Svay v. Lim, 2017 ONSC 4539

Court File and Parties

COURT FILE NO.: CV-12-465567

MOTION HEARD: March 30, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

Re: VANDIN SVAY (deceased) by his Litigation Administrator, CHANTHEARY LY and CHANTHEARY LY, personally Plaintiffs

v.

MENG LY LIM, VEASNA SAM, CHOY CHEA, SIMHEM SRUN, KIMSAN HEANG, JOHN DOE, CENTURY PALACE CHINESE RESTAURANT, WHOLE LAND DEVELOPMENT CORP., XYZ COMPANY and JOHN DOE 2 Defendants

BEFORE: Master Lou Ann M. Pope

APPEARANCES: Gregory L. Chang, Bougadis, Chang LLP, for the plaintiffs Fax: 416-703-2406

David Zarek, Zarek Taylor Grossman Hanrahan LLP, for proposed defendants, Chanthan Mech and Vitou Huot Fax: 416-777-2050

REASONS FOR ENDORSEMENT

1The plaintiffs seek an order for leave to amend the statement of claim to correct the name of the defendants, John Doe and John Doe 2 to Chanthan Mech and Vitou Huot on the grounds of misnomer.

2The motion is opposed by the proposed defendants, Chanthan Mech (“Mech”) and Vitou Huot (“Huot”), on the basis the plaintiffs have not met the test of misnomer and there is no tenable cause of action against them.

Facts & History of Action

3The plaintiff, the late Vandin Svay (“the deceased”), was fatally wounded from a physical altercation that took place during a social function held at the Century Palace Chinese Restaurant (“Restaurant”), one of the defendants herein, on or about October 16, 2010. The Restaurant is located in the New Century Plaza in Markham, Ontario.

4The deceased and all of the individual defendants were guests at the said social function on the evening of October 16, 2010.

5It is pled that the guests purchased and/or paid fees to attend the social function which included dinner, entertainment and the sale of alcohol to guests.

6The facts as set out in the notice of motion are that a physical altercation developed at approximately 11:40 p.m. on October 16, 2010 at the Restaurant during the social function between the personal defendants and others, at which point the deceased attempted to assist in breaking up the altercation. As a result of serious injuries sustained by the deceased from a knife during the altercation, he was taken to the hospital and later died. The plaintiff, Chantheary Ly, who is the deceased’s spouse, witnessed the altercation and accompanied the deceased to the hospital.

7The defendant, Sinhem Srun (“Srun”), was convicted of second degree murder of the deceased.

8When the statement of claim was issued on October 15, 2012, some two years following the incident, the plaintiffs were unaware of the identity of the organizer of the social function. As such, XYZ Company and John Doe 2, were named as defendants and described at paragraphs 12 and 13 of the statement of claim.

9On or about February 26, 2013, the Restaurant delivered a statement of defence and crossclaim against all the other defendants for contribution and indemnity.

10None of the personal defendants defended the action; therefore, on November 11, 2014 the plaintiffs noted them in default. Further, the action was discontinued against the defendant, Whole Land Development Corp.

11The Restaurant attempted to obtain the police file by bringing a WAGG motion in April 2013; however, as the criminal proceedings were ongoing, the motion could not proceed.

12Ultimately, on July 12, 2015, the plaintiffs received from counsel for the Restaurant the Ministry of Attorney General’s productions which included the police and Crown files relating to the police investigation of the altercation and trial of Srun.

13Examinations for discovery have not been held on agreement of all parties.

14The plaintiffs state that the Ministry’s productions identify Mech and Huot as the organizers of the social function. Mech is the mother of Huot and both of them attended the subject event. Therefore, the plaintiffs brought this motion for an order for leave to amend the statement of claim to correct the misnomer of the defendants named as John Doe and John Doe 2 to Chanthen Mech and Vitou Huot, who were allegedly organizers of the social function.

15The plaintiffs brought this motion which was originally returnable on January 19, 2016. Shortly before the hearing, Mr. Zarek, counsel for the home insurer of Mech and Huot, requested that the motion be adjourned in order for him to review the matter. As such, the motion was adjourned on consent sine die by Master Hawkins. Master Hawkins also granted a timetable order which included extending the date by which the action was to be set down for trial to December 30, 2016.

16After the motion was adjourned there was delay awaiting Mr. Zarek’s position on the plaintiffs’ motion.

