Court File and Parties
DIVISIONAL COURT FILE NO.: 410/11 DATE: 20150106
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DARCY GATES Plaintiff (Moving Party)
– and –
THE HUMANE SOCIETY OF CANADA Defendant (Responding Party)
Counsel: Elichai Shaffir, for the Plaintiff (Moving Party) Michael O’Sullivan, for the Defendant (Responding Party)
HEARD at Toronto: January 6, 2015
Oral Reasons for Judgment
HARVISON YOUNG J. (ORALLY)
1Both parties bring motions. First, Michael O’Sullivan asks for leave to represent the defendant. Second, the plaintiff, Mr. Gates seeks leave to correct the identity of the corporate defendant to read, “The Humane Society of Canada for the Protection of Animals and the Environment, carrying on business as the Humane Society of Canada”.
2Dealing first with Mr. O’Sullivan’s motion to be permitted to represent the corporate defendant, Mr. Shaffir for the plaintiff acknowledges that such an order was or was probably made in this Court at some point previously and that Mr. O’Sullivan has been representing the defendant throughout these proceedings over a few years. He submits however, that it is not in the interests of the administration of justice that Mr. O’Sullivan be permitted to continue. He refers to the numerous procedural complications in this Court as well as the Court of Appeal and the Small Claims Court and points in particular to the endorsement of Justice Gillese dated November 21, 2013. The Court refused Mr. O’Sullivan’s application to represent the Society before the Court of Appeal and which in turn cite Divisional Court cases Reasons dated September 27, 2013, which refer to Mr. O’Sullivan’s egregious and reprehensible conduct in making allegations of criminal misconduct unsupported by evidence as well as by repeated failures to comply with the Rules of Civil Procedure.
3In the view of Justice Gillese, it was not in the interests of the administration of justice to permit Mr. O’Sullivan to represent the Society before the Ontario Court of Appeal.
4In this Court, as Mr. Shaffir acknowledges, Mr. O’Sullivan has represented the Society throughout. While it would no doubt be preferable to have the Society represented by a lawyer, I am not satisfied that it would be, at this point, in the interests of the administration of justice to refuse Mr. O’Sullivan the right to represent the Society when he has been doing so for some time.
5For that reason, I would allow his motion to the extent that it is necessary. It may not be necessary if there is already an order in effect.
6I would also allow the plaintiff’s motion to correct the name of the defendant. I am satisfied that this is a case of simple misnomer as set out in the case law: Streamline Foods Ltd. v. Jantz Canada Corporation, 2011 ONSC at para. 17 and following; see also Lloyd v. Clark, 2008 ONCA 343 (C.A.)
7The defendant has not been misled in any way. Indeed, the defendant responded, participating in and vigorously defending the suit by Mr. Gates and bringing its own counterclaim, albeit in the name of The Humane Society of Canada for the Protection of Animals and the Environment. There was no confusion on the defendant’s part.
8It would not be fair, in my view, to permit the defendant to avoid the consequences of losing the litigation in which it participated so actively. Given the procedural complexities of this matter, I am satisfied by the plaintiff’s explanation for the delay in correcting the misnomer and that he has attempted to proceed rationally and efficiently.
9In any event, there is no prejudice to the defendant by this correction with respect to which the defendant can legitimately complain.
10The plaintiff’s motion is therefore allowed.
COSTS
11I have endorsed the Motion Record, “Motion allowed, cross motion of plaintiff Gates heard today also allowed, both for reasons given orally. No costs as success divided.”
___________________________ HARVISON YOUNG J.
Date of Reasons for Judgment: January 6, 2015
Date of Release: January 9, 2015
CITATION: Gates v. The Humane Society of Canada, 2015 ONSC 107
DIVISIONAL COURT FILE NO.: 410/11 DATE: 20150106
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DARCY GATES Plaintiff (Moving Party)
– and –
THE HUMANE SOCIETY OF CANADA Defendant (Responding Party)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: January 6, 2015
Date of Release: January 9, 2015