Canaccord Capital Corp. v. Roscoe, (2013) 306 O.A.C. 382 (CA)

• Judge: Sharpe, Epstein and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 12, 2013
• Jurisdiction: Ontario
• Citations: (2013), 306 O.A.C. 382 (CA);2013 ONCA 378

Canaccord Capital Corp. v. Roscoe (2013), 306 O.A.C. 382 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.017

Canaccord Capital Corporation (plaintiff/respondent) v. Gregory Roscoe (defendant/appellant)

(C56260; 2013 ONCA 378)

Indexed As: Canaccord Capital Corp. v. Roscoe

Ontario Court of Appeal

Sharpe, Epstein and Pepall, JJ.A.

June 7, 2013.

Summary:

Roscoe was employed by Canaccord as an investment advisor. The employment agreement provided that Roscoe would indemnify Canaccord for claims arising out of Roscoe's acts or omissions. In August 2008, two of Roscoe's clients sued Canaccord. Roscoe denied wrongdoing. In July 2009, Canaccord settled the claim without Roscoe's involvement. In June 2011, Canaccord commenced an indemnity action against Roscoe, pleaded as a claim for damages for breach of contract. Asserting that the claim was time-barred by s. 18 of the Limitations Act, Roscoe applied for summary judgment to dismiss the action.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 5714, dismissed the application. Roscoe appealed.

The Ontario Court of Appeal allowed the appeal. Canaccord's action was dismissed.

Limitation of Actions - Topic 3088

Actions in tort - Contribution between tortfeasors - Claim between co-defendants - The Ontario Court of Appeal reviewed the legislative history of s. 18 of the Limitations Act, noting that s. 18 reflected two significant changes relating to the limitation period applicable to claims for contribution and indemnity - First, s. 18 was part of a fundamental and comprehensive reform of the law of limitations aimed at creating a clear and comprehensive scheme - Second, the wording of s. 18 was significantly different from the provision that it replaced in that s. 18 referred to "wrongdoers", not just tortfeasors, and covered claims that arose "in respect of a tort or otherwise" - This was evidence of a conscious decision to expand the scope of the provision beyond the tort context - See paragraphs 16 to 24.

Limitation of Actions - Topic 3088

Actions in tort - Contribution between tortfeasors - Claim between co-defendants - Roscoe was employed by Canaccord as an investment advisor - The employment agreement provided that Roscoe would indemnify Canaccord for claims arising out of Roscoe's acts or omissions - In August 2008, two of Roscoe's clients sued Canaccord - Roscoe denied wrongdoing - In July 2009, Canaccord settled the claim without Roscoe's involvement - In June 2011, Canaccord commenced an indemnity action against Roscoe, pleaded as a claim for damages for breach of contract - Roscoe asserted that the claim was time-barred by s. 18 of the Limitations Act - A motion judge disagreed, finding that s. 18 did not apply to indemnity claims arising out of contract - The Ontario Court of Appeal allowed Roscoe's appeal - Section 18 created a specific rule for determining when a claim for contribution and indemnity was discovered, which was on the day when the first alleged wrongdoer was served with the claim - Under s. 18(2), this applied whether the claim for contribution and indemnity arose from "a tort or otherwise" - Therefore, the legal theory grounding the claim for contribution and indemnity was not relevant for deciding whether s. 18 was triggered - The fact that Canaccord's claim was based on the employment agreement did not exclude it from the scope of s. 18 - The motion judge erred in finding that Canaccord's action was not barred by s. 18 - See paragraphs 25 to 34.

Limitation of Actions - Topic 3088

Actions in tort - Contribution between tortfeasors - Claim between co-defendants - Roscoe was employed by Canaccord as an investment advisor - The employment agreement provided that Roscoe would indemnify Canaccord for claims arising out of Roscoe's acts or omissions - In August 2008, two of Roscoe's clients sued Canaccord - Roscoe denied wrongdoing - In July 2009, Canaccord settled the claim without Roscoe's involvement - In June 2011, Canaccord commenced an indemnity action against Roscoe, pleaded as a claim for damages for breach of contract - Roscoe asserted that the claim was time-barred by s. 18 of the Limitations Act - A motion judge disagreed, finding that s. 18 did not apply to indemnity claims arising out of contract - The Ontario Court of Appeal allowed Roscoe's appeal, finding that the fact that Canaccord's claim was based on the employment agreement did not exclude it from the scope of s. 18 - The court noted that one of the motion judge's concerns was to avoid a situation that would require Canaccord to claim indemnity in the original action, preventing Canaccord and Roscoe from presenting a common front - That concern was inconsistent with the intention of s. 18 to link the limitation period governing contribution and indemnity to the claim of the injured party - It was clearly in the interests of justice to have all related claims dealt with at the same time - That was encouraged by s. 18 - Further, s. 22 of the Act permitted parties to agree to toll the limitation period - See paragraphs 35 to 39.

Torts - Topic 7377

Joint and concurrent tortfeasors - Contribution between tortfeasors - Claim for - General - [See all Limitation of Actions - Topic 3088 ].

Cases Noticed:

HSBC Securities (Canada) Inc. v. Davies, Ward & Beck et al. (2005), 194 O.A.C. 1; 74 O.R.(3d) 295 (C.A.), refd to. [para. 16].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 25].

Waterloo Region District School Board et al. v. CRD Construction Ltd. et al. (2010), 271 O.A.C. 142; 103 O.R.(3d) 81; 2010 ONCA 838, refd to. [para. 30].

Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649; 401 N.R. 341; 482 A.R. 1; 490 W.A.C. 1; 2010 SCC 19, refd to. [para. 26].

IPEX Inc. v. Lubrizol Advanced Materials Canada Inc. et al., [2012] O.T.C. Uned. 2717; 4 B.L.R.(5th) 148; 2012 ONSC 2717, refd to. [para. 32].

Hardisty v. 851791 NWT Ltd. et al., [2004] Northwest Terr. Cases 70; 26 C.C.L.T.(3d) 305; 2004 NWTSC 70, refd to. [para. 33].

Statutes Noticed:

Limitations Act, S.O. 2002, c. 24, Schedule B, sect. 18 [para. 9].

Authors and Works Noticed:

Ontario Law Reform Commission, Report of the Ontario Law Reform Commission on Limitation of Action (1969), pp. 9, 12 [para. 19].

Ontario Ministry of the Attorney General Consultation Group on the Limitations Act, Recommendations for a New Limitations Act (1991), pp. 42 [para. 21]; 43 [para. 43].

Counsel:

John Melia, for the appellant;

Helen Daley, for the respondent.

This appeal was heard on March 12, 2013, by Sharpe, Epstein and Pepall, JJ.A., of the Ontario Court of Appeal. On June 7, 2013, Sharpe, J.A., delivered the following reasons for judgment for the court.