This matter was between Defendants to a tort claim where the Plaintiff was the landlord’s subrogated fire insurer. The Plaintiff discontinued the suit against the Appellant tenant, who was a tenant that had paid its share of fire insurance premiums; however, the Respondent had issued a Notice to Co-Defendants seeking contribution and indemnity from the Appellants. The Appellants brought a Motion to Summarily Dismiss the Notices to Co-Defendants, but the Chambers Judge dismissed the Application. This was an Appeal from the Decision of the Chambers Judge.

The Appellants argued that since the Plaintiff discontinued its claim against the Appellant tenant the Notices to Co-Defendants should be struck on the basis that the Appellants had no liability against the Plaintiff and could therefore not be liable for contribution to the Respondent. The majority of the Court allowed the Appeal “on authority which holds that when a defendant claims against a co-defendant that it is entitled to contribution or indemnity by reason of the Tort-Feasors Act, a precondition to recovery is that the co-defendant be liable to the plaintiff”.

O’Farrell J.A. concurred with the majority’s Decision to allow the Appeal and Summarily Dismiss the Notice of contribution and indemnity issued by the Respondent against both Appellants. However, O’Farrell J.A. reached the same Decision for different reasons. O’Farrell J.A. stated that litigants should not be denied their day in Court because they have chosen the wrong pleading. O’Farrell J.A. went on to clarify that Rule 3.43(1) states that a Defendant who claims contribution or indemnity, or both against a Co-Defendant under the Tort-Feasors Act or the Contributory Negligence Act shall file and serve the required notice using Form 15, but need not file any pleading in respect of that claim unless the Court otherwise orders. Further, the Defendant’s claim against a Co-Defendant must be determined at the Trial of the Plaintiff’s claim against the Defendant unless otherwise ordered.

O’Farrell J.A. contrasted the Rules and Forms relating to a Notice to Co-Defendant with those providing for the filing and service of a Third Party Notice. A Third Party Notice enforces duties which Third Parties owe to Defendants, not Plaintiffs. O’Farrell J.A. stated that Rule 3.44 permits claims against a Third Party or Co-Defendant “who… is or might be liable to the party filing the third party claim for all or part of the claim against that party” on the basis of a related occurrence or transaction. O’Farrell J.A. went on to state that the Rules of Court constitute substantive law as well as procedural rules and questioned the applicability of authorities which narrowly construe the Tort-Feasors Act and what it permits by way of claims to contribution. Despite this difference of opinion from the majority of the Court, O’Farrell J.A. concurred with the majority because the Respondent stood no chance of a successful claim for contribution from the Appellants.