The executive director sat across from the agency's lawyer in a cramped boardroom, a stack of photographs spread across the table showing water stains creeping down interior walls, cracks running through concrete foundation elements, and warped flooring that had buckled after repeated moisture exposure. The community services agency had occupied this building for nearly four years since the renovation was completed, and what had begun as minor cosmetic concerns—a bit of dampness in one corner, a hairline crack that seemed inconsequential—had evolved into structural problems that now threatened the agency's ability to deliver programming to the vulnerable populations it served. The executive director explained that the board had authorized her to seek legal advice about pursuing the general contractor, a local construction company that had handled the entire renovation project under a single contract. The lawyer listened carefully, then asked a question that would shape everything that followed: who, exactly, should the agency sue, and why did it matter so much to get that decision right at the very beginning?
This question—who to name as a defendant in a civil claim—sits at the foundation of every piece of litigation, and yet it receives surprisingly little attention from those who find themselves contemplating legal action for the first time. For a non-profit agency governed by a volunteer board, funded through a patchwork of government grants and private donations, and operating programs that serve people who depend on stability and continuity, the decision about who to sue is not merely a technical legal matter. It is a strategic choice that will determine the shape of the entire proceeding, the costs the agency will bear, the likelihood of actually recovering compensation if it succeeds, and the relationships that may be damaged or preserved along the way. The agency's lawyer knew that the executive director and the board members who had sent her likely assumed the answer was obvious: sue the general contractor, the entity with whom the agency had signed a contract, the company whose name appeared on the invoices and whose workers had been present on site throughout the renovation. That assumption, while understandable, overlooked complexities that could prove decisive.
The doctrine of privity of contract provides the starting point for understanding why the general contractor seems like the natural and perhaps only defendant. Under Alberta law, a contract creates rights and obligations between the parties who enter into it, and generally speaking, only those parties can enforce the contract or be held liable for its breach. The agency had contracted directly with the general contractor for the renovation work. If the work was deficient—if the contractor failed to perform in accordance with the terms of the agreement, failed to meet the standard of care expected of a reasonably competent contractor, or failed to complete the work in a good and workmanlike manner—then the agency's claim for breach of contract runs against the contractor. The subcontractor who handled the foundation work, by contrast, had no contract with the agency. The subcontractor's contract was with the general contractor, who had engaged various trades and specialists to complete different aspects of the project. From a strict contract law perspective, the subcontractor owed no contractual duties to the agency, and the agency might conclude that naming the subcontractor would be pointless because there is no contractual relationship to ground a claim.
This conclusion, however, would be incomplete, and potentially dangerous for the agency's prospects of recovering meaningful compensation. The law of negligence operates independently of contract and can create obligations running between parties who have never agreed to anything with one another. A subcontractor who performs work negligently, causing foreseeable harm to persons or property, may be liable in tort to those harmed even though no contract exists between them. The foundation work at the agency's building was not performed in a vacuum; it was performed as part of a construction project on a specific property, for a specific owner, whose use of the building was entirely foreseeable to anyone involved in the work. If the subcontractor failed to exercise reasonable care in performing the foundation work—if the structural problems and water infiltration trace back to deficiencies in how that work was done—then the subcontractor may owe the agency a duty of care independent of any contract. The general contractor's involvement does not insulate the subcontractor from direct liability to the property owner. This principle has been recognized repeatedly in Canadian jurisprudence and applies with full force in Alberta.
The question of whether to name the subcontractor therefore becomes a matter of strategic judgment rather than legal impossibility. There are compelling reasons to include the subcontractor as a defendant from the outset. If the general contractor's position throughout the litigation is that the subcontractor's negligent foundation work caused all of the problems—a position the executive director reported the contractor had already begun to take informally—then the agency faces a difficult situation if the subcontractor is not part of the proceeding. The general contractor will point fingers at an absent party, making it harder to establish responsibility and potentially leaving the agency with a judgment against a contractor who claims the fault lies elsewhere. Even if the agency succeeds in proving the general contractor breached the contract, the contractor may seek contribution or indemnity from the subcontractor in separate proceedings, creating additional litigation, delay, and uncertainty. By naming both the general contractor and the subcontractor from the start, the agency places all potentially responsible parties in the same courtroom, allows the court to apportion responsibility among them, and maximizes the likelihood that if liability is established, there will be someone with resources against whom to enforce a judgment.
