Court File and Parties
COURT FILE NO.: CV-14-4163-00 DATE: 20160916 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHANIE ARLENE ANDERSON-MUNROE Plaintiff – and – SHERATON HOTELS AND RESORTS Defendant
Counsel: Thomas Long, for the Plaintiff Colleen Iascone, for the Defendant
HEARD: July 19, 2016
REASONS FOR DECISION
DALEY RSJ.
Introduction
[1] The plaintiff brought a motion seeking an order granting leave to amend her statement of claim in accordance with a draft amended statement of claim, which included in the amendment of that pleading changing the name of the defendant from “Sheraton Hotels and Resorts” to “Four Points by Sheraton Toronto Airport”, as well as amendments to the statement of claim changing the location of where the tort giving rise to the cause of action occurred.
[2] For the reasons that follow, the plaintiff’s motion is dismissed.
Background and Evidentiary Record
[3] This is an occupier’s liability claim arising from a slip and fall accident which is alleged to have occurred on February 11, 2013. The plaintiff asserts that on that date, as she was walking on the named defendant’s property at 801 Dixon Road, Toronto, she slipped and fell as a result of the presence of black ice.
[4] The plaintiff’s motion is supported by an affidavit from Kim Mohammed-Sieudhan, a paralegal employed by the plaintiff’s solicitors. This affidavit is deficient in several respects. While the deponent states that he is deposing to facts within his personal knowledge, unless it is stated that he has been advised of the facts by an identified source and believes them to be true, in many instances the source of the facts is not stated in the affidavit. Further, in several instances the facts stated by the deponent are at their highest double hearsay.
[5] The deponent states that on April 15, 2013, the plaintiff provided the details of her slip and fall accident to the plaintiff’s solicitor and informed him that she had sustained injuries in a slip and fall accident at “the Sheraton Hotel near Toronto Pearson International Airport.”
[6] On April 16, 2013, the plaintiff’s solicitor sent a notice letter to the named defendant by fax to the Sheraton Toronto Airport Hotel at 801 Dixon Road, Toronto.
[7] No response was received in respect to this letter.
[8] The plaintiff’s solicitor issued the statement of claim on September 12, 2014, naming the defendant as Sheraton Hotels and Resorts with the address for the defendant as 801 Dixon Road, Toronto.
[9] Within the body of the statement of claim, the plaintiff asserted at paragraph 3 that the defendant was the “owner/leaser” [ sic ] of the Sheraton Toronto Airport Hotel located at 801 Dixon Road, Toronto, thereafter referred to as the “grounds”, where the plaintiff claims she fell and over which the named defendant had the maintenance responsibility.
[10] The deponent further states that the named defendant is the parent company of the proposed defendant; however, the plaintiff’s motion record contains no evidence of that. In its responding motion record and affidavit, the proposed defendant offers contrary evidence to that assertion.
[11] A statement of defence was delivered by the named defendant on or about October 8, 2014, which generally denied all allegations in the statement of claim other than for acknowledging that it was the owner and occupier of the hotel premises located at 801 Dixon Road, Toronto.
[12] The defendant instituted a third-party action against the company in charge of the maintenance of its Dixon Road premises.
[13] Examinations for discovery of the plaintiff were conducted on October 27, 2015. The deponent states that on the date of the examination for discovery, the plaintiff’s solicitor learned for the first time that the plaintiff’s fall did not occur at the defendant’s premises at 801 Dixon Road, but rather, the fall had occurred at the premises of the proposed defendant Four Points by Sheraton Toronto Airport which is located at 6257 Airport Road, Mississauga.
[14] Paragraph 14 of the supporting affidavit expresses the deponent’s quite extraordinary and entirely unsupported view as to the plaintiff’s state of mind when he indicates: “Up until this point, I do verily believe, the plaintiff did not appreciate the nuanced difference in the name between the Defendant and intended the Defendant.”
[15] This statement is not only unsupported by any evidence from the plaintiff, it is entirely inadmissible for the purposes of this motion.
[16] The deponent further outlines corporate and business name searches which were carried out with respect to the defendant and the proposed defendant following the plaintiff’s examination for discovery.
[17] The deponent further states that the plaintiff believed that the named defendant and the proposed defendant were one and the same, in spite of the fact that these two parties occupy different municipal locations. Again there is no evidence from the plaintiff on this.
