Docket: CACV2222 Winacott Spring Western Star Trucks v. Geo Holdings Ltd., 2013 SKCA 88

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 88 Date: 2013-08-21 Between: Docket: CACV2222 Winacott Spring Western Star Trucks and Geo Holdings Ltd. (Defendants) Appellants - and - Moore Industrial Ltd. and Sturdy Ladder Inc. (Third Parties) Respondents Coram: Richards C.J.S., Caldwell and Herauf JJ.A. Counsel: Reginald Watson, Q.C. and Graham Purse for the appellants Steven Dribnenki for the respondent Sturdy Ladder Inc. Tristan Culham for the respondent Moore Industrial Ltd. Appeal: From: 2012 SKQB 21 Heard: May 9, 2013 Disposition: Dismissed

Written Reasons: August 21, 2013 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell Herauf J.A. I. INTRODUCTION [ 1 ] This is an appeal by Winacott Spring Western Star Trucks (“Winacott”) from a decision striking third party claims against Moore Industrial Ltd. (“Moore”) and Sturdy Ladder Inc. (“Sturdy”). The third party claims were struck by the chambers judge as being statute barred pursuant to The Limitations Act , S.S. 2004, c. L-16.1. Winacott argues that the chambers judge erred in three ways: (

i) determining a point of law pursuant to Rule 188 of the Queen’s Bench Rules in the absence of an agreed statement of facts; (ii) misinterpreting the transitional provisions in The Limitations Act and thereby concluding that third party claims were statute barred; and, (iii) failing to consider and apply s. 20 of The Limitations Act even though it was not raised before the chambers judge. [ 2 ] For the reasons that follow, I would dismiss the appeal. The chambers judge did not err in concluding that the pleadings provide the necessary facts to consider a Rule 188 application in the absence of an agreed statement of facts. Nor did he err in the

interpretation of the transitional provisions in s. 31 of The Limitations Act by finding that the third party claims were well beyond the limitation period. I also conclude that the chambers judge was under no obligation to raise and consider s. 20 of The Limitations Act of his own volition. I would, however, permit Winacott to raise this issue for the first time on appeal and hold that s. 20 provides no assistance to Winacott since the third party claims advanced against Moore and Sturdy go well beyond the permissible scope of that provision. II.

FACTS [ 3 ] Wesley Casbohm (“Casbohm”) was allegedly injured when he fell from a ladder on the premises of Winacott on June 18, 2004. Mr. Casbohm is suing Winacott based on occupier’s liability and negligence. Winacott added Sturdy and Moore as third parties. Sturdy purchased the ladder from the manufacturer and sold the ladder to Moore. Moore purchased the ladder from Sturdy and then sold it to Winacott.

Winacott would like contribution and indemnity from Moore and Sturdy in the event that either is found to have sold a defective product. [ 4 ] For ease of reference it is worthwhile to set out the relevant events and corresponding dates in point form: October 24, 2002 – Moore sold the ladder to Winacott June 18, 2004 – Casbohm fell from the ladder. May 1, 2005 – The Limitations Act came into force (the “effective date”) June 16, 2006 – Casbohm filed statement of claim. April 11, 2007 – Winacott was served the statement of claim. September 12, 2007 – Winacott filed statement of defence.

November 18, 2010 – Notice of motion filed seeking leave to add third parties, Moore and Sturdy. The notice of motion relied upon s. 7 of The Contributory Negligence Act and Queen’s Bench Rule 107. January 11, 2011 – Fiat by McMurtry J. granting leave to add Sturdy and Moore as third parties. January 13, 2011 – Winacott issued a notice of third party claim against Moore and Sturdy claiming contribution and indemnity. January 16, 2012 – Judgment by McLellan J. held Winacott was statute barred from bringing a third party claim against Sturdy and Moore.

