Court of Appeal for Ontario

Citation: Streamline Foods Ltd. v. Jantz Canada Corporation, 2012 ONCA 174

Date: 20120320

Docket: C54450

Before: Simmons, Cronk and Watt JJ.A.

Between

Streamline Foods Ltd.

Plaintiff (Appellant)

and

Jantz Canada Corporation

Defendant (Respondent)

Counsel:

James M. Wortzman and Karey Anne Dhirani, for the appellants Streamline Foods Ltd. and Streamline Foods, Inc.

Scott A. Rosen and Bryan Fromstein, for the respondent

Heard and released orally: March 2, 2012

On appeal from the order of Justice Thea Herman of the Superior Court of Justice (sitting in the Divisional Court), dated March 15, 2011, dismissing the appellant’s appeal from the decision of Master Robert A. Muir, dated November 19, 2010.

ENDORSEMENT

[1] Following the expiry of the relevant limitation period, Streamline Foods Ltd. moved to amend its statement of claim by adding its parent corporation as a plaintiff and by adding assertions that it was the parent corporation that was entitled to some of the damages claimed. Streamline relied on misnomer as the basis for its proposed amendments and conceded that the amendments were otherwise barred by the operation of the Limitations Act, 2002.

[2] Master Muir dismissed the motion, holding that "this is not a case of misnomer but rather an attempt to add an additional plaintiff."

[3] Herman J. dismissed the appellants' appeal from the Master's decision.

[4] On appeal to this court, the appellants argue that the courts below erred in holding that this was not a case of misnomer and further erred in failing to find that s. 21(1) of the Limitations Act, 2002 does not apply to plaintiffs and that the doctrine of special circumstances continues to permit the addition of plaintiffs based on special circumstances.

[5] We agree with the courts below that this is not a case of misnomer. The appellants sought to add the parent corporation of the original plaintiff as a party to the action because it was the parent corporation who incurred certain losses, not the original plaintiff. However, in order to advance a claim on behalf of the parent corporation, it was necessary to add the parent corporation as an additional party and also to plead additional material facts to support the parent corporation’s claims.

[6] This, in our view, is not misnomer or misdescription. The appellants were not seeking to correct the name of a party; rather, they were seeking to add a party and to pursue that party’s claims.

[7] On these facts, the special circumstances doctrine, even if it survived the enactment of the Limitations Act, 2002, would not assist the appellants.

[8] In any event, in our view, Joseph v. Paramount Canada's Wonderland 2008 ONCA 469 stands for the proposition that the special circumstances doctrine did not survive the enactment of the Limitations Act, 2002, as the appellants seek to argue. A challenge to that determination would require consideration by a five-person panel of this court.

[9] Costs of the appeal and the leave application are to the respondent on a partial indemnity basis, fixed in the amount of $10,000, inclusive of disbursements and applicable taxes.

Signed: “Janet Simmons J.A.” “E. A. Cronk J.A.” “David Watt J.A.”