Wallace v. Litwiniuk et al., 2001 ABCA 118

• Judge: Fraser C.J.A., Côté and Wittmann, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 11, 2001
• Citations: 2001 ABCA 118;(2001), 281 A.R. 115 (CA)

Wallace v. Litwiniuk (2001), 281 A.R. 115 (CA);

    248 W.A.C. 115

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. MY.046

James Wallace (appellant/third party) v. Larry Litwiniuk, L.D. Todd Litwiniuk and Litwiniuk & Co. (respondents/defendants) and Colleen Peake (plaintiff/not a party to the appeal)

(00-18927; 2001 ABCA 118)

Indexed As: Wallace v. Litwiniuk et al.

Alberta Court of Appeal

Fraser C.J.A., Côté and Wittmann, JJ.A.

May 11, 2001.

Summary:

Wallace's vehicle collided with Peake's vehicle. Peake retained the defendant solicitors and their firm to prosecute her damages claim arising out of the accident. The solicitors failed to file a statement of claim by the expiration of the limitation period. Peake sued the solicitors for breach of the retainer contract and for negligence as solicitors. The solicitors filed a defence and issued a third party notice to Wallace claiming that Peake's personal injuries resulted solely from Wallace's negligence and therefore he was liable to make full contribution and/or indemnity for the claims made by Peake under the Contributory Negligence Act and/or the Tort-Feasors Act. Wallace sought to strike the third party notice.

A Master of the Alberta Court of Queen's Bench granted the application. The solicitors appealed.

The Alberta Court of Queen's Bench allowed the appeal and reinstated the third party notice. Wallace appealed.

The Alberta Court of Appeal allowed the appeal and struck the third party notice.

Practice - Topic 1120

Parties - Third party or subsequent party procedure - When available - General - The plaintiff was in a motor vehicle accident - She sued her solicitors and law firm for failing to commence an action within the limitation period - The solicitors, relying on the Contributory Negligence Act and/or the Tort-Feasors Act, third partied Wallace, the person who allegedly caused the accident - At issue was the validity of the third party notice - The Alberta Court of Appeal reviewed the scope of third party notices and concluded that they enforced duties which the third party owed to the defendant issuing the third party notice, not the plaintiff - In this case, there was no duty owed by Wallace to the solicitors and therefore, the third party notice was invalid.

Practice - Topic 1122

Parties - Third party or subsequent party procedure - When available - Requirement of existence of issues common to all parties - [See Practice - Topic 1120 ].

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - [See Practice - Topic 1120 ].

Torts - Topic 7142

Joint and concurrent tortfeasors - Concurrent tortfeasors - What constitutes concurrent tortfeasors - [See Torts - Topic 7377 ].

Torts - Topic 7162

Joint and concurrent tortfeasors - Joint tortfeasors - What constitutes - [See Torts - Topic 7377 ].

Torts - Topic 7377

Joint and concurrent tortfeasors - Contribution between tortfeasors - Claim for - General - The plaintiff was in a motor vehicle accident - She sued her solicitors and law firm for failing to commence an action within the limitation period - The solicitors, relying on the Contributory Negligence Act and/or the Tort-Feasors Act, third partied Wallace, the person who allegedly caused the accident - At issue was the validity of the third party notice - The Alberta Court of Appeal reviewed the solicitors' argument and struck the third party notice - Even assuming that Wallace caused the original injury to Peake this did not, without more, make him a joint or concurrent tortfeasor to the solicitors' negligence - See paragraphs 1 to 57.

Words and Phrases

Joint-tortfeasor or otherwise - The Alberta Court of Appeal discussed the meaning of this phrase "joint-tortfeasor or otherwise", as used in sect. 3(1)(c) of the Tort-Feasors Act, R.S.A. 1980, c. T-6 - See paragraphs 10 to 57.

Cases Noticed:

Metz v. Breland et al. (1990), 110 A.R. 25; 76 Alta. L.R.(2d) 397 (C.A.), refd to. [para. 8].

Hughes v. Meters (1993), 200 A.R. 335; 146 W.A.C. 335; 46 Alta. L.R.(3d) 144 (Q.B.), refd to. [para. 12].

DeBoer v. Raymaker (Darryl J.) Professional Corp. et al. (2000), 250 A.R. 312; 213 W.A.C. 312 (C.A.), refd to. [para. 14].

Sorenson v. Abrametz and Wilkinson, [1988] 1 W.W.R. 609; 64 Sask.R. 224 (C.A.), refd to. [para. 17].

Wimpey (George) & Co. v. British Overseas Airways Corp., [1954] 3 All E.R. 661 (H.L.), refd to. [para. 26].

Hart v. Hall & Pickles Ltd., [1968] 3 All E.R. 291 (C.A.), refd to. [para. 27].

Paine (J.R.) and Associates Ltd. et al. v. Strong, Lamb & Nelson and Proctor (1979), 18 A.R. 112 (C.A.), refd to. [para. 27].

Stetar v. Poirier and Parkland (County No. 31), [1975] 1 W.W.R. 441; 3 N.R. 311 (S.C.C.), refd to. [para. 28].

Kitchen v. Royal Air Force Association, [1958] 2 All E.R. 241 (C.A.), refd to. [para. 34].

Hughes v. Meters (1992), 201 A.R. 297; 46 Alta. L.R.(3d) 138 (Q.B. Master), refd to. [para. 36].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1996), 181 A.R. 161; 116 W.A.C. 161; 38 Alta. L.R.(3d) 97 (C.A.), refd to. [para. 50].

Statutes Noticed:

Rules of Court (Alta.), rule 66(1) [para. 7].

Tort-Feasors Act, R.S.A. 1980, c. T-6, sect. 3(1) [para. 10].

Authors and Works Noticed:

Dugdale and Stanton, Professional Negligence (1989), pp. 363, 364 [para. 33].

Williams, Glanville, Joint Torts and Contributory Negligence (1951), generally [para. 25]; p. 129 [para. 30].

Counsel:

M.D. Tiessen, for the appellant;

G.K. Randall, Q.C., for the respondents.

This appeal was heard on March 7, 2001, before Fraser, C.J.A., Côté, and Wittmann, JJ.A., of the Alberta Court of Appeal.

On May 11, 2001, the following memorandum of judgment was delivered by the Court.