CONDOMINIUM PLAN NO 7920829 v ACADEMY CONTRACTORS INC, 2017 ABQB 583

Master schlosser

3.43: How to make claim against co-defendant
3.45: Form of third party claim
5.17: People who may be questioned

Case Summary

One of the Defendants, Abalon Construction, sought to question a Co-Defendant who refused to be examined. Abalon Construction then sought to file a Third Party Notice against the Co-Defendant. Master Schlosser noted that the Statements of Defence had been filed almost two and a half years prior, and a Third Party Notice must be filed within six months of the Defence being filed pursuant to Rule 3.45(c)(i). Master Schlosser also noted that Rule 3.43(2) allows a defendant to file a Notice of Contribution against another defendant twenty days after a defence is filed. Master Schlosser observed that, in this case, the only prejudice that the proposed third party Defendant could point to was the expiration of the six month period set out in Rule 3.45(c)(i). Master Schlosser held that the Third Party Notice could be issued against the Co-Defendant.

Master Schlosser also reviewed the leading authority regarding parties adverse in interest, as well as the relevant sections in the Tort-Feasors Act, RSA 2000, c T-5 and the Contributory Negligence Act, RSA 2000, c C-27. Master Schlosser referred to Rule 5.17(1)(a), which provides that a party is entitled to question each of the other parties who are adverse in interest. Master Schlosser determined that the Co-Defendants were adverse in interest and therefore the Defendant seeking to question the Co-Defendant could do so. The Application was granted.

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