ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 8876/08
DATE: October 31, 2012

BETWEEN:

758511 Ontario Ltd Plaintiff – and – 2079282 Ontario Inc. and Stephen Briggs Defendants

Steven L. Nagy, for the Plaintiff

Christopher A.L. Caruana, for the Defendants

HEARD: September 28, 2012

THE HONOURABLE JUSTICE C.A. TUCKER

E N D O R S E M E N T

ISSUE

[ 1 ] The plaintiff seeks to amend his claim by adding Steven Lucz, carrying on business as two plaintiffs, namely, H & L Construction and H.L. Plumbing and Electrical. The defendants resist this amendment.

BACKGROUND

[ 2 ] On August 3, 2008, an action was commenced under the corporate name of 758511 Ontario Ltd (“758”) as plaintiff. The principal of 758 was Steven Lucz (“Lucz”). Lucz also operated a business known as H & L Construction and H.L. Plumbing and Electrical. One of these entities arranged to build induction coils for the corporate defendant. The corporate defendant was holding payment of the monies in the amount of $70,620.00 pending delivery of the product. The product was delivered and payment was not made is the allegation in the Statement of Claim. It is unclear from the material filed but it appears that neither the corporation 758 nor the principal Lucz registered the style names of H & L Construction and/or H.L. Plumbing and Electrical. There is no explanation for this fact other than that the registration may have expired. After the claim was issued in 2008, the defendants pointed out to the plaintiff that the contract alleged was not with 758 but another party, Lucz, perhaps under one and/or both of the style names noted above. In 2011 this motion was brought but not advanced or heard until September 28, 2012. The matter has already been set down for trial.

[ 3 ] The plaintiff argues that it is entitled to the amendment notwithstanding that the matter has been set for trial as it advised the defendants while serving the trial record that it intended to bring this motion thereby reserving its request to do so. Further, the plaintiff points out that Rule 26.01 stated that at any stage of the action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would occur that cannot be compensated by costs or an adjournment. Further, the plaintiff argues that given that its claim is a trust claim, there is no limitation period issue as time continues to run until the trust property is determined or accounted for. Finally the plaintiff argues that in the alternative the claim made here is simply a misnaming or misdescription of the party and therefore s.21(2) of the Limitations Act applies, which is the exception to the rule which forbids another party being added once a limitation has expired. The defendants would not be prejudiced as the essential facts underlying the claim are not changed.

[ 4 ] The defendants resist the motion claiming delays, the passing of the trial record, the presumed prejudice given the expiry of a limitation period, and that in fact the plaintiff is trying to add a party, not correct a misnomer. The defendants also assert that there is prejudice given the lapse of time. Finally, even if a trust claim is asserted, time has elapsed for such under the new Limitations Act and given that the style names are not registered no action can be asserted.

DECISION

[ 5 ] There has been delay I agree, however, I do not find any prejudice to the defendants. They were the ones who informed the plaintiff that it was misnamed. They knew the party with which they contracted. There is no real change in the allegations or the pleading which would cause prejudice to the defendants. The plaintiff agreed that the personal defendant could be added in lieu of the corporate defendant, rather than adding an additional party. In these circumstances I find that s. 21(2) of the Limitations Act applies, that a misnomer has occurred and the substitution of the name only is not prevented by the provision of the Limitations Act . The plaintiff’s claim should not be lost due to a procedural technical difficulty, although I agree it is hard to understand why a plaintiff would not know how to properly describe himself. It is still not clear to me if the plaintiff really knows who the proper plaintiff is, but that is not for this forum. As noted, I see no prejudice to the defendants. If it wishes to amend its claim in response, I will allow that provided it is done within 90 days of the plaintiff issuing and serving its amended Statement of Claim, notwithstanding the passing of the trial record, just as I have allowed the plaintiff to amend its claim in the circumstances. There is no “new” or different claim or allegation here – just a change of the name of the plaintiff. Whether or not the plaintiff can succeed, given the failure to register the business name, is a question to be decided in a different motion or perhaps at trial.

[ 6 ] Accordingly, I will allow the plaintiff to substitute the personal plaintiff for the corporate plaintiff. Given the delay in bring the motion, notwithstanding the success of the plaintiff, I would deny it costs and order costs to the defendants in the amount of $2,000.

Tucker, J.

Released: October 31, 2012

COURT FILE NO.: 8876/08
DATE: October 31, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: 758511 Ontario Ltd Plaintiff – and – 2079282 Ontario Inc. and Stephen Briggs Defendants e n d o r s e m e n t Tucker, J.

Released: October 31, 2012