Morley v. Wiggins and Newby et al., (1985) 7 O.A.C. 324 (DC)

• Judge: Steele, Potts and McKinlay, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 14, 1984
• Jurisdiction: Ontario
• Citations: (1985), 7 O.A.C. 324 (DC)

Morley v. Wiggins (1985), 7 O.A.C. 324 (DC)

MLB headnote and full text

Morley and Morley v. Wiggins and Wiggins (defendants) and Newby, Pankoff and Newby (third parties)

(No. 241/84)

Indexed As: Morley v. Wiggins and Newby et al.

Ontario Divisional Court

Steele, Potts and McKinlay, JJ.

January 7, 1985.

Summary:

The plaintiffs sued the defendants for damages suffered in a motor vehicle collision. The defendants joined Newby, among others, as a third party. Newby delivered a statement of defence and brought a counterclaim against the defendants for the injuries he sustained in the same collision. The defendants applied to strike out the counterclaim on the ground that it disclosed no reasonable cause of action. The trial judge dismissed the application. The defendants appealed.

The Ontario Divisional Court dismissed the appeal.

Limitation of Actions - Topic 3004

Actions in tort - Counterclaim respecting same cause or matter - Section 180(1) of the Highway Traffic Act prescribed a two year time limit for bringing a motor vehicle negligence action - The Ontario Divisional Court held that a counterclaim by a third party (who is not also a defendant) against a defendant for the third party's damages sustained in the same collision, must be brought within the two year period - The court held that a counterclaim by a third party is not protected by s. 180(3), as are a counterclaim or third party proceedings instituted by a defendant - See paragraph 22.

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - The Ontario Divisional Court disregarded the two year time limitation for bringing a motor vehicle negligence action - The court allowed a third party in such an action (validly commenced in time) to counterclaim against the defendants after two years, respecting his damages suffered in the same collision - See paragraphs 22 to 28.

Practice - Topic 1829

Pleadings - Counterclaim and set-off - Counterclaim - Delivery - Leave to deliver counterclaim out of time - A third party sought to counterclaim against the defendants respecting the damages he sustained in the same motor vehicle collision which was the subject of the main negligence action - The two year time limit for bringing a motor vehicle negligence action had expired - He did not intend to sue until he was made a third party, although the defendants had prior actual knowledge of his claim - The Ontario Divisional Court allowed the third party to counterclaim, where the defendants would not be prejudiced - See paragraphs 22 to 28.

Practice - Topic 1831

Pleadings - Counterclaim and set-off - Counterclaim - By third party against defendant - The Ontario Divisional Court held that in a motor vehicle negligence action, a third party (who is not also a defendant), can counterclaim against the defendants who issued the third party notice, for damages sustained by the third party in the collision - See paragraphs 17, 20.

Words and Phrases

Counterclaim - The Ontario Divisional Court held that the word "counterclaim" as found in s. 180(3) of the Highway Traffic Act, R.S.O. 1980, c. 198, meant a counterclaim by a defendant - See paragraph 22.

Words and Phrases

Defendant - The Ontario Divisional Court held that the word "defendant" as found in s. 180(3) of the Highway Traffic Act, R.S.O. 1980, c. 198, did not include a third party - See paragraph 22.

Cases Noticed:

Dipasquale v. Muscatello, [1953] O.W.N. 1001, not appld. [para. 6].

Chuhan v. Hasselsjo et al. (1982), 27 C.P.C. 153, dist. [para. 6].

Armak Chemicals Ltd. v. Canadian National Railway Company; Oakville Storage & Forwarders Ltd. et al., Third Parties and four other actions (1981), 29 O.R.(2d) 259 (C.A.), dist. [para. 11].

Armak Chemicals Ltd. v. Canadian National Railway Company; Oakville Storage & Forwarders Ltd. et al., Third Parties and four other actions (1981), 29 O.R.(2d) 261 (S.C.), refd to. [para. 12].

Armak Chemicals Ltd. v. Canadian National Railway Company; Oakville Storage & Forwarders Ltd. et al., Third Parties and four other actions 17 C.P.C. 127 (M. Ont. S.C.), refd to. [para. 13].

Barclays Bank v. Tom, [1923] 1 K.B. 221 (C.A.), consd. [para. 14].

McCheane v. Gyles, [1902] 1 Ch. 287, refd to. [para. 14].

Smart et al. v. Royal Trust Company & Stevenson, [1947] O.W.N. 683, consd. [para. 15].

Fine et al. v. Toronto-Dominion Bank et al., [1964] 2 O.R. 1, consd. [para. 16].

Brown et al. v. Douglass Allen Davis Limited et al., [1953] O.W.N. 683, consd. [para. 16].

Allan v. Bushnell T.V. Co. Ltd., [1968] 1 O.R. 720 (C.A.), not appld. [para. 18].

Drabik v. Harris, [1955] O.W.N. 590 (C.A.), not appld. [para. 18].

Attorney General of Canada et al. v. Faith, [1956] O.W.N. 331, not appld. [para. 18].

Katzman v. Yaeck, Silverman (Third - Party) (1982), 37 O.R.(2d) 500 (C.A.), not appld. [para. 19].

Doidge v. Antonaids (1983), 42 O.R.(2d) 296 (C.A.), not appld. [para. 19].

Cleave et al. v. Calnan et al., [1938] O.W.N. 38, appld. [para. 22].

Moffett v. Farnsworth, (1984), 6 O.A.C. 241, appld. [para. 23].

Basarsky v. Quinlan, [1972] S.C.R. 380 (S.C.C.), appld. [para. 24].

Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.), refd to. [para. 24].

Re Palermo Bakery Ltd. and Dominion of Canada General Insurance Co. et al. (1976), 12 O.R.(2d) 50, appld. [para. 25].

Casey et al. v. Halton Board of Education (1981), 33 O.R.(2d) 71, appld. [para. 25].

Goulais et al. v. Pepin and three other actions (1984), 10 A.C.W.S.(2d) 422, appld. [para. 25].

Martin v. Wright (1984), 45 O.R.(2d) 317, appld. [para. 25].

Deaville v. Boegman (1984), 6 O.A.C. 297 (C.A.), appld. [para. 25].

Statutes Noticed:

Rules of Civil Procedure (Ont.), O. Reg. 560/84, rule 27.10 [para. 21]; rule 29 [para. 21].

Highway Traffic Act, R.S.O. 1980, c. 198, sect. 180(1) [para. 22]; sect. 180(3) [para. 22].

Rules of Practice (Ont.), R.R.O. 1980, Reg. 540, rule 167(1) [para. 5].

Authors and Works Noticed:

Limitation of Actions, Report on, Ontario Law Reform Commission (1969), pp. 9-10 [para. 29].

Counsel:

R. Sugar, for the defendants;

R.N. Bates & A.E. Esson, for the third party, Michael Newby.

This appeal was heard before Steele, Potts and McKinlay, JJ., of the Ontario Divisional Court on November 14, 1984. The decision of the Divisional Court was delivered by Potts, J., and released on January 7, 1985.