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Limitations: ‘Discoverability’ in Relation to Claims for Contribution and Indemnity

Murphy v. Hart 2018 Ont SCJ

Section 18 of the Limitations Act provides that the limitation period, when one wrongdoer looks to another wrongdoer for contribution, runs from the date that the first wrongdoer was served with the statement of claim for which contribution is sought. The issue was whether that date is static or whether it can be extended based on discoverability principle in the same manner that a regular limitation start date can be extended. The judge held that discovery principles applied to section 18, but held, under the circumstances of this case, that the person claiming contribution ought to have made more effort to learn the identity of the ultimate wrongdoer and therefore ought to have discovered its claim earlier. The judge held that the claimant had a positive obligation to demonstrate, on a balance of probabilities, that the claimant acted reasonably in attempting to discover the elements of the claim, including the identity of the third party. The judge held that it was insufficient simply to say we did not know and we did not try.

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