May 28, 2012 – Richards J.A. (as he then was) granted leave to appeal Justice McLellan’s decision. III. RELEVANT STATUTORY PROVISIONS [ 5 ] The relevant statutory provisions are: The Limitations Act : 2 In this Act:

(a) “claim” means a claim to remedy an injury, loss or damage that occurred as a result of

an act or omission; . . . 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. . . . 14(1) In the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim with respect to which contribution and indemnity is sought is deemed to be the day on which the act or omission on which that alleged wrongdoer’s claim is based took place. (2) Subsection (1) applies whether the right to contribution and indemnity arises with respect to a tort or otherwise. . . . 19 If, after the commencement of a proceeding, it is established that a limitation period applicable to the claim had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained. 20 Notwithstanding the expiry of a limitation period after the commencement of a proceeding, a judge may allow an amendment to the pleadings that asserts a new claim or adds or substitutes parties if: (

a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (

b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment. . . . 31(1) In this section: (a) “effective date” means the day on which this Act comes into force; (b) “former limitation period” means, with respect to a claim, a limitation period that applied with respect to the claim before the effective date; (c) “new limitation period” means, with respect to a claim, a limitation period established by this Act that would apply if the claim were based on

an act or omission that took place on or after the effective date.

(2) This

section applies to claims: (

a) that are based on acts or omissions that took place before the effective date; and (

b) with respect to which no proceeding has been commenced before the effective date.

(3) No proceeding shall be commenced with respect to a claim if the former limitation period expired before the effective date.

(4) If there is no new limitation period with respect to a claim and the former limitation period did not expire before the effective date, this Act applies as if the act or omission had taken place on or after the effective date.

(5) If there is a new limitation period with respect to a claim and the former limitation period did not expire before the effective date: (

a) if the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date; and (

b) if the claim was discovered before the effective date, the former limitation period applies.

(6) If there is a new limitation period with respect to a claim but there was no former limitation period with respect to the claim:

(

a) if the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date; and (

b) if the claim was discovered before the effective date, there is no limitation period.

(7) This

section is subject to any agreement to vary or exclude a limitation period that was made before the effective date. The Contributory Negligence Act , R.S.S. 1978, c. 31: 11 Where an action is commenced against a tort feasor or where a tort feasor settles with a person who has suffered damage as a result of a tort, within the period of limitation prescribed for the commencement of actions by any relevant statute, no proceedings for contribution or indemnity against another tort feasor shall be defeated by the operation of any statute limiting the time for the commencement of action against that tort feasor if: (

a) such proceedings are commenced within one year of the date of the judgment in the action or the settlement, as the case may be; and (

b) there has been compliance with any statute requiring notice of claim against that tort feasor. [in force between June 17, 2004 and April 30, 2005] IV. DECISION APPEALED FROM [ 6 ] The chambers judge found there was a sufficient factual basis to make a Rule 188 determination despite the lack of a formal agreed statement of facts. [ 7 ] The chambers judge concluded that s. 31(2) of The Limitations Act must be considered first in order to determine whether the transitional provisions apply.

The chambers judge ultimately determined that “claim” in s. 31(2) relates to Winacott’s claim against Moore and Sturdy Ladder, as opposed to Casbohm’s claim against Winacott. Consequently, he determined that the claim is governed by The Limitations Act and s. 14 acts to bar Winacott’s claim against Moore and Sturdy Ladder. [ 8 ] The chambers judge did not deal with s. 20 of The Limitations Act as this provision was not raised before him. V. GROUNDS OF APPEAL [ 9 ] The appellant pursued three grounds of appeal which can be summarized as follows: (

i) there was an insufficient factual basis for the chambers judge to consider a Rule 188 application; (ii) the chambers judge erred by failing to properly apply the transition provisions in s. 31 of The Limitations Act ; and, (iii) the chambers judge erred by failing to consider s. 20 of The Limitations Act . Each issue will be dealt with in turn. (

i) The Rule 188 Application [ 10 ] Rule 188 reads as follows: 188 Where it appears that a determination of a point of law may: (

a) dispose of all or part of the action; (

b) simplify the action; (

c) substantially shorten the trial; or (

d) result in a substantial saving of cost; either party may make application to a chambers judge, supported by an agreed statement of facts, for determination of the point of law. [ 11 ] Rule 188 permits legal issues that could dispose of the action to be determined in advance of a trial. The Rule states that an application to have a question of law disposed of in advance of a trial should be supported by an agreed statement of facts. In this case no agreed statement of facts was prepared. The chambers judge did not view this as an impediment.

