Edmonton Flying Club et al. v. Northward Aviation Ltd. et al., (1977) 2 A.R. 390 (CA)

• Judge: McDermid, Haddad and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 04, 1977
• Citations: (1977), 2 A.R. 390 (CA)

Edmonton Flying Club v. North. Aviation (1977), 2 A.R. 390 (CA)

MLB headnote and full text

Edmonton Flying Club et al. v. Northward Aviation Ltd. et al.; Warner et al. (third parties); Northwestern Utilities Limited et al. (fourth parties), and Comstock International Limited et al. (fifth parties)

Indexed As: Edmonton Flying Club et al. v. Northward Aviation Ltd. et al.

Alberta Supreme Court

Appellate Division

McDermid, Haddad and Morrow, JJ.A.

February 9, 1977.

Summary:

This case arose out of the plaintiffs' claim against the defendants for damages resulting from the destruction by fire of the plaintiff Edmonton Flying Club's aircraft hangar. The plaintiffs' statement of claim was issued in July 1967 and ultimately over a long period of time third, fourth and fifth party notices were issued.

Various counterclaims and notices of contribution and indemnity resulted among the parties. In January 1976 one of the fourth parties filed a notice of contribution and indemnity directed to the plaintiff Edmonton Flying Club. The Edmonton Flying Club in reply issued a counterclaim to the fourth, third, and fifth parties. The fifth parties applied for an order striking out the fourth party's notice of contribution and indemnity to the plaintiff and the plaintiffs' counterclaim in reply. The Trial Division dismissed the application. One of the fifth parties appealed.

The Alberta Court of Appeal allowed the appeal in part and held that the plaintiffs' counterclaim in reply to the fourth party's notice of contribution and indemnity was a nullity. The Court of Appeal held that the plaintiff could not file a counterclaim as part of its reply to a notice claiming contribution and indemnity - see paragraphs 46 to 48.

The Court of Appeal held further that the basis of the plaintiff's counterclaim was similar to the plaintiff's original claim and should have been included in the plaintiff's statement of claim by way of amendment - see paragraphs 21 to 45.

The Court of Appeal held that, although the fourth party's notice of contribution and indemnity was out of time, the exercise of the discretion of the Trial Division in extending the time for its filing was proper in order "to tidy the proceedings", since no prejudice resulted and the fifth parties had already issued similar notices within time -see paragraph 56.

Limitation of Actions - Topic 3004

Actions in tort - Respecting personalty - Counterclaim respecting same cause or matter - Limitation of Actions Act, R.S.A. 1970, c. 209, s. 60(1) - The Alberta Court of Appeal held that a counterclaim in an action was not barred by the limitation period for such actions, provided that the pleadings satisfied the Rules and that the claim by counterclaim was respecting the same cause of action - See paragraphs 50 to 54.

Practice - Topic 1823

Pleadings - Counterclaim - What constitutes - The corporate plaintiff received a notice of contribution and indemnity from a fourth party - In reply the corporate plaintiff issued a counterclaim, which included the claims of the original individual plaintiffs, who had not received the notice of contribution and indemnity - The Alberta Court of Appeal held that the corporate plaintiff could not use such a counterclaim to introduce additional parties and that including the claims of the individual plaintiffs was invalid - See paragraph 55.

Practice - Topic 1832

Pleadings - Counterclaim - Counterclaim to claim for contribution and indemnity - The Alberta Court of Appeal held that a party cannot file a counterclaim as part of its reply to a notice claiming contribution and indemnity - The Alberta Court of Appeal held such a counterclaim was a nullity - See paragraphs 46 to 48.

Practice - Topic 1834

Pleadings - Counterclaim - Validity of a counterclaim to a counterclaim - The fourth party issued a notice of contribution and indemnity to the plaintiff - In reply the plaintiff issued a counterclaim directed to the fourth party, a third party and a fifth party - The Alberta Court of Appeal stated that, where a plaintiff asserts a counterclaim in his reply to a counterclaim by a defendant, it will be allowed to stand if it appears to be only raised as a shield against the defendant's counterclaim and is only set up to answer it - The Court of Appeal stated that, if however the matter raised in the counterclaim could properly have been included in the original statement of claim, then it should not be made by counterclaim, but by amendment to the statement of claim - The Court of Appeal held that the basis of the plaintiff's counter claim was similar to the plaintiff's original claim and should have been included in the plaintiff's statement of claim by way of amendment - See paragraphs 21 to 45.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - In an extremely complicated action involving many parties with various claims, counterclaims and third, fourth and fifth party notices, the fourth party issued a notice of contribution and indemnity out of time - Similar notices had been issued by the fifth parties within time - The Alberta Supreme Court, Trial Division, extended the time for filing the fourth party's notice in order "to tidy the proceedings" - The Alberta Court of Appeal upheld the exercise of the discretion of the trial judge, since no prejudice arose from it - See paragraph 56.

Cases Noticed:

Five Wheels (Western) Ltd. v. Wallace et al. (1963), 42 W.W.R.(N.S.) 47, consd. [para. 38].

Foley et al. v. Kiff (1975), 11 O.R.(2d) 233, consd. [para. 39].

The Normox, [1968] p. 362; 1 All E.R. 753, refd to. [para. 40].

Barclays Bank v. Tom, [1923] 1 K.B. 221, refd to. [para. 40].

Fine et al. v. Toronto-Dominion Bank et al., [1964] 2 O.R. 1, consd. [para. 42].

Smart et al. v. Royal Trust Co. et al., [1947] O.W.N. 902, consd. [para. 43].

Homes Development Ltd. v. Forbes et al., [1956] O.W.N. 668, appld. [para. 44].

Re Solway v. Potter et al., [1958] O.W.N. 125, appld. [para. 44].

Makarchuk v. Pollard (1957), 23 W.W.R.(N.S.) 617, appld. [para. 48].

Statutes Noticed:

Judicature Act, R.S.A. 1970, c. 193, sect. 2, sect. 32 [para. 36]; sect. 39 [para. 35].

Limitation of Actions Act, R.S.A. 1970, c. 209, sect. 3, sect. 5(1)(g), sect. 13, sect. 51, sect. 60 [para. 50].

Rules of Court (Alta.), rule 5(f), rule 5(g), rule 5(m), rule 5(r), rule 5(s) [para. 34]; rule 66, rule 69 [para. 33]; rule 77 [para. 46]; rule 78 [para. 47]; rule 93(1) [para. 30]; rule 93(3), rule 94(4), rule 95(5) [para. 31]; rule 94, rule 95 [para. 32].

Counsel:

W.J. Girgulis and C.P. Clarke, for the appellant Controllers;

D.G. Hart and A. MacLeod, for the appellant Utilities;

R.L. Duke, for the appellant Comstock;

H.L. Irving, Q.C. and M.J. Trussler, for the respondent Flying Club.

This case was heard before McDERMID, HADDAD and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On February 4, 1977, MORROW, J.A., delivered the following judgment of the Appellate Division: