DEMARTI v. BENEFIT PLAN ADMINISTRATORS LIMITED, 2014 ONSC 1847
COURT FILE NO.: CV-09-393225
MOTION HEARD: MARCH 21, 2014
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ornella Demarti v. Benefit Plan Administrators Limited, and John Doe Construction Company and Mike Reilly, and The Standard Life Assurance Company of Canada
BEFORE: MASTER R.A. MUIR
COUNSEL:
G. Upadyayula, student-at-law, for the Moving Party/Plaintiff
Karim N. Hirani for the Responding Party/Proposed Defendant BTP General Contracting Inc.
REASONS FOR DECISION
[1] This motion is brought by the plaintiff pursuant to Rules 5.04 and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order granting her leave to amend her statement of claim to correct a misnomer and/or add a party defendant. The current defendants do not oppose this motion. The proposed defendant BTP General Contracting Inc. (“BTP”) is opposed to the relief sought by the plaintiff.
[2] The plaintiff is a former employee of the defendant Benefit Plan Administrators Limited (“BPA”). During 2008 certain renovation and construction work was carried out at BPA’s offices where the plaintiff worked. The plaintiff claims that she has suffered various health problems caused by particles and debris released into the air as a result of the construction work.
[3] In her initial statement of claim, the plaintiff claimed that her condition was caused by the negligence of the then named defendant John Doe Construction. The plaintiff now alleges that John Doe Construction is the proposed defendant BTP.
[4] The plaintiff argues that the proposed amendments should be allowed on the basis of the doctrine of misnomer. Alternatively, the plaintiff takes the position that the amendments should be allowed on the basis of the discoverability principles established by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act”) and the applicable case law.
[5] BTP opposes this motion for the following reasons:
(a) the proposed amendments are not a correction of a misnomer but rather constitute the addition of a new defendant to this action well after the expiry of the limitation period;
(b) if the proposed amendments do amount to the correction of a misnomer, they should not be allowed as to do so would result in prejudice to BTP and the court should exercise its discretion in favour of BTP; and,
(c) the plaintiff has not met the test applicable to the doctrine of discoverability.
[6] At the outset of the argument of this motion, the plaintiff sought leave to introduce additional evidence in the form of affidavits of documents exchanged by the existing parties to this litigation. The plaintiff wished to rely on this evidence in response to BTP’s allegations of prejudice. I denied the plaintiff’s request. The order of Master Brott made January 29, 2014 made it very clear that no further evidence was to be filed in connection with this motion. The documents the plaintiff seeks to introduce were available before Master Brott made her order. Nothing has changed since that date. This motion has been pending for a very long time. This evidence should have been filed long before today. In any event, nothing turns on this point given my ruling below.
[7] The applicable law regarding misnomer is summarized in my decision in Spribille v. Rockcliffe Nursing Home, 2010 ONSC 5408 (S.C.J. – Master). Paragraphs 7 and 8 of that decision read as follows:
The law relating to misnomer has been thoroughly reviewed in recent years by the Court of Appeal. See Ormerod v. Strathroy Middlesex General Hospital, [2009] ONCA 697; Spirito Estate v. Trillium Health Centre, [2008] ONCA 762 and Lloyd v. Clark, [2008] ONCA 343. Misnomer requires a finding that the litigation finger be clearly pointed at the intended defendant. Would a reasonable person receiving and reviewing the statement of claim, in all the circumstances of the case, and looking at it as a whole, say to himself or herself “of course it must mean me, but they have got my name wrong”? The Court of Appeal adopts this test at paragraph 12 of Spirito, where the court states as follows:
In Dukoff et al. v. Toronto General Hospital et al. (1986), 1986 2648 (ON SC), 54 O.R. (2d) 58 (H.C.J.), Saunders J. noted the practice, adopted in this case, of using fictitious names where the identity of the parties are unknown. If it was a case of misnomer, the statement of claim could be corrected by replacing the fictitious name (John Doe in that case) for the correct name, even though the correction was sought after expiry of the limitation period. He adopted the following test from Davies v. Elsby Brothers, Ltd., [1960] 3 All E.R. 672 (C.A.), at p. 676:
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.
- Where fictitious names, such as John Doe, are used in the statement of claim the assessment of whether the proposed defendant knew that he or she was the intended defendant becomes seminal in the analysis. See Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 (S.C.J.) at paragraph 107. Vague and non-specific allegations in a statement of claim will weigh heavily, if not definitively, against a finding that a misnomer is present. See Urie at paragraph 108.
[8] These are the principles I have applied in determining the misnomer aspect of this motion.
[9] I have carefully reviewed the allegations in the statement of claim having regard to the unchallenged evidence of BTP’s witness. In my view, this is not a case of misnomer. This case is closer to the “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries” situation. I say this for several reasons.
[10] First, the location of the workplace is not specifically identified in the statement of claim. The address for service for BPA is in fact the address where the work did take place but a person reading the statement of claim would not be able to know that from reading the document itself.
[11] Second, the statement of claim states that John Doe Construction Company contracted with BPA. In fact, BTP did not contract with BPA. Its contract was with the owner of the premises, Universal Workers Union Local 183 (“Local 183”).
[12] Third, the role of John Doe Construction Company is described more as that of a general contractor. BTP’s role was actually as a form of construction manager. All of the trades were hired and paid by Local 183 or its architect. The statement of claim reads as if BTP itself carried out the actual construction work when it in fact did not.
[13] In my view, a reading of the statement of claim as a whole does not lead to the conclusion that the plaintiff must have meant John Doe Construction Company to mean BTP. It could just as easily have meant Local 183, who may have been acting as its own general contractor, the architect or one or more of the sub-trades. In my view, this is not a case of misnomer.
[14] Given this conclusion, it is not necessary for me to consider the question of prejudice and the court’s exercise of discretion.
[15] It is also my view that the plaintiff cannot avoid the application of the Limitations Act on the basis of discoverability. To do so, the plaintiff must present evidence of the exercise of reasonable or due diligence to discover the information necessary to identify the name of the alleged tortfeasor. See Pepper v. Zellers Inc., 2006 42355 (ON CA), [2006] O.J. No. 5042 (C.A.) at paragraphs 16 and 17. The plaintiff has not done so. The record is completely silent with respect to any effort made by the plaintiff or her lawyers to identify the proper name of John Doe Construction Company prior to the expiry of the limitation period or after. The plaintiff simply waited until one of the defendants volunteered his opinion of the identity of John Doe Construction Company in his statement of defence.
[16] The plaintiff’s motion is therefore dismissed. If the parties are unable to agree on the issue of costs, they may make brief written submissions by no later than April 14, 2014.
Master R.A. Muir
DATE: March 24, 2014