DIVISIONAL COURT FILE NO.: 108/16 DATE: 20160929
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Cameika Nicola Brown-Vidal
Plaintiff
(Appellant)
– and –
John Doe and The Personal Insurance Company
Defendants
(Respondents)
Norma Barron, for the Plaintiff (Appellant)
Karim Hirani, for Proposed Defendant, Park S. Chung
Michael Robertson, for the defendant The Personal Insurance Company
HEARD at Toronto: June 29, 2016
C. HORKINS J. (ORALLY)
Introduction
1The appellant/plaintiff appeals the order of Master Haberman dated May 28, 2015.
Background
2By way of background, the appellant pleads that she was injured as a result of a motor vehicle accident that occurred on November 22, 2010.
3The appellant commenced her action on December 23, 2013. This was well beyond the expiration of the two year limitation period. She sued John Doe and The Personal Insurance Company as defendants. John Doe is described in the pleading as the operator and/or owner of the vehicle with Licence Plate No. 333 YMX.
4It is alleged that this vehicle collided with the appellant’s vehicle resulting in her injuries.
5On December 30, 2013, a licence plate search was performed by the appellant’s counsel for Plate No. 333 YMX. This revealed that Park S. Chung is the registered owner of a vehicle with this plate number.
6On March 19, 2015, the appellant brought a motion before Master Haberman to substitute Park S. Chung for John Doe on the basis of misnomer. In the alternative, the appellant sought leave to amend the Statement of Claim to add Park S. Chung after the expiry of the presumptive two year limitation period. The Master dismissed the motion.
7The appellant raises three grounds of appeal:
(1) The Master erred in failing to consider whether Park S. Chung could be substituted on the basis of misnomer.
(2) The Master erred in finding the information and identity of Park S. Chung had been available and discoverable to the appellant since the date of the motor vehicle accident.
(3) The Master erred in finding that the appellant didn’t exercise due diligence and did not take all reasonable steps to identify Chung within the time required by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B
the standard of review
Standard of Review
8The standard of review on an appeal from the order of a master is the same as that for an appeal from an order of a judge: correctness for an error of law, palpable and overriding error for an error of fact, and correctness or palpable and overriding error for a question of mixed fact and law, depending upon whether there is an extricable legal principle (see Zeitoun v. Economical Insurance Group) [2009] ONCA 415 para. 1; Wellwood v. Ontario (Provincial Police) [2010] ONCA 386 at para. 28).
9The appellant agrees that the Master correctly stated the law. She alleges that the Master erred in applying the facts to the law or erred in finding facts. As a result, the standard of review on this appeal is palpable and overriding error.
Analysis
10The Master gave detailed reasons. She considered the limited evidence that the appellant filed and the applicable law. On this appeal, the appellant must demonstrate a palpable and overriding error of fact and in my view she has failed to do so.
Misnomer
11At para. 56, the Master referred to four cases dealing with misnomer.
- In Holder v. Wiazowski [2011] O.J. No. 4152, I cited several cases which speak of a plaintiff not having the name of the defendant they ought to have sued because they took no steps to obtain it (see Urie v. Peterborough Regional Health Centre 2010 ONSC 4226, [2010] O.J. No. 3962; Dukoff et al. v. Toronto General Hospital et al. 1986 2648 (ON SC), [1986] O.J. No. 188; O’Sullivan v. Hamilton Health Sciences Corp. 2011 ONCA 507, [2011] O.J. No. 3161).
12The test for misnomer was reviewed recently in Mohabir v. Mohabir 2014 ONSC 5484 at para. 13:
The law relating to misnomer has been carefully considered in recent years by the Court of Appeal. See Ormerod (Litigation Guardian of) v. Strathroy Middlesex General Hospital, 2009 ONCA 697 and Spirito v. Trillium Health Centre, 2008 ONCA 762. Misnomer requires a finding that the litigation finger be clearly pointed at the intended defendant. Would a reasonable person receiving and reviewing the statement of claim, in all the circumstances of the case, and looking at it as a whole, say to himself or herself "of course it must mean me, but they have got my name wrong"?