17Subsequently, the plaintiffs scheduled the motion for December 13, 2016. On that date, the parties consented to amend the prior timetable order and to adjourn the motion to March 30, 2017. Mech and Huot served their responding motion record on March 23, 2017 and a supplementary affidavit, factum and brief of authorities on March 24, 2017.

Preliminary Issue

18At the hearing, the plaintiffs sought to amend the notice of motion, paragraph 3, to change “John Doe” to “XYZ Company”. The request was made as a result of my inquiries regarding inconsistencies between the relief sought in the notice of motion to replace John Doe with Mech, the affidavit of Gregory L. Chang which stated that the plaintiff was seeking to replace XYZ Company with Mech, and the title of proceedings in the proposed amended statement of claim which continued to name John Doe and XYZ Company as a defendants, as well as Huot and Mech.

19After submissions and discussion between counsel, the parties agreed to the amendment of the notice of motion. Therefore, I granted the amendment to paragraph 3 of the notice of motion which now reads as follows:

An order correcting the name of the defendants misnamed in the Statement of Claim as XYZ Company to Vitou Huot and John Doe 2 to Chanthan Mech”.

Statement of Claim

20Paragraph 12 of the statement of claim identifies the defendant, XYZ Company, as follows:

The Defendant, XYZ Company, (the “Defendant XYZ”), is a business entity, whose identity and whereabouts are presently unknown to the Plaintiffs, and was, at all material times, an organizer, with material interest, of a social function, involving dinner and entertainment in the Defendant Century Palace restaurant, on or about October 16, 2010, which included the sale of alcohol to patrons, guests, customers and/or invitees (the “Social Function”).

21Paragraph 13 of the statement of claim identifies the defendant, John Doe 2, as follows:

In the alternative, the Defendant, John Doe 2 (the “Defendant Doe 2”), is an individual whose identity and whereabouts are presently unknown to the Plaintiffs, and was, at all material times, an organizer, with material interest, of the Social Function.

Proposed Amended Statement of Claim

22Paragraph 12 of the original statement of claim as set out above continues to appear in the proposed amended statement of claim (“proposed pleading”). If the motion is granted, this paragraph will have to be removed given the amendment to the notice of motion as described above.

23The proposed amendments to the descriptions of the subject defendants are located at paragraphs 13 and 14 of the proposed pleading. Those paragraphs will read as follows after removing the deleted portions for ease of reading:

13. In the alternative, the Defendant, Chanthan Mech (the “Defendant Mech”), is an individual, and was, at all material times, an organizer, with material interest, of the Social Function.

14. In the alternative, the defendant Vitou Huot (the “Defendant Huot”), is an individual, and was, at all material times, an organizer, with material interests, of the Social Function.

24It is pled in the original statement of claim and in the proposed pleading that the death of Vandin Svay was caused as a result of the assault and battery, negligence, breach of duty, and/or breach of contract of the defendants and/or by their servants, agents or employees, for whose negligence the defendants are in law responsible, jointly, and severally.

25As to the particulars of negligence against Mech and Huot, they include the following:

(a) they were responsible for the security of the premises;

(b) they knew or ought to have known about the nature of the social function including that guests would pay a fee for attending, that it was the intention of the Restaurant and Mech and Huot to sell alcohol to the guests, that guests would engage in the consumption of alcohol and that the guests may engage in aggressive or threatening behaviour which would require a strong security presence for the safety of everyone involved in the social function;

(c) they failed to hire sufficient police officers and/or trained security personnel to maintain the security control of the premises, they failed to obtain and/or comply with municipal licensing, permits, bylaws regarding the hosting of the social function;

(d) they failed to take reasonable or any care to ensure that the deceased would be reasonably safe while on the premises;

(e) they ought to have known that a dangerous situation existed or they should have foreseen that a dangerous situation was about to occur and they and/or their staff, failed to prevent the dangerous situation.

Issue

26The issue to be determined is whether the plaintiffs should be granted leave to amend the statement of claim to correct the names of the defendants, John Doe 2 and XYZ Company to Mech and Huot, despite the passage of the limitation period.

Summary of Positions of the Parties

27The plaintiffs rely on the notes of police constable Khan dated October 18, 2010, which were produced to them on July 21, 2015 and attached as exhibit “C” to the affidavit of Gregory L. Chang, sworn December 2, 2016. The plaintiffs submit that the notes identify Mech and Huot as the organizers of the social function.

