Court File and Parties

CITATION: Raymond v. Ontario Corporation Number 345404 (Bonik Incorporated), 2010 ONCA 214

DATE: 20100318

DOCKET: C51262

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Cronk and Watt JJ.A.

BETWEEN:

Philip Raymond

Plaintiff (Respondent)

and

Ontario Corporation Number 345404 Carrying on Business as Bonik Incorporated

Defendant

Counsel:

Ronald B. Moldaver, Q.C., for the appellant

P. Peter Diavolitsis, for the respondent

Heard: March 18, 2010

On appeal from the order of Justice I.S. McMillan of the Superior Court of Justice, dated October 22, 2009.

APPEAL BOOK ENDORSEMENT

[1] We see no basis to interfere with the decision below. The motion judge found that the respondent intended to sue the company, which owned the property on which the slip and fall allegedly occurred. Inadvertently, the respondent named the wrong company. That company was closely related to the appellant, which owns the property. It had the same address and common principals.

[2] The motion judge also found that the respondent’s claim came to the attention of the appellant within the limitation period and that the appellant, through its principals, would have recognized that it was the target of the litigation.

[3] There was ample evidence to support the motion judge’s findings. In our view, it was open to the motion judge to find that this was a case of misnomer so as to permit the amendment of the pleadings to name the appellant as defendant.

[4] Given that the appellant had probable knowledge that it was the target of the suit, there can be no serious argument that it suffered irreparable prejudice.

[5] The appeal is dismissed.

[6] Costs to the respondent are fixed in the amount of $4,000, inclusive of GST and disbursements.