NOVA SCOTIA COURT OF APPEAL  
Citation: Beasy Nicoll Engineering Limited v. GEM Health Care Group Limited,  
2022 NSCA 44  
Date: 20220530  
Docket: CA 507097  
Registry: Halifax  
Between:  
Beasy Nicoll Engineering Limited  
Appellant  
v.  
GEM Health Care Group Limited, the Town of Amherst,  
Mahon Architects Limited, Denis Mahon, Booth Engineering Limited,  
James Theakston, J.R. Maskell, John Doe No. 1 and John Doe No. 2  
Respondents  
The Honourable Justice David P. S. Farrar  
January 20, 2022, in Halifax, Nova Scotia  
Judge:  
Appeal Heard:  
Subject:  
Interpretation of Limitation of Actions Act, claims for  
contribution and indemnity after the limitation period has  
expired, amendments to pleadings to add third parties  
On June 22, 2015, GEM Health Care Group Limited suffered  
damages as a result of a flood at its seniors’ complex in  
Amherst, Nova Scotia. It commenced action against the Town  
of Amherst on June 30, 2016.  
Summary:  
On April 18, 2017, the Town of Amherst added the appellant,  
Beasy Nicoll Engineering Limited, as a third party to the  
action.  
On November 20, 2020, GEM filed a motion to add Beasy  
Nicoll as a defendant.  
Beasy Nicoll objected to the motion, arguing that the  
limitation period for commencing action against it had  
expired, precluding GEM as adding it as a party.  
On December 7, 2020, the motion was heard before Justice  
Heather Robertson. Robertson J. died prior to being able to  
render a decision. Justice Gerald R. P. Moir was assigned to  
review Robertson J.’s notes, the records and submissions of  
parties, and render a decision. By decision dated June 3, 2021,  
Moir J. allowed the motion and GEM was permitted to amend  
its action to add Beasy Nicoll as a party defendant. In doing  
so he relied on the Limitation of Actions Act, R.S.N.S. 1989, c.  
258, the former limitations Act. He found that the Limitation  
of Actions Act, S.N.S. 2014, c. 35, the new limitations Act, did  
not apply. Moir J. extended the limitation period pursuant to s.  
3 of the former Limitation of Actions Act to allow GEM to file  
the amended action.  
Beasy Nicoll appealed, and GEM filed a Notice of  
Contention.  
1.  
2.  
Should leave to appeal be granted?  
What is the limitation period applicable to GEM’s  
claim against Beasy Nicoll?  
If the limitation period has expired, does s. 22(a) of the  
new Limitation of Actions Act permit GEM to add a  
claim against Beasy Nicoll?  
Issues:  
Result:  
3.  
Leave to appeal granted; appeal allowed; and Notice of  
Contention dismissed.  
Justice Moir erred in finding that the former Limitation of  
Actions Act applied and then exercising his discretion to  
extend the limitation period under that Act. Both GEM and  
Beasy Nicoll submitted the new Limitation of Actions Act  
should have applied.  
Applying the provisions of the new Limitation of Actions Act,  
the limitation period against Beasy Nicoll expired, at the  
latest, in 2004. The question, therefore, became whether  
pursuant to s. 22(a) of the new Limitation of Actions Act  
Beasy Nicoll could be added as a defendant even though the  
limitation period had expired.  
GEM could not rely on s. 22(a) to add Beasy Nicoll as a party  
for two reasons:  
1)  
2)  
GEM and Beasy Nicoll are not parties to the same  
proceeding;  
Adding Beasy Nicoll as a party defendant would  
change the capacity in which it was sued.  
Both of these were pre-conditions to adding Beasy Nicoll  
under s. 22(a).  
Costs were awarded to Beasy Nicoll in the amount of $5,000,  
inclusive of disbursements.  
This information sheet does not form part of the court’s judgment. Quotes must be from the  
judgment, not this cover sheet. The full court judgment consists of 22 pages.  
NOVA SCOTIA COURT OF APPEAL  
Citation: Beasy Nicoll Engineering Limited v. GEM Health Care Group Limited,  
2022 NSCA 44  
Date: 20220530  
Docket: CA 507097  
Registry: Halifax  
Between:  
Beasy Nicoll Engineering Limited  
Appellant  
v.  
GEM Health Care Group Limited, the Town of Amherst,  
Mahon Architects Limited, Denis Mahon, Booth Engineering Limited,  
James Theakston, J.R. Maskell, John Doe No. 1 and John Doe No. 2  
Respondents  
Farrar, Bryson and Scanlan JJ.A.  
Judges:  
January 20, 2022, in Halifax, Nova Scotia  
Appeal Heard:  
Held:  
Appeal allowed with costs to the appellant, per reasons for  
judgment of Farrar J.A.; Bryson and Scanlan JJ.A. concurring  
James Boudreau and Selina Bath, for the appellant  
Andrew Sowerby, for the respondent GEM Health Care  
Group Limited  
Counsel:  
Ian Dunbar, for the respondent Town of Amherst (not  
participating)  
Denis Mahon, respondent in person (not participating)  
Maurice Chiasson, for the respondent Booth Engineering (not  
participating)  
John O’Neill, for the respondent James Theakston (not  
participating)  
J.R. Maskell, respondent in person (not participating)  
Reasons for judgment:  
[1] On June 20, 2016, by Notice of Action and Statement of Claim (the Action),  
the respondent, GEM Health Care Group Limited (GEM), sued the Town of  
Amherst for damages resulting from a flood on June 22, 2015 at a multi-unit  
seniors’ residential care facility which GEM owned and operated at 258 Church  
Street, Amherst (the Property).  
[2] GEM alleged that the Town of Amherst was negligent in the design,  
construction, operation, maintenance and repair of its storm water system which  
caused the flood.  
[3] Amherst defended the Action, and on April 18, 2017 commenced a third  
party proceeding against, among others, the appellant, Beasy Nicoll Engineering  
Limited (Beasy Nicoll). Amherst claimed that Beasy Nicoll was negligent in  
providing engineering services for the construction of the Property and, in  
particular, in the design of a culvert placed adjacent to the Property to divert storm  
water.  
