Dealer’s Choice Preferred Collision Centre Inc. v. Kircher, 2021 ONSC 8261

CITATION: Dealer’s Choice Preferred Collision Centre Inc. v. Kircher, 2021 ONSC 8261

DIVISIONAL COURT FILE NOS.: 038/21

DATE: 20211215

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DEALER’S CHOICE PREFERRED COLLISION CENTRE INC. v. PETER KIRCHER, 918402 ONTARIO INC. and downtown fine cars inc.

BEFORE: D.L. Corbett J.

COUNSEL: Clifford I. Cole and Matthew Karabus, for the Plaintiff/Appellant

David W. Levangie, for the Defendants/Respondents

HEARD at Toronto by Zoom: April 20, 2021

ENDORSEMENT

[1] This is an appeal from the final order of Associate Justice Graham dismissing a motion to correct the name of the plaintiff in the title of proceedings (2020 ONSC 7557).

[2] The Associate Justice cited the applicable Rule (R.5.04(2)) and the governing principles set out in the jurisprudence: Sorokataya v. Keith, 2010 ONSC 4453 and Corp. of Township of North Shore v. Grant, 2018 ONSC 503. The Associate Justice then summarized the applicable principles as follows:

… where a plaintiff seeks to amend or substitute the name of a defendant on the basis that the defendant has been misnamed, the issue is whether the intended defendant was given notice of the claim and ought reasonably to have known that the plaintiff’s “litigating finger” was pointed at them (Sorokataya, para. 9). Where, as in this case, a plaintiff seeks to amend or substitute another entity for itself, the issue is whether the “new” plaintiff was an intended plaintiff when the action was commenced and the defendant reasonably ought to have been aware of which entity was pointing its litigating finger in its direction (North Shore v. Grant, para. 23). [emphasis in original] (Decision, para. 11)

This statement of principle is correct. See also Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 OR (3d) 768 (CA), paras. 48-49.

[3] The Master then reviewed the evidence and made the following findings of fact:

I conclude that the defendants, on receiving and reviewing the statement of claim, would have had no reason to think that the plaintiff pointing the “litigating finger” at them was other than the named plaintiff Dealer’s Choice Preferred Collision Centre Inc.. The plaintiff’s entire action is based on the May 6, 2013 Agreement with the defendants and the negotiated exclusion of Downtown Auto Collision Centre Limited from the Agreement eliminated any possible reason for the defendants to consider that Downtown Auto was the intended plaintiff. (Decision, para. 19)

[4] On appeal from a decision of the Associate Master, questions of fact and of mixed fact and law are reviewed on the standard of “palpable and overriding error” [Hordo v. Zweig, 2021 ONSC 1116 (Ont. SCJ); Zeitoun v. Economical Insurance Group (2008), 91 OR (3d) 131 (Div. Ct.)]. An appeal in this court is not a re-hearing of the motion below, but rather a review of the decision below based on the record.

[5] The record amply supports the Associate Justice’s key factual findings. The proposed plaintiff was a person the respondents expressly declined to contract with. They had cogent business reasons for this refusal. There is no palpable and overriding error in the Associate Justice’s finding that the defendants did not understand that the person with whom they had expressly refused to contract was the person “pointing the litigating finger” at them for breach of contract.

[6] The appellant argues that the Associate Justice applied a purely subjective test to the assessment of the defendants understanding of the party pointing the “litigating finger”. I do not accept this argument. The Associate Justice’s reasons, as quoted above, expressly frame the court’s finding on an objective basis: the circumstances “eliminated any possible reason to consider that Downtown Auto was the intended plaintiff.”

[7] The appellant argued that the Associate Justice limited the “application of the test” to the knowledge of the parties as at May 2013 rather than as at the date of commencement of the proceeding. I see no basis for that assertion: the Associate Justice found that the express refusal to contract with Downtown Auto in May 2013 was a fact in the mind of the defendants when faced by a claim on the contract in these proceedings. The various circumstances subsequent to the contract may well have been a basis on which the defendants could have understood that the person pointing the litigating finger was someone other than the named plaintiff, but the one person they would not have understood was suing them on the contract was Downtown Auto, the one person with which they had refused to contract. This reasoning does not reflect a temporal error in the Associate Justice’s reasoning. The subsequent evidence before the Associate justice does not undermine this finding.

[8] The appellant argues that the Master failed to consider the evidence and to give “explanatory reasons.” I do not accept this argument. The Associate Justice does not have to address every aspect of the argument before him to explain his decision adequately. Here, the Associate Justice explained the basis of his decision very clearly. Whatever confusion there may have been over the person “pointing the litigating finger”, the defendants would not have understood it to be Downtown Auto, the person with which they had refused to contract.

[9] The appellant argues that the Associate Justice converted a motion for misnomer to a motion for summary judgment. I do not agree. It was the moving party’s burden to satisfy the Associate Justice that the error in the name of the plaintiff was a matter of misnomer. This burden was to be satisfied on a balance of probabilities based on the evidence put before the Associate Justice. The Associate Justice was required to decide, on a final basis, whether Downtown Auto was the intended plaintiff all along, and that the defendants knew this or reasonably ought to have known this. That is precisely what the Associate Justice did.

[10] The appeal is dismissed with costs of $5,000, inclusive, payable by the appellant to the respondents within thirty days.

“D.L. Corbett J.”

December 15, 2021