Cameco Corp. v. Insurance Co. of the State of Pennsylvania et al., 2008 SKCA 54

• Judge: Jackson, Richards and Hunter, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 07, 2007
• Jurisdiction: Saskatchewan
• Citations: 2008 SKCA 54;(2008), 310 Sask.R. 89 (CA)

Cameco v. Pennsylvania Ins. (2008), 310 Sask.R. 89 (CA);

      423 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. AP.018

The Insurance Company of the State of Pennsylvania (appellant/defendant) v. Cameco Corporation (plaintiff) and American Home Assurance Company (respondent/defendant) and Commonwealth Insurance Company (defendant) and Associated Aviation Underwriters, Inc. (respondent/third party) and The Continental Insurance Company (third party)

(No. 1459)

The Insurance Company of the State of Pennsylvania Commonwealth Insurance Company and American Home Assurance Company (appellants/defendants) v. Cameco Corporation (respondent/plaintiff) and The Continental Insurance Company and Associated Aviation Underwriters, Inc. (non-parties/third parties)

(No. 1460; 2008 SKCA 54)

Indexed As: Cameco Corp. v. Insurance Co. of the State of Pennsylvania et al.

Saskatchewan Court of Appeal

Jackson, Richards and Hunter, JJ.A.

April 18, 2008.

Summary:

Actions were brought against Cameco Corp. in British Columbia and Saskatchewan in relation to a helicopter crash. Cameco's general liability insurers, Insurance Co. of the State of Pennsylvania (ICSOP) and American Home Assurance Co., denied coverage. Global Aerospace Inc. assumed Cameco's defence in relation to the claims. Global settled the claims and indemnified Cameco. Cameco commenced the present action against ICSOP and American Home for indemnification. Global wished to pursue a claim against ICSOP and American Home for contribution. After the limitation period for such a claim had expired, Global moved pursuant to rule 165 of the Queen's Bench Rules to have itself substituted for Cameco as the plaintiff in the action and to make amendments to the statement of claim in order to convert the pleading into a claim by Global for contribution by ICSOP and American Home.

The Saskatchewan Court of Queen's Bench, in a decision reported at 295 Sask.R. 309, held that the amendments sought by Global could not be achieved under rule 165. However, the court allowed the proposed amendments under s. 20 of the Limitations Act. The court found that the claim asserted in the proposed amendments arose "out of the same transaction or occurrence as the original claim". The court added Global as a plaintiff in the action along with Cameco, rather than in place of Cameco, so that Cameco would remain subject to the discovery process. ICSOP and American Home appealed.

The Saskatchewan Court of Appeal, Jackson, J.A., dissenting, allowed the appeal. The court held that the amendments sought by Global were not available pursuant to s. 20 of the Limitations Act.

Practice - Topic 653

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Application of limitation periods - [See Practice - Topic 712 ].

Practice - Topic 712

Parties - Adding or substituting parties - Notwithstanding limitation period - Statutory authorization - Actions were brought against Cameco Corp. in relation to a helicopter crash - Cameco's general liability insurers, Insurance Co. of the State of Pennsylvania (ICSOP) and American Home Assurance Co., denied coverage - Global Aerospace Inc. assumed Cameco's defence in relation to the claims - Global settled the claims and indemnified Cameco - Cameco commenced the present action against ICSOP and American Home for indemnification - Global wished to pursue a claim against ICSOP and American Home for contribution - After the limitation period for such a claim had expired, Global moved to have itself substituted for Cameco as the plaintiff in the action and to amend the statement of claim to convert the pleading into a claim by Global for contribution by ICSOP and American Home - The Chambers Judge allowed the proposed amendments under s. 20 of the Limitations Act - The Chambers Judge found that the claim asserted in the proposed amendments arose "out of the same transaction or occurrence as the original claim" - The Chambers Judge added Global as a plaintiff in the action along with Cameco, rather than in place of Cameco, so that Cameco would remain subject to the discovery process - The Saskatchewan Court of Appeal allowed an appeal - The amendments sought by Global were not available pursuant to s. 20 of the Limitations Act - The proposed amendments would not only introduce a wholly new plaintiff and a new cause of action, they would also eliminate the original plaintiff and the original cause of action and expand the subject matter of the litigation - Such fundamental changes to a claim fell outside the scope of s. 20.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - [See Practice - Topic 712 ].