[4] On December 29, 2019, a representative of Beasy Nicoll was examined and  
confirmed that it was Beasy Nicoll’s decision that the culvert adjacent to the  
Property should be 24 inches in diameter.  
[5] There is no dispute Beasy Nicoll’s involvement in the design and  
construction of the culvert was completed, at the latest, by 1989. The flood  
occurred more than 25 years later.  
[6] On December 7, 2020, Justice M. Heather Robertson heard a motion by  
GEM to amend the Action to add Beasy Nicoll as a defendant and to particularize  
its claim against it. On February 11, 2021, Justice Robertson died before she could  
issue a decision. On March 2, 2021, Chief Justice Deborah K. Smith appointed  
Justice Gerald R. P. Moir to review the written submissions, recording, and Justice  
Robertson’s notes and render a decision.1  
[7] Beasy Nicoll opposed GEM’s motion on the basis that it was outside the  
limitation period provided in the Limitation of Actions Act, S.N.S. 2014, c. 35 (the  
new Limitation of Actions Act).  
1 In this unusual situation, the first 34 paragraphs of the decision were written by Justice Robertson, paragraphs  
35-61, which contain the ultimate finding, were written by Justice Moir. As a result, I will refer to their reasons  
separately.  
Page 2  
[8] By decision dated June 3, 202l, Justice Moir found that the new Limitation  
of Actions Act did not apply and that the Limitation of Actions Act, R.S.N.S. 1989,  
c. 258 (the former Limitation of Actions Act) governed the motion.  
[9] Justice Moir then found he would exercise the court’s discretion under the  
former Limitation of Actions Act to allow the amendments, even if the motion to  
amend was made after the expiry of the limitation period. Justice Moir made no  
determination of when the limitation period expired.  
[10] In the end, he allowed GEM’s motion to add Beasy Nicoll as a defendant  
and to particularize the claim against it.  
[11] Beasy Nicoll seeks leave to appeal, and if granted, appeals the decision of  
Justice Moir.  
[12] GEM has filed a Notice of Contention seeking to uphold the decision, albeit  
for different reasons.  
[13] For the reasons that follow I would grant leave to appeal, allow the appeal,  
and dismiss the Notice of Contention with costs to Beasy Nicoll in the amount of  
$5,000 inclusive of disbursements.  
Issues  
[14] The issues arising from the Notice of Appeal and Notice of Contention have  
evolved as a result of the submissions of the parties. I would summarize them as  
follows:  
1.  
Should leave to appeal be granted? (Notice of Appeal)  
It is not necessary to discuss this issue in any detail. GEM concedes leave  
should be granted; for reasons that will become apparent, I agree.  
2.  
3.  
What is the limitation period applicable to GEM’s claim against  
Beasy Nicoll? (Notice of Appeal)  
If the limitation period has expired, does s. 22(a) of the new  
Limitation of Actions Act permit GEM to add a claim against Beasy  
Nicoll? (Notice of Contention)  
Page 3  
Standard of Review  
[15] Both parties submit, for different reasons, Justice Moir erred in law in  
applying the former Limitation of Actions Act. I agree. As a result of his failure to  
apply the new Limitation of Actions Act, Justice Moir did not address issues 2 and  
3 above. As a result, I will be addressing those issues in the first instance and no  
standard of review applies.  
Analysis  
Issue 2: What is the limitation period applicable to GEM’s claim against  
Beasy Nicoll?  
[16] Justice Robertson correctly identified the first issue to be determined on the  
motion to add Beasy Nicoll as a party was the applicable limitation period. At the  
outset of her reasons, she cites Rule 35.08 which provides that a judge may not join  
a party to a proceeding if the limitation period has expired on the claim to be  
advanced against that party:  
35.08 Judge joining party  
(1)  
A judge may join a person as a party in a proceeding at any stage  
of the proceeding.  
[…]  
Despite Rule 35.08(1), a judge may not join a party if a limitation  
(5)  
period, or an extended limitation period, has expired on the claim that  
would be advanced by or against the party, the expiry precludes the claim,  
and the person protected by the limitation period is entitled to enforce it.  
[Emphasis added]  
[17] Rule 35.08 must be read in conjunction with Rule 83.04 which provides:  
83.04 Amendment to add or remove party  
(1)  
A notice that starts a proceeding, or a third party notice, may be  
amended to add a party, except in the circumstances described in  
Rule 83.04(2).  
(2)  
A judge must set aside an amendment, or part of an amendment,  
that makes a claim against a new party and to which all of the  
following apply:  
Page 4  
(a)  
a legislated limitation period, or extended limitation period,  
applicable to the claim has expired;  
(b)  
(c)  
the expiry precludes the claim;  
the person protected by the limitation period is entitled to  
enforce it. (Emphasis added)  
[…]  
83.11 Amendment by judge  
(2) An amendment cannot be made that has the effect of joining a  
person as a party who cannot be joined under Rule 35 - Parties,  
including Rule 35.08(5) about the expiry of a limitation period.  
[18] In Automattic Inc. v. Trout Point Lodge Ltd., 2017 NSCA 52, this Court  
made it clear that a party cannot be added to a proceeding when a limitation period  
has expired. Motion judges must, therefore, first determine the applicable  
limitation period. There is no residual discretion for a motion judge to add  
defendants without making that inquiry (Automattic, ¶38-42).  
[19] I therefore begin by determining the applicable limitation period for GEM’s  
claim against Beasy Nicoll.  
[20] The new Limitation of Actions Act came into force on September 1, 2015.  
Section 23 provides:  
Transitional  
23  
(1)  
In this Section,  
(a) “effective date” means the day on which this Act comes into  
force;  
(b) “former limitation period” means, in respect of a claim, the  
limitation period that applied to the claim before the effective date.  
(2) Subsection (3) applies to claims that are based on acts or omissions  
that took place before the effective date, other than claims referred to in Section  
11, and in respect of which no proceeding has been commenced before the  
effective date.  
(3)  
Where a claim was discovered before the effective date, the claim  
may not be brought after the earlier of  
(a) two years from the effective date; and  
(b) the day on which the former limitation period expired or would  
have expired.  
Page 5  
[21] No action was started against Beasy Nicoll before the coming into force of  
the new Limitation of Actions Act on September 1, 2015.  
