CITATION.: Vongsamphan v. Jett Park Inc, 2024 ONSC 5146

COURT FILE NO.: DC-22-19-00

DATE: 2024 02 06

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B ET W EE N:

VONGSAMPHAN, Inpaeng

KLINOWSKI, Christopher for the respondent VONGSAMPHAN

Respondent

• and -

JET PARK INN INC. o/a SKYPARK AIRPORT PARKING

BOUCHELEV, Arkadi for the appellant JET PARK INN INC.

Appellant

HEARD: October 20, 2023, by video conference. Additional written submissions were submitted on October 30 by the Appellant and November 9, 2023 by the Respondent.

SMALL CLAIMS APPEAL

MIRZA J

INTRODUCTION

[1] The Appellant/Defendant, [Defendant] Jet Park Inn Inc. appeals from the Small Claims Court judgment dated March 28, 2022, and the costs decision dated April 25, 2022, of Deputy Judge Jenney.

[2] At trial, the Defendant, an off-airport valet parking lot operator was found liable for loss of the Plaintiff/Respondent’s [Plaintiff] vehicle, having breached the standard of care by leaving the vehicle idling with keys in the ignition, unsupervised, and permitting the vehicle to be stolen.

[3] The case deals with a subrogated insurance claim made by an insurance company on behalf of the Plaintiff against the Defendant for the loss of the Plaintiff’s vehicle, a 2012 Toyota Sienna van (“vehicle”) and associated expenses.

[4] The trial was heard on December 7, 2021, and March 24 ,2022, online.

[5] The Defendant raises three grounds on appeal.

[6] First, that the trial judge erred by finding the Defendant liable for negligence.

[7] Second, that the trial judge erred by finding agency when it was not pled.

[8] Third, that the trial judge erred by adding a Defendant, Fly Park Inn Inc., without a Plaintiff’s motion with proper notice.

[9] In this ruling, the term Defendant refers to the named Defendant, Skypark Airport Parking. I will refer to the added party Fly Park Inn Inc. separately based on issue number three.

FACTS

Overview

[10] The primary facts and positions are not in dispute and are summarized by the trial judge accurately. I will begin with an overview.

[11] The Plaintiff, Inpaeng Vongsamphan, travelled with his family for a vacation during the period of October 2 to 10, 2016. He was travelling with his wife, his daughter, Januar Jennifer Vongsamphan, and her husband, Cameron Hurd.[^1] The Plaintiff, his daughter and his son-in-law testified at the trial.

[12] The Plaintiff, with the assistance of his daughter, arranged online for a parking reservation to leave his vehicle at Skypark Airport Parking (“Skypark”), a valet parking business near Lester B. Pearson Airport in Toronto.

[13] On October 2, 2016, the family brought their vehicle to Skypark. at 50 Fasken Drive. TThe Plaintiff’s daughter attended the office, while the Plaintiff and his family waited in the vehicle. She paid for the service and received a parking ticket chit. The vehicle was left in the care of Skypark.

[14] The family took the shuttle bus to the airport and embarked upon their vacation. Skypark parked the Plaintiff’s vehicle in one of its lots.

[15] The Plaintiff’s family returned from vacation on October 10, 2016. Before getting on the shuttle bus back to Skypark’s officelocated, the Plaintiff’s daughter called their office and provided the number on the chit so that their employee would retrieve the vehicle from storage.

[16] One of Skypark’s valet employees retrieved the Plaintiff’s vehicle from an offsite lot and drove it to the 50 Fasken Drive office. The valet arrived at the office at about 2:28 a.m. These events are captured on the security video, which was evidence at trial. The employee then exited the vehicle and walked in the direction of the office entrance.

[17] Skypark’s premises for customers to pick up their vehicle is not a secured lot. It is akin to a strip mall building with other businesses present.

[18] On the security video, at approximately 2:35 a.m., an unknown individual enters the area of the business and is standing at the sidewalk. After pausing, this person goes directly to the Plaintiff’s vehicle. The unknown person gets into the vehicle, reverses out of the parking spot, and drives off the lot. This theft occurs within about 20 seconds.

[19] Later, the Plaintiff and his family arrive via shuttle bus to Skypark’s office.

Their vehicle is missing. After some confusion by Skypark staff about whether the

vehicle had already been brought out of storage for delivery, the parking lots are searched. Skypark management get involved. Their security video is reviewed. It becomes clear that the vehicle was stolen. The police are notified. The Plaintiff’s daughter and son-in-law speak with the police. The Plaintiff and his family rent a vehicle to return home.

