COURT FILE NO.: C-752-11

DATE: 2012-03-22

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Conestoga Badger Inc., Plaintiff

and

Komatsu International (Canada) Inc.

and Kitchener Tractor Centre Inc., Defendants

BEFORE: The Honourable Mr. Justice J.R. Henderson

COUNSEL:
John Bradbury, for the Plaintiff

Susan Guzzo, for the Defendant, Komatsu International (Canada) Inc.

No one appearing for the Defendant, Kitchener Tractor Centre Inc.

HEARD March 21, 2012

ENDORSEMENT

Introduction

[ 1 ] The plaintiff brings this motion to amend the statement of claim by replacing one of the named defendants, Komatsu International (Canada) Inc. (hereinafter called “KIC”), with Komatsu America Corp. (hereinafter called “KAC”).

[ 2 ] This action is based upon the plaintiff’s claim that there was negligence in the manufacturing of a backhoe that had been purchased by the plaintiff. Clearly, the proper defendant in this action is KAC, an American based manufacturer of construction equipment. The named defendant, KIC, is a Canadian based subsidiary of KAC.

[ 3 ] The plaintiff alleges that it always intended to name KAC as the defendant, but named KIC as the defendant in error. Therefore, the plaintiff submits that this is a case of misnomer, and accordingly requests leave to amend the statement of claim to name the proper defendant.

[ 4 ] Counsel for the defendant KIC also appeared for KAC on this motion. Defence counsel submits that the plaintiff did not misname the defendant. Rather, defence counsel submits that the plaintiff deliberately chose to name KIC, knowing that KIC was a different entity from KAC. Therefore, defence counsel says that this is not a case of misnomer, and the motion should be dismissed.

Analysis

[ 5 ] Misnomer cases have been decided in Ontario pursuant to Rule 5.04(2) of the Rules of Civil Procedure which reads as follows:

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[ 6 ] The submission by defence counsel that this is not a case of misnomer is an attractive one. The plaintiff in this instance has not, for example, misspelled the defendant’s name, or used an incorrect word or phrase to describe the defendant. Rather, the plaintiff has named as a defendant an identifiable entity whose existence is distinct from the proper defendant. Since both entities exist, this is not strictly speaking a case of misnomer.

[ 7 ] The defendant’s submission is supported by several older cases, including the English Court of Appeal case of Davies v. Elsby Brothers, Ltd . [1960] 3 All E.R. 672 .

[ 8 ] However, the law of misnomer has been expanded in recent years. In the case of Ormerod v. Ferner , 2009 ONCA 697 , at para. 21 , the Ontario Court of Appeal affirmed a statement made at para. 4 of the case of Lloyd v. Clark , 2008 ONCA 343 , [2008] O.J. No. 1682 as follows:

The case law amply supports the proposition 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.

[ 9 ] This expanded approach has been used in Ontario to allow the substitution of the name of one emergency room doctor for the name of another emergency room doctor (in the Ormerod case). It has also been used to substitute the name of an Austrian corporation as a defendant for the named defendant Canadian corporation. See the case of Essar Algoma Steel Inc. v. Liebherr (Canada) Company , 2010 ONSC 4623 , affirmed by Divisional Court at 2011 ONSC 1688 .

[ 10 ] In my view, the expanded approach to misnomer described above is the correct approach. Therefore, this court must consider (1) the plaintiff’s intention to name a party, and (2) the intended party’s knowledge that it was the intended defendant.

[ 11 ] In the present case, I find that the plaintiff at all times intended to name KAC as the defendant. I accept the sworn evidence of the plaintiff’s lawyer who deposed that KAC was always the intended defendant. I also accept the plaintiff’s lawyer’s sworn evidence that when the statement of claim was issued the plaintiff’s lawyer mistakenly wrote the name of the Canadian subsidiary of the intended defendant on the statement of claim.

[ 12 ] Moreover, the intention of the plaintiff to name KAC is supported by the fact that the plaintiff’s lawyer corresponded directly with KAC at KAC’s offices in Illinois with respect to the alleged negligence of KAC prior to the drafting of the statement of claim.

[ 13 ] Regarding the intended party’s knowledge, I find that KAC knew that it was the intended defendant in this action for two reasons. First, as I already indicated, there had been correspondence back and forth between KAC and the plaintiff’s lawyer with respect to the alleged problems with the backhoe that had been manufactured by KAC. Second, from reading the statement of claim, it is clear that the plaintiff’s claim is against the manufacturer of the backhoe. I find that the representatives of KAC knew that KAC was the manufacturer of the backhoe, and that KIC was not the manufacturer but was a part of KAC’s distribution network.

[ 14 ] Therefore, I find that there is a coincidence between the plaintiff’s intention to name KAC as the defendant, and KAC’s knowledge that it was the intended defendant.

Conclusion

[ 15 ] For all of the above reasons I will allow the plaintiff’s motion.

[ 16 ] It is hereby ordered that:

(i) leave is granted to the plaintiff to amend the statement of claim by replacing the name Komatsu International (Canada) Inc. with the name Komatsu America Corp. in the title of the proceedings and in the body of the claim, and to make any ancillary amendments to the statement of claim;

(ii) leave is granted to the defendant Kitchener Tractor Centre Inc. to amend its crossclaim against the co-defendant, if necessary.

J.R. Henderson J.

Released: March 22, 2012