COURT FILE NO.: 15-53747 (Hamilton) DATE: 20181219 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ISOBEL KOZEY Plaintiff – and – CANADIAN TIRE CORPORATION o/a CANADIAN TIRE, CANADIAN TIRE REAL ESTATE, LIMITED o/a CANADIAN TIRE, KENILWORTH AVENUE INVESTMENT INC., CENTRE MALL HOLDINGS INC. RIOCAN HOLDINGS INC. and OAKRDIGE GROUP INC. Defendants

Counsel: Adam J. Huff, for the Plaintiff Sean Gibson and Geoff Phelan, for the proposed defendant, Broadleaf Landscaping & Snow Removal Inc.

HEARD at Hamilton: September 27, 2018

R. A. Lococo J.

REASONS FOR DECISION

I. Introduction

[1] In July 2015, the plaintiff commenced a personal injury action against Canadian Tire Corporation and certain other defendants. The claim was based on an alleged trip-and-fall incident outside a Canadian Tire store in Hamilton in February 2014. The original Statement of Claim states in error that the incident occurred outside the Canadian Tire store on Upper James Street.

[2] In March 2017, the plaintiff obtained leave to amend the Statement of Claim, including to add certain defendants. The Amended Statement of Claim correctly states that the trip-and-fall incident occurred outside the Canadian Tire store on Barton Street East.

[3] In January 2018, the plaintiff brought a motion for leave to further amend the plaintiff’s claim, including to add two additional defendants, Broadleaf Landscaping & Snow Removal Inc. and Triovest Realty Advisors Inc. Broadleaf and Triovest were the maintenance contractor and the property manager (respectively) of the Barton Street store.

[4] Broadleaf opposes the motion, arguing that the plaintiff’s claim against it is statute barred. Triovest takes no position on the motion.

[5] For the reasons below, I am granting the motion to add Broadleaf and Triovest as defendants.

A. Background

[6] There is no significant dispute as to the facts relating to the plaintiff’s motion, as set out in affidavits in the parties’ motion materials. The affiants were not cross-examined on their affidavits.

[7] The plaintiff Isobel Kozey says that she sustained personal injuries when she tripped and fell on February 26, 2014, outside the Canadian Tire store on Barton Street East, near her home in Hamilton. She retained a lawyer, who brought an action on her behalf in July 2015. Her lawyer’s notes indicate that the incident occurred outside the Canadian Tire store on Upper James Street. The original parties to the action included the property owner, the lessee and the maintenance contractor for the Upper James Street store. The plaintiff’s lawyer identified those parties through inquiries before commencing the action. The Defendant Oakridge Group Inc. was identified as the maintenance contractor.

[8] In June 2016, Ms. Kozey changed lawyers. Ms. Kozey advised her new lawyer that the trip-and-fall incident occurred outside the Barton Street store. Her lawyer ascertained (by parcel registry search) that Kenilworth Avenue Investment Inc. and Centre Mall Holdings Inc. were the owner and the lessee (respectively) of those premises. In September 2016, Ms. Kozey’s lawyer wrote to Kenilworth and Centre Mall, notifying them that Ms. Kozey intended to commence an action against them. There was no response to that letter.

[9] Also in September 2016, the law firm representing the plaintiff on the current motion (“plaintiff’s motion counsel”) was retained to bring a motion for leave to amend the original Statement of Claim, including to add Kenilworth and Centre Mall as defendants. In November 2016, plaintiff’s motion counsel wrote to the lawyer representing Canadian Tire and the dealer for the Barton Street store, seeking information with respect to other possible defendants, including any maintenance contractors. The lawyer responded that his clients did not know the identity of those possible defendants. The motion materials also indicate that by November 2016, Triovest and Broadleaf were aware of the plaintiff’s claim relating to the Barton Street store through their respective insurers or insurance adjusters.

[10] Plaintiff’s motion counsel brought the previous motion to amend the Statement of Claim in December 2016. Kenilworth and Centre Mall did not file responding material. Parayeski J. granted the motion on an unopposed basis by order dated March 28, 2017. That order (together with the Amended Statement of Claim) was served on Kenilworth and Centre Mall on or about April 4, 2017.

[11] On September 25, 2017, the plaintiff was served with the Statement of Defence and Crossclaim of Kenilworth and Centre Mall. That document pleads that Broadleaf was “at all material times contracted for the maintenance services of the Premises, including but not limited to snow and ice removal.” The plaintiff was not aware of Broadleaf or its role prior to that time.

