Court File and Parties
Court File No.: CV-11-425266 Date: 2012-01-27
Superior Court of Justice - Ontario
Re: Skribans v. Nowek et al.
Before: Master Glustein
Counsel: Daniela Cervini for the plaintiffs Bronwyn M. Martin for the Proposed Defendants U-Haul Co. of Arizona, U-Haul International Inc. and U-Haul Co. (Canada) Ltd.
Heard: January 20, 2012
Reasons for Decision
Nature of the motion and overview
[1] The plaintiff Dmitri Skribans (“Skribans”) brings this motion for an order (i) amending the statement of claim by adding the proposed defendants U-Haul Co. of Arizona, U-Haul International Inc. and U-Haul Co. (Canada) Ltd. (collectively “the U-Haul Defendants”) and (ii) substituting the U-Haul Defendants for the defendant John Doe, as the owner of the motor vehicle involved in the accident.
[2] Skribans submits that the motion ought to be granted on two bases. First, Skribans submits that the amendment ought to be allowed since the evidence meets the low threshold required to establish a triable limitations period issue (based on the doctrine of discoverability), as that threshold was set out by Master Dash in Wakelin v. Gourley, 2005 23123 (ON SC), 2005 CarswellOnt 2808, 76 O.R. (3d) 272, 19 C.P.C. (6th) 13 (Mast.) (“Wakelin”); affirmed [2006] O.J. No. 1442 (Div. Ct.).
[3] Second, Skribans submits that in any event, substitution ought to be permitted under the doctrine of misnomer. Skribans relies on the test set out by the Court of Appeal in Lloyd v. Clark, 2008 ONCA 343, [2008] O.J. No. 1682 (C.A.) (“Lloyd”) and submits that there is a coincidence between Skribans’ intention to name the owner of the motor vehicle and the U-Haul Defendants’ knowledge that they were the intended defendants. Further, Skribans submits that the court should not exercise its discretion to refuse the correction arising from the misnomer.
[4] The U-Haul Defendants oppose the motion on two bases. First, the U-Haul Defendants submit that Skribans failed to meet the low threshold required under Wakelin since Skribans led no evidence to establish a reasonable explanation why the identity of the U-Haul Defendants was not obtainable with due diligence.
[5] Second, the U-Haul Defendants submit that the doctrine of misnomer requires evidence from the moving party of due diligence to ascertain the identity of the proposed substituted parties. Consequently, the U-Haul Defendants submit that Skribans cannot succeed under misnomer since Skribans led no evidence as to such efforts. Further, the U-Haul Defendants submit that if the misnomer doctrine applies, the court should exercise its discretion to refuse the correction.
[6] For the reasons discussed below, I agree with the U-Haul Defendants that Skribans failed to meet the low threshold required under Wakelin since Skribans led no evidence to establish a reasonable explanation why the identity of the U-Haul Defendants was not obtainable with due diligence. It is not sufficient to lead evidence only of steps taken to ascertain a party’s identity. Under Wakelin, the court requires evidence so that it can be satisfied that there is a triable issue why the identity of the defendant was not obtainable with due diligence. There was no such evidence before the court on this motion.
[7] However, I find that the doctrine of misnomer under Lloyd does not require evidence of due diligence to ascertain the identity of the proposed substituted parties. The doctrine can apply even if the plaintiff knows or ought to know of the identity of the tortfeasor, since under Lloyd, the doctrine applies despite the passage of a limitation period. In this case, the two requirements in Lloyd have been met (i.e. “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” (Lloyd, at para. 4)). Skribans intended to name as a defendant the owner of the vehicle, the statement of claim demonstrates that intention, and the U-Haul Defendants knew that they were the intended defendants.
[8] Further, the evidence before the court does not support the court’s exercise of its discretion to refuse to allow the correction.
[9] Consequently, I order the substitution of the U-Haul Defendants for John Doe under the doctrine of misnomer despite the passage of the limitation period.
Evidence
[10] Skribans filed three affidavits from Stephanie Parriera (“Parriera”), a litigation assistant with Skribans’ law firm. The first affidavit was filed with the motion record, and the other two affidavits (a “reply affidavit” and a “supplementary reply affidavit”) were delivered to respond to certain of the issues raised in the responding motion material.
