Toronto Standard Condominium Corporation No. 810 v. King Spadina Development Corporation

Court File No.: CV-13-493159

2014 ONSC 5560

ENDORSEMENT

Master R.A. Muir -

[1]. This is a motion by the plaintiff for an order for substituted service of its statement of claim on certain defendants. The plaintiff also seeks an order granting it leave to amend its statement of claim to correct certain drafting errors with the original version of the statement of claim. None of the currently named defendants oppose the relief sought. Diamond and Schmitt Architects Incorporated (“Diamond and Schmitt”) does oppose the relief sought against it with respect to adding its name to the title of proceedings.

[2]. This claim arises from water damage to the plaintiff’s property. Many defendants have been included in this action. Diamond and Schmitt is not named in the title of proceedings. However, it is one of the addressees listed at page 2 of the statement of claim. Diamond and Schmitt is identified as a defendant at paragraph 9 of the statement of claim. Allegations of negligence are made against Diamond and Schmitt (and other defendants) at paragraph 26 of the statement of claim.

[3]. In my view, this is a case of misnomer. The test for misnomer is set out in the decision of the Court of Appeal in Lloyd v. Clark, 2008 ONCA 343 at paragraph 4. There must be a coincidence between the plaintiff’s intention to name the party and the party’s knowledge that it was the intended defendant. In my view, the test has obviously been met on the facts before me on this motion. The plaintiff must have intended to name Diamond and Schmitt as a defendant. It is expressly referred to as a defendant in the statement of claim. Allegations of negligence are made against it. The statement of claim is addressed to it. No other explanation makes sense.

[4]. It is equally obvious that if a representative of Diamond and Schmitt read the statement of claim it would know the plaintiff was referring to Diamond and Schmitt given the explicit references throughout the body of the claim.

[5]. However, in Hastings v. Halton Condo Corp. No. 324, 2013 ONSC 175 a judge of this court concluded on similar facts that the doctrine of misnomer does not apply to a situation where there was a failure to name the party in the title of proceedings. In that case Justice Murray concluded that misnomer only applied where the party had been misnamed or named using a pseudonym. With great respect, I view the decision in Hastings as overly-technical in its interpretation of the doctrine of misnomer. The concept of misnomer has been given a broad meaning in Ontario. I see no reason why is should not extend to this fact scenario.

[6]. Nevertheless, I am bound to follow Justice Murray’s decision. I am therefore not prepared to grant the plaintiff’s motion on the basis of misnomer.

[7]. However, I am prepared to add Diamond and Schmitt to the title of proceedings on the basis of correcting a technical irregularity as described by Justice Murray at paragraph 14 of Hastings. In my view, the allegations against Diamond and Schmitt are set out with sufficient particularity in paragraph 26 of the statement of claim to meet the test articulated by Justice Murray. Although the allegations are lumped together with other defendants, it is my view that they are sufficiently pleaded to make it clear that a claim in negligence is being made against Diamond and Schmitt. The question of whether the allegations are true or false is a matter for the trier of fact.

[8]. I am therefore granting leave to the plaintiff to amend the statement of claim to add Diamond and Schmitt to the title of proceedings and to permit the other amendments set out in the draft amended statement of claim at Tab 3 of the motion record. An order for substituted service is not necessary given Rule 16.03(6). The time for service of the statement of claim and the amended statement of claim is extended to January 31, 2015.

[9]. The plaintiff has received an indulgence from the court. The position taken by Diamond and Schmitt was not unreasonable given the decision in Hastings. There will be no order with respect to the costs of this motion.

September 24, 2014

Master R. A. Muir