Court File and Parties

COURT FILE NO.: CV-15-538598 MOTION HEARD: 2018-07-25 REASONS RELEASED: 2018-11-09

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

FEDERICKA MITCHELL Plaintiff

• and-

JOHN DOE and JANE DOE Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Michael Kealy, Agent for counsel for Moving Plaintiff Keenan Sprague, for proposed Defendant, M. Gilmour

REASONS RELEASED: November 9, 2018

Amended Reasons for Decision

I. Preamble

[1] This motion brought 2018 to amend the original title of proceedings in the statement of claim issued in 2015 to reflect the correct name of the defendant driver.

[2] 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:

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.

[3] Now, once again, 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 the appropriate defendant at the time a personal injury action was commenced.

[4] In doing so, I once again am guided by the overarching provisions of rule 1.04:

INTERPRETATION General Principle 1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Proportionality (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

II. The Accident

[5] This rear-end motor vehicle accident occurred on October 13, 2013 at the intersection of Clark Boulevard and Airport Road in Brampton. Following the collision, the plaintiff called her husband who attended the scene and spoke with the defendant at the accident scene.

[6] Following the accident, the proposed defendant, Melissa Mitchell, attended a Self-Reporting Collision Centre. In a 2018 cross-examination relating to this motion, the plaintiff acknowledged that while she was him at the Self-Reporting Collision Centre, the plaintiff filled out a report which included the particulars of the defendant's identity and signed same.

[7] Counsel for the defendants asserts that this “admission made during cross-examination”, puts to rest any suggestion that the plaintiff did not know, nor could have reasonably known, the identity of the defendant when the accident occurred on October 18, 2013.

[8] Before the accident, the plaintiff was a corporate client consultant in a call centre. She deposed during cross-examination that she did not return to work after the accident due to her injuries and stayed off work due to those injuries for nearly three years, returning to work on August 29, 2016.

[9] The defence asserts that this admission demonstrates that the plaintiff knew that her injuries were serious. “Indeed, the plaintiff retained counsel, Ryan Naimark, in February 2014, approximately 4 months following this accident.”

[10] Notwithstanding that relatively early consultation, it appears that no steps were taken with respect to commencing an action until two year anniversary of the accident was approaching. My experience is that many of the cases coming before me reflect a similar pattern of waiting until the extent of the actual consequences of an accident can be better identified and assessed.

[11] Regrettably Murphy’s Law seems to have been exemplified in the handling of this claim from that point forward.

III. Handling of Case

[12] Mr. Naimark’s then firm was retained by the plaintiff in February 2014, he had been a partner at the firm for approximately ten years.

[13] He now believes he was the lawyer who first met with the plaintiff in February 2014, but he does not specifically remember that meeting. There is no evidence corroborating if Mr. Naimark met with the plaintiff personally.

[14] The evidence before me was that, at his original firm, and later at Naimark Law, the procedure was that the law clerk would request the police report, would draft the Statement of Claim and the lawyer would approve it for issuance.

[15] Mr. Naimark conceded during cross-examination that the failure of his office to obtain the self-reporting collision centre report was an error. He further conceded that no lawyer approved this action before it was issued.

[16] The evidence before me indicates that on the two year anniversary of the accident, Mr. Naimark's then law clerk, having not obtained the self-reporting collision centre file, issued a claim in October 2015 against John Doe and Jane Doe.

[17] The law clerk did not come to Mr. Naimark to advise him about this issue. Nor is there any evidence that she advised any lawyer in Mr. Naimark's firm.

[18] Mr. Naimark deposed that his firm has changed its handling protocol because of this file. Now, a lawyer must sign the draft Statement of Claim before a cheque is issued for issuance of the claim.

[19] In October 2016, Mr. Naimark's office discovered that, in another claim, the same clerk had issued a claim against a John Doe defendant under similar circumstances. Mr. Naimark called the employee who by that time no longer worked for the firm, and the clerk advised that she issued the claim against John Doe because she did not have the police report. She advised that she did this “maybe on another file”.

[20] The defendant’s summary of the subsequent steps asserts that notwithstanding the fact that the clerk advised Mr. Naimark of the other John Doe file (this action) in October 2016, Mr. Naimark's office did not identify this file until January 2017.

[21] Mr. Naimark's explanation as to why it took until January 2017 to locate this file, after having been alerted to its existence in October 2016, was that he was busy in November, away from work for a good part of December, and because there were possibly 2000 claims to search.

[22] Besides issuing the Statement of Claim in October 2015, there is no evidence of any work carried out on the file until January 2017.

[23] On April 9, 2017, the defendant was served with a new claim, which named her explicitly, after which she obtained counsel through her insurer. This second claim made no reference to the first claim naming John and Jane Doe as defendants.

[24] The Notice of Motion to correct the misnomer in this action was not served until on or about November 20, 2017. The motion record is dated February 12, 2018. The original Doe claim had never been served on the defendant before these times.