[20] It was not disputed on appeal that the vehicle was worth $28,870.37 at the time of the theft, and that the expenses for the rental vehicle were $1,043.87. This is a total of $29,914.24. The insurance company reimbursed the Plaintiff for this amount and seeks recompense from the Defendant.

Security Video

[21] The security video establishes the specifics about when the vehicle was retrieved, parked, left unattended, and for how long.

[22] The Skypark valet parks and exits the car at around 2:28 a.m. The valet exits the vehicle and walks a significant distance away from the car to the other side of the lot. During this time, other people, likely customers, are consistently entering the lot to retrieve their vehicle. At 2:30 a.m. the valet then enters the business and is off camera. At 2:31 a.m. a person exits the business and walks in the other direction away from the vehicle.

[23] At 2:35 a.m., an unknown person’s shadow is visible on the sidewalk. As noted above, after some movement on the sidewalk, this person, who turns out to

be the thief, makes their move around 2:37 a.m. The thief jogs up to the car, gets in the driver side, reverses, and simply drives away. The vehicle is stolen and driven away at around 2:37:39 a.m. There is no indication of forced entry.

[24] The video runs until 2:39:58 a.m. The valet does not return to check on the vehicle after parking and leaving the car running.

Different Corporate Entities

[25] When the Plaintiff’s daughter testified, Exhibit 1 was filed. This item includes two documents, side by side, on a single sheet. On the left side of the document is a receipt in the name of “Fly Park Inn Inc.” in the amount of $67.46, dated October 2, 2016. On the right side of the document is a copy of the parking ticket information in the name of “Skypark Airport Parking”, quoting the same amount.

[26] In reviewing Exhibit 1, the trial judge raised with counsel that the receipt portion is in the name of “Fly Park” (Inn Inc.).

[27] Counsel for the Plaintiff stated that it was assumed that the Defence was not arguing “mistaken identity” or that the Plaintiff has named the appropriate Defendant. In submissions, Plaintiff’s counsel submitted that it was their belief that if liability for the named operator is established is en Jet Park Inn Inc. agreeing to indemnity?[^2]

[28] In response, Defendant’s counsel disagreed that Jet Park Inn Inc. has agreed to indemnify anyone else.

[29] The judge asked counsel if anything turned on this point.

[30] Defendant’s counsel said that the case may turn on this point

[31] The Defendant’s witness, Mr. Maitland-Carter, testified the corporation Jet Park Inn Inc. is a holding company that held property leases, business name license, and vehicle plate licenses. It did not operate under the name Sky Park. However, Jet Park Inn Inc. holds the master business license in Ontario for Sky Park.

[32] Mr. Maitland-Carter stated that the company operating as “Skypark Airport Parking” (as noted on the receipt in Exhibit 1) was a separate corporate entity named Fly Park Inn Inc. The predecessor company to Fly Park Inn Inc. was Skypark Ltd.

[33] Mr. Maitland-Carter stated that he was the president of Fly Park Inn Inc. from September 2007 to December 2019. When the appeal was heard, he was no

longer the President of Fly Park Inn Inc. He added that he is not a manager, director, shareholder, or employee. He has no financial interest in the company.

[34] Mr. Maitland-Carter testified about the parking business premises, operating procedures, and service practices of Sky Park at the relevant time.

Deputy Judge’s Findings

1. Negligence:

[35] The deputy judge (trial judge) found that although thefts were rare at Skypark business premises, Skypark agreed to securely store and deliver the Plaintiff’s vehicle.

[36] The trial judge found that the Defendant was negligent. The Defendant’s valet employee’s decision to leave the running vehicle unattended, unsupervised and unsecured resulted in a reasonably foreseeable risk of harm.

[37] The valet retrieved the Plaintiff’s vehicle, then parked and left the vehicle unlocked and unsupervised with the keys inside. The theft could have been averted with the valet taking the reasonable steps of remaining with or supervising the vehicle and securing the keys.

[38] The trial judge did not accept the Defendant’s position that the Plaintiff’s request to warm the car up caused the Defendant to leave the vehicle unattended with the keys inside or that the thief may have used tools to access the vehicle. The trial judge summarized the positions and held:

[23] In this case, the Plaintiff maintains that the Defendant was negligent for leaving the vehicle unattended and running with the keys in it. The Defendant maintains that the Plaintiff asked the Defendant to do so, but I do not agree. At best, the Plaintiff expected the Defendant to warm up the vehicle. There was nothing in the evidence to suggest that the Plaintiff had any idea that the Defendant would do so by leaving it running and unattended in an unsecured area with the keys in it.