13Even if a plaintiff is successful in establishing misnomer, the Court retains a residual discretion under Rule 5.04 to refuse the substitution. The Ontario Court of Appeal reviewed this discretion in Ormerod at para. 31 as follows:
As I see it, as the scope of what the courts treat as a misnomer broadens, it is appropriate to take a wider view of the court's discretion to refuse the correction of a misnomer. A "classic" misnomer, one in which the claim contains a minor spelling error of the defendant's name and is personally served upon the intended but misnamed defendant, prompts the application of a standard historically developed to remedy mere irregularities. Now that the concept of "misnomer" has been broadened to apply to a wider range of situations, the standard used to permit its correction should take into account the extent of its departure from mere irregularity in all the circumstances of the case.
14As Master Haberman noted, this case does not involve a classic misnomer. We are not dealing with a spelling mistake or misnaming a party. The facts of this case involve a broader concept of misnomer and one where there is no reference to Park S. Chung whatsoever in the Statement of Claim, simply his vehicle plate number. In such case, the Court`s discretion is broad. Such discretion is important because the Courts must guard against a plaintiff using the doctrine of misnomer to avoid an expired limitation period. As stated in Mohabir at para. 25:
…the very purpose of limitation periods would be seriously undermined by allowing a plaintiff to simply name John Doe defendants as part of a claim issued on the eve of the expiry of the limitation period and then do nothing to identify those defendants for several years thereafter.
15The concern in this case is greater because the Statement of Claim against John Doe was issued on December 23, 2013, more than three years after the expiry of the limitation period.
16On the issue of misnomer the Master correctly stated that this was not a “classic misnomer case”. At para. 57-58 she stated:
I do not see this case as one involving a classic misnomer. The action was started beyond the expiry of the presumptive limitation period, naming Doe as a defendant, though the plaintiff had in hand a piece of paper with Chung's plate number. There is no evidence of her having taken any steps to identify him so that, at the very least, he would have been made aware of this litigation, though beyond the expiry of the presumptive limitation period, far earlier than has been the case. None of this has been explained.
While the courts are prepared to override limitation periods where there has been a misnomer, the misnomer must be clear and the delay in discovering the identity of the tortfeaser must be explained (see Urie, supra). The plaintiff fails here, too.
17In considering the misnomer issue, the Master fairly exercised her discretion and in doing so, she did not make any palpable and overriding errors. At para. 12 the Master stated as follows:
- It is therefore clear that the plaintiff has always had the information she needed – the plate number – to undercover Chung’s identity. There is no evidence explaining what, if anything, she did to use that information to identify the name of the plate holder and, if not, why she did nothing.
18As the Master noted, this was the applicant’s own evidence. I fail to see how the Master made a palpable and overriding error, when the Master found that the appellant had the information available, i.e. the vehicle plate number, with which to discover Park S. Chung immediately after the motor vehicle accident.
Discoverability and Due Diligence
19Turning to the next ground of appeal, it is alleged that the Master made a palpable and overriding error in finding that the appellant did not exercise due diligence and did not take all reasonable steps to identify Park S. Chung within the time required by the Limitations Act.
20Essentially, this is directed at the Master’s finding that the appellant failed to meet the onus that rests on her under s.5 of the Limitations Act. It is clear from the reasons that the appellant simply did not provide sufficient evidence to save her claim under the discoverability provision of s.5(1) of the Limitations Act.
21The Master referred to this section in her reasons as follows at para. 41:
- When dealing with a claim in tort, this means the two year period does not start to run until all elements of the cause of action have been discovered. This concept is codified in section 5(1), as follows:
A claim is discovered on the earlier of,
a) The day on which the person with the claim first knew,
(i) That the injury, loss or damage had occurred;
(ii) That the injury, loss or damage was caused or contributed by an act or omission,
(iii) That the act or omission was that of a person against whom the claim is made, and
(iv) That, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
b) The day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
22The Master considered the evidence that the appellant filed and stated in para. 53 that the evidence before her was “sparse in the extreme”.
