COURT FILE NO.: Court File No.: CV-16-553275
MOTION HEARD: 20180202
REASONS RELEASED: 20180621
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
GABRIEL KHOURY and DIANA RAMGOBIN
Plaintiffs
- and-
SCOTTISH AND YORK INSURANCE
COMPANY LTD. and JOHN DOE
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Bob Jones Fax: 416-727-5868
for Moving Plaintiffs
Rachel Jadd Fax: 416-367-1820
for Defendant Scottish and York
Christopher D. Deeley Fax: 1-844-374-5923
for the Proposed Defendants,
REASONS RELEASED: June 21, 2018
Reasons for Decision
Preamble
[1] Several years ago I considered the appropriate approach to technical procedural attacks in Brand Name Marketing Inc. v. Rogers Communications Inc., 2010 ONSC 2892; 196 A.C.W.S. (3d) 42; 2010 CarswellOnt 9548. There I expressed these views regarding amendments sought to a statement of claim:
83 Litigation ought not to be practiced on a "gotcha" basis. Here, the defendants clearly are alleged to have received and used [the plaintiff’s] ideas, as well information was provided directly or indirectly by predecessors of the entity that started this action. I do not believe that it will enhance the public's appreciation of our judicial system in circumstances such as this case if the court bars a plaintiff from proceeding with a “Pink Phone” related claim being advanced, at least beyond the present stage.
84 I believe that equity dictates that if a defendant knows that the "finger of litigation" is pointing in its direction, and an action is commenced on a timely basis, based on specific actions, this court ought to take appropriate steps to ensure that the true lis between the parties is addressed, rather than permitting one party to perhaps escape its possible liability by relying upon a technical Limitations Act defence.
[2] Now, a number of years later I have been asked to consider a factual situation that is quite “close to the line” with respect to the failure to properly name appropriate defendants at the time a personal injury action was commenced.
I. Factual Situation
[3] This action arises out of a motor vehicle accident that occurred on June 30, 2014, involving the Plaintiff Gabriel Khoury who was the driver, Diana Ramgobin the owner of the vehicle.
[4] Within a month of the accident, the plaintiffs consulted and retained their present legal firm with respect to injuries they suffered in the collision.
[5] The original statement of claim did not identify the operator or owner of the vehicle that came into collision with the Plaintiffs’ vehicle and instead claimed against the Defendant Scottish and York on the basis of the plaintiffs’ own unidentified driver coverage.
[6] Now, almost two and a half years after the Statement of Claim was issued naming John Doe as a defendant the plaintiff seek to replace that one party with the Proposed Defendants, Manuel Pereira and Trio Roofing Systems Inc. on the basis of a misnomer in the original pleading.
[7] It is alleged by counsel for the Proposed Defendants that they will suffer prejudice if the Plaintiffs' motion to add them as Defendants is granted, at this point in time.
[8] The elements of the accident from the plaintiffs’ perspective is set out in an affidavit sworn by the principal lawyer in the plaintiff’s law firm:
The Plaintiffs' motor vehicle was travelling south on Mccowan Road in the curb lane and turning right into a driveway to a Canadian Tire parking lot located just north of Sheppard Avenue in the City of Toronto in the Province of Ontario. Suddenly and without a warning, an unidentified motor vehicle traveling south on Mccowan Road in the adjacent lane collided with the Plaintiffs' motor vehicle as it attempted to overtake it and turn right into the same driveway.
[9] The proposed defendants claim that the Plaintiffs' vehicle rear-ended their motor vehicle and fled the scene. It is further asserted that: “The Proposed Defendant Manuel Pereira, did have knowledge of the identity of the Plaintiff as he was given the license plate number from a tow truck driver who witnessed the accident and saw the Plaintiffs flee the scene of the accident.”
[10] The evidence before me was that the Proposed Defendant Manuel Pereira reported the accident to the police June 30, 2014. Apparently the plaintiffs also reported the accident, but had no information as to the relevant details relating to the other vehicle.
[11] The Toronto Police Service combined the information from both parties and put the information on a printed motor vehicle report, dated June 30, 2014.
[12] Counsel for the proposed defendants asserts that the plaintiffs have provided:
“…no proof of ever writing to the Toronto Police Service for the complete police file as would be the reasonable step for Plaintiffs’ counsel to do prior to issuing a Statement of Claim. [Neither]The Plaintiffs nor the Plaintiffs' law firm made attempts or inquiries to the police to obtain any information from the police….”
II. Inactivity
[13] The following extracts from the factum filed in opposition to this motion set out the concerns raised by Travelers, the insurer for the proposed defendants:
“12. The Plaintiffs counsel's office received an email from Aviva Insurance Company informed them that the third party insurer was Travelers Insurance and gave the Plaintiffs a policy number on August 23, 2016. The Plaintiffs took no steps over the next twelve months to obtain any further information of the identity of the Proposed Defendants or notify the Proposed Defendants' insurer, Travelers Canada.
The Plaintiffs did nothing with this information and failed to do the proper investigation to identify the unidentified motorist.
The Plaintiffs did not write to Travelers Insurance within the next 12 months of obtaining the Insurance information from Aviva Insurance Company of the potential unidentified motorist.
It took almost three years for the Plaintiffs to finally write to the Toronto Police Service and did so May 17, 2017. I am told that the Plaintiffs received the self-collision report naming Manuel Pereira as the other driver involved in the accident and this occurred on May 30, 2017.
It wasn't until August 30, 2017, when the Plaintiffs law firm asked for a requisition for a short motion or application that they took any positive steps to add the Proposed Defendants in this matter.
The Proposed Defendants were not served with this proposed notice of motion until sometime in and around the dated letter sent by regular mail dated September 19, 2017. I do not have a copy of the Affidavit of Service. I do verily believe that this is the first notice the Proposed Defendants (and its insurer) had of this action.
The Plaintiffs failed in doing any reasonable searches for the identity of the Proposed Defendants. Even after they had the information of the. Proposed Defendants they waited more than 12 months to bring a motion to add the Proposed Defendants.”
[14] In particular the Proposed Defendants assert that the Plaintiffs have lead no evidence to rebut the presumption of prejudice to the Proposed Defendants.
[15] In contrast they assert that the Proposed Defendants will be prejudiced in their ability to defend the claim in a number of ways:
• It has not received the following productions which are necessary to determine liability for, and causation of, injuries and damages as a result of the June 30, 2014. Further, the Plaintiffs have provided no evidence that the relevant records identified below are preserved and available. These documents are especially necessary in light of the significant quantum sought ($500,000.00 in general damages and $500,000.00 in special damages plus interest and costs):
i. Clinical notes and records of all treating medical practitioners pre and post-accident;
ii. All clinical notes and records of the family physician pre and post-accident;
iii. All hospital records pre and post-accident;
iv. Prescription printouts pre and post-accident;
v. Wage loss particulars, including but not limited to income tax returns;
vi. Availability of witnesses by lay persons and treating physicians;
vii. Confirmation that the Plaintiff applied for Accident Benefits and a copy of the file;
viii. Complete employment file(s) including but not limited to performance reviews, disciplinary measures, attendance sheets;
ix. WSIB file and LTD file (if applicable);
x. Ambulance call report, if any; and, Police field notes, witness statements, arising out of the subject motor vehicle accident.
• The Proposed Defendants opportunity to obtain a defence medical has been delayed and there have been no medical records produced to permit a review. As well these Defendants have lost their “ability to conduct a timely defence medical in order to assess the Plaintiffs alleged injuries and complaints in relation to the subject motor vehicle accident.”
• With respect to any income loss claim, the Proposed Defendants have lost the opportunity to conduct a timely vocational assessment to determine in what capacity the Plaintiffs could work. “This prejudices the Proposed Defendants ability to limit the Plaintiffs income loss claim to the date of the assessment.”
• They have lost their ability to conduct timely surveillance of the Plaintiffs which is said to prejudice the Proposed Defendants in their ability to assess the Plaintiffs general damages claim.
• The pre accident health histories of the Plaintiffs are relevant. A decoded OHIP summary can only be requested back from seven years from the date of the request. This would mean only limited medical histories could be confirmed.
[16] There is little in the evidence before me to justify and reasonable explain the failure of members of the Plaintiff’s law firm to identify and sue, on a timely basis, the defendants now sought to be added. In fact these extracts from the material filed by the plaintiffs includes these admissions on the firm’s apparent state of knowledge after the second anniversary of the accident:
On July 16, 2016, my law clerk, Mr. Ha Vu, sent an email correspondence to Ms. Nassis [the bodily injury claims adjuster at Scottish & York]enclosing a copy of the Plaintiffs' self-reporting collision report and independent witness statement
On July 20, 2016, Ms. Nassis sent an email to Mr. Vu requesting any information we had regarding the identity of the "at-fault" party.
On July 21, 2016, Mr. Vu sent a reply email to Ms. Connie Nassis informing her that we were not in possession of any information with respect to the unidentified at-fault party.
On August 23, 2016, Ms. Nassis sent an email to Mr. Vu advising that the unidentified third party appeared to be insured by Travelers Insurance but did not provide the name or address of the unidentified motorist.
[17] Mr. Vu further advised at that time that a “senior law clerk”, was now handling this matter and would respond accordingly.
[18] Apparently “through inadvertence or oversight she did not see Mr. Vu's email of August 23, 2016 until sometime in June of 2017 when she was reviewing the status of the file.”
[19] The saga continues:
25 On October 20, 2016, our firm wrote to the Plaintiffs’ insurer requesting a copy of the property damage file with respect to the accident.
On January 19, 2017, our firm wrote again to the Plaintiff's insurer requesting a copy of the property damage file as we had yet to receive it.
On May 17, 2017, our firm wrote to Toronto Police Services requesting a complete copy of the motor vehicle accident report relating to the June 30, 2014 accident.
[20] Thus three years after the accident it appears the first request for the police report was made. Nevertheless I believe the law of Ontario, as established by the Court of Appeal, directs this court ought to take appropriate steps to ensure that the true lis between the parties is addressed, rather than permitting one party to perhaps escape a possible finding of liability for the plaintiffs’ injuries.
III. Is Alleged Prejudice Relevant to this Motion?
[21] I am satisfied that possible prejudice due to late addition of the specific defendants does not constitute adequate grounds to block the amendments sought. The Proposed Defendants’ insurer was well aware of the accident from the outset and was in a position to obtain much of the information they now raise as concerns.
[22] In 2015, the Ontario Court of Appeal provided specific guidance in Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236; 2015 ONCA 889.direction as to the proper approach to such cases. The panel consisting of Justices Weiler, Pardu and Benotto gave brief but clear
1 On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period: Kitcher v. Queensway General Hospital (1997), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589 (C.A.), at paras 1 and 4;Lloyd v. Clark, 2008 ONCA 343, 44 M.P.L.R. (4th) 159, at para. 4.
2 In this case, after the appellant's successful misnomer motion substituting the name of the respondent for John Doe, the respondent successfully brought a motion for summary judgment on the grounds that he was not sued until after the expiry of the limitation period and that the appellant plaintiff did not exercise due diligence in identifying the true defendant.
3 We held that the jurisprudence governing misnomer governed and that in the circumstances, summary judgment ought not to have been granted.
[23] The plaintiff was a pedestrian pedestrian struck by a motor vehicle operated by the respondent on June 8, 2006. The appellant wrote down the respondent's license plate number, insurance policy and driver's license information on a single page in a notebook. The appellant then went to the hospital and, while there, gave the page in his notebook to the police officer investigating the accident, “believing it would be returned to him or that he would receive a copy of the accident report containing the respondent's information.”
[24] On June 20, 2008, the appellant filed a Statement of Claim identifying the defendant as "John Doe" because he had no independent recollection of the driver.
[25] On November 25, 2011, Master Muir made an Order granting the appellant leave to amend his Statement of Claim to substitute the respondent for "John Doe". The respondent did not attend on the motion.
[26] Subsequently, the respondent brought a motion for an order dismissing the appellant's claim on the grounds that it was brought after the expiry of the two-year limitation period.
[27] The Court of Appeal’s reasons provide this summary of the prior case history:
C. DECISION BELOW
14 The motion judge granted the respondent's motion on the basis that the appellant did not exercise due diligence and did not take all reasonable steps to identify the respondent within the two-year limitation period.
15 The motion judge found that the information and the identity of the respondent were both available and discoverable to the appellant since the date of the accident: June 8, 2006. While the appellant had taken some steps to ascertain the respondent's identity, it did not amount to the due diligence required of him. For example, one and a half years after being retained, the appellant's counsel sent an "urgent" request to TPS for information regarding the accident and respondent driver. When none was forthcoming, it would have been open to the appellant to bring the same motion to compel production of the TPS file as the respondent's insurer did. The motion judge rejected the appellant's argument that the motion amounted to a re-litigation of his unopposed motion before Master Muir, since they were "fundamentally different issues".
16Accordingly she granted summary judgment and dismissed the action.
[28] The reasons “By the Court” then provide this Analysis:
17 The respondent submits that this is not a true case of misnomer because the actual name of the respondent had been ascertained by the appellant on the day of the accident.
18 This submission ought to have been made by the respondent before Master Muir on the misnomer motion. Generally, a litigant is prevented from raising a matter that should have been the subject of a previous proceeding between the same parties.
19 If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff's solicitor's file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply.
20 The respondent's motion for summary judgment was an indirect attack on the motion for misnomer. It would be a waste of money, time, energy and judicial resources to allow the correct defendant to be added on a motion for misnomer and then to allow a motion for summary judgment on the basis that the correction was made after the expiry of the limitation period. The law does not countenance such impracticality. The law treats the naming of the correctly named defendant as a substitution for the incorrectly named defendant and not the addition of a new party or the initiation of the action against the correctly named defendant. [my emphasis]
[29] Accordingly, the action was allowed to proceed against the correct defendant.
[30] More recently the decision in Stechyshyn was referred to in the Court of Appeal’s decision in Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773, [2017] O.J. No. 1944, 2017 ONCA 321, 2017 CarswellOnt 5650, 277 A.C.W.S. (3d) 848, ,138 O.R. (3d) 129. There Justice R.J.Sharpe considered whether a statement of claim improperly naming a trade union as a defendant, contrary to the Rights of Labour Act, R.S.O. 1990 c. R.33, s. 3(2), may be amended after the expiry of the governing limitation period by obtaining a representation order to make individual co-defendants, already named, representatives of the members of the trade union local.
[31] There the appellants placed particular reliance on Pal v. Powell (2009), 2009 CanLII 6630 (ON SCDC), 303 D.L.R. (4th) 601 (Ont. Div. Ct.). In that case, the plaintiff sued several union members for personal injuries allegedly sustained during an encounter with a picket line of striking workers. After the two-year limitation period had expired, the plaintiff sought a representation order pursuant to r. 12.07 to permit the claim to be advanced against the individual defendants on behalf of all members of the union. The Divisional Court allowed an appeal from the representation order granted by the motion judge, holding that the effect of the order was "really to add the Union because all the members become subject to the results of the action" and that new parties could not be added after the limitation period had expired (para. 14).
[32] Justice Sharpe however noted:
“26 In my view, Pal is distinguishable on the ground that, in that case, the union was not initially named as a defendant. The action proceeded against individual union members and it was only after the limitation period expired that an attempt was made to add the union by way of a representation order. In the present case, however, the union was named as a party from the outset. It was improperly named, no doubt, but named nonetheless.
27 I agree with the motion judge that, as an unincorporated association, a union is "the sum of its members". …. I agree with the motion judge that the request for a representation order in this case could properly be characterized as a request to "correct the name of a party incorrectly named" within the meaning of r. 5.04(2). …. In my view, this brings the case squarely within the principle articulated by this court in Lloyd v. Clark, 2008 ONCA 343, [2008] O.J. No. 1682, at para. 4:
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 [citations omitted].
See also Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236, at para. 20.” [my emphasis]
[33] Thus the Court of Appeal seems to have given clear instructions that a misnomer should not lead to the party being denied an opportunity to have its actions determined on the merits.
[34] However, there may be ambiguity as to how broad use of a misnomer can be utilized in order to achieve the style of cause, which reflects the actual parties involved.
IV. Disposition
[35] In this case, the plaintiff was involved in a motor vehicle accident in 2014 and he apparently sought legal advice within a month of the accident, but there does not appear to have been a concerted effort to determine the particulars of the accident and more specifically, the identity of the other driver involved in the accident.
[36] As a consequence, the action was originally started as if there was an unknown driver with the result that the plaintiff’s own coverage for “unknown driver” accidents was triggered. That coverage is limited in terms of the insurer’s potential liability only for the statutory minimum.
[37] While it is arguable that it is within the purview of a master, on a motion such as this, to determine that an almost total lack of effort to identify the other driver may give rise to a prejudice which ought not to be tolerated by granting an amendment at this stage.
[38] Having considered the positions in this specific case of at bar, and applying proportionality to the overall fact situation, I am satisfied that this is a case where the plaintiffs ought not to be denied potential access to the proposed defendant’s insurance coverage.
[39] The proposed defendant advised its insurer at the time of the accident. They had the ability to enquire and investigate with respect to this accident at the time.
[40] There is an additional issue to be addressed. Can one John Doe cover misnomers of two different entities, the owner and the driver?
[41] The Statement of Claim describes John Doe as the owner and operator. The bar appears in several recent cases to feel the need to list “John Doe 1” through to “John Doe 10” and similar arrays of Jane Does and Doe Corporations in order to cover a variety of multiple unknown defendants.
[42] In my view a defined category of defendant can be encompassed by a single placeholder (e.g. Physician Doe or Nurse Doe).
[43] Thus my conclusion in this case is that the amendment to add Manuel Pereira and Trio Roofing Systems Inc. in place of John Doe should be allowed. This amendment is without prejudice to the ability of these defendants to raise a Limitations Act defence.
[44] The plaintiffs are being allowed a significant indulgence which in no way was the responsibility of the now added defendants.
[45] As a consequence I do feel that the plaintiff should be denied interest on any ultimate recovery from the date of the accident until June 30, 2018, and so order.
[46] In the circumstances I have determined that there will be no Order as to costs.
Released: June 21, 2018
Master D. E. Short
DS/ R212