[24] The Defendant further suggests that the thief may have accessed and started the vehicle with tools, or possibly even another set of keys. I don’t agree. I have seen the video; there wasn’t time, nor hesitation on the part of the thief. It is apparent to me that the vehicle was indeed left unlocked and running with the keys in it. This would be consistent with the Defendant’s intent of warming it up for the Plaintiff. Nor does it appear that the keys, which had been in the Defendant’s possession while the Plaintiff was on holidays, were ever located after the vehicle was stolen.

[25] The Plaintiff suggests that the Defendant should have had greater security for 50 Fasken Drive to prevent theft. Given that there have only been a handful of thefts over approximately 13 years, I agree with the Defendant that greater security is not necessary, and indeed could be problematic in a location which is shared with other businesses. As well, 50 Fasken Drive is located in an industrial area, and the odds are very much against a car thief happening to walk past during a brief window of opportunity at 2:30 am. However, the evidence is that the Defendant moved approximately half a million vehicles during those 13 years; even long odds are not zero odds, and lightning does sometimes strike.

[26] I note also that a simpler solution might have been for the employee to just remain with the vehicle until it was warm. Had the employee in this situation done so for just 10 minutes, the theft could have been averted.

2. Agency

[27] On balance, I am satisfied that this case may be distinguished from both Davis and Mattima. In those cases the Defendant was found not to be negligent, and was absolved of liability. Not so here. I am satisfied that it was negligent of the Defendant for its employee to leave the Plaintiff’s vehicle unlocked, running, and with the keys in it, in an unsecure and unsupervised area, even for a brief period of time.

[39] The trial judge held that the Plaintiff established ownership and accepted the total evidence that he delegated all interactions with the valet business to his adult

daughter. The Plaintiff explained, and his daughter, confirmed in her evidence, that she arranged the valet service, vehicle drop-off and retrieval. She signed the agreement and paid for the service. The Plaintiff was present, consented, and relied on his daughter’s assistance. The Plaintiff’s command of English is limited, which explained his reliance on his daughter.

[40] The Defendant submitted that the Plaintiff did not personally deal with the valet business and agency was not pled. Rather, it was submitted that his daughter did and therefore she entered into the agreement, not the Plaintiff.

[41] The judge held that they had “no difficulty accepting” the Plaintiff’s daughter “acted at all times as the Plaintiff’s agent in this matter in dealing with the Defendant” [^3]

3. Added Party

[42] The Plaintiff’s action was pleaded against Jet Park Inn Inc. operating as Skypark Airport Parking (Skypark). The Defendant submitted that Jet Park Inn Inc. is not the operator of this parking facility and not the correct corporate Defendant.

[43] The parking ticket or chit issued to the Plaintiff’s daughter, Exhibit 1, states at the bottom that Skypark is used under license by Fly Park Inn Inc. The Plaintiff’s counsel agreed they had knowledge of this document and a corporate search confirm the correct corporation before trial. At no time did the Plaintiff bring a

motion to add Fly Park Inn Inc. The statement of defence did not admit that the Jet Park Inn Inc. operated the lot.

[44] Without a motion by the Plaintiff and notice to Fly Park Inn Inc., the trial judge determined that the principles of misnomer warranted the correction of the pleading such that the finding of liability and judgment applied to two corporations instead of one. The trial judge said in their reasons for judgment:

[5] I pause now to note that the Defendant herein is named as Jet Park Inn Inc., operating as Skypark Airport Parking. Just prior to trial, the Defendant took the position that this corporation is incorrect, and that the correct corporation should be Fly Park Inn Inc. It was pointed out that on the Skypark Airport Parking chits, it is stated that “Skypark used under license by Fly Park Inn Inc.”

[6] Although this file has been active since 2018, this issue does not appear to have been previously raised. The Defendant did not bring a motion to strike the Claim against Jet Park Inn Inc. at any time in the past four years. For its part, the Plaintiff appears to have been aware of the two corporations, as the Corporation Profile Reports for both companies are contained in its trial record. However, the Plaintiff did not seek to amend its Claim in this regard, even though the Claim was amended in 2020 to increase the amount of the claim sought.