[22] The latest date that Beasy Nicoll could have provided engineering services  
in the design of the culvert is 1989.  
[23] Before Justice Robertson, and on appeal, GEM argued that the limitation  
period for commencing an action against Beasy Nicoll started to run on December  
29, 2019, the date of the admission by Beasy Nicoll’s representative at discovery.2  
[24] It is apparent from its pre-hearing memorandum that GEM found itself in a  
difficult predicament. If it argued the claim was discovered on June 22, 2015, the  
date of the flood, before the effective date of the new Limitation of Actions Act, the  
transitional provisions in s. 23 would have the limitation period expire on  
September 1, 2017. GEM had not commenced its action against Beasy Nicoll by  
that date. GEM argued the transitional provision did not apply. It had to take the  
position the claim was discovered at a later date to avoid the operation of s. 23(3).  
[25] In its pre-hearing memorandum, GEM relied on ss. 8(1)(a) and 8(2) of the  
new Limitation of Actions Act as providing a two-year limitation period from the  
date of Beasy Nicoll’s admission:  
36.  
Gem’s claim against Beasy Nicoll was not discovered until after the  
effective date of the LAA. Accordingly, the transitional limitation date of  
September 1, 2017 does not apply.  
37.  
The LAA sets out the relevant timelines for when a party must bring a  
claim. Section 8(1)(a) of the Act provides a two-year limitation period  
from “the day on which the claim is discovered.” The criteria that  
determine when a claim is discovered are set out in section 8(2)  
8(2) A claim is discovered on the day on which the claimant first  
knew or ought reasonably to have known  
(a) that the injury, loss or damage had occurred;  
(b) that the injury, loss or damage was caused by or  
contributed to by an act or omission;  
(c) that the act or omission was that of the defendant; and  
(d) that the injury, loss or damage is sufficiently serious to  
warrant a proceeding. (emphasis added by GEM)  
2 I will refer to GEM’s argument in its pre-hearing brief filed below. In its appeal factum, it simply adopted and  
relied on the arguments made below without elaboration (Appellant Factum, ¶38-41).  
Page 6  
Section 8(2)(c) requires that not only must the claimant know (or ought  
reasonably to have known) that the damages occurred and were caused by  
an act or omission, but the claim is not discovered until the claimant  
knows (or ought reasonably to have known) the identity of the party that  
committed the act or omission that caused the loss. Before a claim is  
discovered, it is necessary that the claimant know who committed the act  
or omission.  
38.  
At the time it filed its Notice of Action against Amherst, Gem did not  
know and had no basis on which to believe that Beasy Nicoll designed,  
determined or specified the size, location, and diameter of the culvert  
adjacent to Centennial Villa. This fact was not discovered until Mr. Nicoll  
admitted as much in his December 2019 discovery. Up to this point, it was  
Gem’s understanding that it was Amherst’s engineer who dictated what  
size culverts were to be used, consistent with Amherst’s culvert policy.  
This understanding was consistent with Amherst’s witnesses’ discovery  
evidence.  
39.  
Accordingly, under section 8(2)(c) of the LAA, Gem’s claim against Beasy  
Nicoll was not discovered until Mr. Nicolls’ admission at discovery on  
December 29, 2019. The limitation period for amending its Notice of  
Action to name Beasy Nicoll as a Defendant does not expire until  
December 29, 2021.  
[26] GEM’s argument focused on s. 8(2) of the new Limitation of Actions Act and  
seemingly ignored s. 8(1). I will set out s. 8 of the new Limitation of Actions Act in  
its entirety:  
General rules  
8
(1)  
Unless otherwise provided in this Act, a claim may not be  
brought after the earlier of  
(a)  
two years from the day on which the claim is  
discovered; and  
(b)  
fifteen years from the day on which the act or  
omission on which the claim is based occurred.  
(2)  
A claim is discovered on the day on which the claimant  
first knew or ought reasonably to have known  
(a)  
(b)  
that the injury, loss or damage had occurred;  
that the injury, loss or damage was caused by or  
contributed to by an act or omission;  
(c) that the act or omission was that of the defendant;  
and  
Page 7  
(d)  
that the injury, loss or damage is sufficiently serious  
to warrant a proceeding.  
(3)  
For the purpose of clause (1)(b), the day an act or omission  
on which a claim is based occurred is  
(a)  
in the case of a continuous act or omission, the day  
on which the act or omission ceases; and  
(b)  
in the case of a series of acts or omissions  
concerning the same obligation, the day on which the last act or omission  
in the series occurs.  
[Emphasis added]  
[27] For the purposes of s. 8, the legislation defines “claim”, “claimant” and  
“defendant” as follows:  
Interpretation  
2
(1)  
In this Act,  
(a) “claim” means a claim to remedy the injury, loss or  
damage that occurred as a result of an act or omission;  
(b) “claimant” means a person who has a claim, regardless  
of whether the claim has been brought;  
(c) “defendant” means a person against whom a claimant  
has a claim, regardless of whether the claim has been brought.  
[28] When determining the applicable limitation period, Beasy Nicoll is a  
defendant and GEM is a claimant.  
[29] GEM’s argument that the “claim” was only discovered on December 29,  
2019 does not assist it in avoiding the limitation periods in s. 8(1). The plain  
wording in s. 8(1) makes clear that a claim cannot be brought after the expiration  
of the earlier of (a) two years from the day on which the claim is discovered; and  
(b) 15 years from the day on which the act or omission on which the claim is based  
occurred.  
[30] The effect of s. 8(1) was not lost on Justice Robertson. She found after  
reviewing and hearing the arguments of the parties there were two possible  
limitation periods:  
[30] There are two possible limitation periods; two years from the date the  
claim was discovered or 15 years from the day on which the act or omission on  
which the claim is based occurred.  
Page 8  
[31] Beasy Nicoll’s work relating to this culvert was completed with its design  
in 1987 and certainly by 1989, when its designed culvert was installed and  
constructed. Fifteen years from that date would be no later than 2004.  
[32] Logically “the earlier of” the two dates means when the first of the two  
limitations expires, whichever happens first or earliest the claim expires and with  
it the claimant’s opportunity to pursue the claim.  
