DIVISIONAL COURT FILE NO.: 545/14
DATE: 20150326
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Paramacularany Christy Ratnakumar, Plaintiff/Respondent
AND:
DICKIE’S NO FRILLS, Defendant/Appellants
BEFORE: J. Wilson J.
COUNSEL: Bronwyn Martin, for the Plaintiff/Respondent
Stephen Ross and David Campbell, for the Appellants
HEARD at Toronto: March 13, 2015
ENDORSEMENT
The Problem
[1] There are two No Frills grocery stores on Eglinton Ave. East in Scarborough: Dickie’s No Frills, located at 1880 Eglinton Ave. East, and Stephen’s No Frills, at 2742 Eglinton Ave. East (formerly known as Mike’s No Frills).
[2] On August 28, 2010, the plaintiff was injured in a slip and fall accident at the Mike’s No Frills store located at 2742 Eglinton Ave. East. An ambulance was called by the staff of Mike’s No Frills and the plaintiff was taken to hospital. The plaintiff retained a lawyer some days later, who mistakenly put Dickie’s No Frills on notice about the accident, and subsequently sued Dickie’s No Frills.
[3] In the course of her discovery, the plaintiff confirmed that she was injured at the No Frills at Eglinton and Brimley, which was the Mike’s No Frills location, now carrying on business as Stephen’s No Frills. When defence counsel reviewed the address in the ambulance records confirming that the plaintiff was picked up at 2742 Eglinton Ave. East, the address of Mike’s No Frills, the error came to light.
[4] The plaintiff brought a motion to amend, which was granted.
The Appeal
[5] This is an appeal from the November 7, 2014, decision of Master Hawkins granting the plaintiff leave to amend the statement of claim based on the principle of misnomer. The plaintiff was granted leave to substitute 184442 Ontario Ltd., operating as Stephen’s No Frills, and 1625396 Ontario Ltd., operating as Mike’s No Frills, for the defendant named in the statement of claim, Dickie’s No Frills.
[6] The amendment request was granted by the Master pursuant to rules 26.01 and 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), and s. 21(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (“the Limitations Act”).
[7] The appellants argued before the Master that the amendment should not be granted as the limitation period had expired, and the doctrine of misnomer did not apply.
[8] The Master accepted the defendant’s submissions that the limitation period expired applying the doctrine of discoverability, but concluded that the plaintiff was entitled to amend the claim applying the principles of misnomer. The determination of the Master with respect to the limitation period is not challenged in this appeal. His conclusions with respect to misnomer are the subject matter of this appeal.
Standard of Review
[9] A determination by a master of a question involving mixed fact and law evokes a standard of deference. It is subject to review only if there is a palpable and overriding error. An error of law is reviewable on the standard of correctness: Housen v. Nikolasisen, 2002 SCC 33 at paras. 8, 10, 26-28, [2002] 2 S.C.R. 235.
[10] The decision of the Master is entitled to the same deference as a judge: Essar Algoma Steel Inc. v. Liebherr (Canada) Co., 2011 ONSC 1688 (Div. Ct.) at para. 19, relying on Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.).
[11] The appellants argue that the Master made legal errors reviewable on a standard of correctness, as well as errors in his findings of fact constituting palpable overriding errors.
Arguments Raised
[12] The appellants argue that the Master erred in law by failing to consider all the prerequisite elements that the plaintiff must prove for a finding of misnomer. They challenge the plaintiff’s intention to sue the correct appellants, and whether the “litigation finger test” as to the appellants’ knowledge was properly considered. The appellants argue that the Master failed to consider prejudice to the appellants, and did not consider whether in the circumstances, his residual discretion should be exercised to grant the amendment.
[13] The appellants challenge the findings of fact of the Master, particularly the adverse inference that the Master drew with respect to the appellants’ refusal to produce the sweep logs or incident reports relevant to this incident.
Applicable Rules and Statutory Provisions
[14] The overarching governing principle informing the interpretation of the Rules is outlined in r. l.04(1):
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[15] The applicable rules in this motion are rr. 5.04(2) and 26.01:
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[16] The relevant provisions of the Limitations Act are found at ss. 21(1) and (2), which provide:
21.(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.
[17] As the Master confirmed in his reasons, the issue for determination is whether this is a case of correcting the misnomer or misdescription of a party within the meaning of s. 21(2) of the Act, and not an attempt to add a defendant after the expiry of the limitation period.
The Law of Misnomer
[18] The misnomer doctrine is well established in Ontario. Three factors should be considered when deciding whether to exercise the residual discretion to grant the amendment requested.
