SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-431846
MOTION HEARD: SEPTEMBER 15, 2014

RE: Nerisa Mohabir

v.

John Mohabir, Peter Braun Janzen, The Dominion of Canada, John Doe Driver One, John Doe Owner One, John Doe Driver Two, and John Doe Owner Two

BEFORE: MASTER R.A. MUIR

COUNSEL:
Robert R. Patterson for the plaintiff

Cynthia Verconich for the proposed substituted defendants Kirstin Anne Lewis and Gary Lewis

Waheeda Ekhlas Smith for the proposed substituted defendant Andrea Anderson

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rules 5.04(2) and 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 plaintiff seeks to substitute Andrea L. Anderson for the named defendants John Doe Driver One and John Doe Owner One. The plaintiff also requests leave to substitute Kirsten Anne Lewis and Gary Lewis in place of the named defendants John Doe Driver Two and John Doe Owner Two. The plaintiff seeks to make these substitutions on the basis of misnomer.

[2] The existing defendants take no position on this motion. The proposed substituted defendants are opposed to the relief sought by the plaintiff.

BACKGROUND

[3] This action arises out of a multiple vehicle accident that took place on August 1, 2009 on Highway 89 in East Luther Township. The plaintiff was a passenger in a vehicle operated by the defendant John Mohabir. It appears that Mr. Mohabir was following a vehicle being operated by Andrea Anderson (“Anderson”). Anderson was following a vehicle being operated by Kirsten Anne Lewis (“Kirsten”). The vehicle Kirsten was driving was owned by Gary Lewis (“Gary”). Kirsten was following a vehicle operated by the defendant Peter Braun Janzen (“Janzen”).

[4] It is alleged by the plaintiff that Janzen came to an abrupt stop while attempting to execute a left turn from Highway 89 on to Grey Road. Anderson and Kirsten both swerved to the right to avoid colliding with Janzen and ended up colliding with each other. Mr. Mohabir swerved to the left in an attempt to avoid the collision between Kirsten and Anderson but ended up colliding with Janzen when Janzen began to make the left turn.

[5] The plaintiff did not obtain names or other identifying information from Anderson and Kirsten. The plaintiff had not collided with the vehicles driven by those individuals. It appears that the plaintiff only thought to obtain Janzen’s information.

[6] Of course, the plaintiff knew that four vehicles had been involved in the accident and realized that it might be important to include the drivers and owners of those vehicles in any claim she might wish to pursue. On May 27, 2011, the plaintiff’s lawyer wrote to the Dufferin detachment of the Ontario Provincial Police (“OPP”) and requested a copy of the police report for the accident. On July 19, 2011, the plaintiff’s lawyer received a copy of the report. The report only referenced Mr. Mohabir and Janzen as being involved in the accident. The plaintiff’s lawyer then had his assistant contact the OPP by phone. She was advised that the OPP’s file for the accident indicated that no other vehicles were involved.

[7] The plaintiff issued her statement of claim on July 29, 2011 as the presumptive limitation period was due to expire on August 1, 2011. Given that the plaintiff knew that other vehicles had been involved in the accident, the plaintiff named the John Doe defendants in order to potentially preserve her rights to claim against those other drivers if and when they were identified.

[8] The statement of claim was served and pleadings were exchanged. The plaintiff had been involved in a separate motor vehicle accident in 2006. As a result, global examinations were held covering four separate actions. Thirteen lawyers appear to have been present at the examination of the plaintiff which took place on September 12, 2012.

[9] Toward the end of the examination of the plaintiff, Janzen’s lawyer made reference to a second accident report from the 2009 accident. It appears that the OPP treated the various collisions as two separate accidents. The second accident report clearly identified Kirsten, Gary and Anderson. It included names, addresses, vehicle identification numbers and plate numbers. It also identified the insurers for Kirsten, Gary and Anderson.

[10] The second accident report was shown to the plaintiff’s lawyer (not Mr. Patterson) at the discovery but he apparently did not ask for and was not provided with a copy. However, the plaintiff’s lawyer did indicate on the record that he intended to bring a motion to include the parties identified on the second accident report as part of this action.

[11] Unfortunately, the plaintiff’s lawyer took no steps to follow up on this commitment for more than 14 months. In December 2013 the plaintiff’s lawyer requested a copy of the second accident report, which was then received the same day. However, nothing further appears to have been done to pursue this motion for another three months. On March 4, 2014, the plaintiff’s lawyer obtained a motor vehicle search in order to confirm the names and addresses of the parties referenced on the second accident report. The plaintiff’s lawyer then waited for another month before drafting a notice of motion and sending it to the proposed substituted defendants. The first time that Kirsten, Gary and Anderson became aware of the existence of this action was on or about April 23, 2014 when they received a copy of the plaintiff’s notice of motion in the mail.

