SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-CV-424172

MOTION HEARD: July 30, 2014

Parties

Re: Paramacularany Christie Ratnakumar

Plaintiff

v.

Dickie’s No Frills Ltd.

Defendant

BEFORE: Master Thomas Hawkins

COUNSEL:
Bronwyn M. Martin for moving plaintiff
F (416) 340-1862

David Campbell for responding proposed defendant
1844442 Ontario Limited operating as Stephen’s No Frills
F (416) 594-9100

No one for defendant Dickie’s No Frills Ltd.

REASONS FOR DECISION

Nature of Motion

[1] This is a motion by the plaintiff under rule 26.01 for an order granting leave to amend the statement of claim and under subrule 5.04(2) to substitute 184442 Ontario Limited operating as Stephen’s No Frills and Mike’s No Frills for the defendant Dickie’s No Frills Ltd.

[2] Rule 26.01 provides as follows.

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.

[3] Subrule 5.04(2) provides as follows.

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name for a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[4] The proposed defendant 1844442 Ontario Limited operating as Stephen’s No Frills opposes this motion on the ground (as defence counsel Mr. Cameron submits) that it is an improper attempt to add a defendant after the applicable limitation period has expired. Plaintiff’s counsel disputes this for several reasons.

[5] Several provisions of the Limitations Act, 2002 S.O. 2002 c.24 Sch. B are relevant.

[6] The first such provision is section four. This section provides as follows.

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[7] The next provisions are subsections 5(1) and (2). These subsections provide as follows.

(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[8] Section 21 is the next relevant provision. This section provides as follows.

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

[9] Ms. Martin submits that no limitation period had expired when the present motion was brought for two reasons. First, she submits that the plaintiff neither knew nor ought to have known the identity of the person whose act or omission caused the injury loss or damage forming the basis of her claim until a point in time less than two years before this motion was brought. For limitation of action purposes this motion was brought on January 22, 2014 when the amended notice of motion was served on counsel for Stephen’s No Frills. The rights of the parties chrystallised at that time.

[10] To put this argument in terms of the wording of section four of the Limitations Act, 2002, the plaintiff did not “discover” her claim until less than two years before this motion was brought because until then she neither knew nor ought to have known the identity of the person whose act or omission caused her injury, loss or damage.

[11] By virtue subsection 5(2) of the Limitations Act, 2002 the plaintiff is presumed to have known the identity of this person on the day the act or omission forming the basis of her claim took place unless she proves the contrary.

[12] In the present case determining what the plaintiff knew or ought to have known from time to time involves an analysis of (first) what the plaintiff knew or ought to have known from time to time, and (secondly) what her lawyer (whom I will call lawyer Z) knew or ought to have known from time to time.

[13] I hasten to add that lawyer Z is not Ms. Martin who argued this motion for the plaintiff.

[14] To boil the plaintiff’s claim down to its undisputed essentials, the plaintiff alleges that she was injured on August 28, 2010 when she slipped and fell on an oily substance on the floor of a No Frills supermarket located on Eglinton Avenue East in Scarborough, Ontario.

[15] The plaintiff retained lawyer Z some nine days after her accident of August 28, 2010 to bring an action based on her accident.

[16] On the evidence before me, on August 28, 2010 there were at least two No Frills supermarkets on Eglinton Avenue East.

[17] There is no affidavit from the plaintiff. She was not examined as a witness on this motion. I therefore do not know exactly what the plaintiff knew from time to time about the location on Eglinton Avenue East of her accident and about the identity of the operator of the supermarket where she fell.

[18] There is an affidavit from lawyer Z. His affidavit is silent about what the plaintiff told him about the location of the supermarket where she fell on August 28, 2010 and silent about what she told him about the identity of the operator of that supermarket, except to say that the supermarket was a No Frills store.

[19] In his affidavit lawyer Z says that his “file notes do not indicate that the plaintiff provided me with the name or address of the No Frills store”.

[20] Lawyer Z goes on to state in his affidavit that he sent a letter with notice of the plaintiff’s claim to and ultimately sued Dickie’s No Frills Ltd. at 1880 Eglinton Avenue East. Lawyer Z does not explain how he came to determine that this was the correct name and address of the operator of the No Frills supermarket where the plaintiff slipped, fell and was injured on August 28, 2010.

[21] Elsewhere in his affidavit, lawyer Z describes the accident location as “a No Frills grocery store located near the intersection of Eglinton Avenue East and Brimley Road”. That is how the plaintiff described the location of the No Frills supermarket where she fell when she was examined for discovery on January 25, 2013.