At para. 5 of the judgment he noted: 5 There was no agreed statement of facts filed however I am satisfied the pleadings themselves provide sufficient factual underpinnings for me to decide the requested point of law. [ 12 ] Winacott maintains that this was an error on the part of the chambers judge as there were conflicting facts and the question as to whether the third party claim is statute barred should be left to the trial judge. Winacott did not identify the conflicting facts in its factum or during oral submissions.

[13] Limitation issues, by their nature, are threshold questions and thus can be well-suited to a Rule 188 application. Even though Rule188 suggests that an agreed statement of facts is required, the case law has said this is not always absolutely necessary. This Court inGoertz v. Zmud (1995), (SK CA), 137 Sask.

R. 289 stated at para. 14: Even if the expression "an agreed statement of facts," as it appears in the current version of Rule 188, was meant to be takenliterally as requiring a separate document assented to by the parties and setting forth the facts underlying the point of law, the judges ofthe Court of Queen's Bench remain empowered, faced with such an application and acting under to [sic] Rule 5 of the Rules, to waive therequirement if such statement be unnecessary to the determination of the point of law in question.

Rule 5 empowers the judges, in verybroad terms, to waive irregularities and non-compliance with the Rules in appropriate instances, all in keeping with the oft-expressednotion that the Rules are but the servants, not the masters, of the Court. [14] At para. 16 of Goertz, the Court also suggests another way of understanding this Rule is on the footing that “an agreed statement offacts can be put together from the facts disclosed in the pleadings.” Reference can also be made to B.H. v.

Dattani, 2010 SKCA 1, 315D.L.R. (4th) 705, at paras. 17 to 27 where this Court endorsed the decision of the Chambers judge to hear a Rule 188 application in theabsence of an agreed statement of facts. [15] I am satisfied that the chambers judge was able to ascertain the relevant facts from the pleadings to determine the point of lawrelating to the limitation period. The relevant events and the dates they occurred were not in dispute. The pleadings disclosed these. Thechambers judge did not err in determining the point of law in the absence of a formal agreed statement of facts.

I would not give effect tothis ground of appeal. (ii) Failure to Properly Apply the Transitional Provisions Contained in s. 31 of The Limitations Act [16] Winacott admits that its analysis of s. 31 is quite involved. Winacott contends that the phrase “acts or omissions” only relates tonegligence. The negligence would reference Casbohm’s alleged fall from the ladder. This

interpretation of s. 31(2) relates to the claim ofCasbohm based on those acts or omissions and does not bear the meaning attributed by the chambers judge that “claim” can relate toWinacott’s claim for contribution and indemnity against Moore and Sturdy. Winacott argues the reference to “claims” in s. 31(2) has tomean the claim of a plaintiff, in this case Casbohm, because the act or omission that gave rise to the action is based upon Winacott’salleged negligence in failing to supply safe equipment. The connector, says Winacott, between Casbohm and Moore and Sturdy Ladderis Casbohm’s use of an allegedly defective product. According to Winacott this

interpretation of s. 31(2) would permit the meaning of“claim” in both s. 31(2) and s. 31(5) to be similar as both would reference the incident where the plaintiff was injured. [17] Winacott also submits at length that the decision of the Ontario Court of Appeal in Placzek v. Green, 2009 ONCA 83, 307 D.L.R.(4th) 441, which the chambers judge followed, is distinguishable both on the facts and on the wording of s. 24(1) of the Limitations Actof Ontario, The Limitations Act, 2002, S.O. 2002, c. 24,

Schedule B. This

section is the equivalent provision to s. 31 of the SaskatchewanLimitations Act. [18] Winacott points to the wording in the Ontario statute that uses the phrase “based on” in s. 24(5) as opposed to the SaskatchewanAct that uses the phrase “with respect to” in s. 31(5). The different wording in the Saskatchewan Act permits the

interpretation that theclaim referred to in s. 31(5) is the claim giving rise to the tortious act, namely the claim of the plaintiff. [19] With respect to the facts Winacott states that Placzek can be distinguished on the following basis: (