MISNOMER

[12] The plaintiff relies on the doctrine of misnomer in support of the relief she is seeking on this motion.

[13] The law relating to misnomer has been carefully considered in recent years by the Court of Appeal. See Ormerod (Litigation Guardian of) v. Strathroy Middlesex General Hospital, 2009 ONCA 697 and Spirito v. Trillium Health Centre, 2008 ONCA 762. 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:

12 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.

[14] It must also be noted that even if a plaintiff is successful in establishing misnomer, the court retains a residual discretion under Rule 5.04 to refuse the proposed substitutions. This part of court’s analysis on a motion like this one is described by the Court of Appeal in Ormerod at paragraphs 28 to 32 as follows:

28 The framework put forward by the appellants is correct. After finding there was a misnomer the motion judge had the discretion to refuse to permit its correction. The Rules make this apparent. Cronk J.A. in Mazzuca v. Silvercreek Pharmacy Ltd., 2001 8620 (ON CA), 207 D.L.R. (4th) 492, analyzed the wording of the two rules that deal with the court's authority to permit amendment in detail -- rules 5.04 and 26.01. She contrasted their wording to note that rule 5.04(2) uses the discretionary "may" unlike rule 26.01, which uses "shall"; she also considered the history and development of these two provisions. She said at para. 25:

• Under both rules, a pleadings amendment is not to be made if non-compensable prejudice would result. In contrast to rule 26.01, however, the language of subrule 5.04(2) imports a discretionary power rather than a mandatory direction.

29 At para. 42 she added that "proof of the absence of prejudice will not guarantee an amendment". She also cited the discussion of the inter-relationship of the two rules in Holmested and Watson, Ontario Civil Procedure, Vol. 2 (Toronto: Carswell, 1993). The current edition states at p. 5-34:

• the same threshold test applies to a motion to amend under either rule 26.01 or rule 5.04(2) and the moving party must demonstrate that no prejudice would result from the amendment that could not be compensated for by costs or an adjournment; once this threshold test is met, under rule 26.01 the granting of leave is mandatory; however, where it is sought to add parties under rule 5.04(2) the court has to discretion whether to allow the amendment, notwithstanding that the threshold test is satisfied

30 While the authors refer only to "adding" parties, the permissive "may" in rule 5.04(2) grammatically applies to the correction of the name of a party incorrectly named in exactly the same way as it does to the addition, deletion, or substitution of a party.

31 As I see it, as the scope of what the courts treat as a misnomer broadens, it is appropriate to take a wider view of the court's discretion to refuse the correction of a misnomer. A "classic" misnomer, 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, prompts the application of a standard historically developed to remedy mere irregularities. Now that the concept of "misnomer" has been broadened to apply to a wider range of situations, the standard used to permit its correction should take into account the extent of its departure from mere irregularity in all the circumstances of the case.

32 The factors the motion judge applied in this case, whether the defendant was misled or was unduly prejudiced, are undoubtedly deserving of the greatest weight. As a general principle, these factors should be determinative. A general principle, however, is not an inflexible rule. 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. It may well be that the motion judge took a narrow view of his residual discretion to refuse to permit the correction of the misnomer. However, I am satisfied he realized he had a residual discretion since the factors he applied are broader than the rule's threshold of prejudice that cannot be compensated by costs or an adjournment. While the motion judge in this case might have inferred that the plaintiffs, after learning Dr. Graham's identity, did not resolve to proceed against her until July 2008, he did not make that inference

[15] Paragraph 32 of Ormerod makes it clear that prejudice to the proposed substituted defendants is the most important factor on this part of the analysis. However, the court may consider other factors when exercising its discretion, such as significant unexplained delay in moving to amend, the public policy reasons supporting adherence to established limitation periods and the lack of notice to proposed substituted defendants. See O’Sullivan v. Hamilton Health Sciences Corp., 2011 ONCA 507 at paragraph 3.

ANALYSIS

[16] I am satisfied on the evidence before the court that the plaintiff has met the initial test for establishing misnomer. The statement of claim includes specific details of how, when and where the accident happened. The precise time, date and location of the accident are set out in paragraph 13 of the statement of claim. The involvement of the two John Doe vehicles is described in detail in the same paragraph. The proposed substituted defendants clearly knew they were involved in an accident of that very kind in that location, on that day and at the same time. In my view, upon reviewing the statement of claim the proposed substituted defendants would have to say “of course it must mean me, but they have got my name wrong”.