[19] A plaintiff bears the onus of proving two things: first, her intent to sue the correct party sought to be named, and second, she bears the onus of showing that the defendants would know that they were the intended defendants in this proceeding applying the “litigation finger test.”
[20] Further, the caselaw confirms that the court should consider prejudice to the proposed defendant: Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 at para. 32, 97 O.R. (3d) 121 [Ormerod]; Mazzucca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768 (C.A.) at para. 25, [2001] O.J. No. 4567.
[21] The foundational case in Ontario in questions of misnomer with respect to the defendant’s knowledge that she is the party the plaintiff seeks to sue is the English decision of Davies v. Elsby Brothers Ltd., [1960] 3 All. E.R. 672 at p. 676, [1961] 1 W.L.R. 170 (C.A.) [Davies]. The “litigating finger test” looks at whether the pleadings make it clear who the intended party was to be, from the perspective of the party sought to be joined:
The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”, then there is a case of me a misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they meet me or not and I shall have to make inquiries”. Then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.
[22] The Davies test was relied upon by the defendants in the motion to amend in Ormerod, a case which considered the principles of misnomer of doctors in an action for medical malpractice. The motions judge “observed that the ‘reasonable person receiving the document’ or the ‘recipient of the document’ referred to in the Davies v. Elsby Brothers Ltd. test is not restricted to Dr. Graham. Rather, the cases have expanded the test to include the ‘relevant person’ who reviews the document”: Ormerod, at para. 12.
[23] The motions judge’s decision was upheld on appeal. The Court of Appeal in Ormerod set out the Davies test at para. 11 of its decision, but clarified that the direction of Ontario law has evolved over the years since the Davies decision was rendered.
[24] Justice Juriansz, writing for the Court of Appeal in Ormerod, noted at para. 21 that “the English Court of Appeal [took] a narrow view of what fell within the scope of a ‘misnomer’” and that “the law has evolved a great deal since the Davies case was decided in 1960”. This statement suggests a somewhat more flexible approach to questions of misnomer.
[25] The Court of Appeal reiterated that the current approach for misnomer is the one found at para. 4 of Lloyd v. Clark, 2008 ONCA 343, [2008] O.J. No. 1682, confirming the coincidence of intent to sue and knowledge of the intended defendant:
The case law amply supports the proposition that where there is a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer. (citations omitted)
[26] For reasons that I will outline, applying either the “litigation finger” test of Davies, applied by the Master, or the current approach of a coincidence of intention to sue and knowledge of the intended defendant, confirmed in Lloyd v. Clark and Ormerod, I conclude that the findings of the Master are well founded and that there is no error in fact or law.
The Facts
[27] I outline the facts from the record, as the appellants challenge the factual findings of the Master, as well as the application of the law to the facts.
[28] Loblaws Company Limited owns and franchises the various No Frills locations. The No Frills stores are identified by displaying the franchise owner’s name. For instance, the No Frills located at 2742 Eglinton Ave. East at the time of the accident in 2010 was owned by Mr. Lee and was called Mike’s No Frills. It was sold in 2011 and is now carrying on business as Stephen’s No Frills.
[29] The slip and fall accident giving rise to these proceedings took place in the Mike’s No Frills near the produce section on August 28, 2010. The plaintiff alleges that she slipped on a wet, oily patch, fell, injured herself and hit her head. This is confirmed in the ambulance report.
[30] According to the plaintiff’s evidence from discovery, after the incident, the plaintiff was invited into the office at Mike’s No Frills. A female staff member first called the plaintiff’s daughter, who came to the store, and then called an ambulance. The ambulance report confirms the plaintiff was picked up by paramedics at 2742 Eglinton Ave. East, which is the address of Mike’s No Frills store.
[31] Counsel was retained. Within days of the slip and fall, counsel erroneously put Dickie’s No Frills on notice by sending the notice to the 1880 Eglinton Ave. address.
[32] The adjuster from Zurich Insurance Company contacted counsel for the plaintiff and asked to conduct an interview with the plaintiff. Counsel refused the interview request but confirmed that if the adjuster wished to put questions in writing for the plaintiff to answer, counsel would be happy to respond. There was no further contact by the adjuster.
[33] Zurich is the insurance company acting for Mike’s/Stephen’s No Frills, as well as Dickie’s No Frills. Counsel at the appeal confirmed that Zurich’s acts for No Frills franchises in personal injury matters.
[34] On June 21, 2011, defence counsel for Dickie’s No Frills asked for details of the slip and fall accident and asked why the plaintiff did not report the accident to staff. Plaintiff’s counsel responded that the plaintiff did report the accident to the staff at the No Frills location and that the staff attended immediately to clean the slippery area in question.
