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Limitations

Weinbaum v. Weidberg 2017 Ont Div Ct

Homeowners commenced an action in 2010 against contractor for a mould problem discovered in 2008 relating to a project completed in 1994. The contractor issued a third party action against the architect in 2011 claiming contribution and indemnity. The architectural agreement between the homeowners and the architect contained a provision that any cause of action that the homeowners had against the architect expired in 2000. Did this mean that the contractor could not claim indemnity against the architect? The contractor relied on section 18 of the Limitations Act which states that the two-year limitation period for contribution and indemnity runs from the date that the party claiming indemnification (i.e. the contractor) is served with the statement of claim. The court acknowledged that this section that dealt with limitations, but relied upon the 1978 Supreme Court of Canada decision in Dominion Chain v. Eastern Construction, which stated, regardless of limitation laws, contracting parties could limit their scope of liability in the contract so that when a right of a plaintiff (i.e. the homeowners) is lost by way of a contract, similarly the defendant (i.e. the contractor) has no right to claim over against the other contracting party (i.e. the architect).

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.