28A summary of police constable Khan’s notes are as follows:

(a) On October 18, 2010, two days after the altercation, two police officers met with Mech and Huot at 83 Daisyfield Crescent in Woodbridge, Ontario;

(b) the police officers met with “event organizer Mech, Chanthan”

(c) Huot was at the event;

(d) Huot assisted his mother at the event and he took a video of 20 to 30 minutes at the restaurant; he gave the police officers a copy of the video which they observed;

(e) Mech had seating arrangement and table numbers.

29The plaintiffs submit that on a fair reading of paragraphs 12 and 13 of the statement of claim, it is clear that the plaintiffs intended to name Mech and Huot as the organizers of the social function at the Restaurant.

30Mech and Huot rely on their evidence as set out in their respective affidavits filed on this motion.

31The following is a summary of Mech’s evidence as set out in her affidavit sworn on March 23, 2017. She was born in Cambodia and is 71 years old. She moved to Canada in 1980 with her husband and two sons, Pedro Huot and Vitou Huot. She has resided with Huot and his family since 2008 after losing a kidney. Mech denies being an organizer of the social function. She states the following regarding her involvement in the social function:

(a) she was contacted by Mr. Poun Tun, who is the president of Communautè Khmére du Canada (“CKC”) to “assist him with booking a restaurant in Ontario” for CKC’s fundraiser to help orphaned children and poor families in Cambodia;

(b) she was asked to “assist with this event” because she lived in Toronto and Mr. Tun does not;

(c) she “volunteered” her time at Mr. Tun’s request;

(d) Mr. Tun also asked her “to tell other persons about the fundraiser and to ask them if they wanted to come”;

(e) she “volunteered with this fundraiser” as a favour to Mr. Tun;

(f) she understands that the police notes indicate that she collected $50 from persons for their attendance at the fundraiser and she confirms that Mr. Tun asked her to collect this amount from attendees at the event to contribute to and support the cause of the fundraiser; she did not give receipts; she did not keep any of the money herself; she contributed $50 as well as her son;

(g) she did not sell any tickets for the event as no tickets were sold ahead of time;

(h) all of the money she collected was given to Mr. Tun who gave the money to his sister who was also from Montreal;

(i) she does not have an employment relationship with CKC and she was not paid any money from CKC;

(j) she is a distant relative of Mr. Tun and he calls her “Grandma”;

(k) before the event occurred, she received money from Mr. Tun to place as a deposit at the Restaurant to book it for CKC’s fundraiser;

(l) she received no form of payment for booking the restaurant or for volunteering for the event;

(m) she did not purchase tickets or pay fees to any of the defendants for admission of the deceased, plaintiffs, or herself for the fundraiser;

(n) she was not responsible for the sale of alcohol, hiring security, hiring or management of any staff who worked and/or volunteered at the fundraiser;

(o) CKC and Mr. Tun were the organizers of the fundraiser;

(p) she was a volunteer.

32Mech attached as an exhibit to her affidavit a document entitled “Confirmation” which she states indicates that Mr. Tun sought her assistance with booking a restaurant. The Confirmation is in the form of a letter. It is dated January 18, 2016 and signed by Poun Tun as President of Communautè Khmére du Canada in Montreal. In addition, Mech attached a copy of a corporate search of Communautè Khmére du Canada which is in French and not translated. The Confirmation states as follows:

To whom, It may concern,

I, Poun Tun, president of Communautè Khmére du Canada, hereby confirm that our community organized an event, we invited Cambodian singer, Mrs Sou Sophea, from Cambodia to perform the concert which was held on October 16^th 2010, at restaurant Century Palace, Markham, Ontario. Our purpose was to raise Fund to financially support orphaned children and poor family in Cambodia.

I asked Mrs Chanthan Mech who lives in Ontario to book a restaurant for this upcoming event. I also asked her and my other friend Mr Thammarong Chey to invite the guests for the event.

Both, assisted as volunteer for help us in that event.

33It is Mech’s evidence that after reading the proposed amended statement of claim, she would not have been aware that the plaintiffs were naming her as the organizer of the event.

34Huot filed an affidavit that he executed on March 23, 2017. He states that he was born in Cambodia and is 41 years old. He came to Canada in 1980 with his parents and younger brother. He resides with his parents, his wife and two sons. He is a robotics programmer at Mytox Manufacturing, a division of Magna. Huot’s evidence regarding his involvement in the social function is as follows:

(a) he has no employment relationship with Communautè Khmére du Canada;

(b) he attended the fundraiser on his own accord and contributed $50 for the fundraiser;

(c) he was not a volunteer for the event;

(d) he did not invite anyone to the fundraiser;

(e) he had nothing to do with organizing the event;

(f) he took an “amateur non professional video” of the event for his own recreational benefit.