[7] Both corporations were incorporated on the same day, September 14th, 2007. The corporation numbers are back to back: 1746425 and 1746426. They have the same business address, 50 Fasken Drive, Suite 25, Toronto, Ontario, M9W 1K5. They have the same Directors and Officers. If the Plaintiffs erred in naming Jet Park Inn Inc. rather than Fly Park Inn Inc., there is no prejudice in correcting that error at this juncture. As such, nunc pro tunc, any reference to the Defendant in these reasons shall include Fly Park Inn Inc. as Defendant.

ANALYSIS

Standard of Review:

[45] A trial judge’s decision that deals with questions of fact will be reviewed on a standard of palpable and overriding error. Questions of pure law will be subject to a standard of correctness. Questions of mixed fact and law are subject to the nature of the error and to jurisprudence on appellate standards of review. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R.

653, at para. 37.

[46] A finding of negligence by a trial judge involves applying a legal standard to a set of facts and is a question of mixed fact and law. The standard of palpable and overriding error applies where the legal principle is not readily extricable. Where an error with respect to a finding of negligence can be attributed to the application of an incorrect legal standard such as a failure to consider a required element of a legal test, or similar error in principle, the standard of correctness applies. Appellate courts must be cautious, however, in finding that a trial judge erred in law in their determination of negligence, as it is often difficult to extricate the legal questions from the factual. Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.

235, at para. 36.

[47] Should the legislature intend that a different standard of review apply in a statutory appeal, it may express that intention by prescribing the applicable standard through statute. Vavilov, at para. 37.

Small Claims Context:

[48] The Small Claims Court has a statutory mandate for summary hearings.

[49] In a sufficiency of reasons case, [Maple Ridge Community Management Ltd.

V. Peel Condominium Corporation No. 231, 2015 ONCA 520](https://www.minicounsel.ca/onca/2015/520), 389 D.L.R. (4th) 711,

the Court of Appeal held that Small Claims court serves a critical function in providing meaningful and cost-effective access to justice.

[33] The Supreme Court of Canada has recognized that access to justice is a significant and ongoing challenge to the justice system with the potential to threaten the rule of law. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 1, the court held:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.

[34] The Small Claims Court is mandated under s. 25 of the Courtsof Justice Act, R.S.O. 1990, c. C.43, to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.

[50] Appellate review of Small Claims Court recognizes the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with cases efficiently.

[51] At the same time, adherence to rules of procedure and principles of fairness remain important.

Negligence Finding:

i) Does a valet have a duty of care to supervise and secure a vehicle they store, until delivery?

[52] I am satisfied that the trial judge did not err in finding the Defendant negligent. The trial judge accurately summarized the facts and applied the correct law. The factual findings establish an objectively unreasonable risk of loss of vehicle. In this context and in these circumstances, the findings are supported by the record: .

[53] The video-surveillance shows that that the valet’s conduct caused an unreasonable risk of loss. The theft of the vehicle was reasonably foreseeable to someone in the position of the Defendant when considering the totality of facts and context of leaving the vehicle with keys inside unattended and unsecured. Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at para. 28

[54] As the Supreme Court observed in Rankin (Rankin’s Garage & Sales) v. J.J.,

2018 SCC 19, [2018] 1 S.C.R. 587, at para. 60 commercial garages must turn their

mind to adequate storage, security, and safeguards to prevent theft:

[60] Vehicles are ubiquitous in our society. They are not like loaded guns that are inherently dangerous and therefore must be stored carefully in order to protect the public. Commercial garages, unlike an individual who leaves a car unlocked with the keys accessible, have care and control of many vehicles and necessarily have to turn their mind to the security of those vehicles, especially after hours, to prevent theft of the vehicles. [Emphasis added.]

[55] The trial judge considered the video in the total context. The Defendant’s business is in a commercial area. Employees bring vehicles from storage where there are other people consistently entering and exiting to retrieve their vehicles. Vehicles are significant assets of value. Once an employee retrieves a vehicle to deliver to an owner, they are responsible to securely affect the transfer. Leaving the car running, with keys inside, and unattended, is clearly unreasonable.

[56] The trial judge was correct in finding that it is reasonably foreseeable that the lot could be targeted for theft, even if property loss was generally unlikely. The conduct of the valet in this case to park the car, leave it running, exit, and leave the vehicle unattended for an extended period of time of at least 9 minutes is established by the video evidence. The trial judge was correct to infer that there was not adequate supervision and the risk of theft was present in these circumstances.