[33] The flood occurred in 2015, more than 25 years after Beasy Nicoll’s  
involvement in the design and construction of the culvert at Centennial Villa.  
[34] [2004] is well before the claim was “discovered” and is the earlier of the  
two dates.  
[31] Paragraph 34 is the final paragraph written by Justice Robertson. It is  
apparent she was of the view that the limitation period expired in 2004, being the  
earlier of the two dates.  
[32] The provisions of the new Limitation of Actions Act are not difficult to  
follow. Simply put, the limitation period against Beasy Nicoll expired on the  
earlier of two years following discoverability of the claim against it or 15 years  
from the date of the act or omission complained of. As Justice Robertson found,  
and I agree, the latest the limitation period could have expired was 2004.  
[33] Justice Moir recognized that Justice Robertson was suggesting a different  
conclusion than what he was going to decide:  
[45] […] Justice Robertson suggested a different conclusion when she wrote  
para. 30 above: the limitations in the new statute apply in the absence of a  
transitional provision to the contrary.  
[34] Justice Moir did not determine the applicable limitation period and whether  
it had expired. Instead, he relied on the discretion given to courts in s. 3(2) of the  
old Limitation of Actions Act to extend the limitation period. He concluded:  
[46] Subsection 3(2) of the old limitations [statute] gave the court a discretion  
to permit an action to proceed even if it was started after expiry of a limitation  
period. The judge must have “regard to the degree to which”  
(a)  
the time limitation prejudices the plaintiff or any person whom he  
represents; and  
(b)  
any decision of the court under this Section would prejudice the  
defendant or any person whom he represents, or any other person.  
[…]  
Page 9  
[49] Gem Health Care established the threshold in s.3(2)(a) and (b). Without  
my exercise of the discretion, Gem would lose a right to claim against Beasy  
Nicoll on the very same basis as the parties will go to trial on the municipality’s  
third party claim. Factors in s.3(4) (a), (c), and (f) are applicable. They support  
joining Beasy Nicoll. As regards (a), Beasy Nicoll’s involvement was brought to  
Gem’s knowledge in 2017 and earlier knowledge is not proved. As regards (c),  
the length of time between the construction and the flood makes evidence “likely  
to be less cogent”. However, that evidence is going to be advanced in any event  
under the third party claim, and the trial judge will have to assess its cogency. As  
regards (f), Gem acted promptly once Beasy Nicoll’s involvement became clear.  
[35] To understand Justice Moir’s reasoning, I will set out the applicable  
provisions of the old Limitation of Actions Act:  
Disallowance or invocation of time limitation  
3(2) Where an action is commenced without regard to a time limitation, and an  
order has not been made pursuant to subsection (3), the court in which it is  
brought, upon application, may disallow a defence based on the time limitation  
and allow the action to proceed if it appears to the court to be equitable having  
regard to the degree to which  
(a)  
the time limitation prejudices the plaintiff or any person whom he  
represents; and  
(b)  
any decision of the court under this Section would prejudice the  
defendant or any person whom he represents, or any other person.  
(3)  
Where a time limitation has expired, a party who wishes to invoke the  
time limitation, on giving at least thirty days notice to any person who may have a  
cause of action, may apply to the court for an order terminating the right of the  
person to whom such notice was given from commencing the action and the court  
may issue such order or may authorize the commencement of an action only if it  
is commenced on or before a day determined by the court.  
(4)  
In making a determination pursuant to subsection (2), the court shall have  
regard to all the circumstances of the case and in particular to  
(a)  
the length of and the reasons for the delay on the part of the  
plaintiff;  
[…]  
(c)  
the extent to which, having regard to the delay, the evidence  
adduced or likely to be adduced by the plaintiff or the defendant is  
or is likely to be less cogent than if the action had been brought or  
notice had been given within the time limitation;  
Page 10  
[…]  
(f)  
the extent to which the plaintiff acted promptly and reasonably  
once he knew whether or not the act or omission of the defendant,  
to which the injury was attributable, might be capable at that time  
of giving rise to an action for damages;  
(6)  
A court shall not exercise the jurisdiction conferred by this Section where  
the action is commenced or notice given more than four years after the time  
limitation therefor expired.  
[36] There are a number of problems with Justice Moir’s reliance on the  
discretion provided to courts in the former Limitation of Actions Act including:  
1.  
2.  
3.  
4.  
No action was started without regard to a time limitation as required  
by s. 3(2).  
There was no motion by Beasy Nicoll before Justice Moir to terminate  
the right of GEM to commence an action as required by s. 3(3).  
Neither party sought a remedy under the former Limitation of Actions  
Act, nor was it argued before Justice Robertson.  
Justice Moir did not determine when the limitation period expired but  
somehow formed the view that it could be extended.  
[37] There was no basis for Justice Moir to apply s. 3(2) to the facts of this case.  
His decision to extend the limitation period pursuant to the former Limitation of  
Actions Act is wrong in law. GEM, appropriately, acknowledged this.  
[38] For these reasons, I would allow this ground of appeal and find that the  
limitation period for GEM to claim against Beasy Nicoll expired, at the latest, in  
2004.  
[39] I would point out, on appeal, GEM shifted its focus from the discoverability  
argument it made on the motion and emphasized its alternative argument made  
before Justice Robertson, relying on s. 22 of the new Limitation of Actions Act.  
[40] I will now turn to that issue.  
Issue 3: If the limitation period has expired, does s. 22(a) of the new Limitation  
of Actions Act permit GEM to add a claim against Beasy Nicoll?  
Page 11  
[41] GEM argues that even if the limitation period has expired, Beasy Nicoll may  
be added as a party defendant under s. 22(a) of the new Limitation of Actions Act.  