[22] In his affidavit lawyer Z also states that on March 1, 2012 (less than two years after the plaintiff’s accident) he provided the defendant (that is, Dickie’s No Frills Ltd.) with a number of productions including a Toronto Emergency Medical Services ambulance call report dated August 28, 2010 stating that on the day of the accident the plaintiff was picked up from 2742 Eglinton Avenue East, Toronto by ambulance personnel and taken to Scarborough Grace Hospital.

[23] That, of course, is a different location from 1880 Eglinton Avenue East where Dickie’s No Frills was located. Lawyer Z does not state when he first read this ambulance call report (but he had it less than two years after the accident) or what significance this information had for him.

[24] In my view, at the very least lawyer Z should have realized once he received the ambulance call report that he might have named the wrong No Frills defendant and investigated or had an agent investigate what was to be found at 2742 Eglinton Avenue East on August 28, 2010. There is no evidence that lawyer Z carried out or commissioned such an investigation.

[25] On the evidence before me there was indeed a No Frills supermarket at 2742 Eglinton Avenue East on August 28, 2010. At that time this location was a grocery store run by 1625396 Ontario Limited operating as Mike’s No Frills.

[26] Effective February 27, 2011 and under the provisions of Part XIV the Business Corporations Act, R.S.O. 1990 c. B.16, 1625396 Ontario Limited operating as Mike’s No Frills, amalgamated with 1844442 Ontario Limited operating as Steven’s No Frills. The amalgamated corporation was 1844442 Ontario Limited operating as Stephen’s No Frills. Under the provision of section 179 of the Business Corporations Act, as a result of this amalgamation the assets and liabilities of 1625396 Ontario Limited including any liability to the plaintiff flow through to 1844442 Ontario Limited operating as Stephen’s No Frills.

[27] Section 179 of the Business Corporations Act provides as follows.

Upon the articles of amalgamation becoming effective,

(a) the amalgamating corporations are amalgamated and continue as one corporation under the terms and conditions prescribed in the amalgamation agreement;

(b) the amalgamated corporation possesses all the property, rights, privileges and franchises and is subject to all liabilities, including civil, criminal and quasi-criminal, and all contracts, disabilities and debts of each of the amalgamating corporations;

(c) a conviction against, or ruling, order or judgment in favour or against an amalgamating corporation may be enforced by or against the amalgamated corporation;

(d) the articles of amalgamation are deemed to be the articles of incorporation of the amalgamated corporation and, except for the purposes of subsection 117(1), the certificate of amalgamation is deemed to be the certificate of incorporation of the amalgamated corporation; and

(e) the amalgamated corporation shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against an amalgamating corporation before the amalgamation has become effective.

[28] Clause (b) of section 179 is the provision that has the effect which I have summarized in paragraph [26] above.

[29] On this state of the evidence I conclude that around March 1, 2012, several months before the second anniversary of the plaintiff’s August 28, 2010 accident, lawyer Z (and thus the plaintiff) ought to have known that the correct No Frills defendant was 1625396 Ontario Limited operating as Mike’s No Frills, now 1844442 Ontario Limited operating as Stephen’s No Frills.

[30] There is a fatal flaw in the plaintiff’s discoverability argument. There is no affidavit or other evidence from the plaintiff as to what she knew or ought to have known from time to time after August 28, 2010 about the identity of the operator of the No Frills supermarket on that date. Lawyer Z knew there was no such evidence.

[31] There is thus no evidence to rebut the presumption arising from subsection 5(2) of the Limitations Act, 2002 that the plaintiff knew on August 28, 2010 the correct identity of the operator of the No Frills supermarket where she fell and was injured.

[32] That being so, the discoverability doctrine does not operate so as to defeat the limitation of action defence available to 1844442 Ontario Limited operating as Stephen’s No Frills.

[33] This conclusion does not dispose of the present motion because there is a second basis for the motion.

The Misnomer Motion

[34] The plaintiff also moves under subrule 5.04(2) to correct the name of a party incorrectly named. In particular, the plaintiff proposes to correct the name of the defendant Dickie’s No Frills to read 18444442 Ontario Limited operating as Stephen’s No Frills.

[35] As I have said, defence counsel Cameron submits that this motion is an improper attempt to add a defendant to this action after the limitation period has expired, contrary to subsection 21(1) of the Limitations Act, 2002.

[36] In response plaintiff’s counsel Martin submits that this motion is one to correct the misnaming of or the misdescription of a party, namely the defendant. She relies upon subsection 21(2) of the Limitations Act, 2002 quoted above in paragraph [8].