[12] On January 12, 2018, plaintiff’s motion counsel brought the current motion for leave to further amend the plaintiff’s claim, including to add Broadleaf as a defendant in place of Oakridge. The plaintiff’s motion was served on Broadleaf the following day.

[13] Plaintiff’s motion counsel subsequently learned from Broadleaf’s counsel that Broadleaf’s snow maintenance agreement relating to the subject premises was with Triovest, described in the agreement as the “owner” of the premises. Triovest was subsequently confirmed to be the property manager for the Barton Street store. The plaintiff’s motion was amended to add Triovest as an additional defendant along with Broadleaf.

B. Position of the parties and matters to be determined

[14] The court’s authority to add a party to an action is found in r. 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits the court, on just terms, to add, delete or substitute a party, or correct the name of an incorrectly-named party, unless non-compensable prejudice would result. As well, r. 26.01 provides that on motion the court “shall grant leave to amend a pleading”, once again on just terms and with the same exclusion as in r. 5.04(2).

[15] In support of her position that Broadleaf and Triovest should be added as defendants, the plaintiff argues that the low evidentiary threshold required by applicable case law has been met in this case. She relies in particular on the recent Ontario Court of Appeal decision in Mancinelli v. Royal Bank of Canada, 2018 ONCA 544.

[16] Triovest filed a motion record responding to the plaintiff’s motion, but did not file a factum or appear at the motion hearing. Plaintiff’s motion counsel advised that Triovest is not taking a position on the motion. On an unopposed basis, I am prepared to grant the plaintiff leave to amend the Amended Statement of Claim to add Triovest as a defendant, as set out in the draft Amended Amended Statement of Claim included in the plaintiff’s Amended Motion Record.

[17] Broadleaf opposes the plaintiff’s motion, arguing that the plaintiff’s claim against Broadleaf is statute barred. According to Broadleaf, the expiry of the limitation period constitutes non-compensable prejudice, precluding Broadleaf from being added as a defendant. Broadleaf also relies on s. 21 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[18] In response, the plaintiff says that the limitation issue or other non-compensable prejudice does not preclude adding Broadleaf as a defendant since (i) the evidentiary record is sufficient to establish a triable issue as to whether the plaintiff’s claim against Broadleaf was discoverable within two years prior to bringing this motion, (ii) no other non-compensable prejudice would result from adding Broadleaf, and (ii) the court is entitled to rely on the principle of misnomer to add Broadleaf as a defendant in substitution for Oakridge. According to the plaintiff, the court should grant leave to add Broadleaf as a defendant, without prejudice to Broadleaf’s pleading a limitation defence.

[19] In light of the foregoing, the issues to be determined are as follows:

1. Limitation period: Has the limitation period expired, precluding Broadleaf’s addition as a defendant?
2. Other non-compensable prejudice: Is there other non-compensable prejudice that precludes Broadleaf’s addition as a defendant?
3. Misnomer: Does the principle of misnomer permit Broadleaf’s addition as a defendant in substitution for Oakridge?

[20] I will address each of these issues in turn.

II. Limitation period

[21] Has the limitation period expired, precluding Broadleaf’s addition as a defendant?

A. Legal principles

[22] As previously noted, the court’s authority to add a party to an action or correct the name of an existing party is found in r. 5.04(2) of the Rules of Civil Procedure. Subrule 5.04(2) provides that “the court may by order add, delete or substitute a party or correct the name of a party incorrectly names, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” Because of the use of the word “may” in r. 5.04(2), it is clear that the court’s authority to add a party or correct a party’s name is discretionary, with the onus being on the moving party to justify the amendment. However, the Ontario Court of Appeal indicated in Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy) (2006), 83 O.R. (3d) 648 (C.A.), at para. 14, “the threshold on such a motion is low”.

[23] As well, r. 26.01 provides that on motion the court “shall grant leave to amend a pleading” (emphasis added), once again on just terms and with the same exclusion as in r. 5.04(2). That rule is expressed in mandatory terms, requiring the court to grant leave to amend a pleading on just terms in the absence of non-compensable prejudice. However, in Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19, the Court of Appeal interpreted the court’s authority under that rule as follows: “Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate”.

