SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-23298
DATE: 2012-04-25

RE: Ugo Cappello, plaintiff

AND: Quantum Limousine Service Inc. and John Doe et al.

BEFORE: Mr Justice Ramsay

COUNSEL:
Mr Paul R. Sweeny for the plaintiff

Mr Sheldon I. Erentzen for 844472 Ontario Limited and Tony Middleton

HEARD: 2012-04-25 at Hamilton

ENDORSEMENT

[ 1 ] The plaintiff moves to amend the statement of claim to replace Quantum Limousine Service Inc. and John Doe as defendants with 844472 Ontario Limited (“Condello Limousine” or “Condello”) and Tony Middleton, respectively. Condello and Middleton resist on the ground that the limitation period has expired.

Facts

[ 2 ] On October 24, 2008, someone named Christo contacted Quantum Limousine to confirm a booking for a wedding the following day, October 25, 2008. No booking had in fact been made, and Quantum had no available vehicle. Quantum referred Christo to Condello Limousine. In view of the rush, Quantum e-mailed the proposed itinerary to Condello. Quantum did this without any compensation. It did not act as Condello’s agent. It was simply obliging Christo. Condello provided the requested limousine on October 25.

[ 3 ] On October 25, 2008 the plaintiff was a passenger in the limousine. En route to the wedding, an accident occurred in which the plaintiff was injured. The driver of the limousine, Tony Middleton, reported the accident to Condello. The plaintiff exhibit symptoms of minor injury and continued to the wedding. A few days later, the symptoms got worse and he consulted a doctor.

[ 4 ] Two days after the accident, the plaintiff’s mother telephoned Condello Limousine and asked them the name of their insurer.

[ 5 ] On October 21, 2008 the plaintiff issued a statement of claim naming Quantum Limousine and John Doe. The statement of claim complained of the accident that occurred on October 21, 2008 on the Queen Elizabeth Way near Walker’s Line in Burlington. It named Quantum Limousine as the owner of the limousine and John Doe as its driver.

[ 6 ] On November 29, 2010, Quantum’s insurer, who is also Condello’s insurer, wrote to the plaintiff’s lawyer to advise that the incident occurred on a vehicle owned by Condello and driven by Tony Middleton. On December 14, 2010 the plaintiff commenced a second action naming Condello and Middleton. The plaintiff has a strong argument that the limitation period had not expired by then, given the delayed development of his injuries and the threshold for recovery under the Insurance Act, but the parties are reserving that argument for that action. For the purposes of the motion before me, they ask me to decide only whether the proposed amendments are correction of a misnomer, and, if so, whether I should exercise my residual discretion not to allow them.

Misnomer

[ 7 ] The Limitations Act, 2002 provides:

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding. 2002, c. 24 , Sched. B, s. 21 (1).

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party. 2002, c. 24 , Sched. B, s. 21 (2).

[ 8 ] Assuming that the limitation period has expired, I can still allow the amendment if it is only a question of correcting the misnaming of a party.

[ 9 ] In Lloyd v. Clark , 2008 ONCA 343 , the plaintiff in a car accident, intending to name as a defendant the municipality in which the accident occurred on the basis of its responsibility for the roadway, named two lower tier municipalities, when she should have named the regional municipality. The Court of Appeal held that the amendment should have been allowed notwithstanding expiry of the limitation period. It said (paragraphs 3 and 4):

We agree with the submission that on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. Moreover, there was clear evidence that Durham immediately knew that it was the intended defendant given the letter sent by Durham's insurance adjustor to the plaintiff's solicitor upon receipt of the statement of claim.

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. See Ladouceur v. Howarth , 1973 30 (SCC) , [1973] S.C.J. No. 120 (S.C.C.); Kitcher v. Queensway General Hospital , 1997 1931 (ON CA) , [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.).

[ 10 ] The test was stated thus by Lord Devlin in Davies v. Elsby Brothers, Ltd ., [1960] 3 All E.R. 672 :

The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong," then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries," then it seems to me that one is getting beyond the realm of misnomer.

[ 11 ] The case law in Ontario gives broader scope for misnomer than Lord Devlin’s test. In Davies the amendment was denied because the named corporation and the intended corporation were both existing entities. See Ormerod v. Strathroy Middlesex General Hospital , 2009 ONCA 697 .

[ 12 ] Furthermore, in applying the Davies test the court is not limited to considering what the litigant would know, but may, in addition, consider the knowledge of the intended litigant's representatives when they received the statement of claim: Ladouceur v. Howarth , 1973 30 (SCC) , [1974] SCR 1111.

[ 13 ] The statement of claim clearly said that it meant to attach blame to the owner and the driver of the limousine that was involved in the accident on October 25, 2008 on the Queen Elizabeth Way at Walker’s Line. When it was served on Quantum Limousine, Quantum notified its insurer. The insurer, who also insured Condello, had opened a file on the accident in November 2008: See the affidavit of Riaz Coolman, paragraph 7. Condello’s and Middleton’s insurer, then, would have known from the statement of claim that the plaintiff meant to sue Condello and Middleton. I do not take Lord Devlin’s reference to making inquiries to include looking at one’s own file.

[ 14 ] Condello and Middleton argue, however, that in spite of the statement of claim, the plaintiff did not intend to name the owner of the limousine. Based on the mother’s telephone call, I should infer that the plaintiff’s mother, and therefore the plaintiff, knew that Condello owned the limousine, but the plaintiff chose to sue Quantum anyway. I decline to draw this inference because the plaintiff had no motive to act so perversely. He would have lost his claim and gained nothing. I prefer the obvious inference, that the plaintiff misidentified the limousine company by mistake.

[ 15 ] I conclude that the proposed amendment would amount to no more than correction of the misnaming of the parties.

Discretionary refusal

[ 16 ] The Court of Appeal said in the Ormerod case (paragraph 31 ) that as the scope of misnomer broadens, so should the court’s discretion to refuse correction. I see the present case as more than a “classic” misnomer or mere irregularity. However I do not see good reason to refuse the correction in the circumstances.

[ 17 ] Condello and Middleton argue that I should refuse the amendment because of the inordinate delay in bringing this motion. The plaintiff did not bring the motion until he was served with a motion for summary judgment on behalf of Quantum.

[ 18 ] I do not think that there was inordinate delay in the circumstances. Before bringing the present motion, the plaintiff’s lawyer issued the second action and engaged in serious negotiations with the insurance company in an attempt to get the matter on track expeditiously and inexpensively. Counsel for Condello and Middleton refused the necessary concessions. Furthermore, Condello and Middleton have suffered no prejudice in their defence.

[ 19 ] Condello and Middleton also argued that correction should be denied on the ground that the plaintiff deliberately chose to sue the wrong company. I have rejected the factual premise of that argument.

[ 20 ] The motion is granted. The parties may make submissions to costs in writing, the plaintiff within 10 days of release of this endorsement, the defendants within 10 further days.

J.A. Ramsay J.

Date: 2012-04-25