ENDORSEMENT RELEASED: 20160823
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Asset Strategy Corp. v. Rodinia Lithium Inc. and Rodinia Minerals Inc.
BEFORE: Master B. McAfee
COUNSEL: J. Mathers McHenry for the Moving Party, the Plaintiff
R. Staley and G. McKeown for the Responding Parties, the Defendants
REASONS FOR DECISION
1Further to my order of June 24, 2016, wherein I found that the adding of Aaron M. Wolfe as a plaintiff is not a case of misnomer, what follows are my reasons.
2On April 20, 2015, the action was commenced by notice of action. The action was commenced in the name of Mr. Wolfe as the only plaintiff. Mr. Wolfe is the founder, president and sole voting shareholder of the current plaintiff, Asset Strategy Corp.
3On May 8, 2015, Mr. Wolfe moved ex parte and obtained an order substituting Asset Strategy for Mr. Wolfe nunc pro tunc.
4On September 24, 2015, the amended notice of action and statement of claim naming Asset Strategy as the only plaintiff were served on the defendants.
5Asset Strategy now moves to add Mr. Wolfe back in the action as a plaintiff nunc pro tunc.
6The applicable test for misnomer is set out by the Court of Appeal in Lloyd v. Clarke, 2008 ONCA 343 (Ont.C.A.) at paras 3-4. There must be a "coincidence between the plaintiff's intention to name a party and the intended party's knowledge that it was the intended defendant." Where such a coincidence exists, an amendment may be made notwithstanding the expiry of a limitation period. The same test has been applied in cases where the intended party is a plaintiff (Streamline Foods Ltd. v. Jantz Canada Corp., 2011 ONSC 1630 (Ont. Div.Ct.) at paras 8 and 35; affirmed, 2012 ONCA 174 (Ont.C.A.)).
7I am not satisfied that such a coincidence exists. The plaintiff made an intentional decision to amend the title of proceedings to substitute Asset Strategy for Mr. Wolfe. The plaintiff chose to remove Mr. Wolfe and not simply add Asset Strategy as an additional party (transcript from the cross-examination of Mr. Colson at qq 35, 36, 82, 83, 103 and 104). In these circumstances, Mr. Wolfe was not always the intended plaintiff. If Mr. Wolfe were always the intended plaintiff, he would not have been substituted out of the action in favour of Asset Strategy.
8In Streamline Foods the Court of Appeal upheld the dismissal of a motion for leave to amend the claim to add the corporate plaintiff's parent company. The Court held that"[t]his, in our view, is not misnomer or misdescription. The appellents were not seeking to correct the name of a party; rather, they were seeking to add a party and to pursue that party's claims."
9This case is analogous to Veerella v. Kahn, 2009 CarswellOnt 5658 (Ont.S.C.J.) in which the plaintiff sought to amend the statement of claim by replacing his name with that of a corporation. The Master hearing the motion at first instance held, and the Divisional Court agreed, that the plaintiff made a conscious decision to bring the original claim in his name rather than in the corporation's name. In these circumstances, the plaintiff was seeking to replace one party with another and not correcting a misnomer.
10In Tetrault v. Nussbaum, 2015 ONSC 6226 (Ont.S.C.J.) the court declined to add a plaintiff after the expiry of the limitation period. The court found that the plaintiff made a deliberate decision to name herself as the original plaintiff and could not now add a corporation as plaintiff. It was found that the plaintiff was not seeking to correct a name but was seeking to add a party after the expiry of the limitation period. In determining whether the plaintiff intended to name the company as a plaintiff the court found a review of the history of the litigation instructive.
11A review of the history in this action is also instructive. A decision was made to name Mr. Wolfe as plaintiff when the action was commenced. Approximately three weeks later, a decision was made to amend the title of proceedings to substitute in Asset Strategy as the plaintiff. Mr. Wolfe was not the intended plaintiff throughout because he was expressly removed as plaintiff.
12Mr. Wolfe's removal was not an "irregularity" because the plaintiff deliberately brought a motion on an ex parte basis removing Mr. Wolfe.
13The plaintiff relies on 758511 Ontario Ltd v. 2079282 Ontario Inc., 2012 ONSC 6185 (Ont.S.C.J.). In 758511 Ontario, the court granted the addition of a plaintiff not only because the defendants knew that both parties were the intended plaintiffs but, the defendants themselves notified the plaintiff that the contract in dispute was not made with the originally named plaintiff. These are not the facts before me. In the case before me the defendants cannot have known that Mr. Wolfe was always an intended plaintiff when Mr. Wolfe deliberately removed himself from the action.
14For these reasons, I am not satisfied that the addition of Mr. Wolfe is the correction of a misnomer.
15In the event that the addition of Mr. Wolfe was not found to be the correction of a misnomer but rather the addition of a party, the defendants did not oppose an order granting leave to amend the statement of claim to add Mr. Wolfe as plaintiff, without prejudice to pleading any limitation period defence. I made such an order on June 24, 2016.
Master B. McAfee
DATE: August 23, 2016