Court File and Parties
MOTION HEARD: 20171013
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rufino Ferreira, Plaintiff
AND:
Giacomo Costa, Caterina Costa and Vila Verde Roofing Ltd., Defendants
Manuel Oliveira, Defendant in Actions CV-14-505755 and CV-15-533161 and Proposed Defendant in the Within Action
Wallace Crus, Defendant in Action CV-15-533161
BEFORE: Master Jolley
COUNSEL: Frank Costantini, Counsel for the Moving Party Plaintiff
Andreas Seibert, Counsel for the Responding Parties, the Defendant Vila Verde Roofing Ltd. and Manuel Oliveira
Stephen Panzer, Counsel for the Responding Party Defendant Wallace Crus
M. Sidky, Counsel for the Responding Party Defendants Giacomo and Caterina Costa in Action CV-14-505755
HEARD: 13 October 2017
REASONS FOR DECISION
1The plaintiff seeks three orders on this motion:
(1) an order substituting Manuel Oliveira for the named defendant John Doe Contractor;
(2) an order that this action and actions CV-14-505755 and CV-15-533161 be tried together and that they have common documentary and oral discoveries and mediation; and
(3) an order that the action be case managed.
2For the reasons set out below, I decline to substitute Manuel Oliveira for the John Doe Contractor. I order that the three actions be trial together with common documentary and oral discoveries and mediation. I decline the request to assign the matter to case management.
Facts
3The Costas, the plaintiffs in action CV-14-505755, live at 1001 Ossington Avenue, Toronto. The plaintiff in this action (“Ferreira”) lives at 1003 Ossington Avenue. The properties form a duplex. On 8 June 2012 a fire started in the roof structure of 1001 Ossington and spread to the common roof structure of the two residences.
4Ferreira commenced this action on 3 June 2014 seeking damages as a result of the fire and naming as defendants the Costas, Vila Verde Roofing Ltd., the roofing company that did work on the roof at 1001 Ossington on the day of the fire, and John Doe Contractor.
5The Costas commenced their action on 5 June 2014 naming as defendants Vila Verde Roofing Ltd., Manuel Oliveira (“Oliveira”), an employee of Vila Verde and the individual who did the roofing work, and Quality Portuguese Masonry Ltd., alleged to be a roofing contractor who also worked on the property.
6Ferreira commenced a further action on 24 July 2015 (the “Ferreira 2015 action”) naming as defendants Oliveira, Wallace Crus (“Crus”), alleged to be a contractor who performed work on the roof and Quality Portuguese Masonry Ltd.
Motion to Substitute Oliveira for John Doe Contractor
7In his notice of motion, the plaintiff sought leave to amend his statement of claim in the form of a proposed amended claim that was attached to his record. That draft amended claim purported to add Oliveira, Crus and Quality Portuguese Masonry Ltd. as defendants and to have John Doe Contractor remain as a defendant. The notice of motion set out grounds for those amendments that addressed each of the proposed new defendants. At the hearing of the motion, counsel for the plaintiff advised that he was not seeking this amendment but was seeking only to replace John Doe Contractor with Oliveira on the basis of misnomer.
Analysis
8The statement of claim pleads that John Doe Contractor was an unknown individual/entity who was retained to perform work on the roof of the Costa property. The plaintiff argues that Oliveira, who received the claim in his capacity as the officer and director of Vila Verde, would have known that the litigating finger was pointed at him when he read the statement of claim. He would have understood that the references to John Doe Contractor were references to him and that the plaintiff had misnamed him.
9Oliveira argues otherwise. While he acknowledges performing roofing work, he takes the position that he could not have known that John Doe Contractor meant him. He argues that he could not have been John Doe Contractor because John Doe Contractor was, by definition, unknown to the plaintiff. He was actually known to the plaintiff by name and also known by the plaintiff to have worked on the roof on the day in question. He also argues that John Doe Contractor could have been a number of people and specifically could have been Crus. In short, the litigating finger did not point at him.
