master schlosser

3.45: Form of third party claim

Case Summary

The Applicant (Defendant) applied to extend the time for filing and service of a Third Party Claim set out in Rule 3.45. Rule 3.45 requires a Third Party Claim to be filed and served on the Third Party Defendant within 6 months of the filing of the Defendant’s Statement of Defence or Demand for Notice. The deadline under Rule 3.45 had expired in March of 2016, and the Applicant filed, but did not serve, a Third Party Claim in July of 2017. The Statement of Claim was filed in January of 2011 and alleged the Applicant had installed a defective geothermal heating system. The proposed Third Party Defendants were the Applicant’s subcontractors on the project.

Master Schlosser noted that to extend the time for a Third Party Notice, the Court must consider: i) the length of the delay; ii) the explanation for the delay; and iii) the relative prejudice to the parties. Master Schlosser also noted that the Applicant must also demonstrate that the proposed Third Party Claim has “an air of reality” such that it is not “hopeless and […] doomed from [its] inception”.

Master Schlosser held that the Statement of Claim made it apparent that there were potential claims against the proposed Third Parties, such that the limitation period for the proposed Third Party Claim started to run on the date the Statement of Claim was served. Master Schlosser found that the proposed Third Party Defendants did not have sufficient notice of the proposed Third Party Claim within the period required by section 6(4) of the Limitations Act, RSA 2000 c L-12 to allow the Third Party Claims to be added notwithstanding the expiry of the limitation period. Master Schlosser held that the “limitations defence would almost certainly succeed” and that the “extension of the time for service of a hopeless claim is not to be permitted”. Master Schlosser noted in obiter that case law had indicated that the threshold that a Respondent had to meet was that it was “plain and obvious” that the claim would fail, however, suggested that following Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII), “it may be more appropriate to speak in terms of a meritorious limitations defence, proved on a balance of probabilities.”

The Application was dismissed.

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