The source of the position taken by the third parties is the Supreme Court
of Canada decision in Giffels Associates Ltd. v. Eastern Construction Co.,
, 2 S.C.R. 1346, which reviewed a similar situation. In its reasons,
Chief Justice Laskin (at page 1355) assumed where a plaintiff chose to sue
only one of two contractors that each had a separate contract with the plaintiff after the plaintiff suffers damages from concurrent breaches of those
contracts, it would be inequitable for that one contractor to bear the entire
brunt of the plaintiff’s loss. However, the court accepted that it was open to
one of the contractors to protect itself from liability by a term in its contact
and, as a result, the other contractor could not assert a right which would go
behind that agreement and force the protected contractor to share in compensating the plaintiff for its losses.
 The motion judge also recognized a more recent acknowl-
edgment of the legal principles which stem from Giffels in R. v.
Imperial Tobacco Canada Ltd.,  3 S.C.R. 45,  S.C.J.
No. 42, at para. 29, where McLachlin C.J.C. stated:
I agree with Canada and the Court of Appeal that a third party may only
be liable for contribution under the Negligence Act if it is directly liable to
 The respondent in these proceedings has acknowledged
that the plaintiff’s claim against the appellants is barred by the
limitation period in the architecture agreement.
 The Court of Appeal in Waterloo specifically states, at
para. 30, that the conclusions of the Court of Appeal in HSBC
Securities (Canada) Inc. v. Davies, Ward & Beck (2005), 74 O.R.
(3d) 295,  O.J. No. 277, 2005 CanLII 1626 (C.A.) were not
applicable to the determination in Waterloo.
 This is significant in my view given the very clear statements of the Court of Appeal in paras. 47 and 48 of HSBC,
where Lane J. (ad hoc) confirms that the law in Giffels continues
to apply where the limitation period at issue is contractual. It is
also acknowledged in HSBC that s. 8 of the Negligence Act only
protects contribution claims from the expiry of statutory limitation periods. It is this distinction in my view that suggests that
the Court of Appeal’s decision in Waterloo did not change the law
 While the motion judge states, at para. 11, that Feldman
J.A. chose not to follow the principle set out in Giffels in considering the matter of HSBC, I do not agree. In Waterloo, Feldman
J.A. specifically sets out her understanding of the rationale
behind s. 18 of the Limitations Act when she stated [at para. 27]:
In my view, to the extent that the legislature intended to change the law
that has been in place since 1948 regarding the requirements for bringing a
claim for contribution and indemnity, it did so specifically by changing the
limitation period (from one year to two years) and the commencement date
from which it runs (from the date of the plaintiff’s judgment against a
particular tortfeasor to the date when the plaintiff’s claim was served on