the plaintiff was injured). The insurance company alleged the plaintiffs’ own lawyers were negligent in failing to ensure the evidence was preserved. The lawyers brought a successful motion to strike the third party claim, and the decision was affirmed on appeal. The court held that since the lawyers were agents for the plaintiffs, any fault by the lawyers was really fault attributable to the plaintiffs. Therefore, the defendant insurer was entitled to claim contributory negligence against the plaintiffs, but the insurer was not allowed to claim contribution and indemnity against the lawyers.

Toronto Hydro v. Gonte and City of Toronto, 2018 ONSC 4315

In this action, two of the three Defendants/Third Parties had settled. The settlement did not involve the remaining party and there were no terms in the settlement to limit continuing litigation in the nature of a Pierringer agreement. Toronto Hydro settled with the Plaintiffs and continued its claims against Gonte and the City. Subsequently, Toronto Hydro settled its claims against the City for a dismissal of all claims between them without costs. The City sought a determination regarding what claims, and the scope of the claims, that Toronto Hydro and Gonte were permitted to continue in light of Toronto Hydro’s settlement with the City. Justice Copeland held that where the settling party has chosen to give up its claim for contribution and indemnity against the other settling party, it is not entitled to indirectly reassert that claim by seeking a bigger share of liability from the non-settling party on the basis that it now only has one party to seek contribution from. Justice Copeland also found that where there are both contract and tort claims, if the non-settling party is found liable only in contract, it cannot make a claim for contribution and indemnity against one of the settling parties under the Negligence Act because it is not a “tortfeasor” as required by the Act.

Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429

Section 18(1) of the Limitations Act, 2002, states that there is two years from the date of service of the pleading to make a claim for contribution and indemnity. In this case, the Ontario Court of Appeal held that discoverability applies to section 18(1) and that the Act did not create an absolute limitation period of two years for the commencement of contribution and indemnity claims.

Marjadsingh v. Toronto Transit Commission v. Kahlon, 2018 ONSC 1439

The issue in this case was whether the limitation period set out in section 18(1) of the Limitations Act, 2002, S.O. 2002, c.24 was subject to discoverability. If not, the Defendant was out of time to add a new third party. Master Jolley concluded that the limitation period was rebuttable and the Defendant was permitted to add a third party and seek contribution and indemnity. This was subject to the third party being permitted to argue at trial that the claim was discoverable within two years.