[11] The U-Haul Defendants filed an affidavit from Gerald Mastromatteo (“Mastromatteo”), a representative of Republic Western Insurance Company (“Republic”), the insurer of U-Haul Company of Canada Limited.[^1]
[12] The relevant evidence can be summarized as follows:
(i) Skribans was injured in a motor vehicle accident on May 22, 2009 as a passenger in a “U-Haul”[^2] vehicle driven by the defendant Lukasz Nowek (“Nowek”);
(ii) On March 15, 2011, Skribans issued a statement of claim for this matter (the “First Claim”);
(iii) In the First Claim, Skribans pleaded that he was “a passenger in a 1996 Ford motor vehicle bearing Ontario License plate number AA86817” and that the defendant 1215955 Ontario Ltd “was at all material times the owner of the Defendant’s motor vehicle”;
(iv) The U-Haul Defendants knew that they were the intended defendants under the First Claim. On March 25, 2011, Mr. Mark Butler, a representative of U-Haul Claims Canada[^3] sent a fax letter to Skribans’ counsel (the “Butler Letter”) and advised that “The vehicle your client was in was owned by U-Haul Co. (Canada) Limited[^4]. You will need to amend your claim to reflect same. Once your claim has been amended & served upon the writer a defence shall be entered”;
(v) Skribans’ counsel denies receipt of the Butler Letter on March 25, 2011. Parriera’s reply affidavit states that “our office did not receive Mr. Butler’s correspondence dated March 25, 2011” and that the Butler Letter “first came to the attention of our office on or around December 23, 2011 as part of the responding motion materials served by [the U-Haul Defendants]”;
(vi) There is no evidence from the U-Haul Defendants to respond to Skribans’ position that his counsel did not receive the Butler Letter until December 23, 2011. Consequently, the uncontroverted evidence of both parties leads to the conclusion that the Butler Letter was sent (demonstrating that the U-Haul Defendants knew of the First Claim) but was not received by Skribans (demonstrating no knowledge from this source as to the owner of the vehicle prior to issuing the Second Claim as set out below);[^5]
(vii) On April 1, 2011, the Economical Insurance Group (“Economical”) wrote to Skribans’ counsel and attached a self-reporting collision report[^6]. Economical advised that its insured (1215995 Ontario Ltd. operating as Mega Auto Sales) was not liable for the loss and that the correct insurer was Republic Western Insurance of Arizona[^7], listed on the report as the insurer for Nowek. Economical advised Skribans’ counsel that Republic had opened a claim for the loss. Economical also provided Skribans’ counsel with the Republic claim number. Economical asked Skribans’ counsel to discontinue the First Claim;
(viii) Skribans discontinued the First Claim as it did not name the correct parties[^8];
(ix) Skribans issued a new statement of claim on April 28, 2011 (the “Second Claim”) in which he again pleaded that he was a passenger in the 1996 Ford vehicle but pleaded that the vehicle bore “Arizona license plate number AA86817”[^9];
(x) Skribans named the pseudonym John Doe as the owner of the vehicle. Skribans alleged that John Doe “is an individual and/or corporation which at all material times was the owner of the Defendant Nowek’s vehicle”;
(xi) In the Second Claim, Skribans reiterated his allegations against the owner of the vehicle as set out in the First Claim, including allegations that the defendant owner “failed to properly maintain their vehicle in good mechanical state and roadworthy condition”, “permitted the motor vehicle to be operated when they knew, or ought to have known, that the vehicle was not in a fit or proper mechanical condition and did not take the reasonable, necessary steps to ascertain its condition”, and “failed to properly maintain the vehicle in a condition suitable for usage on the highways and streets in the Province of Ontario”;
(xii) Skribans named Economical as a defendant on the basis that Economical was his motor vehicle insurer and provided coverage “with respect to any loss occasioned by the negligence of an underinsured and/or uninsured operators and owners”;
(xiii) At the time Skribans issued the Second Claim[^10], the evidence is that Skribans advised his counsel that Skribans “was provided with only one version of the self- reporting collision report”, (the “Skribans Report”) which did not identify the U-Haul Defendants as the owner of Nowek’s vehicle[^11];
(xiv) At the time Skribans issued the Second Claim, “[Skribans’ counsel] was still unaware of the owner of the vehicle involved in this accident and operated by the Defendant Nowek” and “As such, [Skribans’ counsel] issued the Statement of Claim with John Doe named as the Defendant owner of the Nowek vehicle”;