Cases Noticed:

Stockbrugger Estate v. Wolfe Estate, Rachul and Sandstra Bros. Transport Ltd., [1987] 4 W.W.R. 759; 59 Sask.R. 96 (C.A.), consd. [paras. 25, 73].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289 (S.C.C.), refd to. [para. 27].

Fillion v. Wolverine et al. (2001), 203 Sask.R. 288; 240 W.A.C. 288; 2001 SKCA 30, refd to. [paras. 28, 76].

Dusterbeck v. Beitel, [1988] 6 W.W.R. 669 (Sask. C.A.), consd. [paras. 31, 74].

Ridder v. Frey (1963), 42 W.W.R.(N.S.) 627 (Sask. C.A.), refd to. [para. 34].

A.P. Green Fire Brick Co. v. Interprovincial Steel Corp. (1963), 39 D.L.R.(2d) 692 (Sask. C.A.), refd to. [para. 38].

Weldon v. Neal (1887), 19 Q.B.D. 394, refd to. [para. 68].

Basarsky v. Quinlan, [1972] S.C.R. 380, refd to. [para. 68].

Walbaum and Walbaum v. G & R Trucking Ltd. (1983), 22 Sask.R. 22 (C.A.), refd to. [para. 70].

Dickhoff v. Armadale Communications Ltd. et al., [1994] 1 W.W.R. 468; 113 Sask.R. 285; 52 W.A.C. 285 (C.A.), refd to. [para. 76].

Frank v. King Estate - see Frank v. Canada (Minister of Indian and Northern Affairs).

Frank v. Canada (Minister of Indian and Northern Affairs) (1987), 88 A.R. 241; 56 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 93].

Stout Estate et al. v. Golinowski Estate et al. (2002), 299 A.R. 13; 266 W.A.C. 13; 2002 ABCA 49, refd to. [para. 95].

Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 152 O.A.C. 201 (C.A.), refd to. [para. 95].

Parno v. Mason (1955), 16 W.W.R.(N.S.) 524 (Sask. C.A.), refd to. [para. 102].

Deaville v. Boegeman (1984), 6 O.A.C. 297 (C.A.), refd to. [para. 130].

Statutes Noticed:

Limitations Act, S.S. 2004, c. L-16.1, sect. 20 [para. 20].

Authors and Works Noticed:

Holmested, George Smith, and Watson, Garry D., Ontario Civil Procedure, generally [para. 68].

Law Reform Commission of Saskatchewan, Tentative Proposals for Changes in Limitations Legislation Part II: The Limitations of Actions Act (1986), generally [para. 83].

Law Reform Commission of Saskatchewan, Proposals for a New Limitation of Actions Act Report to the Minister of Justice (1989), generally [para. 85].

Law Reform Commission of Saskatchewan, Comparison of Proposals for Reform of Limitation of Actions (1997), generally [para. 85].

Watson, Garry D., Amendment of Proceedings After Limitation Periods (1975), generally [paras. 68, 78, 79, 80, 81, 82].

Counsel:

James S. Ehmann, Q.C., for the Insurance Company of the State of Pennsylvania;

Alan G. McIntyre, for American Home Assurance Company;

Patrick A. Kelly, Q.C., and Timothy P. Chick, for Associated Aviation Underwriters Inc. and The Continental Insurance.

This appeal was heard on December 7, 2007, before Jackson, Richards and Hunter, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered on April 18, 2008, including the following opinions:

Richards, J.A. (Hunter, J.A., concurring) - see paragraphs 1 to 40;

Jackson, J.A., dissenting - see paragraphs 41 to 135.