[37] This subject is sometimes called the misnomer doctrine. In Omerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 the Court of Appeal for Ontario explained how the misnomer doctrine is applied.

[38] In Omerod the plaintiffs in a medical malpractice action had obtained leave from a motion judge to amend the statement of claim to correct the name of one of the treating physicians.

[39] Jurianz J.A. who delivered the judgment of the court expressed himself as follows (at paragraphs 11 to 14).

11. The motion judge first rejected the appellants’ argument that in reality the plaintiffs’ motion was not one to correct a misnomer but one to add Dr. Graham after the expiration of limitation periods. The appellants relied upon the test stated by Devlin J. in Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672 (Eng. 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 a … 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. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.

[Emphasis that of the motion judge]

12 The motion judge then observed that the “reasonable person receiving the document” or the “recipient of the document” referred to in the Davies v. Elsby Brothers Ltd. test is not restricted to Dr. Graham. Rather, the cases have expanded the test to include the “relevant person” who reviews the document.

13 As an illustration, the motion judge cited the Supreme Court of Canada’s decision in Ladouceur v. Howarth (1973), 1973 30 (SCC), [1974] S.C.R. 1111 (S.C.C.). In that case a writ mistakenly named the father of the intended plaintiff. The Supreme Court held that the mistake was a misnomer. It was significant that the insurance company of the defendant knew who had been the intended plaintiff. Spence J., writing for the Court, viewed the knowledge of the defendant’s insurer as much more important than the defendant’s own knowledge. He asked what would have been in the mind of the insurance company representative when he received the writ. Upon receiving the writ, the insurer would certainly have known that the plaintiff had been simply misnamed.

14 Following logic of Ladouceur, the motion judge included Dr. Ferner, his insurer and his counsel as “relevant persons” as recipients of the statement of claim. These persons would have known a mistake had been made and that the plaintiffs had taken the wrong name from the emergency record of the Strathroy Hospital. Dr. Ferner’s insurer and his solicitors knew that the “litigating finger” was pointed a the physician who saw the plaintiff at the hospital on June 25, 2001. Further, Dr. Ferner knew or could easily have discovered that it was Dr. Graham who was the intended defendant. The motion judge observed that Dr. Graham and Dr. Ferner have the same insurer and solicitors. The motion judge concluded that “the litigating ‘finger’ pointed at Dr. Graham and she would have known this, Dr. Ferner did know it and likewise, their representatives in this litigation knew it.” Consequently, the motion judge concluded that this was a case of misnomer and not a case of adding a new party.

[40] In Omerod the Court of Appeal for Ontario dismissed the defendants’ appeal and allowed the decision of the motion judge to stand.

[41] I will now apply the misnomer doctrine as explained in Omerod to the facts underlying this action.

[42] On September 9, 2010 (about two weeks after the plaintiff’s slip and fall accident) lawyer Z wrote to the No Frills supermarket at 1880 Eglinton Avenue East. He did not identify the supermarket other than as “No Frills”. In his letter he identified the plaintiff by her full name, gave the date and time of the accident and described how her accident happened. He closed by asking the No Frills supermarket (which we now know to be Dickie’s No Frills) to report the matter to their insurer and have their insurer contact him.

[43] Shortly thereafter, lawyer Z spoke with an adjuster from Zurich Insurance who wished to interview the plaintiff. Lawyer Z would not permit this with the result that there was no further direct communication between lawyer Z and Zurich Insurance.

[44] Lawyer Z had the court registrar issue the statement of claim in this action on April 11, 2011. The statement of claim describes the defendant as Dickie’s No Frills Ltd. Lawyer Z had the statement of claim served on Dickie’s No Frills Ltd. at 1880 Eglinton Avenue East a few weeks later.

[45] Dickie’s No Frills delivered a statement of defence dated June 24, 2011. In this defence Dickie’s No Frills denied the allegations in the statement of claim that the plaintiff slipped and fell at Dickie’s No Frills on August 28, 2010. This denial does not stand out because Dickie’s No Frills also denied almost all of the allegations in the statement of claim.

[46] On June 21, 2011 defence counsel Steven Nicoletta wrote lawyer Z asking for more details about the plaintiff’s slip and fall accident. He also asked why the plaintiff did not report the incident to No Frills on the date of the accident.

[47] On August 29, 2011 lawyer Z wrote back to defence counsel Nicoletta after speaking with him. Lawyer Z advised that the slip and fall “incident was reported immediately to staff and staff attended to clean the area in question”.