Section 22 provides:  
Claims added to proceedings  
Notwithstanding the expiry of the relevant limitation period established by  
this Act, a claim may be added, through a new or amended pleading, to a  
proceeding previously commenced if the added claim is related to the conduct,  
transaction or events described in the original pleadings and if the added claim  
(a)  
is made by a party to the proceeding against another party to the  
proceeding and does not change the capacity in which either party sues or is sued;  
(b) adds or substitutes a defendant or changes the capacity in which a  
defendant is sued, but the defendant has received, before or within the limitation  
period applicable to the added claim plus the time provided by law for the service  
of process, sufficient knowledge of the added claim that the defendant will not be  
prejudiced in defending against the added claim on the merits; or  
(c)  
adds or substitutes a claimant or changes the capacity in which a  
claimant sues, but the defendant has received, before or within the limitation  
period applicable to the added claim plus the time provided by law for the service  
of process, sufficient knowledge of the added claim that the defendant will not be  
prejudiced in defending against the added claim on the merits, and the addition of  
the claim is necessary or desirable to ensure the effective determination or  
enforcement of the claims asserted or intended to be asserted in the original  
pleadings. [Emphasis added]  
[42] This issue was addressed by the parties in their submissions before Justice  
Robertson but not explored by Justice Moir given his finding that the former  
Limitation of Actions Act applied.  
[43] GEM argues that the requirements of s. 22(a) are met because the claim  
against Beasy Nicoll relates to the same series of events described in the original  
pleadings and the amendment would not change the capacity in which it is sued.  
There is a third requirement as set out in s. 22(a) that both the plaintiff and the  
proposed defendant must be parties to the same proceeding.  
[44] GEM’s argument fails for two reasons:  
1.  
2.  
GEM and Beasy Nicoll are not parties to the same proceeding;  
Adding Beasy Nicoll as a party defendant would change the capacity  
in which it is sued.  
Page 12  
[45] I will address each of these in turn.  
GEM and Beasy Nicoll are not Parties to the Same Proceeding  
[46] Beasy Nicoll is a third party. Third party proceedings are separate  
proceedings which have a distinct identity even though they proceed alongside the  
main action.  
[47] A main action and a third party claim have different procedural steps. Rule  
4.11 of the Nova Scotia Civil Procedure Rules sets out the distinct procedural  
requirements of a third party claim. For example, a new notice of claim is issued  
and given by the defendant to the third party. Rule 5.12 permits a respondent in an  
application to start an “independent proceeding” against a third party. Moreover, a  
third party action may proceed even after the main action has been discontinued  
under Rule 9.02(5).  
[48] A third party who wishes to defend the main action must file two statements  
of defence:  
1.  
2.  
In answer to the third party claim; and  
In answer to the claim in the main action (Rule 4.12(3)(a) and (b)).  
[49] In Scaffidi-Argentina v. Tega Homes Developments Inc., 2018 ONSC 4274,  
the Ontario Superior Court explained the procedural differences between a main  
action and a third party action while recognizing the connection between them:  
[27] Strictly speaking a third party action is treated as a separate action. It must  
be issued in the same manner as a statement of claim. It is given a separate file  
number (the main action number with a letter suffix) and it must be separately set  
down for trial. It is presumptively to be tried at or immediately after the trial of  
the main action but the court may order a separate trial. It is intrinsically linked to  
the main action, however, because the third party will be bound by the findings  
made in the main action. Importantly, the third party has the right to defend the  
main action and to raise any defence that would be open to the original defendant.  
[50] The case authorities also demonstrate that third party claims constitute  
separate proceedings.  
[51] In MacKenzie v. Vance (1977), 19 N.S.R. (2d) 381 (SC AD), this Court was  
considering the claim for contribution and indemnity under the Tortfeasors Act,  
R.S.N.S. 1967, c. 307. In that case, the defendant doctor sought to add as third  
parties the Colchester County Hospital and an employee of the hospital claiming  
Page 13  
contribution and indemnity for any damages the doctor may have been found liable  
to the plaintiff.  
[52] The proposed third parties argued that the limitation period against them had  
expired, and, therefore, they could not be added as third parties. This Court  
concluded that claims for contribution and indemnity are sui generis (of its own  
kind or class; unique or particular (Black’s Law Dictionary (10th ed.)). In reaching  
this conclusion, Macdonald J.A. expressly adopted Cassels J.’s explanation of the  
nature of third party claims for contribution and indemnity in Hordern-Richmond  
Ltd. v. Duncan, [1947] K.B. 545, which found that third party proceedings are  
separate actions, independent of the main proceeding:  
[24] […] That defendant is entitled by what is known as third-party procedure,  
upon leave being granted to him by the court, to bring in somebody else,  
not as a second defendant, but as a third party, in order that if he, the  
defendant, should turn out to be liable to the plaintiff he may pass on all or  
some of that liability to the third party by claiming from that third party an  
indemnity or contribution […]  
One has to bear in mind that third-party proceedings are proceedings in the  
nature of a separate action brought by a defendant against a third party, in  
which the cause of action is by no means necessarily the same as the cause  
of action which brings the plaintiff and the defendant before the court. The  
cause of action which brings a plaintiff and a defendant before the court in  
such a case as may arise out of this accident is negligence. The cause of  
action which entitles a defendant to bring a third party before the court is  
the liability of the third party to make contribution or to pay an indemnity  
[…]  
The proceedings by the defendant against the third party are independent  
of and separate from the proceedings by the plaintiff against the defendant,  
except that, when the defendant is made liable to the plaintiff, he then has  
his right open against the third party to establish, if he can, that he  
possesses a right to indemnity and contribution from that third party.  
[Emphasis added]  
[53] It appears that s. 15 of the new Limitation of Actions Act was enacted to  
address the situation which arose in MacKenzie v. Vance. It creates a separate and  
distinct limitation period for claims of contribution and indemnity:  
Contribution and indemnity  
15  
In the case of a claim by one alleged wrongdoer against another for  
contribution and indemnity, the day on which the first alleged wrongdoer is  
served with the claim in respect of which contribution and indemnity is sought, or  
Page 14  
incurs a liability through the settlement of the claim, is, for the purpose of clause  
8(1)(b), the day on which the act or omission on which the claim for contribution  
and indemnity is based occurs.  
[54] I will have more to say about s. 15 later in these reasons.  