[57] The Defendant’s confusion about whether the vehicle had been retrieved upon the Plaintiff arriving at the premises further supports the trial judge’s conclusion of an absence of adequate supervision.

[58] The trial judge made no error in finding that a parking business operator in this context, acting reasonably and prudently would not have left the vehicle running unattended with keys inside for that duration without supervision.

[59] The findings that the valet’s conduct was unreasonable in all the circumstances was a question squarely within the trial judge’s adjudicative domain. Further, the Defendant did not establish that their employee’s conduct was consistent with reasonable practices.

[60] The Defendant argues that because the judge found that thefts were rare, colloquially analogizing them to a lightning strike or Wayne Gretzky hitting the post, that there was no duty of care.

[61] I am not persuaded by this argument. The trial judge’s reasons are clear and cogent on this point that there was a bailment agreement and that the Defendant failed to adequately care for and deliver the vehicle.

[62] Adopting the finding in the case of Mattina v. Fly Park Inc., SC-14-33696, the trial judge found that the care and custody of the car was exclusively that of the parking service business. The relationship is reasonably and properly characterized as a bailment relationship.

[63] Mr. Maitland-Carter explained that a “Wheelock” system was introduced specifically in response to this incident. This means the operators understood that it was reasonably foreseeable that theft could occur and that additional security steps were required. The business now requires customers to identify themselves to the office before being able to move their running vehicle.

Agency:

ii) Did agency have to be pled in this case?

[64] The Defendant submits that the Plaintiff failed to plead agency in their claim.

[65] The claim identifies the Plaintiff as the owner of the vehicle. It does not mention the Plaintiff’s daughter who acted on his behalf to contract for valet parking.

[66] The burden of proof to establish agency rests with the party who asserts its existence.

[67] In my view, the trial judge correctly found that the Plaintiff’s daughter acted as his authorized agent, and the Defendant was fully aware of this fact. This case involved straightforward circumstances. The Defendant had specific notice and knowledge that the vehicle was owned by the Plaintiff and that his daughter contracted on his behalf. On the date of loss, the father and daughter were present. The father and his son-in-law aided in searching the lots. The police attended. Management was involved.

[68] The Defendants had full knowledge of these facts and were able to respond to the claim accordingly. It is an expected part of the Defendant’s business to deal with travelling families where an adult child may speak on behalf of their parent that does not speak English well. The Plaintiff had his daughter arrange the service of his vehicle that transported the family to the parking.

[69] The judge was entitled to find that the daughter credibly explained that she entered into the contract with the Defendant with respect to her father’s vehicle, with her father’s direct presence, consent and knowledge. The Plaintiff established he was the owner of the vehicle.

[70] Also, there was no prejudice to the Defendant with respect to the finding of agency as it relates to trial fairness.

[71] In Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826 at para. 42, the

Court of Appeal summarizes the applicable law of agency.

It is well-established that the actual authority of an agent requires a “manifestation of consent” by the principal to the agent that the agent should act for or represent the principal: Monachino v. Liberty Mutual Fire Insurance Co. (2000), 47 O.R. (3d)

481 (C.A.), at para. 33. Further, apparent or ostensible authority in favour of an agent only arises where the alleged principal has impliedly represented that another person has the authority to act on the principal’s behalf. The implied representation must be that of the principal, not that of the agent. See Monachino, at paras. 35- 36; Hunter’s Square Developments Inc. v. 351658 Ontario Ltd. (2002), 60 O.R. (3d) 264 (S.C.), at

para. 23, aff’d (2002), 2002 9163 (ON CA), 62 O.R. (3d) 302

(C.A.), at para. 9.

[72] The trial judge correctly found that the Plaintiff’s daughter had full authority to negotiate the parking service and enter into the contract on her father’s behalf.

The trial judge was alive to the facts that the family travelled together in the same vehicle. These circumstances were clearly and fully known to the Defendant. This is not a situation where the issue was raised at the close of trial and took the Defendant by surprise.

[73] I recognize the principle that pleadings should clearly identify the material facts and grounds for the claim. This is required for fairness and to permit the Defendant to know the case to meet, the facts alleged, and be able to respond in a fully informed manner.

[74] A Defendant named in a statement of claim should be able to look at the pleading and find an answer to the questions: What does the Plaintiff say I did that has caused them harm, and when did it happen? Burns v. RBC Life Insurance Company, 2020 ONCA 347, 151 O.R. (3d) 209, at para. 16; See also Rule

25.06(1), Rules of Civil Procedure, R.R.O. 1990, Reg 194, which requires a

statement of claim to contain a concise statement of the material facts on which the party relies for its claim.

