Livska v. Molina, 2018 ONSC 4701

Court File and Parties

COURT FILE NO. : CV- 13-472868 MOTION S HEARD : 201 80731 REASONS RELEASED : 201 80817

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

LESIA LIVSKA Plaintiff

- and-

AMALIA MARIA J. MOLINA and MY APARTMENT MISSISSAUGA Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Marek Z. Tufman & Gregory Tufman -counsel for the Plaintiff

S.Lawrence Liquornik -counsel for Amalia Molina

Baktah Waseil -counsel for the Defendant My Apartment

Harley Zysman for Francesca Molina

REASONS RELEASED: August 17, 2018

Reasons for Judgment

I. Background

1In January of 2011, the plaintiff Lesia Livska went to a bar which was operated by the defendant general partnership, with the somewhat unusual name of “My Apartment”.

2The original Notice of Action issued in January of 2013, was followed by a Statement of Claim which sought damages against the owners of bar and an individual, Amalia Maria J. Molina, whom the original pleading alleged had assaulted the plaintiff.

3In particular the Statement of Claim indicated that:

“Without any provocation on the Plaintiff’s part, Molina broke a “Corona” beer bottle and with it she attacked the Plaintiff, severely injuring the plaintiff and causing her substantial permanent damage to her face and body.”

4The claim was served upon the defendant operator, but the plaintiff encountered difficulty locating the alleged perpetrator of the assault.

5Master Abrams made an order in December 2013, providing for substituted service of the claim and jury notice by mail addressed to Amalia’s last known address together with publication of a notice in the Toronto Star.

6No defence was filed at that time by Amalia. Nevertheless it appears she was not noted in default at that point.

7I am advised that subsequently another address was obtained. An affidavit of service, dated September 9, 2014, deposes that the process server effected service “by leaving a copy with Amelia J Molina personally” at an address in Toronto. The affidavit goes on to state “I was able to indentify the person by means of her verbal identification.”

8It appears that the plaintiff’s counsel failed to note the individual defendant in default on a timely basis. As a consequence an order was obtained from Master Dash on June 26, 2015 extending the time for service, nunc pro tunc, to the date of service on September 8, 2014, and validating the service at that point in time.

9Subsequently Amelia was noted in default for failure to file a defense but no motion for a default judgment was brought.

II. Criminal Proceeding

10A criminal charge arising out of this altercation was laid against the defendant Amelia by Peel Regional Police. The related trial appears to have been scheduled for late 2015.

11In August 2016 Master McAfee made an order for production of the materials related to the trial of the Amelia. My impression is that there was no conviction recorded, in part as a result of the apparent similarity of the two Molina sisters. They were both at the bar and have very similar appearances, such that liability of Amelia could not be established beyond a reasonable doubt.

12The affidavit filed on behalf of the plaintiff deals with the proposed added defendant in these terms:

Francesca Molina

“16. Although I knew that Amelia Molina had a sister and that her sister was somehow involved, I had no idea what was the sister’s name. We only have found out the name of the sister or her other particulars when my lawyers received the Crown disclosure through the defendants lawyers. …”

13Notwithstanding the plaintiff noted the defendant Amelia in default, but did not proceed to seek a default judgment. Similarly the bar owner did not note the co-defendant in default with respect to its cross-claim.

14So what we have here is an individual who asserts she was injured and traumatized as a result of an altercation in a bar. The individual she sued originally was the individual identified by the police and charged with the assault. The plaintiff now seeks to add the other sister as a defendant over 5 years after the altercation.

III. Approach

15Rule 1.04 dictates that matters should, where possible, be resolved on the merits.

16In the present case, the defendant Amelia has been noted in default. In the motions before me, her counsel seeks to have that noting in default set aside, if the restaurant’s motion to have the action dismissed is unsuccessful, or if I grant an Order to extend the time for setting the action down for trial.

17Prior to the argument of most of the motions. I advised counsel that in my view, having regard to the entire history of this matter, the time for setting the matter down ought to be extended.

18That being the case, my view is that the fairest solution is to allow the entire matter to proceed to trial.

19I have therefore established a new set down date of June 30, 2019, with the usual understanding that any party can set the matter down for trial earlier.

20I am setting aside the noting in default with respect to Amelia. She will have an opportunity to defend as she is now part of the action and a new pleading is forthcoming from the plaintiff.

21That new pleading will allow for the notional addition of Francesca as a defendant. In recent days I have had to address a number of misnomer situations, having regard to the Court of Appeal’s positions with respect to the applicability of limitation periods where there has been a misnomer of a potential defendant.

IV. Caselaw

22I am satisfied that possible prejudice due to late addition of this defendant does not constitute adequate grounds to block the amendments sought. The proposed defendant was well aware of the incident from the outset and was also aware of the plaintiff’s claims regarding harm suffered by her.

23In 2015, the Ontario Court of Appeal provided specific guidance in Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236; 2015 ONCA 889, as to the proper approach to such cases. The panel consisting of Justices Weiler, Pardu and Benotto gave brief but clear reasons holding that the jurisprudence governing misnomer governed and that in the circumstances, summary judgment ought not to have been granted. The panel observed:

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), 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.

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".

16 Accordingly she granted summary judgment and dismissed the action.

24The 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]

25Accordingly, the action was allowed to proceed against the correct defendant.

V. Disposition

26There have been cases that allow one placeholder to be replaced by two defendants. That in effect, is what I am allowing here. As I regard the originally named individual defendant, Amelia as having been intended to reflect and describe the person or persons who were responsible for the physical injuries apparently suffered by the plaintiff.

27I am making these orders without prejudice to any ability of Francesca to raise a limitation defence at trial. In this case, it seems to me that particularly in light of the outcome of the criminal trial and the defence raised. Both sisters were well aware of the claim and that it would be contrary to equity and the direction of the Rules to prevent either or both, to walk away from any potential liability they may have to the plaintiff, by virtue of the difficulty in distinguishing between the two women, who acknowledge that they were both present in the bar on the night in question.

28I am satisfied that there is no real prejudice suffered by the added defendant. In effect we now have everybody at table.

29As a result, I am making an order setting aside the noting in default with respect to Amelia and an order adding Francesca Molina as a defendant.

30The set down date is extended to June 28, 2019.

31All that being said, it seems to me that the plaintiff is being given yet another indulgence in this litigation, and extremely belatedly.

32In the circumstances there will be no order as to the costs of any party.