[55] This Court again stressed the independent nature of third party proceedings  
in Burry et al. v. Centennial Properties Ltd. (1979), 38 N.S.R. (2d) 450, where  
Hart J.A. held:  
[16] In my opinion, however, this contention cannot succeed. Third party  
procedures were developed in this province, as well as the other provinces of  
Canada and in England, for the purpose of determining at one hearing issues  
which were common to a determination of matters between a plaintiff and a  
defendant, as well as between the defendant and some other person. Although the  
issues were common and it was convenient to try them at the same time, it was  
never intended that any right of recovery would pass directly from the plaintiff to  
the third party, but only that the rights of the plaintiff qua the defendant, and the  
defendant qua the third party would be determined at the same time. That this is  
so is firmly established by the authorities referred to by MacDonald, J.A., in  
Vance v. MacKenzie (1977), 19 N.S.R.(2d) 381; 24 A.P.R. 381. Should a plaintiff  
wish to recover directly against a person other than the defendant that person  
should be joined as a party defendant. The plaintiff would then be free to establish  
whatever right it has to claim against that other person. [Emphasis added]  
[56] The Supreme Court of Canada reached a similar conclusion in R. v. Thomas  
Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695, finding that third  
party proceedings are separate proceedings. In that case, the plaintiff filed a claim  
against the federal government for breach of contract and negligence in respect of  
blasting operations undertaken by a contractor. The federal Crown brought a third  
party claim against the contractor. The courts below struck the third party notice on  
the basis that no federal law had been invoked to support the courts’ jurisdiction  
over the claim. In deciding that federal law did not apply to the issues raised in the  
third party notice, the Court affirmed the ruling of the Federal Court of Appeal that  
an action and a third party proceeding are distinct. The Federal Court of Appeal  
held:  
In my view, for purposes of section 101 [of the Constitution Act, 1867], an action  
and a third party proceeding are two separate proceedings; and, for the Federal  
Court to have jurisdiction in either proceeding, that proceeding must be to enforce  
a right conferred by a “federal law”.  
Page 15  
R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1979] 1 F.C. 877, at p.  
879  
[57] At p. 709, the Court referred to its earlier decision in The Bank of Montreal  
v. The Royal Bank of Canada, [1933] S.C.R. 311, to support this conclusion:  
[…] In The Bank of Montreal v. The Royal Bank of Canada, the Crown was  
claiming from the Bank of Montreal in the Exchequer Court the reimbursement of  
cheques drawn on it and paid on forged endorsements. By third party notice, the  
Bank was claiming indemnity from the Royal Bank of Canada as a prior endorser.  
Duff C.J. said, giving the unanimous judgment of the Court (at pp. 315-316):  
… The Supreme Court of Ontario has jurisdiction, by virtue of the statutes  
and rules by which it is governed, to entertain and dispose of claims in  
what are known as third party proceedings. Claims for indemnity, for  
example, from a third party, by a defendant in respect of the claim in the  
principal action against him, can be preferred and dealt with in the  
principal action. But there can be no doubt that the proceedings against the  
third party is a substantive proceeding and not a mere incident of the  
principal action.  
[58] Although GEM’s claim against Beasy Nicoll is related to its action against  
the Town of Amherst, it is a third party claim and, therefore, a separate proceeding  
from the main action, both substantively and procedurally. Accordingly, GEM  
cannot rely on s. 22(a) of the Limitation of Actions Act to add Beasy Nicoll as a  
party defendant, because Beasy Nicoll is not a party to the original proceeding  
between GEM and Amherst.  
Adding Beasy Nicoll as a Defendant Would Change the Capacity in Which it  
is Sued  
[59] This issue is closely related to consideration of whether a third party is a  
party to the original proceeding. As I have found above, Beasy Nicoll is not a party  
to that proceeding. In my view, it follows if GEM were permitted to amend its  
Notice of Action to add Beasy Nicoll as a party defendant Beasy Nicoll would be  
sued in a different capacity, i.e., as a defendant, not a third party.  
[60] In the oft-cited passage from Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R.  
27, the Supreme Court confirmed a court’s role in statutory interpretation was to  
read the Act in its entire context and in its grammatical and ordinary sense  
harmoniously with the scheme of the Act, the object of the Act, and the intention  
of the legislature:  
Page 16  
[21] Although much has been written about the interpretation of legislation  
(see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger  
on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of  
Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd  
ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best  
encapsulates the approach upon which I prefer to rely. He recognizes that  
statutory interpretation cannot be founded on the wording of the legislation alone.  
At p. 87 he states:  
Today there is only one principle or approach, namely, the words of an  
Act are to be read in their entire context and in their grammatical and ordinary  
sense harmoniously with the scheme of the Act, the object of the Act, and the  
intention of Parliament.  
Recent cases which have cited the above passage with approval include: R. v.  
Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric  
Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R.  
550; Friesen v. Canada, [1995] 3 S.C.R. 103.  
[61] As I will explain, to accept GEM’s argument would defeat the object of the  
Act and the intention of the legislature. As noted earlier, claims for contribution  
and indemnity have a separate limitation period in the new Limitation of Actions  
Act:  
Contribution and indemnity  
15  
In the case of a claim by one alleged wrongdoer against another for  
contribution and indemnity, the day on which the first alleged wrongdoer is  
served with the claim in respect of which contribution and indemnity is sought, or  
incurs a liability through the settlement of the claim, is, for the purpose of clause  
8(1)(b), the day on which the act or omission on which the claim for contribution  
and indemnity is based occurs.  
[62] Applying s. 15 to the facts of this case, the first alleged wrongdoer is  
Amherst. The other alleged wrongdoer is Beasy Nicoll. The limitation period for  
any claim Amherst had against any other party for contribution and indemnity  
began to run on the day it was served with the claim by GEM.  
[63] Section 15 appears to have been drafted to address the issue that arose in  
MacKenzie v. Vance, where a defendant’s claim for contribution and indemnity  
may be barred before it accrues. I, again, refer to that case, at p. 395:  
In my opinion, to hold that the proposed third parties can rely on the one-year  
limitation period would lead to the absurd result that the cause of action given by  
the Tortfeasors Act to the appellant would be barred before it accrued, not by  
Page 17  
anything done by the appellant Dr. MacKenzie but by the whim of the plaintiff in  
the conduct of his proceedings.  