[75] The Plaintiff’s claim answered these essential questions. They set out the material facts in support of the claim for theft of property. The issues to be determined were identified. The Defendant had full opportunity to respond. The fact that the Plaintiff travelled with his family and that his daughter was the liaison

with respect to the valet agreement and services was clearly appreciated by the Defendant throughout the history of the matter.

[76] On December 6, 2021, the day before the trial, the Defendant produced a completed and signed copy of the parking ticket documentation. The ticket was in the daughter’s name, clearly demonstrating that she was acting as an agent and further affirming the Defendant’s knowledge of this circumstance before trial.

[77] At the hearing, counsel for the Defendant did not dispute that they knew the Plaintiff travelled with his family.

[78] The negligence claim, defence, fairness, and analysis is not impacted by the issue of agency on these facts.

Added Party:

iii) Should a Deputy Judge add a party not named in the action without notice?

[79] The Defendant submits that Fly Park Inn Inc. cannot be made a party to this proceeding without the Plaintiff’s claim being formally amended and more importantly, with Fly Park Inn Inc. having an opportunity to participate.

[80] The Plaintiff submits that the Defendant, Fly Park Inn Inc., was aware of the Plaintiff’s intention to name them. The Plaintiff submits that the Rules of the Small Claims Court, O. Reg. 258/98, permitted the judge to amend the claim. Further,

the law interpreting misnomer outside of the Small Claims Court context permits

the addition. Finally, the Defendant’s pleadings condoned the idea that Jet Park Inn Inc. ran the premises in issue.

[81] The difficulty with the Plaintiff’s position is that they did not bring a motion to amend their claim at any time prior to the close of evidence, even though before trial they had knowledge of the correct corporate party, Fly Park Inn Inc. Further, the Plaintiff brought a motion to amend, but only for the quantum of damages.

[82] It was prejudicial to Fly Park Inn Inc. not to receive notice and have an opportunity to defend themselves before being found liable. At the appeal hearing, it was not established that Mr. Maitland-Carter was an authorized representative for Fly Park Inn Inc. His evidence was that he had no interest in the company.

[83] The Plaintiff also did not establish the intended party had knowledge that it was the intended Defendant.

[84] Further, the court and Plaintiff were specifically informed that Jett Park Inn Inc. did not agree to indemnify Fly Park Inn Inc.

[85] The Rules of the Small Claims Court are clear that the plaintiff’s claim must contain the full name of the parties to the proceeding:

RULE 7 COMMENCEMENT OF PROCEEDINGS

Contents of Claim, Attachments

7.01(2) The following requirements apply to the claim:

1. It shall contain the following information, in concise and non-technical language:

i. The full names of the parties to the proceeding and, if relevant, the capacity in which they sue or are sued.

ii. The nature of the claim, with reasonable certainty and detail, including the date, place and nature of the occurrences on which the claim is based.

iii. The amount of the claim and the relief requested.

iv. If the plaintiff is self-represented, the plaintiff’s address, telephone number and email address (if any).

iv.i If the plaintiff is represented by a representative, the representative’s name, address, telephone number, email address (if any) and Law Society of Ontario registration number (if any).

v. The address where the plaintiff believes the defendant may be served.

2. If the plaintiff’s claim is based in whole or in part on a document, a copy of the document shall be attached to each copy of the claim, unless it is unavailable, in which case the claim shall state the reason why the document is not attached.

[86] Further, Rule 12.01 states that the Plaintiff may amend their claim by serving the new document on all parties and filing and service shall take place at least 30 days before the originally scheduled trial date, unless on motion, the court permits a shorter notice period:

RULE 12 AMENDMENT, STRIKING OUT, STAY AND DISMISSAL

Right to Amend

12.01 (1) A plaintiff’s or defendant’s claim and a defence to a plaintiff’s or defendant’s claim may be amended by filing with the clerk a copy that is marked “Amended”, in which any additions are underlined and any other changes are identified.

Service

(2) The amended document shall be served by the party making the amendment on all parties, including any parties in default, in accordance with subrule 8.01 (14).

Time

(3) Filing and service of the amended document shall take place at least 30 days before the originally scheduled trial date, unless,

(a) the court, on motion, allows a shorter notice period; or

(b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).

