Cassels Brock’s Product Liability litigation team was recently successful in defeating a motion to issue a Third Party Claim against Cassels Brock client Bendix Commercial Vehicle Systems LLC.

The action arises from a motor vehicle accident alleged on the Gardiner Expressway in July 2008 where the plaintiffs’ vehicle was allegedly rear-ended by a mobile crane unit manufactured by Grove U.S. LLC and owned and operated by Venetor Crane Ltd. It is alleged that Bendix CVS manufactured the brake assembly in the mobile crane, however the part was not preserved following the accident. The plaintiffs commenced an action (the Main Action) against Venetor in January 2009. Venetor then issued a Third Party Claim against Grove in January 2011. In February 2013, Grove commenced a separate action (the Grove Action) against Bendix CVS seeking contribution and indemnity for amounts it may be found liable to pay in the Third Party Claim commenced by Venetor and Richardson. The two actions were then ordered to be tried together, pursuant to a motion on the consent of all parties.

On December 19, 2014, Venetor brought a motion seeking leave to issue a Third Party Claim in the Main Action against Bendix CVS. Had they received consent from the plaintiffs, leave would not have been required. The plaintiffs, however, took no position. Bendix CVS opposed the motion on the basis that Venetor’s claim against Bendix CVS was discoverable more than two years prior to the motion being brought. This was clearly established in discovery transcripts from the Main Action and was admitted by Venetor. Venetor argued that it should be permitted to issue the claim since it had advised Bendix CVS of its intention to bring a Third Party Claim or Crossclaim prior to the expiry of the applicable limitation period and, in any event, the only consideration on such a motion under the Rules of Civil Procedure is whether there will be prejudice to the plaintiffs. 

Master Pope, on the motion, disagreed, finding that the court had no discretion to allow a claim to be issued where a limitation period has prima facie expired and the party seeking to advance the claim has not met the burden of demonstrating why the limitation period should not apply. Despite finding that there was no prejudice to the plaintiffs (who took no position and did not appear) Master Pope denied the motion and awarded costs to Bendix CVS. The decision is heartening to defendants who face attempts to be brought in late in the game to complex product liability actions and clarifies that it is not necessary to wait for the claim to be issued and seek summary judgment. Rather, where a proposed Third Party Claim is statute-barred on its face it can be avoided before being issued if opposed by the proposed third party.

Source: https://www.lexology.com/library/detail.aspx?g=c1741abf-059b-4758-934e-bf5e84a3ea5c