[48] I infer from Mr. Nicoletta’s June 21, 2011 letter that Dickie’s No Frills did not send an incident report about the August 28, 2010 slip and fall accident to Zurich Insurance. This is not at all surprising because we now know that the plaintiff did not fall in the Dickie’s No Frills supermarket at 1880 Eglinton Avenue East on August 28, 2010. She fell at Mike’s No Frills (now 1844442 Ontario Limited operating as Steven’s No Frills) at 2742 Eglinton Avenue East. There was nothing for Dickie’s No Frills to report to Zurich Insurance about the events of August 28, 2010, and therefore no incident report to Zurich Insurance from Dickie’s No Frills.

[49] I find the evidence that is missing from this motion to be very significant.

[50] Defence counsel Campbell has delivered an affidavit from Michael J. Lee, the president of Mike’s No Frills in 2010, in which Mr. Lee states that the has no knowledge, information or belief regarding any incident involving the plaintiff that is alleged to have occurred at the premises on August 28, 2010. Mr. Lee does not disclose what inquiries, if any, he made about the events of August 28, 2010 before he swore his affidavit.

[51] Mr. Lee does not say that he checked with appropriate Mike’s No Frills employees and with Steven’s No Frills and that there is no sweep log or incident report for August 28, 2010 that mentions any accident involving the plaintiff.

[52] One plausible explanation for Mr. Lee’s affidavit is that the plaintiff’s slip and fall accident was not reported to him as president. This incident could well have been handled by lower level employees at Mike’s No Frills. After all, the plaintiff’s accident was not a fatal one.

[53] There is no affidavit from Steven’s No Frills at all.

[54] On November 4, 2013 lawyer Z emailed defence counsel Nicoletta as follows.

“Have you requested the sweep logs from Steve’s - if available do you undertake to deliver them [to] me. please advise ASAP”.

[55] Defence counsel Nicoletta responded by email later the same day as follows.

“I will not undertake to produce the logs until the motion is decided”

[56] This response is completely inconsistent with there being no sweep logs or incident report in the records of Steven’s No Frills formerly Mike’s No Frills for August 28, 2010.

[57] Steven’s No Frills has not produced any sweep logs or incident reports for August 28, 2010. I infer from this that these records would not assist Steven’s No Frills in responding to this motion. Rather, they would assist the plaintiff.

[58] Finally, material aspects of the plaintiff’s evidence surrounding her slip and fall accident of August 28, 2010 are corroborated by the Toronto Emergency Medical Services ambulance call report. This report identifies the plaintiff by name. The report says that she was picked up at 2742 Eglinton Avenue East on August 28, 2010. The incident history part of the report states “pt [patient] slipped on wet floor. pt was in no frills and slipped on oil on ground fell and hit her head on right side …”

[59] In my view, there is no rational reason why or motive for the ambulance attendants who prepared this report to falsify the location of the No Frills supermarket where they picked up the plaintiff.

[60] The description of the plaintiff’s accident and her main injury (striking her head) in the ambulance call report is very similar to the description of the plaintiff’s accident and her head injury in the statement of claim.

[61] A relevant person such as a manager for Steven’s No Frills, counsel for Steven’s No Frills or an adjuster for the liability insurer of Steven’s No Frills, aware of all the facts (such as what is in the ambulance call report, the statement of claim and (I infer) the sweep logs and incident report of Mike’s No Frills (now Steven’s No Frills) for August 28, 2010 would draw the following conclusion. The “litigating finger” points to the Mike’s No Frills supermarket at 2742 Eglinton Avenue East (now Steven’s No Frills) but the drafter of the statement of claim got part of the name and part of the address of the supermarket wrong.

[62] I am therefore of the view that this is a case of correcting the misnomer or misdescription of a party within the meaning of subsection 21(2) of the Limitations Act, 2002 and not an attempt to add a defendant after the limitation period has expired.

[63] An order will therefore issue as follows:

(a) the title of proceeding is corrected by deleting the words “Dickie’s No Frills Ltd.” and substituting the words “1844442 Ontario Limited carrying on business as Steven’s No Frills”;

(b) the plaintiff is given leave to amend paragraph 3 of the statement of claim by

(i) adding the words “formerly 1625396 Ontario Limited carrying on business as Mike’s No Frills” after the word “Defendant” in the first line of this paragraph, and

(ii) deleting the number “1880” and substituting the number “2742” in the third line of this paragraph.

Costs

[64] The plaintiff has been successful on this motion but is not seeking costs. There will therefore be no costs of this motion. In my view Steven’s No Frills should have consented to this motion once it reviewed the ambulance call report and (I suspect) the sweep log and incident report for August 28, 2010.

(original signed)__

Date: November 7 , 2014 Master Thomas Hawkins