[25] It is obvious that the counsel retained by the plaintiff failed on numerous occasions to take the appropriate steps to launch and maintain a claim to recover the damages flowing from the subject motor vehicle accident.

[26] This situation was clearly created through no fault of the plaintiff. In such circumstances what is the appropriate manner in which to seek the just, most expeditious and least expensive determination of this civil proceeding on its merits?

IV. Applicable Rules

[27] Pleading amendments that involve the adding, deleting, substituting or correcting the name of a party invokes Rules 26.01 and 5.04(2) of the Rules of Civil Procedure:

GENERAL POWER OF COURT 26.01 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.

Adding, Deleting or Substituting Parties 5.04 (2) 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.

[28] On a misnomer motion, the court must determine: (a) Whether there exists a misnomer? The defendant concedes that the plaintiff satisfies this first prong. (b) Whether the court should exercise its discretion under Rule 5.04(2) to refuse the amendment?

[29] The defendant submits that the court should use its broad discretion to refuse the amendment, on the exceptional facts of this case.

[30] The test for misnomer is well established. The test is whether a reasonable person, in all of the circumstances of the case and looking at the document as a whole, would say to herself, “of course it must mean me, but they have got my name wrong”.

[31] Not all misnomers are the same. The case law recognizes classic misnomers, such as minor spelling mistakes, and cases that go beyond classic misnomers.

[32] Understandably the defendant asserts that this case in not a classic case of misnomer.

[33] They argue that the plaintiff “has deliberately used a fictitious name as a placeholder for a future motion to amend in a blatant attempt to avoid the application of the Limitations Act, 2002.”

[34] The question I must thus address is whether the overarching requirement of seeking to have cases resolved “on the merits” established by the Rules, will support granting the relief now sought on behalf of the plaintiff.

V. Defendant’s Position

[35] The defendant submits that Loblaw Properties Limited v. Turner Fleischer Architects Inc., 2017 ONSC 6127 at para 34 and Wolfe v. Wyeth, 2013 ONSC 7867, [2013] O.J. No. 5877 (ONSC) at para. 54 are authorities for the proposition that the analysis does not end once the plaintiff establishes a case of misnomer. Under Rule 5.04(2), the court retains discretionary power to refuse the amendment.

[36] As well their factum asserts:

“The misnomer jurisprudence refers to the discretion provided by Rule 5.04(2) as "residual discretion". Given the development of the misnomer jurisprudence in Ontario, it is submitted that the use of the word "residual" as a qualifier to "discretion", has become a kind of misnomer in and of itself. The word "residual" may be interpreted as "small" or "residue", almost an afterthought to the initial and more important question of misnomer.”

[37] I accept their submission that in Ormerod v. Ferner, 2009 ONCA 697, 97 O.R. (3d) 321, the Court of Appeal made clear that in cases involving non-classic misnomers, like this one, the discretion to refuse an amendment is wide. There the court held that more factors are to be considered than prejudice alone:

[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 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.

[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.

[38] As a consequence counsel asserts that the prejudice inquiry is not limited to considering whether any party has disappeared or if any of the records have been lost:

“The inquiry also extends to considering whether the defendants have lost an opportunity to carry out an early investigation of the claim, as well as the inherent prejudice of effectively commencing a claim against an unsuspecting defendant years after the expiry of the presumptive Limitations Act period.”

[39] While I appreciate these concerns I am not satisfied that they were applicable in the present case. I observe that the headnote in Ormerod deals with the substitution with the correct doctor’s name years after the event and reads in part:

The motion judge found that this was a case of misnomer and that the delay in bringing the motion was not a reason for refusing the amendment as the treating doctor suffered no prejudice other than the passing of time. The motion was granted. The defendants appealed.

Held, the appeal should be dismissed.

The treating doctor and the named doctor had the same insurer. Upon receiving the claim, the insurer would have had no doubt that the plaintiffs intended to claim against the emergency doctor who treated the deceased on the occasion in question. The insurer would have known or could easily have ascertained who that doctor was. The treating doctor's representatives and the treating doctor herself would have known that the litigating finger pointed at her. The motion judge did not err in finding that this was a case of misnomer. A motion judge has a broad discretion to refuse to correct a misnomer. There was no reason to interfere with the motion judge's exercise of that discretion in favour of the plaintiffs.

[40] Before me the proposed defendant also submitted that prejudice is also recognized where litigation against a defendant commences after the Limitations Act where the defendant had no notice of a potential claim. In a recent case, Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534 (affirmed Bertolli v. Toronto (City), 2018 ONCA 60), Justice Lederer held that the Master erred in concluding that the target defendants would know that the Statement of Claim would apply to them. In his reasons for decision, Justice Lederer noted that the prejudice inquiry is not limited to considering whether any of the parties have disappeared or any of the documents have been destroyed or lost.

[41] However, Justice Lederer in that case also observed:

[36] To my mind the pointing of the litigation finger that marks a misnomer has to be clear and definite not held together through a series of assumptions about what the person reading the Statement of Claim might know as a result of a letter written months if not years before.

