SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Abdi v. Doe, 2013 ONSC 4935

COURT FILE NO.: CV-11-420356

BEFORE: MASTER R.A. MUIR

COUNSEL: M. Doli for the plaintiff

A. Shmukler for the defendants State Farm and Abdullahi

HEARD: July 23, 2013

ENDORSEMENT

[1] The plaintiff brings this motion pursuant to Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting her leave to amend her statement of claim. The defendants oppose the relief sought by the plaintiff.

[2] This action arises out of a motor vehicle accident that took place on June 9, 2009. The statement of claim was issued on February 16, 2011. The claim names John Doe as the unidentified driver of the defendant vehicle, Said Liban Abdullahi (“Abdullahi”) as the owner of the defendant vehicle and State Farm Mutual Automobile Insurance Company (“State Farm”), purportedly as Abdullahi’s insurer.

[3] On March 23, 2011, State Farm wrote to the plaintiff’s lawyer and advised that it was the insurer for Abdullahi but that it would not be indemnifying the plaintiff as the unidentified driver had stolen the defendant vehicle. State Farm suggested, under the circumstances, that the plaintiff name her own insurer as a defendant.

[4] On March 31, 2011, the plaintiff’s lawyer responded by stating that the plaintiff did not have her own insurance and that State Farm, as insurer for the defendant vehicle, was properly named.

[5] The plaintiff now wishes to amend her statement of claim to advance an uninsured/underinsured claim against State Farm pursuant to her husband’s policy of insurance which, coincidently, also happens to be with State Farm. The plaintiff seeks leave of the court to delete the references in the statement of claim to Abdullahi’s policy with State Farm and instead include the particulars of her husband’s policy with State Farm.

[6] Rule 26.01 provides as follows:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[7] Rule 26.01 is mandatory unless a responding party can demonstrate non-compensable prejudice, such as the expiry of a limitation period. The Court of Appeal has held that where an applicable limitation period has expired, a plaintiff cannot avoid the application of that limitation period by amending an existing claim to add a new party or to advance a new cause of action. The common law doctrine of special circumstances, which was previously used by the courts to extend limitation periods, no longer applies. See Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 at paragraphs 16 and 25-27. Therefore, to the extent that the proposed amendments constitute a new cause of action being advanced after the expiry of the relevant limitation period, they will not be permitted.

[8] The Court of Appeal has also held that the common law doctrine of misnomer has been preserved despite the enactment of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B. See Spirito Estate v. Trillium Health Centre, 2008 ONCA 762 at paragraph 17.

[9] Finally, proposed amendments must be tenable at law. See Royal Laser Corp. v. Rivas, 2011 ONCA 655.

[10] The evidence on this motion as to whether a limitation period has expired is unclear. There is a suggestion by the defendants that another policy of insurance may be available to respond the plaintiff’s claims. If such a policy is available, it would appear that the plaintiff’s cause of action under her husband’s policy has not even begun to run as no determination has been made as to whether the other potentially available policy is sufficient to respond to the plaintiff’s claims. I am unable to conclude on the evidence before me on this motion that the plaintiff’s proposed claim against State Farm arising from her husband’s policy is statute barred.

[11] I do agree with the defendants that the plaintiff has not met the test of misnomer. Among other things, misnomer requires that the plaintiff intended to name State Farm in its capacity as her husband’s insurer. See Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 at paragraph 21. This is clearly not the case on the evidence before me. On March 31, 2011, the plaintiff’s lawyer wrote to State Farm and stated that the plaintiff “has appropriately included the insurer of the defendant as a party to the action” [emphasis added]. Obviously, there was no intention from the outset to name State Farm as a defendant in its capacity as the insurer of the plaintiff’s husband.

[12] The defendants also argued that the proposed amendments are not tenable at law. The defendants submit that the plaintiff has no cause of action against State Farm in its capacity as the insurer of the plaintiff’s husband. The defendants took the position that another policy of insurance should respond to the plaintiff’s claim in priority to State Farm. However, when determining whether proposed amendments are tenable at law, the court must not embark on a consideration of the merits of the proposed amendments. The proposed amendments must be accepted as true for the purposes of this motion. They should only be rejected where it is plain and obvious that they cannot succeed. Proposed amendments must also be read generously. See Royal Laser Corp. at paragraphs 1-5 and A1 Pressure Sensitive Products Inc. v. Bostik Inc., 2013 ONSC 4734 (Div. Ct.) at paragraph 20. While the proposed amendments may not be drafted with perfect clarity, it is my view that they do set out the requirements of a claim by the plaintiff pursuant to her husband’s policy of insurance in the circumstances of this action.

[13] Finally, I can see no prejudice to the defendants that cannot be compensated for by costs or an adjournment. As indicated above, I am unable to determine whether a limitation period has expired. There is therefore no onus on the plaintiff to rebut a presumption of prejudice. The defendants have not provided any evidence of actual prejudice.

[14] I have therefore concluded that the plaintiff should be granted leave to amend her statement of claim as requested.

[15] The plaintiff has been successful on this motion and is entitled to costs. However, it is also my view that the defendants have incurred certain costs to date in this action that have been wasted. An amended statement of defence will need to be delivered and the defendants will most likely have to conduct further discovery of the plaintiff. In my view, those costs roughly offset the costs to which the plaintiff is entitled as a result of her success on this motion. It is therefore fair and reasonable that there be no order for costs thrown away and no order for the costs of this motion.

[16] I therefore order as follows:

(a) the plaintiff is hereby granted leave to amend her statement of claim in the form of the draft amended statement of claim at Tab 2D of the plaintiff’s motion record; and,

(b) there will be no order for costs thrown away and no order for the costs of this motion.

Master R.A. Muir

DATE: July 24, 2013