Court File and Parties

Court File No.: 10714/15SR Date: 2019-12-18 Superior Court of Justice – Ontario

Re: Kim Lemyre, Plaintiff And: Residential Energy Saving Products Inc., c.o.b. as Beverley Hills Home Improvements

Before: Mr Justice Ramsay

Counsel: Andrew J. Larmand for the plaintiff J. Lo for the defendant and for the proposed co-defendant BHCC Administrative Services Inc.

Heard: December 18, 2019 at Welland

Endorsement

[1] The plaintiff is suing for wrongful dismissal. She moved to amend the statement of claim by adding BHCC Administrative Services Inc. as defendant. I granted the motion from the bench with reasons to follow. These are they.

[2] For almost 20 years the plaintiff went to work at 201 Barton Street East in Stoney Creek. A number of related corporations, including BHCC Administrative Services Inc., have the same mailing address. During her employment the plaintiff scheduled appointments for Beverley Hills Windows and Doors. Her email address identified her as the Customer Care Service Department of Beverley Hills Home Improvements.

[3] Her supervisor, Gordon Anderson, communicated with her a number of times over a signature line that referred to Beverley Hills Home Improvements. After the plaintiff was fired, Mr Anderson gave her a letter of reference confirming "that Kim Lemyre was an employee of Beverley Hills Home Improvements since May 1998."

[4] Her Record of Employment and T-4s were issued by BHHC Business Services Inc.

[5] The statement of defence avers in paragraph 2: "The defendant denies that the plaintiff was an employee of the defendant."

[6] It then goes on to deny that she performed her services in a proper manner and sets out in detail in paragraph 6 what the defendant's actual salary was and what she earned on average in the last four year of her employment.

[7] This is an obvious case of misnomer. The test in Davies v. Elsby Brothers Ltd., [1960] 3 All ER 672 was accepted by the Supreme Court of Canada in Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1973] SCJ No. 120. It is:

How would a reasonable person receiving the [statement of claim] take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong." Then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries," then it seems to me that one is getting beyond the realm of misnomer.

[8] In the circumstances there is a strong case that the named defendant is the employer. There is evidence that the proposed defendant was also the employer. There is no prejudice in allowing the plaintiff to plead both.

[9] The proposed defendant must have known upon reading the statement of claim, "Of course it must mean me." It operated through the same human beings as the named defendant at the same address. It hired the same lawyer to defend this action. The employer is entitled to arrange its corporate structure as it pleases but the employee is only responsible to serve notice of her complaint in such a way as to bring enough knowledge to the employer to let it defend the claim. She does not have to name the defendant with legal precision.

[10] For these reasons, I gave leave to the plaintiff to amend the statement of claim as asked.

J.A. Ramsay J.

Date: 2019-12-18