Service on Added Party

(4) A person added as a party shall be served with the claim as amended, except that if the person is added as a party at trial, the court may dispense with service of the claim.

No Amendment Required in Response

(5) A party who is served with an amended document is not required to amend the party’s defence or claim.

[Emphasis added in bold].

[87] I recognize that Rule 12.01(4) permits a party to be added at trial and the ability to dispense with service. Further, Rule 1.03 states that the rules are to be liberally construed to make them just, expeditious and least expensive.

[88] However, it is paramount that the trial process be fair and just. In my view, the Plaintiff had the onus to bring a motion to add a party or correct its pleadings if it could establish the intended party was aware. This requires that the Plaintiff provide a proposed added party with an opportunity to respond and present their position, especially before they are held to be liable.

[89] Mindful of the context, mandate, and purpose, including that the Rules of the Small Claims Court are to promote efficient hearings, it is still essential that a person or separate legal entity that is being sued be given formal notice of the amended claim at least 30 days prior to the trial date, unless on motion, the court permits a shorter time period.

[90] This process ensures fairness to the party being sued and gives them an opportunity to fully defend the claim. These principles are consistent with fundamental principles of natural justice and audi alteram partem to participate where a person’s rights, interests, or privileges are affected by a decision.

[91] Each party with a direct interest is entitled to a fair hearing before the decision-maker to present their position and provided the fair opportunity to respond to evidence against them. Telecommunications Workers Union v. Canada (Radio-Television and Telecommunications Commission),

1995 102 (SCC), [1995] 2 S.C.R. 781, at para. 29; [Supermarchés Jean Labrecque Inc. v.

Flamand](https://www.minicounsel.ca/scc/1987/19), [1987] 2 S.C.R. 219, at pp. 234-35. See also,

Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, 340 O.A.C. 311, at

paras. 60-63; and Meridian Credit Union Limited v. Baig, 2016 ONCA 150, at

paras. 49-50.

[92] The motion to amend to add or correct the name of a party should normally be brought by the Plaintiff prior to trial to permit the added party an opportunity to participate in the hearing and put forward their position.

[93] The Plaintiff did not comply with the Rules of the Small Claims Court to amend and serve their claim or bring a motion for relief to abridge the time for service in relation to this issue. They did not amend their claim to add the correct corporate party at least 30 days prior to trial.

[94] At trial, when the issue was raised and clearly contested, the Plaintiff still did not bring a motion to amend their claim to add Fly Park Inn Inc. They also did not bring a motion to abridge time for service or to dispense with service. This is despite having specific knowledge from the corporation profile reports that they named the wrong corporation.

[95] Even after the issue was raised by Skypark that the Plaintiff named the wrong corporation, the Plaintiff did not bring a motion to amend. No adjournment was sought. The closing argument was put over three months and the Plaintiff still did not bring a motion despite being specifically informed by Skypark that they named the wrong corporation and that they should not presume Jett Park would indemnify Fly Park Inn Inc.

[96] That is not to suggest that the close of trial or post-trial is the appropriate time to bring the motion, but it demonstrates that there was an ongoing failure of Plaintiff’s counsel to take steps to address the lack of notice.

[97] Instead, at trial Plaintiff’s counsel said they would address the different corporation issue “at the end”. In closing arguments in March, three months after the close of evidence, counsel submitted that an amendment may be made, despite the passage of the limitation period, relying on a case in their authorities that dealt with Rule 5.04 of Civil Procedure, and section 21 of the Limitations Act,

2002, S.O. 2002, c. 24, Sched. B: Lloyd v. Clark, 2008 ONCA 343, 52 C.P.C. (6th)

41 at para. 4.

[98] The Lloyd decision is distinguishable. In that case a motion was brought with notice and the motion’s judge refused to correct the name of the Defendant factoring the limitation period. The appellants successfully argued that the motion judge erred by refusing their request that the title of proceedings be corrected to name the Regional Municipality of Durham (“Durham”) as a defendant in place of the Town of Ajax and the Corporation of the Town of Whitby pursuant to s. 21(2) of

the Limitations Act, 2002, S.O. 2002, c. 24. The Court of Appeal Appeal granted

the appeal finding 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 may be made despite the passage of the limitation period to correct the misdescription or misnomer. See Ladouceur v. Howarth, [1973]S.C.J. 120 (S.C.C.); [Kitcher

v. Queensway General Hospital](https://www.canlii.org/en/on/onca/doc/1997/1997canlii1931/1997canlii1931.html), [1997] O.J. No. 3305

(C.A.) and J.R. Sheet Metal & Manufacturing Ltd. V. Prairie Rose Wood Products, 1986 ABCA 4, [1986] A.J. No. 7 (C.A.).