[18] Notably, the deponent states, again without reference to the source of the information and the basis for his belief, that the plaintiff telephoned the offices of the proposed defendant on February 11, 2013 to file a complaint in respect of her accident. There is no evidence whatsoever from the plaintiff on this critical point.
[19] It is the evidence submitted on behalf of the proposed defendant that a full search was conducted of its corporate records and no record was located as to any telephone call received from the plaintiff, nor was there any record of the occurrence of the accident.
[20] The proposed defendant’s deponent states that it first received notice of the incident giving rise to the plaintiff’s claim on February 29, 2016.
[21] The plaintiff asserts that this is a simple case of a misnomer, and consequently the amendments sought should be granted.
[22] The proposed defendant takes the position that this is not a case of a misnomer. Rather, it asserts that this is a case where the plaintiff seeks to substitute an entirely new party in place of the named defendant, after the passage of the limitation period.
[23] The deponent of the affidavit filed in support of the proposed defendant’s position, namely, Jason Goulding–Fredericks, is an employee of Four Points by Sheraton Toronto Airport. Mr. Goulding-Fredericks offered uncontradicted evidence as to the corporate relationships or lack thereof between Sheraton Hotels and Resorts, Four Points by Sheraton Toronto Airport, Royal Equator Inc. and Starwood Hotels & Resorts Worldwide Inc.
[24] His evidence can be summarized as follows:
a. the defendant Sheraton Hotels and Resorts is not a parent company of the proposed defendant; b. at the time of the incident, Four Points operated as a franchise owned by Royal Equator Inc., pursuant to a franchise agreement with Starwood Hotels & Resorts Worldwide Inc. The proposed defendant was operated and managed independently by Royal Equator Inc.; c. the proposed defendant has no business relationship whatsoever with the defendant Sheraton Hotels and Resorts; d. the Sheraton Toronto Airport Hotel and the proposed defendant’s hotel locations are a distance of 3.7 kms apart and are located in different municipalities; e. the proposed defendant did not receive notice of the incident from either Sheraton Hotels and Resorts or Starwood Hotels & Resorts Worldwide Inc., nor would it be standard practice for the proposed defendant to be notified of an incident that occurred on its premises; and, f. the proposed defendant and Sheraton Hotels and Resorts have their liability insurance placed with different insurers and are represented by different counsel.
Legal Framework
[25] Rule 26.01 of the Rules of Civil Procedure provides that on a motion at any stage of an action, the court shall grant leave to amend the pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[26] Rule 5.04(2) of the Rules of Civil Procedure provides that at any stage of the preceding, the court may by order add, delete or substitute a party or correct the name of 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.
[27] Under both of these Rules, a pleadings amendment is not to be made if non-compensable prejudice would result. In motions under Rule 5.04(2) however, the court retains the discretion to deny an amendment in a proper case, even in the absence of non-compensable prejudice, where it is sought to change the parties to a proceeding: Mazzuca v. Silver Creek Pharmacy Ltd., 56 O.R. (3d) 768 at para 25.
[28] Section 4 of the Limitations Act, 2002 provides for a basic limitation period of two years from the date the claim was discovered within which to commence an action: Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, s. 4.
[29] Section 21(2) of the Act provides an exception to the discoverability principle set out in s. 5(1). It provides that where the limitation period has expired, a party can only be added to an existing proceeding where the amendment sought involves the correction of a misnaming or misdescription of a party.
[30] The issue at stake on this motion then is whether the proposed amendment is simply for the purpose of correcting a misnomer or whether it amounts to an attempt to add a new party after the limitation period for those claims has expired.
Analysis
[31] The plaintiff has asserted that the incident giving rise to her claim occurred on the premises of the Four Points hotel on February 11, 2013. As of that date she had knowledge of the name, location and address associated with the hotel.
[32] She did not discover that she had a potential claim as against Four Points on the date of her discovery, but rather she and, presumably her solicitor as well, determined on that date that the wrong defendant had been named in the statement of claim. This does not satisfy the test for discoverability as set forth in s. 5(1) of the Limitations Act.
[33] Given the foregoing, I have concluded that the limitation period for commencing a claim as against Four Points expired on February 11, 2015 under s. 4 of the Limitations Act.
[34] As to whether the failure to identify the defendant in this action as Four Points constituted a misnomer, the test for misnomer was first articulated in the decision of Davies v. Elsby Brothers Ltd., [1961] 1 W.L.R. 170, [1960] 3 All E.R. 672 (C.A.) where the court stated as follows:
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.