(xv) Skribans’ counsel requested other documentation or reports from Skribans, but Skribans advised his counsel that the Skribans Report was the only report in existence[^12];
(xvi) The Skribans Report did not identify any of the U-Haul Defendants as the owner of Nowek’s vehicle. The owner portion of the Skribans Report was left blank. The Skribans Report identified that the license plate of the Nowek vehicle was from Arizona (and provided the Arizona license plate number) and indicated that Republic was the insurer of the Nowek vehicle. The Skribans Report also provided the Republic policy number;
(xvii) After serving the defendants with the Second Claim in late April and early May 2011, the defendant Economical provided Skribans’ counsel with a copy of the self-reporting collision report filed by Nowek on May 3, 2011. In this report, Nowek identified the proposed defendant U-Haul Co. of Arizona as the owner of the vehicle. Parriera states that “As we had previously been unable to obtain a copy of this report, this was the first time we were able to identify U-Haul Co. of Arizona as the owner of the Defendant Nowek’s vehicle”;
(xviii) On September 23, 2011, Skribans put the U-Haul Defendants on notice (a) of the claim and (b) that Skribans was bringing the present motion to add them as defendants to the claim; and
(xix) On January 8, 2012, counsel for the U-Haul Defendants confirmed by letter that the Republic insurance policy was responding on behalf of Nowek.
Analysis
[13] Skribans submits that (i) the amendment to add the U-Haul Defendants should be permitted on the basis that the evidence meets the low threshold in Wakelin required to establish a triable limitations period issue, and (ii) in any event, substitution ought to be permitted under the doctrine of misnomer set out in Lloyd. I address each of these submissions below.
(a) Amendment under the Wakelin test
[14] Both parties rely on Wakelin in which Master Dash reviewed at length the case law concerning the approach the court ought to take on a motion to add a party after the expiry of a limitation period based on the application of the discoverability doctrine.
[15] In Wakelin, Master Dash set out two general principles. First, Master Dash reiterated the importance of the court reviewing the evidentiary record. Master Dash relied on his earlier decision in Wong v. Adler (2004), 2004 8228 (ON SC), 70 O.R. (3d) 460 (S.C.J. – Mast.) (“Wong”), in which Master Dash held that the court must review the evidentiary record to determine if there is a triable issue on discoverability. Master Dash held (Wong, at 476-77, cited at Wakelin, at paras. 3 and 4):
the motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such issue, the defendant should be added with leave to plead a limitations defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor, were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontradicted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility. [emphasis added]
[16] Second, Master Dash in Wakelin reviewed the “evidentiary threshold” required to establish a triable issue on discoverability. Master Dash held that the onus is on the moving party to (i) lead evidence on steps taken to ascertain the identity of the tortfeasor and (ii) give a reasonable explanation on proper evidence as to why the identity of the tortfeasor was not obtainable with due diligence. Master Dash held (Wakelin, at para. 15):
Therefore, as long as the plaintiff puts in evidence as to steps taken to ascertain the identity of the tortfeasors and gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence then that will be the end of the enquiry and the defendants will normally be added with leave to plead a limitations defence. This is not a high threshold. … The only concern is whether a reasonable explanation as to due diligence has been provided such as to raise a triable issue. [emphasis added]
[17] The second requirement for the evidentiary threshold stated by Master Dash is critical, i.e. the need for a plaintiff to provide a reasonable explanation on proper evidence as to why the identity of the tortfeasor was not obtainable with due diligence.
[18] It cannot be sufficient for a plaintiff to set out only “the steps taken to ascertain the identity of the tortfeasors”. Without evidence on the second requirement in Wakelin, the court cannot determine whether there is a triable issue that the identity of tortfeasors could reasonably have been discovered, which is an essential component of the discoverability test.
[19] By way of example, a plaintiff could list a dozen steps that it took to ascertain the identity of the tortfeasor. However, if there is no reasonable explanation on proper evidence as to why the identity of the tortfeasor was not obtainable with due diligence, the court cannot determine whether there is a triable issue of discoverability.