i) Placzek was a counterclaimagainst known parties whereas the instant case relates to contribution from a third party which was being added; (ii) in Placzek, thecounterclaim was discovered on the date the appellant was served, but then the appellant appears to have changed his story for theappeal and claimed he discovered the counterclaim on the date of the accident, which is unlike the instant case; and, (iii) in Placzek, thetort was related to an automobile accident rather than supplier or occupier’s reputed negligence. [20] Based upon its

interpretation of s. 31 as outlined above, Winacott contends that the facts support the application of s. 31. Simplyput, Winacott states that Sturdy manufactured and supplied the ladder in question before May 1, 2005. Moore sold the ladder to Winacottbefore May 1, 2005. The ladder was provided by Winacott to the plaintiff before May 1, 2005 and the plaintiff fell from the ladderbefore May 1, 2005. Since the conditions of s. 31(5) are met, according to Winacott, the former limitation period applies.

Claims thatoccurred before May 1, 2005 relating to claims for contribution and indemnity were governed by The Contributory Negligence Act.Section 11 of The Contributory Negligence Act provided that proceedings for contribution or indemnity against another tort feasor had tobe commenced within one year of the date of the judgment in the action or settlement.

Since no judgment or settlement has been obtainedin the main action, says Winacott, the time to commence the applicable limitation period has not yet arrived. [21] In a nutshell, Winacott argues that s. 14 of The Limitations Act does not bar the third party claims because the transitionalprovisions dictate that The Contributory Negligence Act in effect on June 18, 2004 governs the proceedings.

Therefore, the claim againstMoore and Sturdy is statutorily authorized. [22] I find myself in agreement with the respondents that Winacott presents an extremely strained analysis of the transitional provisionscontained in s. 31 of The Limitations Act. The initial problem relates to Winacott’s submission that somehow ss. 31 and 14 are mutuallyexclusive and either s. 31 applies or s. 14 applies. This simply cannot be the case. The appropriate analysis must start with s. 31(2). Forease of reference the provision reads: 31(2) This

section applies to claims: (

a) that are based on acts or omissions that took place before the effective date; and (

b) with respect to which no proceeding has been commenced before the effective date. [23] It appears apparent from the clear expression of the words “this

section applies” that s. 31(2) must be considered first to determinewhether the transitional provisions apply. In considering the virtually identically worded provisions from the Ontario Limitations Act,the Ontario Court of Appeal in Placzek v. Green, explained at para. 26 that:

… Section 24(2) sets out the criteria for determining whether the transition

section applies. If the transition

section applies, ss. 24(3)-(8)set out the transition rules for determining what, if any, limitation periods apply to a particular claim. [24] I can come to no other conclusion than s. 31(2) must be considered first to ascertain whether the transition provisions apply. I agreewith the Ontario Court of Appeal in Placzek on this point. The

section bears no other

interpretation. [25] It is also useful here to consider the meaning of “claim” and “acts or omissions” in the context of the Act as a whole. “Claim” isdefined in The Limitations Act as: (a) “claim” means a claim to remedy an injury, loss or damage that occurred as a result of

an act or omission; “Act or omission” is not defined in the Act. [26] As a starting point, reference must be made to the modern approach to statutory

interpretation from Elmer A. Driedger’s The Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See: Rizzo v. Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 at para. 21. [27] It must be remembered that a third party claim is a separate, distinct, and independent proceeding grafted onto the originalproceedings. See: A.P. Green Fire Brick Co. Ltd. v. Interprovincial Steel Corp. Ltd. (1963), (SK CA), 39 D.L.R. (2d)692 (Sask. C.

A) at pp. 694-5, The Insurance Company of the State of Pennsylvania v. Cameco Corporation, 2008 SKCA 54, [2008] 6W.W.R. 626 at para. 38. [28] The chambers judge interpreted the term “claims” as including both claims by a plaintiff and claims by a defendant. He did so,amongst other reasons, on the basis that the Act does not use the terminology “causes of action”. In line with this

interpretation, thechambers judge found that “claim” does not necessarily refer to the underlying cause of action, i.e., in this case the negligence allegedlyrelated to Casbohm falling off the ladder. Rather, “claim” was seen as referring to the particular claim in question in this appeal,Winacott’s claim for contribution and indemnity against Sturdy and Moore. [29] Since “acts or omissions” is not defined in s. 31, the chambers judge referenced s. 14 of The Limitations Act to ascertain theirmeaning.