10Oliveira argues that this attempt to substitute him for John Doe Contractor is a construct to avoid his summary motion to dismiss the Ferreira 2015 action against him as being outside the two year limitation period, given the fire occurred on 8 June 2012.
11Justice Firestone ordered that this misnomer motion proceed before Oliveira’s summary judgment motion in the Ferreira 2015 action. If Oliveira is substituted for John Doe Contractor in this 2014 action, then his summary judgment motion in the Ferreira 2015 action may become moot as he will have been properly sued within the limitation period. If he is not found to be John Doe Contractor in this action, then Oliveira may wish to proceed with his pending summary judgment motion in the Ferreira 2015 action.
The Test
12Rule 5.04(2) provides that 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.
13The test for misnomer is clear. As first set out in Davies v. Elsby Brothers Ltd. [1960] 3 All E.R. 672 (C.A.) at 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 to make inquiries,” then it seems to be that one is getting beyond the realm of misnomer.
14As noted by the plaintiff, an analysis of whether an error in naming a party resulted from a misnomer requires a consideration of the circumstances from the perspective of both the plaintiff and the prospective defendant (Essa Algoma Steel Inc. v. Liebherr (Canada) Company 2011 ONSC 1688 at para 13). Where there is a coincidence between the plaintiff’s intent to name the proposed party (as evidenced by an objective reading of whether the proposed party is identifiable in the pleading) and the opposing party’s knowledge of that intent, then the error is a misnomer (Lloyd v. Clark 2008 ONCA 343 at paragraphs 3 and 4).
15The intention of the plaintiff is identified by what a reasonable person reading the document would understand it to mean. From the perspective of the proposed defendant, the test is whether a reasonable person, upon reading the document, would know that he is the intended recipient (or that the “litigating finger” was pointed at him) (Essa, supra at paragraphs 14 and 15). Where fictitious names, such as John Doe, are used in a statement of claim, the assessment of whether the proposed defendant knew that he or she was the intended defendant becomes seminal in the analysis (Spribille v. Rockcliffe Nursing Home 2010 ONSC 5408 at paragraph 8).
What are the allegations against John Doe Contractor?
16The plaintiff points to these particular allegations against John Doe Contractor in his statement of claim for the proposition that Oliveira must have known that the litigating finger was pointed at him and could not have meant anyone else:
John Doe Contractor is an unknown individual/entity and was at all material times a contractor retained to perform work on the roof at the Costa Property.
On or before June 8, 2012, Vila Verde Roofing Ltd. and John Doe Contractor (hereinafter collectively referred to as the “Contractors”) were retained by the Costa Defendants to perform roof repairs (the “Work”) at the Costa Property, which Work was performed in the area immediately adjacent to the Plaintiff’s Property.
9(s) these Defendants [including John Doe Contractor], their agents, employees or servants, failed to properly train their agents, employees or servants on the safe and proper performance of the Work and in fire prevention;
9(t) these Defendants failed to retain agents, employees or servants possessing the necessary knowledge, skill and experience to properly perform the Work.
Should Oliveira reasonably have known reading these allegations that he was John Doe Contractor?
17Vague and non-specific allegations in a statement of claim will weigh heavily, if not definitively, against a finding that a misnomer is present. (Urie v. Peterborough Regional Health Centre 2010 ONSC 4226 at paragraphs 107 and 108). In this claim, the same allegations are made against all the defendants equally. The problem with these kinds of allegations is that they are ripe for the moving target argument made in Urie and may not support the pointing of a litigating finger test.