[35] The statement of claim issued in April 2011 incorrectly names Dickie’s No Frills as the defendant.
[36] The discoveries took place in January 2013. At the discovery, the plaintiff confirmed that she fell at the No Frills located at Brimley and Eglinton, in Scarborough. This is the location of what was Mike’s No Frills at the time of the accident, and what is now Stephen’s No Frills.
[37] Counsel for Dickie’s realized in October 2013 that there had been an error naming the incorrect No Frills store when he reviewed the ambulance report that was produced by the plaintiff and considered the evidence of the plaintiff at discovery. The ambulance report confirmed that the plaintiff was picked up by the ambulance at 2742 Eglinton Ave. East, which is the address of Mike’s/Stephen’s No Frills.
[38] When the error was brought to the attention of plaintiff’s counsel, counsel for Mike’s No Frills and Stephen’s No Frills refused to consent to the requested amendment to the pleading, arguing that the limitation period had expired.
[39] Discovery of Dickie’s No Frills has been completed. At discovery, the witness from Dickie’s No Frills confirmed that if there is an accident or an incident in a No Frills location, staff are required to report the matter to the insurer by providing the sweep logs for the day in question.
[40] Not surprisingly, there were no sweep logs submitted by Dickie’s No Frills to the insurer on the date in question, as the accident did not take place at that location.
[41] In November 2013, shortly after the error naming the wrong No Frills came to light, counsel for the plaintiff asked counsel for Dickie’s No Frills to provide the sweep logs for the day of the accident. Counsel refused. The sequence of correspondence is as follows:
November 4, 2013, plaintiff’s counsel to Dickie’s counsel:
Have you requested the sweep logs from Steve’s- if available do you undertake to deliver them
November 18, 2013, plaintiff’s counsel to Dickie’s counsel:
Please respond to my letter to you dated November 14th, 2013, with respect to production of the incident report and sweep logs.
November 18, 2013, counsel for Dickie’s No Frills to plaintiff’s counsel:
I will not undertake to produce any documentation until the motion is decided.
I can advise that to date my client has been unable to find any records relevant to this loss (including an incident report or logs).
[Emphasis added]
[42] The Master relied on the refusal by the defendant to produce the requested documents, and drew an adverse inference against the defendant as a result of this refusal.
[43] In the motion to amend, the appellants filed an affidavit from Mr. Lee, who was the president of Mike’s No Frills in 2010, which was sold back to Loblaws in 2011, and refranchised to become Stephen’s No Frills in 2011. The only evidence relevant to knowledge of the appellants is at paragraph 11 of Mr. Lee’s affidavit:
I have no personal knowledge, information, or belief regarding any incident involving the plaintiff that is alleged to have occurred at the premises on August 28, 2010. I first became aware of the facts in January 2014.
[44] No affidavit was filed on behalf of Stephen’s No Frills, the present franchisee.
The Findings of the Master and this Court’s Conclusions
[45] The Master concluded that this was a case of misnomer or misdescription of a party, and was not an attempt to circumvent a limitation period.
[46] I agree with his conclusions as outlined below.
The Plaintiff’s Intention to sue the Appellants
[47] The Master’s reasons do not focus on the element that the plaintiff intended to sue the correct No Frills store, as it was not a focus of argument before him. The appellants challenge this aspect of the misnomer requirements before me.
[48] From the undisputed facts in the record, I conclude that it is obvious that the intention test has been met. The plaintiff intended to sue the No Frills store located at Eglinton and Brimley, as confirmed in her discovery transcript, and as confirmed by the information in the ambulance report. Intention to sue is amply supported by the evidence.
[49] It is not necessary that every element of a case is addressed in reasons, particularly if there is no issue raised at first instance, so long as the reasons as a whole adequately address the matters in issue: Marshall v. ING Insurance Co., 2015 ONSC 171 at paras. 70-71.
The Appellants’ Knowledge that they were the Intended Party to be sued
[50] The appellants challenge the conclusion of the Master that the “litigation finger” clearly points to the appellant Mike’s No Frills, now carrying on business as Stephen’s No Frills, as the intended defendant in this action.
[51] I conclude that there is no merit to this challenge.
[52] First, this is a claim in a slip and fall engaging the insurers of the No Frills stores. There is one insurance company representing each of the named defendants: Dickie’s No Frills, and Mike’s No Frills, now carrying on business as Stephen’s No Frills.