[64] To illustrate by way of example, a plaintiff in a motor vehicle accident waits  
until the last day of the two-year limitation period to commence action against a  
defendant and does not serve the Notice of Action for a number of months. The  
defendant in that action wants to allege that someone else is at fault for the  
collision. If the two-year limitation period were to apply, the defendant’s action  
against the third party would have been statute barred before it accrued through no  
fault of the defendant.  
[65] As a result, the legislature enacted s. 15 for the purpose of allowing claims  
for contribution and indemnity to proceed. Section 15 does not open the door for  
the plaintiff to sue third parties directly when the limitation period against them has  
expired. Section 15 is consistent with third party proceedings being separate  
proceedings and being limited to contribution and indemnity for damages the  
defendant might otherwise have to pay to the plaintiff.  
[66] To allow the conversion of third parties to party defendants would  
effectively make the limitation period in s. 15 the limitation period for all  
defendants. If GEM were permitted to add Beasy Nicoll as a defendant under s.  
22(a), it would be able to proceed directly against Beasy Nicoll, something it could  
not have done in the main action. This outcome is inconsistent with the three  
purposes of limitation statutes as articulated by the Supreme Court of Canada in  
M.(K.) v. M.(H.), [1992] 3 S.C.R. 6: providing potential defendants with certainty,  
ensuring claims have an adequate evidentiary foundation, and requiring plaintiffs  
to exercise due diligence in bringing a claim (pp. 28-31).  
[67] These purposes were highlighted in the comments of the Honourable Lena  
Diab when she spoke to the proposed bill. Justice Robertson set out and  
highlighted those comments in her reasons:  
[27] […]  
HON. LENA DIAB: Madam Speaker, I move that Bill No. 64,  
Limitation of Actions Act be now read a second time. It is my pleasure to  
rise this afternoon and give the honourable members of this House as well  
as the general public a few of the reasons why this Act needs to be  
amended at this time. The current legislation is not only archaic, it is  
outdated and it is confusing. It hasn’t been amended probably since its  
inception, so we are talking over 100-plus years ago.  
Page 18  
It sets out various time limits to bring actions forward, depending  
on the basis of the claim. I am not going to bore everybody in the House  
with various time limits that are set out for each and every claim, but there  
are a number of them, depending on which action a person wishes to  
launch.  
The current legislation is creating uncertainty and confusion on  
both sides and can lead to complex and costly litigation. This is true for  
lawyers. It’s true for self-represented litigants, so these are people who are  
representing themselves in court, and for companies that are operating in  
multiple jurisdictions where the legislation may be different across various  
provinces in Canada.  
Madam Speaker, the new bill proposes standard limitation periods  
for all claims. Specifically, it establishes a two-year, basic limitation  
period for most civil claims, such as those that involve personal injury,  
breach of contract, et cetera. What that means is you have got two years to  
start an action from the date a person discovers that they have a legal  
action. It also creates an ultimate limitation period of 15 years for  
legal claims which may not be discovered right away. What that  
means is, 15 years from the day on which the act or the omission,  
which the act is based upon, has occurred. That is the ultimate  
limitation period. [Original emphasis]  
This is in line with what is happening in many other jurisdictions.  
It’s also in line with the model put forward by a national law reform body  
called The Uniform Law Conference of Canada, that proposes a more  
modern model for all jurisdictions. New Brunswick, Ontario, Manitoba,  
Saskatchewan, Alberta and British Columbia have already adopted  
modern limitation legislation. We want to develop a consistent approach  
to limitations law across the country.  
Perhaps most importantly, Madam Speaker, this bill does not  
impose time limits for victims of sexual assault and domestic violence  
who want to file law suits. There is one exception in the bill where time  
limits will not apply. The existing Act gives a one-year limitation period  
for sexual assault claims. There are a variety of exceptions that could  
suspend the limitation period, but they are difficult to understand and to  
apply. So I’m pleased that we are able to put forward a bill that better  
protects and respects the rights of victims in this case.  
In addition to eliminating time limits for victims of sexual assault  
and domestic violence, the bill also does not set limits for assaults  
involving dependants or people in intimate relationships. As in the current  
Act, there will be no time limits for any claims involving children. This  
means limitation periods are suspended until children turn the age of 19.  
Time periods also don’t run while a claimant is incapacitated, so the  
Page 19  
ultimate limitation period is suspended if there is willful concealment of a  
wrong. That is the case at the moment, as well.  
Finally, Madam Speaker, I want to highlight the benefits for small  
businesses and professionals who may be involved in lawsuits. I want to  
say that if someone has done something wrong, they should be held  
accountable. However, the law should also set limits so that people  
cannot be sued into infinity. That is where the 15-year ultimate  
limitation period comes in. This will allow businesses and  
professionals to have more certainty and long-term stability. [Original  
emphasis]  
The new bill strikes a fair balance that respects the rights of  
everyone involved. It will also support internal trade and labour mobility  
among provinces by making our laws similar to other jurisdictions. Again,  
as I said, our closest neighbour, New Brunswick, has already adopted this  
more modern legislation.  
To summarize, this legislation is about creating laws that are more  
consistent and clear. These are laws that will better support vulnerable  
Nova Scotians, small business owners and professionals. Thank you very  
much, Madam Speaker. I look forward to comments from my colleagues  
in the House.  
[68] If I were to allow the amendments sought by GEM pursuant to s. 22(a) of  
the new Limitation of Actions Act, I would be interpreting the new Limitation of  
Actions Act in a manner contrary to the scheme of the Act and the intention of the  
legislature.  
[69] In Burry v. Centennial Properties Ltd., this Court made the distinction  
between a party’s status as a defendant and as a third party. In that case, the court  
refused to order that funds payable from the third party to the defendant be paid  
directly to the plaintiff, finding there was no right of recovery directly between the  
plaintiff and third party. The Rules did not create a new relationship between a  
plaintiff and a third party when a third party proceeding is commenced:  
[16] […] Although the issues were common and it was convenient to try them  
at the same time, it was never intended that any right of recovery would pass  
directly from the plaintiff to the third party, but only that the rights of the plaintiff  
qua the defendant, and the defendant qua the third party would be determined at  
the same time. That this is so is firmly established by the authorities referred to by  
MacDonald, J.A., in Vance v. MacKenzie (1977), 19 N.S.R.(2d) 381; 24 A.P.R.  