[24] In response to the plaintiff’s motion, Broadleaf raises the limitation period as a bar to the requested order. According to Broadleaf, the expiry of the limitation period constitutes non-compensable prejudice, precluding Broadleaf’s addition as a defendant. Broadleaf also relies on s. 21 of the Limitations Act, which provides as follows:

21 (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceedings.

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

[25] As indicated by the Ontario Court of Appeal in Arcari v. Dawson, 2016 ONCA 715, 134 O.R. (3d) 36, at para. 7, leave to appeal refused, [2016] S.C.C.A. No. 522, the effect of s. 21(1) is that “the clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing action ….”

[26] Sections 4 and 5 of the Limitations Act provide the basic limitation period for Ontario actions. Under s. 4, a proceeding in respect of a claim shall not be commenced more than two years after the claim was discovered. Under s. 5(1), a claim is discovered on the earlier of (a) the day on which the claimant first knew of an actionable claim for a loss arising from the act or omission of the person against whom the claim is made (clause 5(1)(a)), and (b) the day a reasonable person ought to have known of the matters giving rise to the claim (cl. 5(1)(b)). Under s. 5(2), a claimant shall be presumed to have known of the matters giving rise to the claim on the day that the act or omission on which the claim is based took place unless the contrary is proved.

[27] Subject to the presumption in s. 5(2) (discussed further below), a claim is discovered under cl. 5(1)(a) based on the claimant’s actual knowledge of the matters set out in that clause. By way of contrast, a claim is discovered under the objective test in cl. 5(1)(b) based on what the claimant “first ought to have known”, acting reasonably, whether or not the claimant actually turned his or her mind that the matters giving rise to the claim. A claim that meets the objective test in cl. 5(1)(b) is often referred to as being “discoverable”.

[28] Previous court decisions have considered the issue of reasonable (or due) diligence as it relates to the objective test in cl. 5(1)(b) and the presumption in s. 5(2). When considering whether the objective test in cl. 5(1)(b) is met, it is relevant to consider what steps the claimant ought to have taken to discover the matters giving rise to the claim against the other party (see Pepper, at para. 16). For this purpose, the onus is on the claimant to provide evidence by way of affidavit to show that the claimant took reasonable steps to discover the potential claim or to explain why no steps were taken (see Pepper, at paras. 20-22).

[29] By way of contrast, as the Court of Appeal noted in Fennell v. Doel, 2016 ONCA 249, at para. 26, the presumption that arises under s. 5(2) is a presumption of actual knowledge of the matters giving rise to the claim as set out in cl. 5(1)(a). There is no onus on the claimant to “show due diligence to rebut the presumption in s. 5(2)”. To overcome the presumption, the claimant must only prove that he or she did not actually know of the matters giving rise to the claim as set out in cl. 5(1)(a). Therefore, the failure to take reasonable steps is not, in and of itself, a reason to dismiss a claim as statute barred (see Fennell, at paras. 18 and 24).

[30] In Mancinelli, the Court of Appeal recently considered the discoverability principle in the context of a motion to add parties to an action after the apparent expiry of the limitation period. At para. 25, the court confirmed that the low evidentiary threshold that must be satisfied in order to add parties to an action applies equally in circumstances “where the motion is opposed … based on the apparent expiry of any statutory limitation period subject to the discoverability principle”. The Mancinelli decision also provides general guidance for such motions, helpfully summarized by Master McGraw in Mohawk Ford Sales (1996) Ltd. v. Jewiss, 2018 ONSC 5253, at para. 31, as follows:

In Mancinelli, the Court of Appeal provided the following guidance and clarification with respect to opposed pleadings motions on the basis of the apparent expiry of a limitation period:

i.) if a plaintiff does not raise any credibility issue or issue of fact about when its claim was discovered that would merit consideration on a summary judgment motion or a trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim by exercising reasonable diligence, the motion judge may deny the motion (para. 23)

ii.) the evidentiary threshold to be met by a plaintiff is low and whether the plaintiff and its counsel acted with reasonable diligence must be considered in context (para. 24);

iii.) in considering whether the plaintiff has provided a reasonable explanation as to why they could not have identified the party (or cause of action), the explanation is to be given a generous, contextual reading (para. 27);

iv.) a plaintiff's failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground to find a claim out of time, rather, the reasonable steps a plaintiff ought to take is a relevant consideration in deciding when a claim is discoverable under s. 5(1)(b) (para. 30);

v.) where the issue is due diligence, the motion judge will not be in a position to dismiss the plaintiff's motion in the absence of evidence that the plaintiff could have obtained the requisite information with due diligence, and by when the plaintiff could have obtained such information, such that there is no issue of credibility or fact warranting a trial or summary judgment motion (para. 31);

vi.) the same approach and the same low threshold is warranted where the motion is opposed based on the apparent expiry of any statutory limitation period subject to the discoverability principle (para. 25).