[53] The adjuster from Zurich insurance was put on notice by Dickie’s No Frills of an accident that took place on August 28, 2010 eleven days after the incident. A common insurer is a relevant consideration in cases of misnomer: Ormerod, at paras. 13-14, relying on Ladouceur v. Howarth, 1973 30 (SCC), [1974] S.C.R. 1111, [1973] S.C.J. No. 120.
[54] Plaintiff’s counsel offered to have the plaintiff answer questions posed by the adjuster in writing, but the adjuster did not pursue this opportunity.
[55] The affidavit evidence filed by the appellants is weak. The former owner of Mike’s No Frills confirms that he had no personal knowledge of the incident. However, the evidence is clear that his staff were certainly aware of the incident. One of the Mike’s No Frills staff called the plaintiff’s daughter and then called an ambulance. The owner of Mike’s No Frills is imputed the knowledge of his staff.
[56] There was no affidavit evidence filed by Stephen’s No Frills.
The Challenge to the Adverse Inference Drawn by the Master
[57] According to the evidence at discovery given by Dickie’s No Frills, the standard procedure when there is an incident or accident is to file the sweep logs or an incident report with the insurer.
[58] A reasonable inference, and one drawn by the Master, is that the sweep logs or incident report was filed by the staff of Mike’s No Frills on or shortly after August 28, 2010. After all, the staff called the ambulance to attend at the premises to transport the plaintiff to the hospital.
[59] The counsel for Dickie’s No Frills refused to provide the sweep records or incident reports from Stephen’s No Frills until after the motion was heard.
[60] The Master drew an adverse inference from this refusal, and concluded that refusal to produce these documents was because the records would not assist the appellants but would corroborate the plaintiff’s version of events.
[61] The appellants challenge the reasonableness of this inference, and argue that there is no evidence that the sweep logs or incident reports exist.
[62] I am of the view that the inference by the Master is a reasonable one. Inferences are questions of fact.
[63] If the documents requested truly did not exist, the appellant Mike’s/Stephen’s No Frills could have provided proof to that effect. They had the plaintiff’s affidavit in support of the motion, containing the email exchange and the refusal to produce documents months before the motion was argued. No evidence was filed by the appellants on this issue.
[64] I conclude that the adverse inference drawn was reasonable, and supported by the evidence.
[65] However, the adverse inference flowing from the refusal to provide the documents is not necessary for the conclusion that the second element has been met.
[66] The uncontroverted evidence of the plaintiff at discovery was that Mike’s No Frills staff called the daughter to come, as well as called the ambulance. The adjuster for Dickie’s No Frills was put on notice of the accident, and is the same insurer as Mike’s No Frills. With or without the inference from the refusal to produce documents, I conclude that the test for misnomer is amply met. The appellants, reading the pleading, would know they were the intended defendants.
Prejudice
[67] The appellants argue that the Master did not consider potential prejudice to them. It is not clear whether the argument was raised before the Master. In any event, I conclude that there is no prejudice to the appellants that can be inferred from the facts. The appellants’ insurer had notice of the accident, as did the staff of Mike’s No Frills. The appellants did not raise any evidence of actual prejudice. The plaintiff has consented in argument before me that if Stephen’s No Frills or Mike’s No Frills seek further documents, or further discovery, the plaintiff’s counsel will consent given the circumstances.
Conclusions
[68] The Master, in careful reasons, outlined his findings of fact and law responding to the arguments raised by counsel opposing the amendments. The Master cannot be expected to have canvassed matters not raised before him in his reasons.
[69] The Master’s decision is owed deference. There are no errors of fact or law in his analysis. I conclude that his conclusions, both of fact and law, are not only fair and reasonable, but are correct. The existence of a common insurer for Mike’s/Stephen’s No Frills and Dickie’s No Frill, and the practice of forwarding sweep logs on the date of an incident or accident, are highly relevant in the present case.
[70] For these reasons the appeal is dismissed.
Costs
[71] Counsel for the plaintiff did not seek costs before the Master, which was proper in the circumstances. However, the plaintiff is entitled to her costs on this appeal. The appellants’ counsel sought costs for two counsel in the amount of $10,000 to $12,000, if successful.
[72] The plaintiff’s counsel seeks partial indemnity costs in the amount of $5,900, inclusive of HST and disbursements. The appellants did not quarrel with this sum as reasonable if the plaintiff was successful in this motion. The appellants 1844442 Ontario Ltd., carrying on business as Stephen’s No Frills, shall pay this amount to the plaintiff’s counsel forthwith.
J. Wilson J.
Date: March 25, 2015