Court of Appeal for Ontario

Date: 2018-06-22 Docket: C64833

Judges: Simmons, Huscroft and Miller JJ.A.

Between

John P. Bertolli, Norma K. Bertolli and Kathleen R. Tomlinson Plaintiffs (Appellants)

and

City of Toronto and John Doe Maintenance Company Defendants (Respondents)

Counsel

Michael Kealy, for the appellants

Miranda Serravalle and Karen Bernofsky, for the respondents

Heard and released orally: June 22, 2018

On appeal from: the order of Justice Lederer of the Superior Court of Justice, dated December 15, 2017.

Reasons for Decision

[1] Following the expiry of the limitation period for damages arising from an accident caused by alleged non-repair of a highway (a pothole), a Master permitted the respondents to amend their Statement of Claim to substitute the Regional Municipality of York and Brennan Paving and Construction Ltd. (the "substituted defendants") for the originally named defendants (the City of Toronto and John Doe Maintenance Company) based on misnomer.

[2] Although the site of the accident as identified in the Statement of Claim was not particularized beyond alleging that it occurred on McCowan Road in the City of Toronto, the Master concluded that the substituted defendants would have known they were the intended defendants upon reading the Statement of Claim. He assumed that the substituted defendants would have knowledge of a Notice of Claim delivered to them within days of an alleged accident, which identified the precise location of the alleged accident at a particular point on McCowan Road, which was in the Regional Municipality of York. [1] (McCowan Road traverses both the City of Toronto and Regional Municipality of York.)

[3] Relying on assumed knowledge of the Notice of Claim and misnomer, the Master permitted the amendment.

[4] On appeal to the Superior Court by Brennan, the motion judge set aside the Master's order in its entirety. The respondents appeal from the motion judge's order.

[5] The appeal is dismissed. The delivery and content of the Notice of Claim were facts extraneous to the original accident, and not a record made by a participant or observer at the time of the accident who was in some way connected to the substituted defendants. Moreover, even when read in combination, the Notice of Claim and Statement of Claim were not capable of supporting an inference that the substituted defendants were the intended defendants. Absent reference to the pothole in the Notice of Claim and absent particulars of the precise location of the accident alleged in the Statement of Claim, the reasonable reader could not know, without further inquiry, that the documents referred to the same accident. Put simply, the Master's inference that the substituted defendants would know they were the intended defendants was not available on any reasonable view of the evidence. The Master's order was properly set aside.

[6] Further, the motion judge did not err in setting aside the Master's order as against the Regional Municipality of York at the request of Brennan. Evidence on the motion indicated Brennan is contractually bound to defend and indemnify the Regional Municipality of York from claims such as this.

[7] The appeal is dismissed.

[8] Costs of the appeal are to Brennan, on a partial indemnity scale fixed in the amount of $6,000, inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.

Footnote

[1] The Notice of Claim identified the City of Markham as the relevant municipality. Markham forwarded the Notice to the Regional Municipality of York who, in turn, forwarded it to Brennan.