[37] The determination of the Master is not the application of the facts he found to the law as established. Rather it changes the law. It would, if accepted, significantly change the relationship of the party to be named to the events leading up the issuance of the Statement of Claim. The relationship present here reflecting as it does on a Statement of Claim that points to an accident at a different location (the same street but in a different municipality) and relying on an assumption that the relationship would nonetheless be apparent to anyone who read the Statement of Claim because of a letter written nearly two years earlier is too tenuous to allow for the presence of a litigation finger pointing in the right direction. It would bring the doctrine close, (as I see it too close) to allowing for a pure substitution of one party for another in the presence of the expiry of the applicable limitation period. [my emphasis throughout]

[42] In my view, the extent of the details of the present action known by the defendant are much more precise in the present case.

[43] My colleague Master Muir also dealt with a misnomer request in Mohabir v. Mohabir, 2014 ONSC 5484. There he concluded:

[24] Finally, it is my view that the doctrine of misnomer should not be used as a means to avoid the application of a limitation period. There are important public policy considerations supporting limitation periods. At some point a proposed defendant should be free from having to account for past obligations when arranging his or her affairs. A proposed defendant should not be required to preserve relevant evidence for an unlimited period of time. Limitation periods promote the early resolution of civil disputes. See Zapfe v. Barnes, [2003] O.J. No. 2856 (C.A.) at paragraphs 19 and 20.

[44] In my view the facts in the present case differ significantly because the parties knew of each other’s identifies and of the collision from the outset. The plaintiff relied on her counsel to move the case forward.

[45] It would seem in the present case that three years after the accident 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 potential finding of liability for the plaintiff’s injuries.

VI. Is Alleged Prejudice Relevant to this Motion?

[46] I am satisfied that possible prejudice due to late substitution of the appropriate defendant does not constitute adequate grounds to block the amendment sought. The defendant’s insurer had every opportunity to be well aware of the accident from the outset and was in a position to obtain much of the information (virtually from the date of the accident) they now raise as concerns.

[47] 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 reasons:

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.

3 We held that the jurisprudence governing misnomer governed and that in the circumstances, summary judgment ought not to have been granted.

[48] 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".

16 Accordingly she granted summary judgment and dismissed the action.

[49] 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]

[50] Accordingly, the action was allowed to proceed against the correct defendant.

[51] 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 ONCA 321, [2017] O.J. No. 1944, 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.

[52] In their submissions the appellants placed particular reliance on Pal v. Powell (2009), 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).

[53] However, Justice Sharpe in considering that submission 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]

[54] 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.

[55] 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.

[56] Ultimately I feel that the possible alteranative available to the plaintiff of seeking recovery for her counsel for the termination of her personal injury claim on procedural grounds is to practically deny her any recovery, through no fault of her own.

[57] Justice Laskin’s observations, if anything are more salient now then when he expressed them in Finlay v. Van Paassen, 2010 ONCA 204, 2010 CarswellOnt 1543, [2010] 0.J. No. 1097, 101 O.R. (3d) 390, 186 A.C.W.S. (3d) 675, 266 0.A.C. 239, 318 D.L.R. (4th) 686:

32 A judge who refuses to set aside a dismissal order will naturally be concerned that the effect of the refusal will be to deprive an innocent party of its day in court. To protect the claim of the innocent party, the judge will often raise the possibility of a negligence action against the party's own lawyer. Although perhaps understandable, I do not find this helpful. Speculation about whether a party has a lawsuit against its own lawyer, or the potential success of that lawsuit, should not inform the court's analysis of whether the registrar's dismissal order ought to be set aside.

33 In my view, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. As Sharpe J.A. noted in Marche at para. 28, [Marche d'Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd., 2007 ONCA 695; 2007 CarswellOnt 6522; 47 C.P.C. (6th) 233; 247 O.A.C. 22; 286 D.L.R. (4th) 487; 87 O.R. (3d) 660] “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor.” Sharpe J.A. went on to recognize that the situation may be different where the lawyer's conduct is not inadvertent but deliberate. In the case before us, however, the conduct of Finlay's law firm was not deliberate, which affords a further basis to call into question whether the motion judge's decision was just: see Chiarelli v. Wiens, [2000 CarswellOnt 280 (Ont. C.A.)]; Gao v. de Keyser (2008), 61 C.P.C. (6th) 89 (Ont. Div. Ct.) at para. 27. [my emphasis]

VII. Disposition

[58] 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 plaintiff ought not to be denied an opportunity to prove her case and to have potential access to any available insurance coverage.

[59] The plaintiff’s motion to substitute Melissa Gilmour for “Jane Doe” and to file an Amended Statement of Claim is therefore granted.

[60] The plaintiff is being allowed a significant indulgence which in no way was the responsibility of the now properly identified defendant.

[61] In the circumstances I have determined that the resisting defendant is entitled to her fees of this motion fixed at $2500 inclusive of HST payable, not by the plaintiff, but by her counsel’s firm, within 60 days.

Released: November 9, 2018 Master D. E. Short

DS/ R237