[17] However, I have nevertheless concluded that on the facts of this case I should exercise my discretion to refuse to permit the correction of the misnomer. In coming to this conclusion I have given serious consideration to the observation of the Court of Appeal in Ormerod that “as the scope of what the courts treat as a misnomer broadens, it is appropriate to take a wider view of the court’s discretion to refuse the correction of a misnomer”. See Ormerod at paragraph 31.

[18] With respect to the issue of prejudice, it does appear from the evidence filed by the plaintiff that the most of the plaintiff’s medical records are available. A great deal of medical evidence has been produced to date as part of this action and in connection with the related actions. The plaintiff has undergone numerous medical examinations. Reports from those examinations are available.

[19] It also appears that all of the parties involved in the collisions are available to give evidence. It does not appear that there were any independent witnesses to the accident. The plaintiff has also been examined for discovery and the transcript is available.

[20] However, this is not to say that there is a complete absence of non-compensable prejudice to the proposed substituted defendants. They did not learn of the existence of this claim until nearly five years after the accident. Their insurers did not have notice of the claim until April 2014 as well. The proposed substituted defendants have been deprived of the opportunity to conduct an early investigation along with surveillance and a medical examination of the plaintiff. This is a form of prejudice the court may consider on a motion such as this. See Kassam v. Sitzer, [2004] O.J. No. 3431 (S.C.J. – Master) at paragraph 57. It is also important to note that the risk of prejudice increases with the passage of time and the associated erosion of memories. In this action we are dealing with an event that took place more than five years ago.

[21] The lack of notice is also an important consideration. The proposed substituted defendants and their insurers were not put on notice of this claim until April 2014, long after the accident and nearly three years after the expiry of the presumptive limitation period. This is to be contrasted with the cases relied upon by the plaintiff where the proposed substituted defendants had actual or constructive knowledge of the claim very soon after the expiry of the limitation period and in most cases within the time allowed for service of the statement of claim.

[22] Moreover, this action is at a relatively advanced stage. Much of the discovery process has been completed. An order is in place requiring this action to be set down for trial by December 31, 2014. Many other parties and counsel are involved with this action and the other claims that are proceeding in tandem with this action. In my view, it would be unfair to the proposed substituted defendants to simply drop them into these complex ongoing proceedings and then demand that they catch up to the rest of the parties in short order.

[23] I am also mindful of the significant and unexplained delay on the part of the plaintiff in bringing this motion. The plaintiff’s lawyer saw the second accident report when his client was examined for discovery on September 12, 2012. The second accident report contained all of the information the plaintiff needed in order to draft an amended claim and bring this motion. The plaintiff’s lawyer stated his intention to bring a motion to amend the statement of claim. However, he did not ask for a copy of the second accident report at the time of the examination. Instead, he waited until December 2013 to do so. Even after receiving a copy of the second accident report, the plaintiff’s lawyer waited for another four months to put the proposed substituted defendants on notice of this claim. As the Court of Appeal noted in O’Sullivan, delay is a relevant factor for the court’s consideration on a motion of this nature. In my view, this significant and unexplained delay militates against the granting of the relief requested by the plaintiff.

[24] Finally, it is my view that the doctrine of misnomer should not be used as a means to avoid the application of a limitation period. There are important public policy considerations supporting limitation periods. At some point a proposed defendant should be free from having to account for past obligations when arranging his or her affairs. A proposed defendant should not be required to preserve relevant evidence for an unlimited period of time. Limitation periods promote the early resolution of civil disputes. See Zapfe v. Barnes, 2003 52159 (ON CA), [2003] O.J. No. 2856 (C.A.) at paragraphs 19 and 20.

[25] In my view, the very purpose of limitation periods would be seriously undermined by allowing a plaintiff to simply name John Doe defendants as part of a claim issued on the eve of the expiry of the limitation period and then do nothing to identify those defendants for several years thereafter. The proposed substituted defendants knew nothing of this claim for nearly five years after the events in question and for nearly three years after the presumptive expiry of the limitation period. An order adding those parties to this action at this time is not in keeping with the policy objectives of the limitations laws of this province.

CONCLUSION

[26] For these reasons, the plaintiff’s motion is dismissed.

[27] If the parties are unable to agree on the issue of costs, they may make brief submissions in writing. The submissions of the proposed substituted defendants shall be filed by no later than October 10, 2014. The plaintiff’s submissions shall be filed by October 20, 2014.

Master R.A. Muir

DATE: September 22, 2014