For easy reference s. 14 reads as follows: 14(1) In the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first allegedwrongdoer was served with the claim with respect to which contribution and indemnity is sought is deemed to be the day on which theact or omission on which that alleged wrongdoer’s claim is based took place. (2) Subsection (1) applies whether the right to contribution and indemnity arises with respect to a tort or otherwise. [30] The chambers judge concluded that “acts or omissions” should be defined in the context of third party claims as taking place on thedate the defendant in the underlying action is served.

In this case, the date of service on Winacott was April 11, 2007. This is after May1, 2005, thus s. 31 of The Limitations Act does not apply and s. 14 does. Pursuant to s. 14 of The Limitations Act, the limitation periodended on April 11, 2009 and since there was not service prior to that date, Winacott’s actions against Moore and Sturdy is statute barred. [31] I agree with the conclusion of the chambers judge. The

interpretation proposed by Winacott relating to the meaning of “claims”and “acts or omissions” is not in accordance with the modern approach to statutory

interpretation, and I respectfully conclude, defieslogic. [32] To reiterate, Winacott’s claim is one for contribution. Winacott seeks to share proportional responsibility for any future award ofdamages to the plaintiff. Winacott’s claim for contribution is deemed by s. 14 to have been discovered on April 11, 2007. Winacott neverhad a claim for contribution before that date and would not have had one if the plaintiff had not issued and served a claim. [33] Winacott’s contention that the words “acts or omissions” generally relate to negligence is not convincing.

The words “acts oromissions” appear frequently throughout the Act in situations other than any reference to negligence. For example, in s. 10 “act oromission” is used in relation to a demand obligation, in s. 11 it is used in reference to acknowledgement and part payments and, in s. 13 itis used in relation to a purchaser from an express trust. Even more on point is the wording in s. 14(2).

The provision indicates that thesection has broader application than negligence as it applies “whether the right to contribution and indemnity arises with respect to tort orotherwise.” [emphasis added] [34] This brings me to Winacott’s contention that the chambers judge placed undue reliance upon the Ontario Court of Appeal decisionin Placzek. As already mentioned, I have endorsed the Placzek decision in the context of determining whether the transitional provisionsin the Act apply.

I also find Winacott’s attempt to distinguish Placzek on the facts and the minor variation in the wording of the transitionprovisions is not compelling. [35] The Ontario Court of Appeal in Placzek was dealing with the same issue as this appeal. Simmons J.A. for the Court set out therelevant issue as follows: 1 The main issue on this appeal is whether the transition provisions in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, (the "newAct") apply to Mr.

Green's proposed counterclaims for contribution and indemnity. [36] It can be seen that, while the facts might not be identical, the underlying issue to resolve is the same; namely, whether the transitionprovisions in our new Act apply to Winacott’s proposed third party claims against Sturdy and Moore.

[ 37 ] In Placzek , the Ontario Court of Appeal, after a thorough review of Ontario’s new limitations legislation, held that the transitional provisions did not apply to a claim for contribution that arose after the new limitation legislation came into force although the tort that was the basis for the plaintiff’s claim arose before the legislation came into force. The Court held that no claim for contribution for others to pay their fair share arose until the plaintiffs served their claim on the defendant. The Court held that the transitional sections did not apply for three reasons: (

a) the defendant’s claims, even though they were related to the tortious actions that underlay the accident, were founded on the acts or omissions which gave rise to claims for contribution; (

b) in the context of a contribution claim, “acts or omissions” means the defendant’s failure to discharge his fair share of an injured party’s claim before the contribution claimant’s liability to the injured party for a disproportionate share of the injured party’s damages has crystalized; and (

c) in the former limitations legislation, a claim for contribution did not accrue and the limitation period did not begin to run until the injured party obtained judgment against the person claiming contribution. [ 38 ] The chambers judge was correct to follow the reasoning of Placzek in concluding that the transitional provisions do not apply. I can do no better than endorse the principles in Placzek as the proper

interpretation of the relevant provisions of our Limitations Act . As such, I do not accept Winacott’s submission that minor wording distinctions in the almost identical legislation would lead to a different

interpretation. I would not give effect to this ground of appeal. (iii)