[20] In the present case, Skribans led no evidence to establish a reasonable explanation as to why the identity of the U-Haul Defendants was not obtainable with due diligence. Instead, the only evidence Skribans led related to the steps Skribans’ counsel[^13] took to ascertain the identity of the tortfeasor, which was limited to (i) Skribans’ counsel understood that Skribans had the Skribans Report which did not identify the owner; (ii) Skribans’ counsel requested other documentation or reports, but Skribans advised counsel that the Skribans Report was the only report in existence, and (iii) the “first time [Skribans’ counsel] were able to identify U-Haul Co. of Arizona as the owner of [Nowek’s] vehicle” was when Skribans’ counsel received the self-reporting collision report filed by Nowek attached to the May 3, 2011 letter from Economical.
[21] While the above evidence raises a triable issue as whether the “steps taken to ascertain the identity of the tortfeasors” were sufficient to meet the discoverability test, neither Skribans nor Skribans’ counsel led any evidence to establish a reasonable explanation as to whether the identity of the U-Haul Defendants would have been obtainable with due diligence. Instead, at the hearing, both counsel made submissions (without evidence) on this issue.
[22] Counsel for the U-Haul Defendants submitted that (i) a simple internet search of Republic (whose identity was stated in the Skribans Report) would have demonstrated that Republic provides insurance policies for the U-Haul entities and their customers[^14]; (ii) a search of the Arizona license plate (whose number was stated in the Skribans Report) would have disclosed the identity of the owner; and (iii) in any event, Skribans knew that the vehicle in which she was riding as a passenger was a U-Haul vehicle.
[23] Skribans’ counsel submitted that Ontario counsel could not conduct an Arizona license plate search in Ontario and that any debate over whether an internet search was a reasonable step that ought to have been taken to identify the tortfeasor was a “triable issue” that should be left to the trial judge.
[24] There was no evidence to support either party’s submissions that the identity of the U-Haul Defendants was obtainable with due diligence. I do not rely on any of counsel’s submissions about the internet search or license plate search as evidence.
[25] However, the evidentiary onus is on Skribans to provide a reasonable explanation as to why the identity of the U-Haul Defendants was not obtainable with due diligence. Otherwise, the court is left to speculate as to whether the steps taken were sufficient to constitute due diligence, an exercise that cannot be reasonably undertaken by the court without evidence.
[26] Skribans’ counsel asked the court to infer, based on the evidence of the steps taken as discussed above, that there is a triable issue that the identity of the U-Haul Defendants could not have been obtained with due diligence. Adopting the approach of Master Dash in Wakelin, I find that the requested inference is not the proper approach. Evidence of the reasonable explanation is required.
[27] While the threshold to lead such evidence is low, a failure to lead evidence does not raise a triable issue that the identity of the U-Haul Defendants was not obtainable with due diligence.
[28] For the above reasons, I reject the submission by Skribans that the amendment ought to be permitted under the Wakelin test.
(b) Misnomer
[29] Skribans relies on the doctrine of misnomer to submit that the court ought to correct the named defendant “John Doe” and substitute the U-Haul Defendants for John Doe.
[30] The U-Haul Defendants submit that because there is no evidence of efforts made by Skribans to determine the identity of the U-Haul Defendants, then either (i) the doctrine of misnomer does not apply or (ii) even if the doctrine of misnomer applies, the court should exercise its discretion to refuse the correction.
[31] For the reasons I discuss below, I find that the doctrine of misnomer applies and that the evidence does not support the exercise of discretion to refuse the correction.
(i) The application of the doctrine of misnomer
[32] The doctrine of misnomer is of particular importance to the issue of amendment outside limitation periods given the clear direction of the Court of Appeal in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, [2008] O.J. No. 2339 (C.A.) (“Joseph”) that the common law doctrine of special circumstances does not apply to actions under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act, 2002”).
[33] Given the conclusion in Joseph, the Court of Appeal has recently considered whether a plaintiff can substitute the correct defendant’s name when that defendant was not properly named in the initial statement of claim.
[34] In Lloyd, the Court of Appeal set out the test for misnomer, which requires a coincidence between the plaintiff’s intention to name a defendant and the defendant’s knowledge that it was the intended defendant. Importantly, the doctrine applies regardless of whether the limitation period expired. In Lloyd, the Court held (Lloyd, at para. 4):
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.). [emphasis added]
[35] In Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital, 2009 ONCA 697, [2009] O.J. No. 4071 (C.A.) (“Ormerod”) [^15], the Court affirmed its decision in Lloyd that the doctrine of misnomer applies “despite the passage of the limitation period” (Ormerod, at para. 21). Further, the Court in Ormerod confirmed that the principle applies whether a defendant is wrongly named, or is named pursuant to a pseudonym. The Court relied on its earlier decision in Spirito v. The Trillium Health Centre, 2008 ONCA 762, in which the Court of Appeal upheld the motion judge’s decision to permit the correction of pseudonym-named defendants (Ormerod, at para. 22).