18Oliveira argues that the litigating finger was pointed at an “unknown individual/entity” which could not have meant him as he was known to the plaintiff. I agree. He had worked shingling the plaintiff’s roof the year prior to the fire and the plaintiff had recommended him to the Costas to do their roof work. Oliveira spoke to the plaintiff on the site the day of the fire and told him he was replacing the flat roof membrane on the Costa roof. Further, the plaintiff saw Oliveira working on the roof that day. Oliveira deposed that he was known to Ferreira, as set out above. It was argued on behalf of Ferreira (although not in evidence, as Ferreira did not submit an affidavit in support of the motion) that he either did not know or could not have known that it was Oliveira who “held the torch”. First, the claim does not allege it was Oliveira who held the torch so that level of knowledge was not necessary. Second, as noted in Kowal v Shyiak 2012 ONCA 512 at paragraph 18, “Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified.”
19Ferreira takes the position that it is irrelevant for this motion whether he knew Oliveira or not. Even were Ferreira correct on this point, Ferreira’s knowledge of Oliveira is relevant to how Oliveira would reasonably have interpreted a claim that referenced John Doe Contractor as a party that was unknown to Ferreira, when he knew that Ferreira knew who he was.
20To Oliveira’s knowledge, the only person “unknown” to the plaintiff who was doing roofing work that day was Crus. Oliveira deposed that the plaintiff was not introduced to Crus but did see him doing roofing work that day. In reading the claim and its reference to John Doe Contractor being unknown to Ferreira, it is reasonable that Oliveira did not understand John Doe Contractor to be him. No matter how wide the John Doe Contractor net is cast, in this case it can only catch individuals or entities who were unknown to Ferreira. Oliveira does not meet that definition.
21To support his argument that John Doe Contractor was intended to capture some entity other than Oliveira who did roofing work at the property, Oliveira relies on the proposed amended statement of claim in this action that was originally circulated in February 2015. Tellingly in that draft amended pleading, the plaintiff sought to add Oliveira but still maintain a claim against John Doe Contractor. It appears from this proposed amendment that the plaintiff believed John Doe Contractor to be someone other than Oliveira and intended to use John Doe Contractor as a placeholder in the event a truly unknown contractor had done work on the roof. This also demonstrates that John Doe Contractor was intended to point at a moving target and not at Oliveira as John Doe Contractor was to remain in the action even after Oliveira was presumably added. (Scott v. Driver 2007 CarswellOnt 4572 at paragraph 8).
22Leaving aside the pre-condition that John Doe Contractor had to be unknown to Ferreira, Oliveira might have suspected that the plaintiff was pointing at him when the claim alleged that John Doe Contractor failed to take reasonable care when conducting the Work or should have known that he was working too close to unprotected combustible materials. However, he could not have been sure that the plaintiff meant him when the plaintiff went on to allege that John Doe Contractor had retained servants, agents and employees and had failed to train those individuals. Just as the plaintiff argues that it was not reasonable for Oliveira to consider Crus to be John Doe Contractor as Crus did not retain “agents, employees or servants”, Oliveira could read the claim to exclude him as John Doe Contractor on the same basis that he did not retain “agents, employees or servants”.
23The plaintiff points to Oliveira’s transfer of his property to his daughters shortly after receiving the claim as evidence that he knew he was the John Doe Contractor being sued. I find that it is equally probable that he would not have transferred the property to his daughters had he known he was being sued as he had legal advice that any transfer in the face of a claim would be void. He was alerted to the fact that he may need to protect his personal assets against any future claims, not against claims of which he was aware at the time of the transfer.
24I find that this is not a case where Oliveira would have read the statement of claim and determined that “of course it must mean me, but they have got my name wrong.” I find that instead Oliveira could not reasonably “tell from the document itself whether they mean me or not and I shall have to make inquiries”. In fact, I find it unlikely that Oliveira would even have been put on inquiry given he did not meet the precondition of being unknown to the plaintiff.
