COURT FILE AND PARTIES
COURT FILE NO.: 8747/12
DATE: 2014-07-10
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Edward Ismail (Plaintiff)
- And -
Nitty’s Food Services Limited operating as Jim Bob Ray’s, Vintage Investment Properties Ltd., and John Doe (Defendants)
BEFORE: Justice H. A. Rady
COUNSEL:
J. Armstrong, for the plaintiff
A. Shmukler, for the defendants
HEARD: July 8, 2014
E N D O R S E M E N T
The Motion
[1] The plaintiff seeks leave to amend his statement of claim to substitute the defendant, Spencer Byrne for John Doe and to add Matthew Pearson as a defendant.
The Background
[2] The action arises from an incident which occurred on April 2, 2011 at premises owned by the second corporate defendant. The plaintiff alleges that he was beaten by a bouncer at the bar. The bouncer’s identity was unknown to the plaintiff and as a result, when the claim was issued on November 26, 2012, the bouncer was named as John Doe. The allegations against the first corporate defendant sound in negligence for failure to supervise, among other things.
The Position of the Parties
[3] The limitation period has expired. The plaintiff says he could not reasonably have discovered the identity of the two individuals until March 2014.
[4] The defendants consent to the substitution of Mr. Byrne for John Doe. It opposes the other relief because it submits that the identity of Mr. Pearson was discoverable within the limitation period with the exercise of reasonable diligence. It submits that the plaintiff’s material falls far short of showing what steps it took to discover the identity of the tortfeasor. Finally, the amendment respecting Mr. Pearson is not a misnomer.
The Law
[5] It must be kept in mind that this is a pleadings motion and not a motion for summary judgment. The evidentiary threshold is lower as will be discussed below. Amendments to pleadings are governed by Rules 5.04 and 26 of the Rules of Civil Procedure.
[6] Rule 26 is mandatory and provides that an amendment shall be granted absent non-compensable prejudice. An intervening limitation period may be cause to refuse an amendment. Rule 5.04 is discretionary but the test remains the same – is there non-compensable prejudice?
[7] Rules 5.04 and 26.01 must be interpreted in light of the Limitations Act, 2002, which does not permit the extension of a limitation period by virtue of special circumstances: Joseph v. Paramount Canada’s Wonderland (2008), 90 O.R. (3d) 70 (C.A.). However, the concept of discoverability is preserved in the Act.
[8] In Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), Justice Lang commented on the discretionary nature of an order under Rule 5.04(2) as follows:
[A] rule 5.04(2) motion to add parties and, in this case, to add parties after the apparent expiration of a limitation period, is discretionary. While the threshold on such a motion is low, the motion judge is entitled to consider the evidentiary record to determine whether there is a live issue of fact or credibility about the commencement date of the limitation period.
[9] She quoted with approval from the well-known and often cited decision of Master Dash in Wong v. Adler (2004), 2004 8228 (ON SC), 70 O.R. (3d) 460 (S.C.J.); aff’d 2004 73251 (ON SCDC), [2005] O.J. No. 1400 (Div. Ct.):
What is the approach a judge or master should take on a motion to add a defendant where the plaintiff wishes to plead that the limitation period has not yet expired because she could not know of and could not, with due diligence, have discovered the existence of that defendant? In my view, as is clearly applied in Zapfe [v. Barnes, (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397 (C.A.)], 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 defendants should be added with leave to plead the limitations defence. If there is no such issue, as for example, 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.
[10] In Wakelin v. Gourley (2005), 2005 23123 (ON SC), 76 O.R. (3d) 272 (S.C.J.), Master Dash referred to his earlier decision. He noted that “it will be rare that the applicability of the discoverability principle based on due diligence will be determined on a motion to add a party.” As to the amount of evidence required by a plaintiff on such a motion, Master Dash observed:
The question is how much evidence must the plaintiff put in at the pleadings amendment stage to establish that the proposed defendants could not have been identified with due diligence within the limitation period? The short answer is: not very much. As stated by the Court of Appeal in Zapfe: In most cases, one would expect to find, as part of a solicitor’s affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably “diligent” and to provide “an explanation for why she was unable to determine the facts”.