The question of resources matters enormously in construction litigation. A general contractor may operate through a corporation with limited assets, may have allowed its insurance coverage to lapse, or may have structured its affairs in ways that make collection difficult. The subcontractor, particularly if it is a specialized foundation or concrete company, may carry its own insurance and may have assets that the general contractor lacks. Alternatively, the subcontractor may be a smaller operation with fewer resources, and the general contractor may be the better-capitalized defendant. The agency cannot know with certainty at the outset which defendant is more likely to be able to satisfy a judgment, and this uncertainty counsels in favor of naming all parties whose conduct may have contributed to the harm. Alberta courts have recognized that plaintiffs are entitled to pursue all potentially liable parties and that the allocation of fault among defendants is a matter to be determined at trial or through the litigation process, not a question that should lead a plaintiff to narrow its claims prematurely.
Yet naming additional defendants is not without cost, and the agency's lawyer was careful to explain this to the executive director. Every party added to a lawsuit increases the complexity of the proceeding, the volume of documents that must be exchanged, the number of examinations for discovery that must be conducted, and the time required to move the matter toward resolution. A claim against the general contractor alone might proceed relatively efficiently; a claim against both the contractor and the subcontractor will involve additional counsel, potentially conflicting positions between the defendants as each seeks to blame the other, and motions practice that can extend the timeline considerably. For a non-profit agency with limited resources, already dealing with the disruption caused by the building deficiencies, the prospect of protracted litigation is daunting. The board must weigh these costs against the risks of failing to name a party who turns out to be the primary wrongdoer or the only defendant capable of paying.
There is also the question of naming parties who might have claims or interests that intersect with the agency's own. The executive director had mentioned that a government funder had contributed capital toward the renovation project, and the lawyer probed this relationship carefully. If the government funder had contributed significant funds, it might have a subrogation interest—a right to recover a portion of any settlement or judgment corresponding to its contribution—or it might have contractual provisions in its funding agreement that affected how litigation proceeds would be allocated. The funder might even be required to consent to litigation or might have the right to participate in decisions about settlement. None of this made the funder a defendant, but it illustrated that the question of parties extends beyond those who might be sued to include those whose interests must be considered in how the claim is framed and pursued.
The more difficult conversation, however, concerned the limitation period—the statutory time limit within which a claim must be commenced or be forever barred. Under the Limitations Act of Alberta, most civil claims must be brought within two years from the date the claimant knew or ought to have known of the injury, loss, or damage; that the injury, loss, or damage was caused by or contributed to by an act or omission; and that the act or omission was that of the defendant. This is the discoverability rule, and it determines when the limitation clock starts running. There is also an ultimate limitation period of ten years from the act or omission that caused the claim, which operates as an absolute bar regardless of when the claimant discovered the problem. For construction defects that emerge gradually over time, determining when the limitation period began—and against which defendant it has run—can be fiendishly complicated.
The executive director acknowledged that the agency had not documented the project well at the time. There were some photographs from the renovation itself, but the records were incomplete. More concerning, she was uncertain exactly when various problems had first appeared and who had been told about them. There had been minor complaints from program staff about dampness within the first year after the renovation, but these had been attributed to normal settling or seasonal moisture changes. A board member who served on the facilities committee had mentioned concerns about cracks in a report submitted roughly eighteen months after the project was complete, but no formal investigation had been conducted. The executive director herself had first become seriously alarmed only about six months before this meeting with the lawyer, when a plumber called in to address a drainage issue had commented that the foundation work looked problematic. At what point should the agency have known that something was wrong, and that the wrongness was attributable to defective work by the contractor or the subcontractor?
This uncertainty creates a cascading set of problems when deciding who to name as defendants. If the limitation period against the general contractor has not yet expired—because the agency did not know and could not reasonably have discovered the latent defects until recently—then the agency has time to investigate, to commission expert reports, and to name the contractor in a properly pleaded statement of claim. But if the limitation period against the subcontractor began running at a different time, perhaps because the foundation work was completed earlier in the renovation or because visible signs of foundation problems appeared before other deficiencies, then the claim against the subcontractor might be at greater risk. Different aspects of the project may have different limitation timelines, and different defendants may be entitled to assert different limitation defenses. The agency cannot simply assume that because it has a viable claim against the general contractor, it necessarily has a viable claim against every other party whose work contributed to the problems.
The consequences of getting this wrong are severe. If the agency names the subcontractor as a defendant and the subcontractor successfully argues that the limitation period has expired, the agency will have incurred the costs of pursuing that party—document production, legal fees, time spent on examinations—without any prospect of recovery. Worse, the failed claim against the subcontractor might undermine the agency's position against the general contractor if the litigation has proceeded on a theory that emphasized the subcontractor's fault. The contractor's lawyers will point to the fact that the true wrongdoer has been absolved by the limitation statute, argue that their client cannot fairly be held responsible for another's failings, and seek to minimize any judgment against the contractor. Even though the running of a limitation period is not technically a defense on the merits—it does not mean the defendant did nothing wrong, only that the plaintiff waited too long to sue—there is a practical reality that limitation dismissals can color the entire proceeding.