[36] Consequently, on the basis of Lloyd and Ormerod, it is not relevant whether a plaintiff knew or ought to have known of the identity of the defendant within two years from the cause of action. “Despite the passage of the limitation period” (Lloyd, at para. 4), a plaintiff can correct a misdescription or misnomer (whether misnamed as a named defendant or under a pseudonym) provided that the plaintiff intended to name that party as a defendant and that party knew that it was the intended defendant (or reasonably would have understood that the “litigating finger pointed at them”) (Ormerod, at paras. 21-22).
[37] The effect of the decisions in Lloyd and Ormerod is that even if the plaintiff knew the identity of the defendant (e.g. the name of an emergency room doctor as in Ormerod or the proper municipality as in Lloyd), the plaintiff could still substitute the proper name of the defendant “despite the passage of the limitation period”. Knowledge of the defendant or discoverability does not impact the analysis on misnomer, subject to the court’s discretion as I discuss below.
[38] The U-Haul Defendants rely on the decision of Saunders J. in Dukoff v. Toronto General Hospital, 1986 2648 (ON SC), 1986 CarswellOnt 558 (H.C.J.) (“Dukoff”), to submit that the doctrine cannot apply when a plaintiff knows, or could reasonably be expected to know, the identity of the defendant.
[39] In Dukoff, Saunders J. held (Dukoff, at paras. 16-17):
If, as here, the technique of using fictitious names could be used with little indication of the persons referred to and no evidence of any effort to determine their identity, the protection afforded by the limitation periods would be lost. That would be an undesirable result. All persons, including doctors and nurses, should be made aware of claims against them in a timely fashion and thereafter left in peace: see Deaville v. Boegeman (1984), 1984 1925 (ON CA), 48 O.R. (2d) 725, 14 D.L.R. (4th) 81, 30 M.V.R. 227 (Ont. C.A.).
In Jackson [Jackson v. Bubela, 1972 978 (BC CA), [1972] 5 W.W.R. 80 (B.C.C.A.)] every effort was made to procure the name of the driver, without success. The court in that case found that the conduct of the driver/defendant had caused or contributed to the difficulty in ascertaining his identity. There is no evidence here of the effort, if any, made by the plaintiffs prior to the expiration of the limitation period and no argument was addressed to the question of effort. Such a circumstance would not make the designation a misnomer, but it might raise other issues.
[40] It appears that the above passages are not the ratio decidendi in Dukoff, as Saunders J. held earlier in his reasons that the doctrine of misnomer could not apply on the facts of that case because there was no evidence that the intended parties knew they were the intended defendants and the pleadings did not point a litigating finger at those parties (Dukoff, at para. 11).
[41] However, to the extent Saunders J. required proof of a plaintiff’s “effort to determine [a tortfeasor’s] identity” in order to apply the doctrine of misnomer, such an approach appears to conflict with the subsequent decisions of the Court of Appeal in Lloyd and Ormerod. If the doctrine of misnomer applies despite the passage of a limitation period, to require evidence of effort to identify a tortfeasor would appear to conflate the doctrines of misnomer and discoverability, since misnomer applies despite the passage of any limitation period. To impose an “evidence of effort” requirement into the misnomer doctrine would effectively impose a discoverability test into the misnomer doctrine, which is not supported by Lloyd and Ormerod.
[42] From a policy perspective, there is a reasonable argument that the doctrine of misnomer applies despite the passage of a limitation period. If a party knows from the outset that it is the intended defendant, the plaintiff intends to name the defendant, and the “litigating finger” points at the intended defendant, it could be unjust to allow the defendant to permit “one party to perhaps escape its possible liability by relying upon a technical Limitations Act defence” (Brand Name Marketing Inc. v. Rogers Communications Inc., 2010 ONSC 2892 (Mast.) at para. 84).
[43] Further, having established the importance of finality under the Limitations Act, 2002 in Joseph, the Court of Appeal chose to expressly exclude limitations period concerns under the requirement to establish misnomer as set out in Lloyd and Ormerod.