35It is Huot’s evidence that having read the proposed amended statement of claim that he would not have been aware that it was the plaintiffs’ intention to name him as John Doe.

The Law

36Rule 26.01 is mandatory in nature. It provides:

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.

37Rule 5 deals with joinder of claims and parties. In particular, subrule 5.04(1) provides in part that a proceeding shall not be defeated by reason of incorrectly naming a party. It states:

No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.

38Subrule 5.04(2) gives the court discretion to substitute a party or correct the name of a party incorrectly named on terms as are just unless there is non-compensable prejudice. That rule states:

At any stage of a proceeding 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.

39Section 21 of the Limitations Act, 2002, S.O. 2002, c.24, does not preclude the amendment of pleadings after the expiration of the limitation period if it is just a question of misdescription of the party. Section 21 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.

Doctrine of Misnomer

40The Ontario Court of Appeal has considered in recent years the law relating to misnomer in Omerod v. Strathroy Middlesex General Hospital 2009 ONCA 697, and Spirito Estate v. Trillium Health Centre, 2009 ONCA 762. Misnomer requires a finding that the litigation finger be clearly pointed at the intended defendant. In other words, would a reasonable person receiving the statement of claim and looking at it as a whole, in all the circumstances of the case, say to himself or herself “of course it must mean me, but they have got my name wrong”? The Court of Appeal adopted this test from the English case of Davies v. Elsby Brothers, Ltd., [1960] 3 All E.R. 672 (C.A.):

In Dukoff et al. v. Toronto General Hospital et al. (1986), 54 O.R. 2(d) 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 be to make inquiries”, then it seems to me that one is getting beyond the realm of misnomer.

41However, even if a plaintiff is successful in establishing misnomer, the court retains a residual discretion under rule 5.04 to refuse the proposed amendments. The Court of Appeal in Omerod addressed this part of the court’s analysis 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 CanLII 8620 (ON CA), 207 D.L.R. (4^th) 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 “any” 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 applications 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.

Analysis

Substituting John Doe 2 with Chanthan Mech

42For the following reasons, I am satisfied on the whole of the evidence filed on this motion that the plaintiffs have met the initial test for establishing misnomer in order to substitute the defendant, John Doe 2 with Chanthan Mech.

43The statement of claim contains the following facts that identify the subject social function:

(a) Century Palace Chinese Restaurant is a restaurant specializing in Asian cuisine and is located at the New Century Plaza, 398 Ferrier Street, Markham, Ontario;

(b) XYZ Company or John Doe 2 was an organizer of the social function that involved dinner and entertainment in the Restaurant on or about October 16, 2010;

(c) Vandin Svay, a guest at the social function, died as a result of an assault that occurred on October 16, 2010 at approximately 11:40 p.m.;

(d) a physical altercation developed on the premises between defendants, Lim, Vaesna, Chea, Srun, Heang, with others when Vandin Svay attempted to assist in breaking up this altercation; Svay was physically attacked; Svay was injured and taken to the hospital and died as a result of those injuries;

(e) the social function held on the premises generated revenue and/or fees for several of the defendants including the sale of alcohol to the guests;

(f) XYZ Company and John Doe 2 were responsible for the security of the premises and it was their intention to sell alcohol to the guests.

44It is Mech’s evidence at paragraph 11 of her affidavit that she first heard about the altercation from a police officer who came to the fundraiser after midnight and told her that someone had been injured outside. In addition, it is her evidence that she learned that Vandin Svay was killed on or October 16, 2016. Furthermore, according to the notes of police constable Khan, Mech and Huot met with police on October 18, 2016, two days following the social function.

45Officer Khan’s notes state “meet with event organizer MECH, CHANTHAN”. The notes indicate further that Huot was assisting his mother at the event and he took a video at the Restaurant. In addition, the notes state that Mech had the seating arrangement and table numbers.

46In my view, it is clear from the Confirmation signed by Poun Tun that he and Communautè Khmére du Canada were located and carried on business in Montreal, Quebec and that the subject event took place in Markham, Ontario. It is also clear from the Confirmation that Mr. Tun asked Mech to book the Restaurant and to invite guests for the event.

47Based on Mech’s evidence, she admitted to assisting with the event, including booking the Restaurant for the event, receiving money from Mr. Tun, using the money she received from Mr. Tun to pay the deposit to book the Restaurant, collecting $50 from each attendee at the event and giving the money to Mr. Tun. Furthermore, according to Huot’s evidence, he assisted his mother at the event and took a video at the Restaurant.

