29 C.L.R. (2d) 212

 by 

©Lawlor Rochester, P. Eng.

[of Glaholt & Associates]

Engineers may lose their one year limitation protection under the Professional Engineers Act of Ontario where they are joined as third parties for contribution as tortfeasors in disputes between owners and contractors. An action (Con-Drain Co. (1983) Ltd. v. Jane-Langstaff Developments Ltd., (1995), 26
C.L.R. (2d) 139, 44 C.P.C. (3d) 249 (Ont. Gen. Div.)), was commenced by a contractor to recover the cost of repair work to a major manhole that was part of a sewer system on land owned by a developer. In its defence, the owner/developer counterclaimed and added the adjacent owner/developer and sewer contractor as defendants to the counter claim.

These last defendants added the engineering firm responsible for the design and construction supervision of the
sewer system that ran through both pieces of land as a third party to the action.

In their third party claim the defendants specifically alleged that the engineering firm was negligent in failing to:

(a) Provide adequate specifications for the sewer work;

(b) adequately supervise the work of the contractors;

(c) identify and arrange for the correction of defective work;

(d) act on the contractors' report of deficiencies respecting the manhole.

On a motion to dismiss the third party claim against the engineering firm as being out of time, the Court explored the legislation governing engineers and engineering firms namely, the Professional Engineers Act, R.S.O. 1990, c. P.28. Section 47 of the Act provides a one year limitation period after the engineering service has been provided within which the engineers may be sued. Since the twelve month limitation period referred to in s. 47 of the Act had expired from the date the engineering services were provided, the limitation period under the Act had run out.

However, the Court also examined the Negligence Act, R.S.O. 1990, c. N.1, in order to determine whether the time limitation period under s. 47 of the Professional Engineers Act had been overridden.

Section 8 of the Negligence Act provides that no proceedings for contribution or indemnity against another
tortfeasor are defeated by the operation of any statute limiting the time of the commencement of the action against the other tortfeasor provided the proceedings are commenced (against that tortfeasor) within one year of judgment or settlement.

Lawlor Rochester, P. Eng.