Limitations Act transition provisions do not apply to proposed counterclaim

The transition provisions in the Limitations Act do not apply to a proposed counterclaim for contribution and indemnity, ruled the Ontario Court of Appeal.In Placzek v Green, Edward and Carmen Placzek allege that Carmen was injured in March 2003 when the vehicle they were travelling in was rear-ended by a pick-up truck driven by Albert Green.On Jan. 1, 2004 the new Limitations Act came into force. In February 2005 the Placzek’s commenced action and served a statement of claim in June 2005.In August 2005 Green filed a statement of defence in which he denied the Placzek’s claims and instead alleged that if the Placzeks suffered any damages or injuries, both were contributorily negligent. Two years later, in August 2007, Green moved for an order permitting him to amend his statement of defence by adding counterclaims against Mr. Placzek and two new counterparties, General Motors of Canada and McMaster Chevrolet Oldsmobile Limited. Green took the position that he did not discover his proposed counterclaims until his examination for discovery, held in April 2007. “He therefore claimed that the basic two-year limitation period under the new Act, which runs from the discovery of a claim, would not expire until April 2009,” wrote Justice Simmons of the Ontario Court of Appeal.“Under the former limitations regime, the limitation period in relation to Mr. Green’s proposed counterclaims would not have commenced to run until Mr. Placzek obtained a judgement against him,” wrote Simmons. “As the limitation periods of Mr. Green’s proposed counterclaims did not commence to run prior to the date the new Act came into force, I fail to see how he could have discovered his proposed counterclaims before that date.”The Court of Appeal dismissed Green’s appeal with $5,000 in costs on a partial indemnity scale in favour of each respondent.