381. Should a plaintiff wish to recover directly against a person other than the  
defendant that person should be joined as a party defendant. The plaintiff would  
then be free to establish whatever right it has to claim against that other person.  
Page 20  
[17] The third party procedure simply avoids the necessity of establishing twice  
the plaintiff's right against the defendant, firstly, in the original action and,  
secondly, in the second action by the defendant against the third party. This can  
be seen clearly by the plain meaning of the words in the Civil Procedure Rules,  
Rule 17. The Rule does not create any new relationship directly between the  
plaintiff and the third party. [Emphasis added]  
[70] Adding a third party as a party defendant fundamentally changes a party’s  
position in the litigation. A third party is only liable to the plaintiff if the party  
defendant that brought the third party claim is found liable to the plaintiff in the  
main action. Being added as a defendant changes the capacity in which the third  
party is sued and increases its exposure to liability.  
[71] In MacDonald v. Sun Life Assurance Co. of Canada, [2005] O.J. No. 4468  
(Sup Ct), the court distinguished between a person’s capacity as a third party and  
as a defendant in limiting the amount of costs the plaintiff could recover against  
the defendant corporation, previously a third party in the proceeding. The plaintiff  
had initially sued Sun Life following a slip-and-fall accident at a plaza owned by  
Sun Life. In turn, Sun Life commenced a third party proceeding against Cameron  
Landscaping, which defended both the main action and the third party action. More  
than four years later, the plaintiff amended her claim to add the landscaping  
company as a defendant and later discontinued her action against Sun Life.  
Following a verdict in her favour, the plaintiff sought to recover her costs of the  
action from the defendant company, including the costs she had incurred before  
Cameron was added as a defendant. The plaintiff relied on Rule 29.05(2) of the  
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that a third party  
who has defended the main action has the same rights and obligations in that action  
as a defendant.  
[72] The court disallowed the costs claimed for services rendered prior to  
Cameron being added as a party defendant, holding that “there is generally no  
basis for costs being awarded against a defendant who was not a party to the action  
at the time the costs were incurred and particularly when another party was the  
defendant” (¶32). Applying this principle to the facts, the court concluded:  
[34] […] Assuming that rule 29.05 (2)(a) imposes upon a third party who has  
entered a defence to the main action an obligation to pay the costs incurred by the  
plaintiff as a result of that defence, it does not assist the plaintiff. The costs award  
made against Cameron was solely in its capacity as a defendant, the third party  
proceeding having fallen by the wayside once Cameron was added as a defendant.  
Page 21  
[73] Cameron’s capacity as a third party was viewed as distinct from its capacity  
as a defendant. This distinction was material to the court’s conclusion that the  
plaintiff could only recover from Cameron the costs she had incurred after  
Cameron was made a defendant in the proceeding and not earlier.  
[74] Beasy Nicoll is a party to the third party action, which is distinct both  
substantively and procedurally from the main action against Amherst. Similar to  
Sun Life, where the date on which Cameron’s role in the proceeding was changed  
from that of a third party to a defendant was relevant to the calculation of the  
plaintiff’s recoverable costs, adding Beasy Nicoll as a defendant would change its  
role in the proceeding and attendant liabilities. It would therefore “change the  
capacity” in which Beasy Nicoll is sued.  
[75] GEM argues “capacity in section 22(a) refers to legal capacity, not party’s  
nominal status as a defendant or a third party defendant” (GEM’s factum, ¶62).  
[76] I would point out the characterization of Beasy Nicoll’s third party status as  
being “nominal” is inaccurate. As I have set out in some detail, the distinction  
between a defendant and a third party is far from nominal; it is procedurally and  
substantively different.  
[77] In support of its argument, GEM relies on a decision from the Queen’s  
Bench of New Brunswick, Fowler v. Croteau, 2012 NBQB 239. Like GEM, the  
plaintiff had filed and moved to add existing third parties as defendants by way of  
an amended pleading. The third parties opposed the motion on the ground the  
applicable limitation period had expired. In Fowler, the court concluded that  
“capacity” in a similar provision in the New Brunswick Limitation of Actions Act  
referred to legal capacity rather than its capacity as a party in the litigation:  
[21] Section 21(a) of the Limitation of Actions Act, supra., speaks of “the  
capacity in which either party sues or is sued”. In my view, since the term  
“capacity” in this section is used in reference to a party to a legal proceeding there  
is no distinction between it and the term “legal capacity”, the definition of which  
is set out in the Morgentaler case, supra. In other words it refers, not to the role of  
a party in the proceeding but to the party’s personal characteristics such as age,  
mental capacity etc.  
[22] As I read sub-section 21(a) it is not available to a person who wishes to  
amend their pleadings by introducing either themselves or another party to the  
proceedings in a representative capacity. Similarly, if they were initially a party in  
a representative capacity, they cannot use this section to become a party in their  
personal capacity. What the sub-section does not permit, in my opinion, is the  
Page 22  
introduction of new parties with different personal characteristics after the expiry  
of the limitation period; it does not, however, prevent existing parties from being  
given additional roles in the litigation.  
[23] In this case the proposed amendment would not introduce new parties or  
change the capacity of existing parties. I therefore find that the proposed  
amendment meets all the requirements of section 21(a) of the Limitation of  
Actions Act, supra.  
[78] With respect, for the reasons which I have outlined above, I disagree with  
the analysis in Fowler. There is nothing in the new Limitation of Actions Act which  
suggests that capacity should be limited in this manner. In my view, Fowler, and  
cases which may be seen to have reached a similar conclusion, fail to take into  
consideration the distinction between the role of a defendant and a third party, the  
procedural and substantive differences between the two proceedings, the  
differences in potential liability between them, and the objects of limitation  
legislation. I choose not to follow them.  
[79] I would dismiss GEM’s Notice of Contention.  
Conclusion  
[80] I would grant leave to appeal, allow the appeal, dismiss the Notice of  
Contention, and award costs to Beasy Nicoll in the amount of $5,000.  
Farrar J.A.  
Concurred in:  
Bryson J.A.  
Scanlan J.A.  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission