MARTIN v. DOE, 2017 ONSC 6955

Court File and Parties

COURT FILE NO.: CV-16-125976 (NEWMARKET) MOTION HEARD: 2017 11 16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lavern Delores Martin v. John Doe and Aviva Insurance Company

BEFORE: MASTER R.A. MUIR

COUNSEL: Victoria Polyakevich for the plaintiff/moving party Lawrence Conmigo for the proposed defendants/responding parties

REASONS FOR DECISION

1This is a motion brought by the plaintiff pursuant to Rules 5.04(2) and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting her leave to amend her statement of claim. The plaintiff seeks to add or substitute two new defendants, being the driver and owner of a motor vehicle involved in an accident on March 14, 2014. The proposed new defendants are opposed.

BACKGROUND

2The accident took place near the intersection of Steeles Avenue West and Petrolia Road in the city of Toronto. There are significant differences between the reports provided by the two drivers of the vehicles involved. However, it appears that the accident happened after both vehicles exited a parking lot and headed east along Steeles Avenue West. The vehicles came into contact somewhere near Petrolia Road. Heated words were exchanged. Driver information was not exchanged.

3The plaintiff was a passenger in one of the vehicles. That vehicle was driven by Trevor Thompson. The Thompson vehicle was owned by Claudette Barton. The other vehicle was operated by the proposed defendant Jeffrey Walton. The Walton vehicle was owned by the proposed defendant Marvin Rosenshein.

4Mr. Thompson made a report at the collision reporting centre on March 14, 2014. Mr. Walton made a report on March 15, 2014, at which time he also obtained a copy of Mr. Thompson’s report.

5At some point the plaintiff retained her current lawyers to make a claim on her behalf. The exact date of the retainer is not in evidence. The affidavit evidence from the plaintiff’s lawyer states that the plaintiff did not know the name of the other driver but she did provide her lawyer with a copy of Mr. Thompson’s accident report shortly after the initial retainer meeting. Unfortunately, the copy of the report the plaintiff provided to her lawyer was incomplete and did not identify the other driver.

6It appears that nothing else was done to identify the other driver between the time of the accident and the commencement of this action on March 14, 2016, exactly two years after the accident.

7The plaintiff named the other driver as a John Doe defendant. The plaintiff also named Ms. Barton’s insurer, Aviva Insurance Company (“Aviva”), as a defendant.

8Again, it appears that nothing was done to identify the John Doe driver in the months after the statement of claim was issued. It was not until the plaintiff’s lawyer received an email message from Aviva on February 1, 2017 that the other driver was identified as Mr. Walton.

9Several more months went by while the plaintiff’s lawyers attempted to obtain contact information for Mr. Walton from Aviva. On July 12, 2017, the plaintiff’s lawyers received the necessary information and then brought a motion seeking leave to amend the statement of claim. That motion was dismissed, without prejudice, by Master Brott on August 16, 2017. Apparently, the notice of motion only sought to add Mr. Walton as a defendant but the proposed amended pleading also included the owner, Mr. Rosenshein. There is also a reference in Master Brott’s endorsement to the plaintiff bringing a further motion to add both parties as defendants “with proper affidavit evidence”.

10The plaintiff then brought this motion, first returnable on October 19, 2017. It was adjourned on consent and ultimately heard by me on November 16, 2017.

THE PARTIES’ POSITIONS

11The plaintiff takes the position that leave should be granted to amend the statement of claim and add or substitute the additional defendants.

12First, the plaintiff submits that the two year limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act”) has not yet expired based on the principle of discoverability. The plaintiff argues that she made reasonable efforts to identify the driver of the other vehicle. She was unable to do so within the presumptive limitation period despite the exercise of reasonable diligence. She did not learn the name of the other driver until February 1, 2017. The plaintiff takes the position that this is the date the claim against the proposed defendants was discovered.

13Second, the plaintiff submits that the proposed amendments should be permitted on the basis of the doctrine of misnomer. The plaintiff argues that a reasonable person reading the statement of claim would know that the proposed defendants were the intended defendants.

14The proposed defendants take the position that the plaintiff has not provided sufficient evidence that would allow her to rely on the principle of discoverability. The proposed defendants also submit that the doctrine of misnomer is not applicable to the facts on this motion. Finally, the proposed defendants argue that they will be prejudiced if the proposed amendments are permitted at this time.

ADDING PARTIES AFTER THE EXPIRY OF THE PRESUMPTIVE LIMITATION PERIOD

15The Court of Appeal has held that the passing of a limitation period is fatal to a motion to add parties and amend a pleading under Rule 5.04(2). The prohibition arises immediately after the second anniversary of the day the claim was discovered. See Arcari v. Dawson, 2016 ONCA 715 at paragraph 7; leave to appeal refused, [2016] SCCA No. 522. The former doctrine of special circumstances no longer applies. See Joseph v. Paramount Canada's Wonderland, 2008 ONCA 469 at paragraphs 27 and 28.

16The relevant provisions of the Limitations Act provide as follows:

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

Basic limitation period

4. 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.

Discovery

5. (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).

Presumption

(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.

17Section 5(2) is important. A person with a claim is presumed to have the required knowledge on the day the event took place unless the contrary is proved. In this case the plaintiff is presumed to have that knowledge on March 14, 2014. The presumptive limitation period would therefore expire on March 14, 2016.

18Rule 5.04(2) is also applicable. It provides as follows:

(2) Adding, Deleting or Substituting Parties - 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.

19The approach the court must follow on a motion of this nature is well summarized in Arcari at paragraph 10:

When a plaintiff's motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff's motion (Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648, [2006] O.J. No. 5042 (C.A.), at paras. 18, 19, 24).

20At paragraph 15 of Arcari the Court of Appeal states as follows:

[I]t is incumbent upon the plaintiff to lead some evidence of the steps he or she took to ascertain the identity of the responsible party and provide some explanation as to why the information was not obtainable with due diligence before the expiry of the limitations period.

21I have applied these factors and principles to the facts before me on this motion. In my view, the plaintiff has failed to provide a reasonable explanation as to why she could not have discovered the identity of the other driver before the expiry of the presumptive limitation period through the exercise of reasonable diligence.

22The only evidence purporting to demonstrate reasonable diligence appears to amount to simply reading the incomplete copy of the accident report filed by Mr. Thompson. Mr. Walton was not identified on that copy of the report. The plaintiff and her lawyers then did nothing by way of further investigation until they were contacted by Aviva in February 2017, 11 months after the expiry of the presumptive limitation period. The plaintiff’s lawyers followed up with Aviva in the months after receiving this information but even then they took no other independent steps to attempt to confirm the identity of the other driver.

23The evidence on this motion shows that the plaintiff could have taken steps to attempt to identify Mr. Walton. Mr. Walton was given a copy of Mr. Thompson’s report when he filed his report. The plaintiff and her lawyers could have made inquiries of the Toronto Police Service in an attempt to do the same with respect to Mr. Walton’s report. There is no evidence of any such inquiries.

24Moreover, the evidence shows that Mr. Thompson knew the licence plate number of the vehicle Mr. Walton was driving. At the time he filed his accident report, Mr. Thompson also completed a “Fail to Remain Collision Form” on which the plate number of the Walton vehicle was recorded. At the very least, the plaintiff and her lawyers could have made inquiries of Mr. Thompson in an effort to obtain additional information. There is no evidence of any such efforts.

25It is incumbent on a plaintiff to lead some evidence of the steps taken to ascertain the identity of an allegedly responsible party. The evidence shows that the plaintiff did nothing other than reading the copy of the incomplete accident report she had in her possession. After realizing the report did not contain the name of the other driver, the plaintiff appears to have done nothing other than wait until a third party identified the other driver many months later. Additional inquiries may or may not have identified Mr. Walton but it was incumbent on the plaintiff to at least make a reasonable effort. In my view, the plaintiff’s evidence with respect to discoverability is insufficient to meet the test set out in Arcari. I am not prepared to grant leave to amend the statement of claim on the basis of discoverability.

MISNOMER

26The plaintiff also relies on the doctrine of misnomer in support of the relief she is seeking on this motion.

27The law relating to misnomer has been carefully considered in recent years by the Court of Appeal. See Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital, 2009 ONCA 697 and Spirito v. Trillium Health Centre, 2008 ONCA 762. Misnomer requires a finding that the litigation finger be clearly pointed at the intended defendant. Would a reasonable person receiving and reviewing the statement of claim, in all the circumstances of the case, and looking at it as a whole, say to himself or herself “of course it must mean me, but they have got my name wrong”? The Court of Appeal adopts this test at paragraph 12 of Spirito, where the court states as follows:

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

28It must also be noted that even if a plaintiff is successful in establishing misnomer, the court retains a residual discretion under Rule 5.04(2) to refuse the proposed substitutions. This part of court’s analysis on a motion like this one is described by the Court of Appeal in Ormerod 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., 207 D.L.R. (4th) 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.

29At 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.

30While the authors refer only to "adding" parties, the permissive "may" 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.

31As 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 application 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.

32The 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.

29Paragraph 32 of Ormerod makes it clear that prejudice to the proposed substituted defendants is the most important factor on this part of the analysis. Prejudice is also an important consideration based on the clear language of Rule 5.04(2).

30I have applied these principles to the circumstances of this motion. There are no allegations specific to the owner of the unidentified vehicle in the statement of claim as it presently exists. The statement of claim does not allege that John Doe driver was also the owner of the unidentified vehicle. There are no allegations of negligence on the part of the owner of the unidentified vehicle. The owner of the other vehicle is not described at all in the present version of the statement of claim other than by way of a generic reference in one paragraph dealing with Aviva. The doctrine of misnomer can have no application to Mr. Rosenshein.

31Mr. Walton has given evidence that he would not have identified himself as the unidentified driver simply by reading the statement of claim. He points to certain discrepancies in terms of how the accident happened, the make of his vehicle and the driver of the Thompson vehicle. I do not accept that position. The location and date of the accident are the same as the location and date of the accident Mr. Walton was involved in. The driver of the Thompson vehicle is mistakenly identified as Ms. Barton. However, Mr. Walton had in his possession an accident report that contained a statement describing the accident and identifying Ms. Barton as the owner of the Thompson vehicle. He knew that Ms. Barton had some involvement with the matter. The similarities far outweigh the differences. In my view, a reasonable person reading the statement of claim as a whole in these circumstances would have to conclude that Mr. Walton was the intended John Doe.

32That conclusion, however, does not end the analysis. The court retains a residual discretion to deny leave to amend in appropriate circumstances.

33The proposed defendants have clearly raised the issue of prejudice in their responding evidence. The plaintiff is making a significant claim for damages. She alleges permanent and serious injuries throughout her body. The plaintiff also alleges serious psychological injuries. The plaintiff is seeking additional damages for loss of income and loss of competitive advantage in the workplace. The proposed defendants make specific reference in their evidence to the absence of medical and employment related records. The plaintiff’s reply evidence is silent in response to those concerns. The only evidence from the plaintiff in respect of prejudice is a bald statement by her lawyer to the effect that the proposed defendants will not be prejudiced. There are no statements that relevant evidence has been preserved and that witnesses are available. There is no direct evidence from the plaintiff on this motion. It is not known whether the plaintiff is available to be examined for discovery or to attend a defence medical examination. In addition, Mr. Walton was not aware of this claim until July 2017, more than three years after the accident. He has been denied the opportunity to conduct an early investigation of the matter.

34This is not a situation involving a “classic” misnomer as described by the Court of Appeal in Ormerod. This is broader than a minor spelling error in a claim issued and served in a timely manner. The court is therefore entitled to take a wider view of its discretion to refuse to correct the misnomer. In my view, it was incumbent on the plaintiff to provide at least some specific evidence to address the issue of prejudice and the other factors that may be considered by the court in the exercise of its discretion. The plaintiff has failed to do so. I am therefore not prepared to grant leave to amend the statement of claim and substitute defendants on the basis of misnomer.

CONCLUSION

35The plaintiff’s motion is therefore dismissed. If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing. The proposed defendants shall deliver their submissions by December 18, 2017. The plaintiff’s submissions shall be delivered by January 8, 2018. Any reply submissions from the proposed defendants shall be filed by January 15, 2018. These costs submissions may be sent directly to me by email.

Master R.A. Muir