25Oliveira also raises the issue of election. As it stands, were the plaintiff to succeed on this misnomer motion, he would have two actions against Oliveira for exactly the same relief and arising from exactly the same circumstances – the within action and the Ferreira 2015 action. The essence of the doctrine of election is that a person is precluded from exercising a right that is inconsistent with another right if he has consciously and unequivocally exercised the latter (Charter Building Company v 1540957 Ontario Inc. 2011 ONCA 487 at paragraph 15). Oliveira argues that Ferreira has already unequivocally elected to commence an action against him, the Ferreira 2015 action. Having elected to sue him in that action, the plaintiff cannot also sue now him in this action on the very same grounds.
26In the matter of Toronto Dominion Bank v. Shuter, the defendants sought to amend their defence to add a counterclaim against the plaintiff. The defendants, however, already had a separate action underway against the Toronto Dominion Bank that made exactly the same allegations as the proposed counterclaim. The court held that it would be an abuse of process to permit the amendment. Section 138 of the Courts of Justice Act states that, as far as possible, multiplicity of legal proceedings shall be avoided. What the responding party sought in Shuter, and here, by opposing the motion, was to avoid a situation where there are two actions seeking the same relief against the same party. As the court noted, “It is trite law to state that no amendment should be permitted that could be successfully attacked on a Rule 21 or Rule 25 motion” (paragraph 40). Here Rule 21.01(3)(c) would permit Oliveira to move before a judge to have this action stayed or dismissed on the ground that the Ferreira 2015 action was pending between the same parties in respect of the same subject matter.
27Had it been necessary, I would have adopted the court’s conclusion in Shuter that “what is proposed amounts to an abuse of process in that it completely duplicates what is already before the court. That cannot be permitted. On that basis, the motion is dismissed.” The plaintiff still has his claim against Oliveira in his Ferreira 2015 action which he can pursue but he cannot pursue him in two actions for the same claim.
Trial Together
28The only party opposing an order for trial together and for common documentary and oral discoveries and mediation is Crus. At present Crus is named in only one of the three actions, the Ferreira 2015 action, and opposes being caught up in more complex proceedings. In every other respect these actions merit trial together. (7744455 Canada Inc. v. Lick’s Franchising Inc. 2013 ONSC 6967). The claims have questions of fact and law in common as they arise from the same occurrence. The issues are interwoven, the witnesses are the same, the lawyers are the same and most of the parties are the same. There is a risk of inconsistent findings on causation of the fire if the actions are not tried together. The actions are at the same stage and the motion for trial together was brought early in the proceedings such that all the actions will benefit from common discoveries. The damages claimed by the Costas and Ferreira as homeowners will be different but that issue can be dealt with, if necessary, by the trial judge.
29Crus is a defendant in one action and a key witness in the other two as he was one of two people who did work on the roof structure. Common discoveries and a trial together will not significantly lengthen the proceedings for Crus given the considerable overlap of the factual and legal issues.
30Crus also takes the position that he wishes to bring a motion for summary judgment which may be complicated by an order for common discoveries. He could not provide an example of how his anticipated summary judgment motion would be prejudiced by the order sought. Even if there were some prejudice to Crus in a trial together, it is outweighed by the overall benefit in savings of time and costs to all parties and the court.
31I hereby order that actions CV-14-505501, CV-15-533161 AND CV-14-505755 be tried together and that there be common documentary and oral discoveries and mediation.
Case Management
32As to the case management request, the failure of counsel to reach reasonable agreements on scheduling to date does not meet the test for a matter to be assigned to case management under Rule 77.05(4). There are only three law firms involved, three or four real parties, no issue of public importance, this being a claim for negligence and damages resulting from a fire, and no anticipated court intervention beyond what is usual in a contested action. While the parties have had their challenges moving their matters forward, the requirement under Rule 29.1 that they agree to a discovery plan should ensure that the common discoveries can proceed in an agreed upon and timely fashion. Accordingly, I decline to make an order that the actions be case managed.
Costs
33Oliveira shall have his partial indemnity costs in the amount $9,500 inclusive of HST and $1,824.38 for disbursements inclusive of HST for a total costs award of $11,324.38.
Master Jolley
Date: 23 October 2017