B. Analysis

[31] The plaintiff brought her motion to add Broadleaf on January 12, 2018. By reason of s. 4 of the Limitations Act (and working backwards), her claim against Broadleaf would be statute barred if she “discovered” it before January 12, 2016: see Mancinelli, at paras. 15-16.

[32] Applying s. 5 of the Limitations Act to the facts set out previously, the state of the plaintiff’s knowledge of her claim against Broadleaf may be summarized as follows:

1. The plaintiff’s claim against Broadleaf arose on February 26, 2014, the date of the alleged trip-and-fall incident. For purposes of cl. 5(1)(a), the plaintiff is presumed by s. 5(2) to have known of the claim on that date unless the contrary is proved.
2. The plaintiff did not have actual knowledge of the claim against Broadleaf before September 25, 2017, when Kenilworth and Centre Mall served their Statement of Defence and Crossclaim (responding to the Amended Statement of Claim). In that document, Broadleaf is identified as the maintenance contractor for the Barton Street premises. Therefore, the presumption of knowledge on an earlier date under s. 5(2) has been rebutted.

[33] Given the foregoing, the plaintiff’s claim against Broadleaf would be statute barred only if her claim was “discoverable” before January 12, 2016, that is, if the plaintiff “first ought to have known” of her claim against Broadleaf before that date: see Mancinelli, at para. 19. Therefore, the issue to be determined is whether the plaintiff had a reasonable explanation on proper evidence as to why she could not have discovered her claim against Broadleaf before January 12, 2016: see Mancinelli, at para. 20.

[34] The plaintiff says that applying the low evidentiary threshold referred to in Mancinelli (at paras. 24-25), she has a reasonable explanation as to why should she could not have discovered her claim against Broadleaf before that date. Her counsel argues that in order to determine when the plaintiff “first ought to have known” of her claim against Broadleaf, it was appropriate to consider the timing of what actually happened once steps were taken to correct the error relating to the store location, and to infer that similar timing would have applied had the store location mistake not occurred.

[35] In particular, the plaintiff argues that even if the correct Canadian Tire store had been named in the original Statement of Claim in July 2015, Broadleaf’s existence would not have been discovered until Kenilworth and Centre Mall defended the action. That is evident from the fact that Kenilworth and Centre Mall did not respond to correspondence from plaintiff’s counsel or respond to the court proceedings against them until several months after they were served with the Amended Statement of Claim (when they filed their defence). It is therefore reasonable to conclude that the plaintiff would not have known about Broadleaf before early 2016, which is within two years prior to bringing the motion to add Broadleaf as a party.

[36] The plaintiff also relies on Mancinelli, at para. 31, where the court indicated that where the issue on the motion is due diligence, the motion judge will not be in a position to dismiss the plaintiff's motion “in the absence of evidence that the plaintiff could have obtained the requisite information with due diligence, and by when the plaintiff could have obtained such information, such that there is no issue of credibility or fact warranting a trial or summary judgment motion”. The plaintiff says Broadleaf has not pointed to any other steps that the plaintiff could have taken to discover Broadleaf as a potential defendant.

[37] Broadleaf disputes the plaintiff’s contention that in order to determine when Broadleaf first ought to have known about the plaintiff’s claim against it, it is appropriate to draw an inference from the extended response time of the owner and lessee of the correct Canadian Tire location once plaintiff’s counsel made them aware of the plaintiff’s claim against them. Broadleaf says that it was pure speculation (rather than a permissible inference) that based on the timing of Kenilworth/Centre Mall’s actual response, they would not have made the plaintiff aware of Broadleaf’s role as the maintenance contractor before early 2016 had they been named as defendants in the original Statement of Claim in July 2015. To support Broadleaf’s position that its identity and role were discoverable within the presumptive limitation period, Broadleaf’s counsel cites (among other things) the correct naming of Oakridge as the maintenance contractor for the (erroneously-named) Upper James location in the original Statement of Claim within 18 months of the slip-and-fall incident. According to Broadleaf, if the court were to draw the inference the plaintiff seeks, the result would be to visit on Broadleaf the consequences of the plaintiff’s (or her lawyer’s) mistake as to the store’s location in the original Statement of Claim. In Broadleaf’s submission, that mistake does not qualify as a reasonable explanation for why the plaintiff could not have discovered her claim against Broadleaf before January 2016. Broadleaf says that it would otherwise be unjustifiably denied the protection the Limitations Act affords defendants by rectifying the plaintiff’s mistake (or that of her lawyer) under the guise of discoverability.