[44] On the facts of this case, the First and Second Claims demonstrate from the outset that Skribans intended to name the owner of the vehicle as a defendant in the action. Skribans pleaded direct allegations of negligence against the owner. At the time the Second Claim was issued, Skribans’ counsel “was still unaware of the owner of the vehicle involved in this accident and operated by the Defendant Nowek”. Consequently, Skribans’ counsel “issued the Statement of Claim with John Doe named as the Defendant owner of the Nowek vehicle”. This evidence satisfies the first requirement in Lloyd.
[45] On the facts of this case, the U-Haul Defendants knew that they were the intended defendants as early as the First Claim, as demonstrated by the Butler Letter sent March 25, 2011 which acknowledged the U-Haul Defendants’ knowledge of the claim[^16], and the letter from Economical dated April 1, 2011 which confirmed that Republic opened a claim for the loss and provided the Republic claim number[^17].
[46] Consequently, the evidence before the court satisfies the test in Lloyd. I accept Skribans’ position that the doctrine of misnomer applies.
(ii) Exercise of the court’s discretion
[47] The Court of Appeal in Ormerod stated the general principle that a motion court retains a discretion to refuse to correct a misnomer. Juriansz J.A. set out the following principles:
(a) “After finding there was a misnomer the motion judge had the discretion to refuse to permit its correction” (Ormerod, at para. 28);
(b) The discretion allows the court to refuse the correction of a misnomer, even if there is absence of prejudice (Ormerod, at paras. 29-30);
(c) The standard used to permit the correction of a misnomer “should take into account the extent of its departure from mere irregularity in all circumstances of the case” (Ormerod, at para. 31);
(d) “whether the defendant was misled or was unduly prejudiced, are [factors] undoubtedly deserving of the greatest weight” (Ormerod, at para. 32); and
(e) “Where the mistake in naming the defendant involves more than a mere irregularity or in any particular case with exceptional circumstances, the court may exercise its residual discretion under the rule to refuse to permit its correction” (Ormerod, at para. 32).
[48] On the facts of this case, I would not exercise my discretion to refuse to correct the misnomer.
[49] First, while the evidence demonstrates that the misnomer is not at the lowest scale of “one in which the claim contains a minor spelling error of the defendant’s name and is personally served upon the intended but misnamed defendant” (Ormerod, at para. 31), the nature of the misnomer in this case is not unusual. Counsel who are not aware of the identity of a defendant frequently name a pseudonym defendant with particulars sufficient to identify the defendant. While it may be the that with perhaps even minor additional due diligence Skribans could have learned of the identity of the U-Haul Defendants, there is no evidence before me on that issue.
[50] Second, even if Skribans had known of the U-Haul Defendants’ identity prior to the First or Second Claim, misnomer can be corrected despite the passage of a limitation period. Consequently, it would be necessary to establish more than just knowledge of a defendant and the passage of a limitation period. While knowledge of the defendant and the plaintiff’s delay in seeking the correction might be relevant to the court concluding that there was a “determined strategy” not to proceed with the action[^18], there is no such evidence to support such a strategy in this case.
[51] In Ormerod, the Court of Appeal did not overturn the motion judge’s exercise of discretion when the plaintiff had known for almost four years of the identity of the emergency room doctor and took no steps to amend the claim. The Court of Appeal noted that the doctor had timely notice of the claim and was not unduly prejudiced (Ormerod, at paras. 15, 16, 27, and 32). In the present case, (i) Skribans’ counsel put the U-Haul Defendants on notice of Skribans’ intention to amend the claim four and a half months after Skribans’ counsel received the new self-reporting collision report in the May 3, 2011 letter from Economical in which U-Haul Co. of Arizona was identified as an owner[^19] and (ii) the U-Haul Defendants had immediate notice of the claim.
[52] Third, there is no evidence the U-Haul Defendants suffered any prejudice other than the passage of a limitation period, which is not sufficient under the doctrine of misnomer set out in Lloyd and Ormerod.
[53] For the above reasons, I do not exercise my discretion to refuse the correction.
[54] The U-Haul Defendants rely on the decision of O’Connell J. in Urie v. Peterborough Regional Health Centre, 2010 CarswellOnt 6997 (S.C.J.) (“Urie”)[^20], in which the court held that misnomer did not apply because the statement of claim did not identify the intended defendants and the defendants would not have known that they were the intended defendants (Urie, at paras. 114 and 127).