23Referring to s. 5(1)(b) of the Limitations Act, the Master stated at paras. 42-44:
42 In view of subsection (b), it is not sufficient for a plaintiff to simply say they were unaware of items i) -- iv) above. Subsection (b) imposes a positive onus on a plaintiff to be proactive, and to use reasonable efforts to identify or locate this information.
43 In this motion, the plaintiff has two hurdles: she must convince the court that she lacked the identity of the other driver and that she was unaware, until after her MRI examination, that her injuries qualified for relief, under the "permanent and serious" test.
44 In both regards, the critical issue is what steps the plaintiff took to inform herself of the requisite facts.
24The sparse evidence that the appellant filed was a December 29, 2011 MRI report prepared over a year after the accident.
25The Master considered this MRI report at paras. 14-19 and found that it made no reference to any accident. At para. 15, the Master stated as follows:
- The MRI report makes no reference the plaintiff’s involvement in an accident, let alone this accident. There is no suggested that the plaintiff’s condition, as identified by the MRI, was induced by a trauma. The report indicates that the MRI examination was prompted by “low back pain with bilateral sciatica.” Sciatica is a medical diagnosis, which the referring physician had apparently already made, as that was what the NMIR was intended to explore. It therefore appears that the referring physician ordered the MRI to confirm his diagnosis.
26Further at paras. 19-20, the Master stated:
Degenerative changes and disc protrusion are two conditions that can be caused by trauma or by the ordinary wear and tear of life. While either can result in a permanent serious impairment of an important physical function, neither necessarily will do so. The radiologist says nothing about the prognosis for this plaintiff, nor does he hazard a guess as to the cause of what he observed. There is also no evidence from the treating physician regarding his views on the matter.
The complete lack of evidence from the plaintiff as to what she knew and experienced and when, in the absence of any medical evidence aside from the MRI report is, in my view, seriously problematic for the plaintiff.
27The appellant never filed an affidavit on the motion before the Master. Instead, her counsel was the one that swore three affidavits. He swore that the appellant was injured in the accident, but there was no evidence from the appellant stating so, nor any medical records of any type to support this assertion. The MRI said nothing about the applicant having sustained trauma.
28The motor vehicle accident report was filed, but the Master could not ascertain from this document “if the plaintiff was of the view that she sustained any injuries at the time of this event”.
29Given the sparse evidence that was before the Master, she did not make any palpable and overriding errors when she found as follows in paras. 53-55:
53 The evidence before me is very different and sparse in the extreme. There is no body of medical evidence before this court, nor varied medical opinions. There is only one opinion, that contained on the MRI report, and nothing earlier to compare it to in order to determine if this could be considered the deciding factor, in the context of the objective appreciation test.
54 As the plaintiff had the onus of persuading the court that this amendment should be granted despite the apparent expiry of the presumptive limitation period, I find that the absence of evidence from her and from her physicians is fatal to this motion.
55 In terms of determining Chung's identity, I am not persuaded that the plaintiff in this case acted with due diligence to identify Chung, having had his plate number from the time of the accident, nor do I accept that the "pointing finger" is one he ought to have been aware of here. On what basis can the plaintiff claim that Chung had knowledge that he was the intended defendant in an action he would have known nothing about? (see Lloyd v. Clark 2008 ONCA 343, [2008] O.J. No. 1682).
Conclusion
30In summary, the reasons given by the Master are detailed and there is absolutely no basis for find that the Master made any palpable and overriding errors.
31The appeal is dismissed.
costs
Costs
32I have endorsed the Appeal Book and Compendium of the Appellant/Plaintiff as follows: “For oral reasons given today, the Appellant’s appeal is dismissed. Costs agreed on. Appellant shall pay Chung $5,000 all in, in 30 days. Personal is not requesting costs.”
___________________________ c. horkins J.
Date of Reasons for Judgment: June 29, 2016
Date of Release: July 6, 2016
CITATION: Brown-Vidal v. Doe, 2016 ONSC 4359
DIVISIONAL COURT FILE NO.: 108/16
DATE: 20160929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Cameika Nicola Brown-Vidal
Plaintiff
(Appellant)
– and –
John Doe and The Personal Insurance Company
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: June 29, 2016
Date of Release: July 6, 2016