[38] I disagree with Broadleaf’s position. I agree with plaintiff’s counsel that applying the low evidentiary threshold confirmed in Mancinelli (at paras. 24-25), the plaintiff has a reasonable explanation as to why should she could not have discovered her claim against Broadleaf before January 12, 2016. In particular, I agree that it is appropriate to draw the inference that had the Barton Street store been correctly named (and the appropriate parties sued) in the original Statement of Claim, the plaintiff would not have identified Broadleaf as the maintenance contractor for the Barton Street store before early 2016. Accordingly, it is appropriate to conclude (for the purpose of this motion) that there is a triable issue as to whether the plaintiff’s claim against Broadleaf was discoverable prior to that time. I also agree that there was no evidence that the plaintiff could have identified Broadleaf and its role with due diligence by that time. Therefore, consistent with Mancinelli, at para. 31, it would not be appropriate for me to definitively determine the discoverability issue at the pleading stage.

[39] With respect to the latter point, I am not assisted by the fact that the plaintiff’s original counsel was able to identify the correct maintenance contractor for the Upper James store within 18 months of the slip-and-fall incident, as Broadleaf argued. In my view, the actual timing of the response by the owner and lessee of the Barton Street store once plaintiff’s counsel made them aware of the plaintiff’s claim (as opposed to the plaintiff’s experience with respect to the parties relevant to the Upper James location) provides a more cogent basis for determining the discoverability issue relating to Broadleaf.

[40] As well, I do not agree that in adding Broadleaf as a defendant, Broadleaf would be unjustifiably denied the protection the Limitations Act affords defendants. The order will make it clear for greater certainty that adding Broadleaf as a party is without prejudice to Broadleaf’s pleading a limitation defence in its response to the plaintiff’s claim. It will therefore be open to Broadleaf to rely on that defence at trial in the context of a full evidentiary record. I include the qualifier “for greater certainty” since I would have thought it would be open to Broadleaf to plead that defence even without an express term addressing that issue.

III. Other non-compensable prejudice

[41] Is there other non-compensable prejudice that precludes Broadleaf’s addition as a defendant?

[42] Broadleaf argued that even if I found a triable issue that the plaintiff’s claim against Broadleaf was discoverable within two years prior to the plaintiff’s motion, I should dismiss the plaintiff’s motion to add Broadleaf because of other non-compensable prejudice arising from the delay that would result from adding Broadleaf as a defendant. Broadleaf says that such prejudice is present in this case because of unexplained gaps in the plaintiff’s medical records, Broadleaf’s inability to locate a former employee who plowed the Barton street parking lot, and the inability of Broadleaf’s owner or other employees to preserve relevant records or remember the condition of the parking lot at the time of the slip-and-fall incident.

[43] I am not satisfied that the evidence justifies refusing to add Broadleaf as a defendant on the basis of other non-compensable prejudice. The plaintiff’s evidence indicates that appropriate steps have been taken to preserve the plaintiff’s medical records. Any alleged gaps in the plaintiff’s records would be addressed in the ordinary during the discovery process rather than at this stage. I also note that Broadleaf was aware of the plaintiff’s claim relating to the Barton Street store (through its or Triovest’s insurers or insurance adjusters) by November 2016, well before the plaintiff was aware of Broadleaf’s identity and role, providing them with an earlier opportunity to take steps to investigate the claim and preserve any relevant records. As well, as the Court of Appeal indicates in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 694, at para. 25, there must be a causal connection between the non-compensable prejudice and the proposed amendment to the claim adding the defendant. The evidence does not establish a causal connection in this case.

[44] Accordingly, I am satisfied that an order should issue adding Broadleaf as a defendant, with leave to Broadleaf (to the extent required) to plead a limitation defence in its response to the plaintiff’s claim.

IV. Misnomer

[45] Does the principle of misnomer permit Broadleaf’s addition as a defendant in substitution for Oakridge?