[99] In this particular case, there was an absence of notice to the correct corporation, Fly Park Inn Inc., and no motion to add with a fair hearing.

[100] Although Rule 2.02 of the Rules of the Small Claims Court permits a judge to dispense with compliance with a rule, in this case it was not in the interests of justice to proceed without a motion on notice on this record. It was unfair for the trial judge to act on their own initiative to amend the claim and find no prejudice without having heard from the affected added party where indemnity was contested.

[101] The Plaintiff’s position that the substantive defences of Fly Park Inn Inc. would have been identical to Jet Park Inn Inc. cannot be pre-determined in the absence of giving them notice and hearing their argument. Fly Park Inn Inc. had the right to be notified and present their position about the merits of any defence. The Plaintiff could have sought an adjournment when the Defendant reminded them of the error and made it clear that there would be no indemnity.

[102] I find that Fly Park Inn Inc. was deserving of the fundamental right to have the opportunity to advance their position before a decision was made.

[103] Had the Plaintiff brought a motion to amend claiming a clear intention to name Fly Park Inn Inc., there would have been a fair hearing that provided the added corporate defendant the opportunity to argue prejudice. Similarly, if a motion’s judge determined Fly Park Inn Inc. should be added, it is reasonable to expect that they would have defended the action and called a witness of their choice. According to the trial record, Mr. Maitland-Carter had no interest in the

company. There is no evidence Fly Park Inn Inc. would have called or relied on him.

[104] It cannot be presumed that that the failure of Jet Park Inn Inc. to bring a motion to strike means that Fly Park Inn. Inc. was necessarily put on notice. They are distinct entities.

[105] Despite similarities between their corporate profiles, the Plaintiff should have brought a motion earlier to amend their claim to add. The Plaintiff clearly knew the importance of a motion to amend, having brought one to increase the amount of recovery sought.

[106] In conclusion, I find that the trial judge erred in finding that it was a clerical error or simple misnomer and that the finding of liability applied to the additional party that was never named and did not have an opportunity to respond.

[107] I would grant the appeal on this ground.

CONCLUSION

[108] The appeal is granted. The case is remanded for a new trial and the costs order set aside.

COSTS

[109] The parties agreed to reasonable and fair costs for this appeal in the amount of six thousand dollars inclusive to the successful party. The Plaintiff/Respondent

to this appeal shall have 30 days from the date of this ruling to pay the costs to the Defendant/Appellant.

Mirza J.

Released: FEBRUARY 6, 2024

CITATION.: Vongsamphan v. Jett Park Inc, 2024 ONSC 5146

COURT FILE NO.: DC-22-19-00

DATE: 2024 02 06

ONTARIO SUPERIOR COURT OF JUSTICE

B ET W EE N:

VONGSAMPHAN, Inpaeng

Respondent

• and -

JET PARK INN INC. o/a SKYPARK AIRPORT PARKING

Appellant

SMALL CLAIMS APPEAL

MIRZA J

Released: February 6, 2024

[^1]: The reasons for decision erroneously refer to the daughter’s first name as January. Her name was stated as “Januar.” [^2]: The transcript of December 7, 2021, at p. 25, line 3, as filed, erroneously states that Defendant’s counsel asks if Jet Park Inn Inc. is agreeing to “identity.” The audio indicates that Plaintiff’s counsel actually used the word “indemnity.” At 2:10:35 PM, Plaintiff’s counsel addresses the court’s question on the discrepancy of the receipt being in the name of Fly Park Inn Inc. and not the named Defendant, Jet Park Inn Inc. Plaintiff’s counsel says that their understanding of their friend’s defence is that they are not taking a defence of mistaken identity, and if liability is established then Jet Park is agreeing to indemnity. (At this point the transcript says “identity.”) Defendant’s counsel responds saying that no, this is not the case, as Jet Park is the (named) Defendant and they have not agreed to indemnify anyone else. It is clear that Plaintiff’s counsel, also counsel on appeal, used the word “indemnity.” This is consistent with the issue as argued at trial and before this court. [^3]: The reasons for decision erroneously refer to the Plaintiff’s daughter as “January.” Her name is Januar.