48In my view, considering all of the above-noted evidence as a whole, it points to Mech being the organizer or, at least one of the organizers of the social function. The statement in Officer Khan’s notes that Huot was “assisting his mother at event & took 20-30 min video at restaurant” begs the question “What was Huot assisting his mother in doing?” Further, the fact that Officer Khan’s notes state that Huot was assisting his mother at the event and he took a video at the Restaurant is strong evidence that points to Mech being an organizer of the event. It could be said that she was the “local organizer” and perhaps Mr. Tun was the overall organizer. In any event, although Mr. Tun states that his Cambodian community organized the event, it will be an issue for trial as to who the organizers were, whether it was one or more persons.

49For the above reasons, I find based on the above-noted evidence that upon reading the amended statement of claim, Mech would have to say “of course it must mean me, but they have got my name wrong”. In other words, I find that the litigation finger was pointed at Mech.

50Having found that the plaintiffs were successful in establishing misnomer, I must now turn to the issue of the court’s residual discretion under rule 5.04 to refuse the proposed amendments.

51The Ontario Court of Appeal in Mazzuca, at para. 25, has outlined factors the court should consider as a guide in deciding whether or not to exercise that discretion. The following factors include procedural fairness and prejudice:

. . . under Rule 5.04(2) the Court has discretion whether to allow the amendment, notwithstanding that the threshold test is satisfied: the discretion is to ensure procedural fairness and consideration has to be given to such matters as the state of the action, whether the trial is imminent, whether examinations for discovery of all parties have already been held, whether it would be a proper joinder of a new cause of action, whether the purpose in adding a party defendant was improper such as simply to obtain discovery of the party added, whether the proposed added party was a necessary or proper party and whether a variety of special rules were observed (such as those respecting class actions, representation orders, trade unions, assignees, insurance, trustee, infants, personal under disability, amicus curiae, accrual of the cause of action and limitations).

52This action is at an early stage. The parties agreed not to conduct examinations for discovery until the determination of issues on this motion.

53Mech and Huot submit that the proposed pleading contains no tenable cause of action against them for the death of the deceased and the resulting damages to Chantheary Ly. They argue that there is no tenable cause of action as Mech and Vitou did not owe a duty of care to the plaintiffs; therefore, they cannot be found liable for the death of the deceased and the resulting damages to Chantheary Ly.

54Mech and Huot’s factum sets out at length the law as it relates to causes of actions for negligence and the elements of the tort of negligence. In my view the law as set out in the factum is accurate and I take no issue with it.

55It is my view that the proposed pleading contains the constituent elements of the tort of negligence in order to form the basis for a finding that Mech was an organizer of the event, and that she had a duty to attendees at the event to take steps to ensure their safety considering all of the circumstances involving the social function. In particular, the proposed pleading includes the following allegations:

(a) the plaintiff, Chantheary Ly, is the wife of the deceased;

(b) Mech was an organizer of the social function;

(c) the event included dinner, entertainment and the sale of alcohol to patrons;

(d) the social function took place on October 16, 2010 at the Century Palace Chinese Restaurant at 398 Ferrier Street, Markham, Ontario;

(e) there was an altercation on the premises between the named defendants and others when Vandin Svay attempted to assist in breaking up the altercation;

(f) Vandin Svay was physically attacked, suffered injuries and was taken to the hospital and died as a result of his injuries;

(g) Chantheary Ly witnessed the attack upon and injury to the deceased and accompanied him to the hospital;

(h) the social function generated revenue and/or fees for named defendants and include the sale of alcohol to the guests of the social function;

(i) the named personal defendants were guests of the defendants for the social function on the premises on October 16, 2010;

(j) the death of Vandin Svay was caused as a result of the assault and battery, negligence, breach of duty, and/or breach of contract of the defendants and/or by their servants, agents or employees;

(k) particulars of the allegations of negligence are set out at paragraph 19 B. of the proposed pleading which include that as organizers, Mech and Vuot were responsible for the security of the premises, they knew that the social function was to include the sale of alcohol to guests, and that guests may engage in aggressive or threatening behaviour which would require the premises to have a strong security presence for the safety of everyone involved in the social function; they failed to take all reasonable care to ensure that their guests behaved in a safe manner; they failed to monitor the situation that occurred between customers and guests; they hired servants and/or employees who were not certified by Smart Serve Ontario and allowed them to sell and/or serve and/or supply liquor on the premises on the date of loss contrary to Smart Serve Ontario policy;

(l) as a result of the negligence of the defendants and the resulting death of Vandin Svay, the plaintiff lost the care, guidance, service, comfort and companionship of the deceased; she suffered from injuries, damages and loss, caused by the violent death of her husband including psychological injury and mental and nervous shock, and other pecuniary losses.