The converse error is equally dangerous. If the agency names only the general contractor, convinced that the limitation period against the subcontractor has expired or that adding the subcontractor is not worth the additional complexity, and then discovers during litigation that the subcontractor was the primary wrongdoer, the agency may find itself unable to recover fully. The general contractor may have limited assets. The general contractor's insurance may not cover all of the claimed damages. The general contractor may establish that its own work was adequate and that the fault lies entirely with the subcontractor—a subcontractor who can no longer be joined to the proceeding because the limitation period has now definitively expired. Alberta courts do not permit plaintiffs to amend their claims to add defendants after the limitation period has run, and the agency will have no recourse against the subcontractor even if evidence emerging at trial points squarely to the subcontractor's negligence.
This is why the decision about naming parties must be made early, thoughtfully, and with a clear understanding of the risks on both sides. The agency's lawyer advised the executive director that the safest approach, given the uncertainty about limitation dates and the incomplete documentation, was to name both the general contractor and the subcontractor at the outset. If it later emerged that the limitation period had expired against the subcontractor, the agency could discontinue that portion of the claim and focus on the contractor. If, on the other hand, the limitation period had not expired and the subcontractor was indeed the primary wrongdoer, the agency would have preserved its rights and positioned itself for maximum recovery. The cost of including the subcontractor—additional complexity, additional legal fees—was the price of insurance against the risk of leaving a viable claim unpursued.
The lawyer also raised a matter that the executive director had not considered: the potential for the general contractor to bring the subcontractor into the litigation even if the agency chose not to name the subcontractor directly. Under Alberta's rules of civil procedure, a defendant may issue a third party notice, claiming contribution or indemnity from another party whose conduct allegedly caused or contributed to the plaintiff's loss. If the agency sued only the general contractor, the contractor could bring the subcontractor into the proceeding by asserting that if the contractor is found liable to the agency, the subcontractor should be required to bear part or all of that liability. This mechanism ensures that the allocation of fault among multiple parties can be resolved in a single proceeding, but it shifts control over the litigation in ways that may not align with the agency's interests. The agency would not be directly pursuing the subcontractor, would have less ability to shape the claims against the subcontractor, and might find the litigation complicated by disputes between the defendants that have little to do with the agency's actual concerns.
Having the agency name the subcontractor directly, rather than waiting for the contractor to bring the subcontractor in through third party proceedings, gives the agency greater control over the litigation narrative. The agency can frame its claims against both defendants, can coordinate discovery to build the strongest possible case, and can present a unified theory of liability to the court. The defendants will still likely point fingers at each other, but the agency will be positioned as the party seeking redress from all whose conduct caused harm, rather than as a bystander to disputes among construction professionals.
The executive director left the meeting with a clearer understanding of the stakes. She would return to the board with the lawyer's advice: name the general contractor and the subcontractor; move quickly to preserve all rights before any limitation period expires; engage experts to investigate the deficiencies and trace them to specific parties' work; and prepare for a proceeding that would likely be complex, expensive, and emotionally draining for an organization that would rather be focused on serving its community. The board would need to authorize the expenditure of scarce funds on legal fees and expert reports, would need to accept the uncertainty of litigation outcomes, and would need to communicate appropriately with funders whose contributions had built a building now mired in dispute.
The lesson for any organization contemplating a civil claim is that the decision about who to sue is not merely a matter of identifying the obvious wrongdoer. It requires understanding the relationships among all parties whose conduct contributed to the harm, the legal theories—contractual and tortious—that might support claims against each, the practical questions of who can actually pay a judgment, and the limitation periods that may bar claims against some parties while leaving claims against others viable. Naming too few defendants creates the risk of leaving money on the table or being left without recourse when the party you did sue cannot satisfy a judgment. Naming too many defendants creates costs, complexity, and potential for a diffuse litigation that becomes difficult to manage. The art of commencing a claim lies in making these judgments thoughtfully, with full awareness of the uncertainties involved and a clear strategy for managing risks.
For non-profit agencies in particular, these decisions carry additional weight. Boards of directors composed of volunteers may not have experience with litigation. Funders may have interests that must be accommodated. Programs serving vulnerable populations may be disrupted by the stress and distraction of legal proceedings. The duty of the organization's leadership is to weigh these considerations carefully, to seek competent legal advice, and to make decisions that serve the organization's long-term interests even when those decisions are difficult. Naming the right parties at the outset of a civil claim is one of the most consequential decisions in the litigation process, and it deserves the attention that its importance warrants.