[55] In obiter, O’Connell J. held that he would have exercised his discretion to refuse the correction if he had found a misnomer since (i) “there is no explanation proffered for the failure of the plaintiffs to provide a reasonable explanation …as to why the identities of the proposed defendants could not have been ascertained”; (ii) “the plaintiffs do not attempt to provide any evidence of diligence, save to suggest that any lapse in prosecution of the claim was founded on inadvertence”; and (iii) “This case … is absent the critical evidence required in the form of a solicitor’s affidavit …to compile ‘a list of the attempts by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent’” (Urie, at paras. 138-39).
[56] Consequently, O’Connell J. adopted the conclusion that “To allow the amendment would be to permit the plaintiff(s) through determined strategy, willfull (sic) blindness, or negligence on the part of their agents, to flout the limitation period” (Urie, at para. 142).
[57] The U-Haul Defendants rely on the above passages from Urie to submit that the failure of Skribans to provide an explanation as to why the U-Haul Defendants could not be identified ought to be the basis of the court’s refusal to exercise its discretion. However, as I discuss above, since the passage of a limitation period does not on its own prevent the application of the doctrine of misnomer, the mere failure to provide an explanation as to why a defendant cannot be identified cannot, on its own, constitute a basis to refuse to allow the correction.
[58] In the present case, there is an explanation of the steps taken to determine the owner, but no explanation as to why the identity of the owner of the vehicle could not have been determined with reasonable due diligence. While such lack of evidence is fatal to the discoverability argument under Wakelin, to render it fatal to a misnomer argument would again result in conflating the two doctrines when the Court of Appeal in Lloyd and Ormerod has expressly refused to do so and stated that the doctrine of misnomer applies “despite the passage of the limitation period”.
[59] There may be situations in which the lack of an explanation as to steps taken to determine the identity of a tortfeasor, taken with other evidence of knowledge of the defendant and conduct of the plaintiff, could lead the court to conclude that there was a “determined strategy” to unreasonably delay litigation against a known defendant. It may be in those cases that correction under the misnomer doctrine would not be allowed, even if the “coincidence” requirements for misnomer under Lloyd and Ormerod were met.
[60] However, on the evidence before the court, no such finding can be made. There was no egregious delay between the cause of action and the U-Haul Defendants’ knowledge of the claim. Skribans received the second self-reporting collision report immediately after service of the Second Claim and advised the U-Haul Defendants of his intention to correct the statement of claim within four and a half months, in circumstances when the U-Haul Defendants had opened a claim number for the incident after the First Claim. The evidence does not support a finding that the court refuse the correction.
Order and costs
[61] I allow the motion and grant leave to Skribans to correct the claim to substitute the U-Haul Defendants for John Doe. However, I order no costs of the motion since the motion was only necessary because Skribans failed to name the U-Haul Defendants and then provided no explanation as to why reasonable due diligence would not have discovered the identity of the tortfeasors. Had Skribans complied with his evidentiary obligations under Wakelin, the U-Haul Defendants’ costs of preparation of the motion could well have been avoided. The U-Haul Defendants may well have taken a reasoned position that it would not be worthwhile to pursue a misnomer argument when the low discoverability threshold would have been met.
[62] As a result of the lack of evidence, the U-Haul Defendants had a legitimate position to put before the court both on discoverability (which the court accepted), and on misnomer (which the court did not accept but on which the U-Haul Defendants had a reasonable argument based on the case law).
[63] For those reasons, I order no costs.
[64] I thank counsel for their thorough written and oral submissions which were of great assistance to the court.