[11] The law of misnomer was recently reviewed by Master Muir in the decision of Demarti v. Benefit Plan Administrators Limited, 2014 ONSC 1847 as follows:
The applicable law regarding misnomer is summarized in my decision in Spribille v. Rockcliffe Nursing Home, 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 beyong 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 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.
The Evidence
[12] In support of the motion, the plaintiff has offered the affidavit of a law clerk employed by the plaintiff’s lawyer. Her affidavit is not commissioned – an unfortunate oversight that does not have an effect on my decision. She deposes that “the firm has made consistent efforts to identify the individuals involved”. Those efforts consist of:
(1) one letter to the corporate defendant dated July 15, 2011 asking for the identities of any employee or supervisor who should properly be named;
(2) a letter to the London Police Service dated April 25, 2011 requesting a copy of the investigation report. The records were provided under cover of letter dated November 3, 2011. The records were heavily redacted.
[13] The claim was issued on November 29, 2012. In due course, the defendants appointed counsel. In January 2013, a statement of defence was delivered. On November 12, 2013, the defendants sought an order directing the London Police Service to produce unredacted copies of its report, which was ordered by Garson J. on that day. The plaintiff received the unredacted copy on March 18, 2014. No suggestion was made that the defendants deliberately waited to bring the motion until after the limitation period expired.
[14] The law clerk deposes that “[f]rom these records, we were able to ascertain that Spencer Byrne and Matthew Pearson are proper parties to this proceeding. We were unable to ascertain their identities prior to receiving the unredacted police records”.
Analysis and Disposition
[15] I have concluded that the motion to add Matthew Pearson as a defendant must be dismissed. The plaintiff has failed to demonstrate that reasonable steps were taken to ascertain Mr. Pearson’s identity. I recognize that the evidentiary threshold is low but the evidence in this case is woefully inadequate to satisfy the court that due diligence was exercised.
[16] There is no evidence that counsel took any steps other than to send the one letter and to obtain police records. No explanation is offered why no steps were taken to obtain an unredacted copy, which the defendants were able to secure reasonably promptly. There is no evidence of any communication with the defendants’ counsel to ascertain any potential parties’ identity. The plaintiff took no steps to arrange examinations for discovery.
[17] This is one of the rare cases where the addition of a defendant should be denied because the plaintiff could have discovered Mr. Pearson’s identity with the exercise of due diligence within the limitation period. In this regard, Master Dash’s observations in the Wakelin decision are instructive:
The solicitor for the third party Lisi is correct when she argues that this is the rare case where the addition of a defendant should be denied based on clear and uncontradicted evidence that the plaintiff could have obtained the requisite information prior to the expiry of the limitation period with due diligence. There has been no issue of fact or credibility raised to leave for a trial or summary judgment motion. Although the plaintiff’s solicitor avers that the actual identities of the proposed defendants were unknown she does not state that their identities could not have been ascertained with due diligence. Although she outlined what steps were taken, she does not say why other steps could not have been taken to obtain the identities of the proposed defendants with due diligence. The reason she did not do so is obvious. She could not swear that all reasonable steps were taken, because such steps had not been taken. The minimum requirement as outlined in Zapfe of providing a reasonable explanation why the identities could not have been ascertained with due diligence has not been met. If I were to grant the motion on this dearth of evidence, the court would be acting as little more than rubber stamp rectifying solicitors’ negligence or inadvertence under the guise of discoverability. The limitation period has expired and as such there is no tenable cause of action.
[18] That reasoning applies with equal force to this case.
[19] This is not a misnomer. In the Dukoff case (supra), the court made the following observation:
There are, in my opinion, sound policy reasons for the result. 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 (C.A.).
[20] In this case, there is nothing in the claim except an allegation against the corporate defendant respecting a failure to supervise that points the litigation finger at Mr. Pearson. No fictitious name was used to alert someone reading the claim that he or she is the intended defendant. The allegation of a failure to supervise is directed at the corporate defendant only, and as already noted, there was very little effort by the plaintiff to identify Mr. Pearson.
[21] Therefore, the motion to add Mr. Pearson as a defendant is dismissed. On consent, Mr. Byrne is substituted for John Doe. I will receive brief written submissions from the defendant by July 18 and the plaintiff one week thereafter.
“Justice H. A. Rady”
Justice H. A. Rady
Released: July 10, 2014