56Based on the above, I find that the proposed pleading contains the requisite material facts and allegations to form the basis of a finding of negligence against Mech. In particular, it was pled that the plaintiff suffered damages, that the damages suffered were caused by the conduct of the defendants including Mech and Huot, and that the defendants’ conduct was negligent and in breach of duty owed to the plaintiff to ensure the safety of the guests at the social function.

57Further, I find that there is a duty recognized by law to avoid this damage, should it be found that Mech was an organizer of the social function, being a duty owed by organizers of social events, particularly where alcohol is served, to ensure the safety of the customers or guests.

58Moreover, I find that the proposed pleading contains material facts and allegations sufficient for a trier of fact to find that the conduct of Mech was a proximate or legal cause of the loss considering, in my view, that there was a proximate or close relationship between Mech and the guests who attended the social function.

59Regarding the issue of prejudice as set out in rule 5.04(2), there is no evidence of any prejudice raised by Mech in her affidavit. Further, Mech was served with the original notice of motion herein in December 2015. Notably, she obtained the Confirmation from Mr. Tuot which is dated January 28, 2016. Therefore, it is reasonable to conclude that Mech has been aware of the plaintiffs’ intention to substitute her name for John Doe 2 in this proceeding since at least December 2015.

60In addition, the evidentiary record reveals that Mech was aware of the altercation at the Restaurant on the evening of October 16, 2010 and the resultant death of Vandin Svay within days of the social function having read about it in the news and when being interviewed by the police two days later.

61Moreover, given that this action is at an early stage, the only delay will involve time for Mech to deliver a defence. At that point, all parties will be entitled to participate in examinations for discovery.

62For those reasons, I find there will be no prejudice to Mech if this motion is granted that could not be compensated for by costs or an adjournment.

63Lastly, it is undisputed that the applicable limitation period has expired. However, the Ontario Court of Appeal has made it clear that the prohibition in section 21(1) of the Limitations Act, 2002, does not prevent the correction of a misnaming of a party. (Spirito Estate v. Trillium Health Centre, 2008 ONCA 762, 2008 CarswellOnt 6684, at paras. 15-16).

64Therefore, the plaintiffs’ motion to substitute John Doe 2 for Mech is hereby granted.

Substituting XYZ Company for Vitou Huot

65For the following reasons, having considered all of the evidence, I find that the plaintiffs have not met the initial test for establishing misnomer in order to substitute the defendant, XYZ Company, with Vuot Huot.

66XYZ company is described in the statement of claim as a “business entity”. It is Vuot’s evidence that he did not volunteer for and had nothing to do with organizing the event; although, he took a video of the event for his own benefit. Constable Khan’s notes indicate that Vuot was assisting his mother at the event.

67I find that there is insufficient evidence to conclude that the litigation finger was pointing at Huot as an organizer of the social function. In other words, I find that there is insufficient evidence that upon reading the amended statement of claim, Huot would not say “of course it must mean me, but they have got my name wrong”.

Summary

68The plaintiffs’ motion is granted to amend the statement of claim to correct the name of John Doe 2 to Chanthan Mech. The motion is dismissed with respect to correcting the name of XYZ Company to Vitou Huot.

Costs

69The parties did not file costs outlines although they made oral submissions. Given the divided result, there shall be no order as to costs.

Conclusion

70The following orders shall be issued:

(a) paragraph 3 of the notice of motion shall be amended to read as follows:

An order correcting the name of the defendants misnamed in the Statement of Claim as XYZ Company to Vitou Huot and John Doe 2 to Chanthan Mech;

(b) the plaintiffs are granted leave to correct the name of the defendant, John Doe 2, to Chanthan Mech in the form of the proposed amended statement of claim at Tab D of the motion record of the plaintiffs;

(c) the plaintiffs’ motion for leave to correct the name of the defendant, XYZ Company, to Vitou Huot, is dismissed;

(d) the time to serve the amended statement of claim shall be extended to September 18, 2017;

(e) this action shall be set down for trial by December 31, 2018.

71The parties are encouraged to agree on a discovery plan as required by rule 29.1.

(original signed)_________

July 27, 2017 Master Lou Ann M. Pope