[46] Since I have already concluded that Broadleaf should be added as a party independent of the principle of misnomer, it may be considered unnecessary for me to address that question in these reasons. However, since counsel addressed that issue during their submissions, I will provide some brief comments.

[47] As previously noted, in addition to permitting a party to be added to an action, r. 5.04(2) permits the court to correct the name of a party that has been incorrectly named in a pleading, in the absence of non-compensable prejudice. As well, s. 21(2) of the Limitation Act permits the correction of a misnaming or misdescription of a party after the expiry of a limitation period, despite the prohibition in s. 21(1) against adding a person as a party to existing proceedings after the expiry of the limitation period for a claim against that person.

[48] In their submissions, the parties both referred to the test for determining whether the naming of a party constituted a “misnomer” that was capable of being corrected by reason of s. 21(2) as the “litigating finger” test, a term used by the Ontario Court of Appeal in Spirito v. Trillium Health Centre, 2008 ONCA 762, 246 O.A.C. 150, at para. 5. However, the scope of the test as it applies in this case is a matter of some dispute between the parties.

[49] In Ormerod v. Ferner, 2009 ONCA 697, 97 O.R. (3d) 321, at para. 11, the Ontario Court of Appeal refers to the traditional formulation of the test that the English Court of Appeal articulates in Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672, at p. 676, as follows:

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 me a misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they meet me or not and I shall have to make inquiries". Then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.

[50] In Ormerod, at para. 21, the court went on to indicate the more expansive current approach to the “litigating finger” test in Ontario, as set out in Lloyd v. Clark, 2008 ONCA 343, 52 C.P.C. (6th) 41, at para. 4. In that case, the court describes the authority to correct a misnomer as follows:

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.]

[51] Broadleaf’s counsel argues that the “litigating finger” could not be said to be pointing to Broadleaf at the time the original Statement of Claim was issued in July 2015. The original claim states that the slip-and-fall incident occurred at the Upper James location. In these circumstances, there is no basis upon which Broadleaf would conclude from that document that the reference to Oakridge as the maintenance contractor was in fact a mistaken reference to Broadleaf. Without conceding the point, Broadleaf argues that the earliest that the “litigating finger” could be said to be pointing to Broadleaf would be when the plaintiff amended her claim in 2017 to correct location of the slip-and-fall incident, but to no avail since the limitation period had already expired. According to Broadleaf, s. 21(2) does not save the plaintiff from the consequences under s. 21(1) of failing to take action to correct a misnomer during limitation period, since the alleged misnomer must relate to an “existing proceeding” (within the meaning of s. 21(1)). If the limitation period has expired, there is no “existing proceeding”, according to Broadleaf.

[52] In my view, the dispute between the parties on this point was rendered moot during oral submissions when plaintiff’s counsel made it clear that the plaintiff was not relying on s. 21(2) as a basis for adding Broadleaf as a defendant even if the limitation had already expired. The plaintiff’s position is that applying the discoverability principle, her motion to add Broadleaf was in fact brought within the limitation period. I have found that there is a triable issue as to whether the plaintiff’s claim against Broadleaf was discoverable within two years prior to the plaintiff’s motion. On that basis, I have already concluded that the plaintiff should be permitted to add Broadleaf as a defendant. According, it is unnecessary for me to determine whether the plaintiff would be entitled to substitute Broadleaf for Oakridge as a defendant by relying on the principle of misnomer.

V. Conclusion

[53] Accordingly, an order will issue in the following terms:

1. On an unopposed basis, the plaintiff is granted leave to amend the Amended Statement of Claim to add Triovest Realty Advisors Inc. as a defendant, as set out in the draft Amended Amended Statement of Claim included in the plaintiff’s Amended Motion Record.
2. The plaintiff is granted leave to amend the Amended Statement of Claim to add Broadleaf Landscaping & Snow Removal Inc. as a defendant, as set out in the draft Amended Amended Statement of Claim included in the plaintiff’s Amended Motion Record. For greater certainty, to the extent leave is required, Broadleaf is granted leave to plead a limitation defence in response to the plaintiff’s claim.
3. The plaintiff is entitled to her costs, fixed at $5,000 including disbursements and tax, payable by Broadleaf within thirty days.

[54] I am grateful to the parties for settling in advance the costs payable to the successful party.

The Honourable Mr. Justice R. A. Lococo

Released: December 19, 2018