Simmonds v. G&G Pool Services and Renovation Limited et al.
[Indexed as: Simmonds v. G&G Pool Services and Renovation Ltd.]
Ontario Reports Court of Appeal for Ontario Juriansz, D.M. Brown and Huscroft JJ.A. September 20, 2018
143 O.R. (3d) 239 | 2018 ONCA 772
Case Summary
Civil procedure — Parties — Misnomer — Motion judge erring in refusing to allow plaintiff to amend his statement of claim to correct misnomer after expiry of limitation period where intended party knew before expiry of limitation period that it was intended defendant.
The plaintiff moved unsuccessfully for leave to amend his statement of claim to correct a misnomer after the expiry of the limitation period. He appealed.
Held, the appeal should be allowed.
The plaintiff knew who the proper defendant was but failed to sue the proper party. The intended party knew that it was the intended defendant before the expiry of the limitation period. Accordingly, the motion judge erred by not permitting the amendment.
Cases Referred To
Appeal
APPEAL from the order of Di Tomaso J. of the Superior Court of Justice dated March 13, 2018.
Daniel Zacks and Julia Vizzaccaro, for appellant.
Douglas Spiller and Joshua Hemmings, for respondent 2286120 Ontario Inc., carrying on business as Kells Garden City Landscape Construction and for the proposed defendant, Kell's Garden City o/o Garden City Inc.
Decision
[1] BY THE COURT: -- The appellant submits the motion judge erred by not applying the litigation finger test. We agree.
[2] In Lloyd v. Clark, [2008] O.J. No. 1682, 2008 ONCA 343, 52 C.P.C. (6th) 41, this court held, at para. 4, 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 to a statement of claim may be made despite the passage of the limitation period to correct the misdescription or misnomer.
[3] Here, the motion judge found that the appellant knew who the proper defendant was but failed to sue the proper party. That satisfies the first branch of the test.
[4] Mr. Guido, the principal of Garden City Inc., swore, at paras. 13 and 14 of his March 2, 2018 affidavit, that when the statement of claim arrived at the shared accounting office of 2286120 Ontario Inc. and Garden City Inc., it was forwarded to him. He reviewed it and, after discussion with the principals of 2286120 Ontario Inc., found a lawyer, Mr. Spiller, to defend the claim.
[5] Mr. Spiller's letter to plaintiff's counsel of June 13, 2017, two weeks before the possible expiry of the limitation period, stated the wrong defendant had been sued and that the plaintiff had contracted with Garden City Inc. The only reasonable inference is that Mr. Spiller received that information from Mr. Guido or someone else at Garden City Inc., the proposed defendant. Accordingly, the intended party -- Garden City Inc. -- knew that it was the intended defendant.
[6] In those circumstances, the appellant has satisfied the litigation finger test for misnomer and the motion judge erred in failing to grant the appellant leave to amend his statement of claim to substitute Garden City Inc. for 2286120 Ontario Inc.
[7] The respondent submits that even if the case is one of misnomer, the motion judge retained a discretion to refuse the motion. The motion judge did not purport to exercise such a residual discretion but dismissed the motion on an erroneous view of the law.
[8] For these reasons, the appeal is allowed. The appellant is granted leave to amend his statement of claim to substitute Kell's Garden City o/o Garden City Inc. in the title of proceedings in place of 2286120 Ontario Inc., carrying on business as Kells Garden City Landscape Construction Inc.
[9] The appellant is entitled to his costs of the appeal fixed in the amount of $6,000, together with the costs of the motion below fixed in the amount of $3,500, payable by the respondent, 2286120 Ontario Inc.
Appeal allowed.
End of Document