Section 20 of The Limitations Act [ 39 ] For ease of reference, s. 20 reads as follows: 20 Notwithstanding the expiry of a limitation period after the commencement of a proceeding, a judge may allow an amendment to the pleadings that asserts a new claim or adds or substitutes parties if: (

a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (

b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment. [ 40 ] Winacott submits that it was an error of law for the chambers judge to not have considered s. 20 . Since the chambers judge failed to consider s. 20, Winacott maintains that it can now be raised as a new issue on appeal. [ 41 ] I cannot find fault with the failure of the chambers judge to consider s. 20 since this

section was not raised before him. Counsel for Winacott at the chambers hearing (who was not counsel on appeal) argued the limitation period had not expired because the limitation time frames under the old Act applied.

Section 20 “presumes a limitation period has expired”. See: Insurance Company of the State of Pennsylvania v. Cameco Corp. , 2010 SKCA 95 , [2010] 10 W.W.R. 385 at para. 111 . [ 42 ] In any event, this Court has considered a new issue on appeal in certain situations. Reference can be made to Nelson v. Little Estate , 2005 SKCA 120 , 269 Sask. R. 231 at para. 6 . I find that the facts are not in dispute so this issue can be determined under s. 20(

a) of the Act and the respondents will not be prejudiced if it is considered. Had the situation been otherwise I would have refused Winacott’s request to consider this argument for the first time on appeal. [ 43 ] As already alluded to, s. 20 is only considered if the relevant limitation period has expired. This

section provides that two legislative requirements must be met prior to a judge permitting an action to proceed despite the expiration of a limitation period. These two requirements are: (

i) the amendment arises out of the same transaction or occurrence; and, (ii) no actual prejudice will result from the amendment. [ 44 ] In my view, the issue can be determined on the basis of the first requirement. As previously mentioned, a claim by a defendant against a third party is a separate and distinct proceeding grafted onto the original action. To reiterate, the plaintiff’s claim in this case is founded in tort, alleging negligence or occupier’s liability against Winacott for providing him a ladder which he alleges caused him to fall from on June 18, 2004.

Winacott claims contribution and indemnity from Sturdy and Moore in the event that the plaintiff is awarded any damages. This claim for contribution arose after Winacott was served with the claim on April 11, 2007. [ 45 ] This Court has previously addressed the scope of s. 20 in Cameco Corp. v. Insurance Company of the State of Pennsylvania, supra . Richards J.A. (as he then was) speaking for the Court noted the following at paras. 28 and 29: Notwithstanding these important objectives, the other side of the coin is that the operation of limitation periods can have harsh consequences for plaintiffs caught by them.

Section 20 of The Limitations Act is intended to ameliorate some of that harshness. But, as Tallis J.A. suggested in Fillion v. Wolverine et al. , 2001 SKCA 30 , (2001) 203 Sask. R. 288 at para 13 , provisions like s. 20 must nonetheless be read in context. They provide for exceptions to limitation periods but should not be allowed to become a means for their wholesale avoidance. This inherent limitation in the scope of s. 20 is reflected in its language. It is specifically framed as authorizing a judge to allow an "amendment to the pleadings" after the expiration of a limitation period.

At least in relation to a provision creating an exception to limitations legislation, the notion of an "amendment" necessarily carries with it the idea that the proposed changes to the original pleadings must not be so dramatic as to effectively create a wholly new proceeding . [emphasis added]

[ 46 ] As explained by Justice Richards, the language of s. 20 necessarily limits its application to circumstances where a party amends its claim. In the present case, commencing a third party claim against a new party in a new proceeding unrelated to the plaintiff’s claim against Winacott, cannot be considered to be an “amendment”. In my view, Winacott is seeking to graft a “wholly new proceeding” onto the original action. Since this is beyond the permissible limits of s. 20(

a) of the Act , I would not give effect to this ground of appeal. VI. CONCLUSION [ 47 ] Since I have concluded that the limitation periods in the new Act apply to Winacott’s proposed third party claims and those limitation periods have expired, I would dismiss the appeal with one set of costs in favour of each of the respondents. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of August, A.D. 2013. “Herauf J.A.” Herauf J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A.