Master Benjamin Glustein DATE: January 27, 2012
[^1]: It appears that this is a different corporate entity from the proposed defendant U-Haul Co. (Canada) Ltd. However, the distinction does not appear relevant, as Mastromatteo collectively refers to U-Haul Co. (Canada) Ltd. along with the proposed defendants U-Haul Co. of Arizona and U-Haul International Inc. as “U-Haul” and swears his affidavit on behalf of the U-Haul Defendants. [^2]: The term “U-Haul” is used by Mastromatteo in his affidavit, making it unclear which of the three proposed defendants (or whether all three of them) were the owners of the vehicle. Nevertheless, the distinction is not important for these reasons as the U-Haul Defendants do not rely on any distinction of ownership for the purposes of this motion. [^3]: (which appears to be another different U-Haul entity) [^4]: This letter demonstrates further confusion amongst the U-Haul Defendants as to which U-Haul entity is the owner of the motor vehicle. In the Butler Letter, Butler states that the owner is U-Haul Co. (Canada) Limited. In the affidavit filed by Mastromatteo, he states that the vehicle was owned by “U-Haul”, which is the collective term for all of the U-Haul Defendants. I make no finding as to the ownership of the vehicle other than the evidence before me is that it was owned by one or more of the U-Haul Defendants. [^5]: However, even if Skribans’ counsel received the Butler Letter, such evidence would not affect my conclusion, as I set out below. [^6]: Since the report is not attached to the exhibit filed with Parriera’s reply affidavit, I cannot determine whether the report was the same as Skribans’ claims was in his possession prior to the issuance of the Second Claim. [^7]: There is no evidence as to whether Republic Western Insurance Company (the insurer of U-Haul Company of Canada Limited as set out at paragraph 11 above) is the same entity as Republic Western Insurance of Arizona but for the purposes of these reasons, I treat these entities collectively as “Republic”. [^8]: There is no evidence as to the date Skribans discontinued the First Claim, and in particular, whether the discontinuance was before or after the April 1, 2011 letter from Economical. The only evidence is that Skribans discontinued the First Claim at some point subsequent to the Butler Letter which was dated March 25, 2011. The date of the discontinuance is not relevant to these reasons. [^9]: In the First Claim, Skribans pleaded that the vehicle had an Ontario license plate with that license plate number. [^10]: There is no evidence as to what documents were available to Skribans or his counsel at the time the First Claim was issued, although the distinction is not relevant to these reasons. [^11]: The evidence in this subparagraph is admissible to demonstrate the extent of knowledge by Skribans’ counsel, as it is hearsay evidence on that issue since Parriera was advised of the information by Skribans’ counsel and believed it to be true. However, the evidence is inadmissible to establish whether Skribans was provided with only one version of the self-reporting collision report, as such evidence would be double hearsay. [^12]: Similarly, the hearsay evidence as to what Skribans’ counsel asked Skribans and was told by Skribans is admissible to establish the understanding of Skribans’ counsel, but not to establish whether the Skribans Report was the only one in existence (since the latter statement would be double hearsay). [^13]: I note that there is no admissible evidence as to the steps Skribans took to ascertain the identity of the tortfeasors, as all such evidence is double hearsay. However, given my finding that the second requirement under Wakelin is not met in any event, I accept for the purposes of these reasons (without deciding the issue) that the evidence as to the knowledge of Skribans’ counsel can suffice without separate evidence as to Skribans’ knowledge. [^14]: Counsel for the U-Haul Defendants referred to this internet content in her submissions, but filed no evidence on the issue. In order to constitute proper evidence, counsel must lead evidence of the content and not simply refer to it in argument. Consequently, I do not accept the submission as evidence. However, since it is Skribans’ onus to provide a reasonable explanation on proper evidence as to whether the identity of the U-Haul Defendants was obtainable with due diligence, I do not need to (nor could I since the evidence was not led) make an evidentiary finding as to the content of the website. [^15]: I note that Justice Feldman was on the panel in each decision of Joseph, Lloyd, and Ormerod, while Justice MacFarland sat on the panels in both Joseph and Ormerod. [^16]: (regardless of the evidence that Skribans’ counsel did not receive the Butler Letter) [^17]: Although that letter does not refer to the identity of the owner, the U-Haul Defendants’ counsel acknowledged that Republic insures the U-Haul entities and their customers. [^18]: (which could be a relevant factor to the court exercising its discretion to not allow a correction, as I discuss below in my analysis of Urie v. Peterborough Regional Health Centre, 2010 CarswellOnt 6997 (S.C.J.)) [^19]: Even if the court accepted the U-Haul Defendants’ submission that Skribans’ knew of the identity of the U-Haul Defendants on March 25, 2011 upon delivery of the Butler Letter (which I do not accept for the reasons discussed above), the delay by Skribans in notifying the U-Haul Defendants of the claim would still be only six months when the U-Haul Defendants immediately knew of the claim, so it would not change my conclusion that the court should not exercise its discretion to refuse the correction. [^20]: (cited in footnote 18 above but cited in full in the text of my reasons for ease of reference)