[35] The jurisprudence in Ontario with respect to misnomer has evolved over recent years through several decisions from the Court of Appeal.
[36] The “litigating finger” test was adopted by the court in Spirito Estate v. Trillium Health Centre, 2008 ONCA 762, 302 D.L.R. (4th) 654, at paras. 13-14, where the court concluded that a misnomer requires a finding that the “litigating finger” must be clearly pointed at the intended defendant. That question is to be determined by considering whether a person having knowledge of the facts would be aware of the true identity of a misnamed party by reading the statement of claim. If so, the named defendant should be substituted, unless there is prejudice that cannot be compensated for by costs or by an adjournment.
[37] In Lloyd v. Clark, 2008 ONCA 343, 165 A.C.W.S. (3d) 812, at para. 4, the court stated:
The case law amply supports the proposition that where there is a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer.
[38] In its decision in Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697, 97 O.R. (3d) 321, at paras. 12, 24, 32, the court broadened the inquiry from a “reasonable person receiving the document” to the “relevant person who receives the document.” Thus, the court is not limited to what the litigant knows, but it may, in addition, consider the knowledge of the intended litigant’s representatives when they reviewed the statement of claim.
[39] Even if a plaintiff is successful in establishing the presence of a misnomer, the court retains a residual discretion under Rule 5.04 to refuse the proposed substitution of defendants. The issue of prejudice to the proposed defendant is a consideration that must be examined. The absence of prejudice will not guarantee the amendment.
[40] On a motion to correct the name of the defendant on the basis of misnomer, as long as the proposed defendant would know on reading the statement of claim that he was the intended defendant, the plaintiff need not establish due diligence in identifying the true defendant within the limitation period: Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236.
[41] On examining the statement of claim, all indicia as to where the plaintiff’s accident occurred and as to who the property owner or occupier was, unequivocally point to the presently named defendant. There is no description within the statement of claim that would even suggest that the incident may have occurred at the premises owned or occupied by Four Points. A “relevant person” connected with Four Points could not reasonably be expected to conclude that Four Points was the intended target defendant on the face of the pleading and as such, this is not a case of misnomer.
[42] In this case, there is no coincidence between the plaintiff’s intention to name Four Points as the defendant and Four Points’ knowledge of the claim as I have concluded that it had no knowledge of the claim. The only evidence offered with respect to any possible notice to the proposed defendant was the indirect and hearsay evidence from the plaintiff’s solicitor’s paralegal. I prefer and accept the more cogent evidence put forward on behalf of Four Points that it had no knowledge of the plaintiff’s claim until February 2016.
[43] Further, there is no basis upon which knowledge of the plaintiff’s claim could be imputed to the proposed defendant. It is the evidence of Four Points that its representatives first became aware of the plaintiff’s claim on February 29, 2016. I accept the uncontradicted evidence offered by Four Points that there is no connection between the hotel operated by the named defendant and that operated by Four Points. Apart from the fact that they both operate as subsidiaries of Starwood Hotels, under separate ownership and management structures, there is no evidence whatsoever that the defendant and Four Points have any relationship. Thus any knowledge as to the plaintiff’s claim acquired by Sheraton Hotels and Resorts cannot reasonably be imputed to Four Points.
[44] Both Rules 26.01 and 5.04(2) provide that amendments to pleadings should not be made if noncompensable prejudice would result, whether or not the case involved a misnomer. Although it is not determinative of this motion, given the findings and conclusions I have reached, Four Points would face significant prejudice which could not be compensated for by costs, were it added as a defendant after the passage of limitation. It had no opportunity to investigate the plaintiff’s claim, which occurred more than four years prior to any notice to it. Further, as a result of the passage of time, witnesses’ memories would have faded and documents may have been destroyed. Additionally, the ownership of the proposed defendant changed in March 2016, and this would affect the ability of the proposed defendant to gather information and records.
[45] For these reasons, I have concluded that this is not a case of misnomer but rather an attempt to add a new defendant after the passage of the limitation period and as such the plaintiff’s motion must be dismissed.
[46] In the event counsel are unable to resolve the issue of costs, counsel for the defendant shall file submissions of no longer than two pages and a costs outline within 15 days of the release of these reasons, followed by similar submissions on behalf of the plaintiff within 15 days thereafter. No reply submissions are to be filed without leave.