OSHAWA COURT FILE NO.: 1894/17SR

DATE: 20200302

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Deborah Margaret Sora and David Kei Sora, Plaintiffs

AND:

Emerson Electrical Co., Emerson Electrical Canada Limited, Emerson Climate Technologies, Enbridge Gas Distribution Inc., Enbridge Inc., Goodman Manufacturing Company, Goodman Manufacturing Company L.P., Goodman Manufacturing Company L.P., A Member Of Daikin Group, Goodman Manufacturing Company Of Canada, Limited, The Daikin Group, Daikin Applied Canada Inc., Daikin Applied Americas Inc., Daikin Industries Ltd., John Doe Manufacturer, John Doe Retailer, John Doe Component Manufacturer, and John Doe Installer, Liam Patrick Hurley and Hurley Mechanical, Defendants

BEFORE: Corkery J.

COUNSEL: Payam Ezzatian, for the Plaintiffs

Daniel Himelfarb, for the Defendants, Liam Patrick Hurley and Hurley Mechanical

HEARD: October 10, 2019

CORRIGENDUM: File number corrected on page 1; footnote added at paragraph [11] – March 17, 2020

ENDORSEMENT

J.C. corkery j.

[1] In this motion, the plaintiffs seek leave to replace the names “John Doe Retailer” and “John Doe Installer” in the Statement of Claim with Liam Patrick Hurley and Hurley Mechanical (the “Hurley defendants”).

[2] The plaintiffs submit that this is a case of misnomer. The “litigation finger” clearly points to the Hurley defendants and they will not suffer non-compensable prejudice by the names being corrected. Alternatively, the plaintiffs submit that the Hurley defendants, by filing a Notice of Intent to Defend, have taken a “fresh step” for the purposes of Rule 2.02(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] The Hurley defendants submit that the test for correcting a misnomer has not been met. They acknowledge that a reasonable reading of the Statement of Claim identifies them and that the “litigation finger” points to them. However, they argue that to rely on misnomer, the plaintiffs must also establish that the Hurley defendants had notice of the claim before the expiry of the limitation period. The Hurley defendants had no notice of the claim until they were served, after the expiration of the limitation period. It is the Hurley defendants’ position that this is not a case of misnomer. The plaintiffs are seeking to add them as new parties and leave should not be granted as the claim against them is statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24.

[4] The issue is the proper test under these circumstances. To obtain leave to amend and rely on misnomer to replace a named John or Jane Doe with the name of the defendant, must a plaintiff prove the defendant had notice of the claim prior to the expiry of the limitation period?

A. Factual Background

[5] The factual background to this motion is not in dispute.

[6] In 2012, Liam Patrick Hurley, operating as Hurley Mechanical, a sole proprietorship, sold a new furnace to the plaintiffs, and installed it in their home.

[7] The plaintiffs allege that on July 6, 2015, the furnace caused a fire that caused significant damage to them and their home.

[8] On or about June 15, 2017, plaintiffs’ counsel requested the Toronto Standard and Safety Authority (the “TSSA”) provide its records of its investigation of the fire.

[9] On July 4, 2017, the plaintiffs issued a Statement of Claim. At that time, the plaintiffs and their counsel had no knowledge of the identities of the Hurley defendants. As such, the person who sold them the furnace was named in the Statement of Claim as “John Doe Retailer” and the person who installed the furnace was named as “John Doe Installer”.

[10] On or about October 12, 2017, the plaintiffs received a TSSA report. It did not identify the seller or installer of the furnace. On or about November 24, 2017, the plaintiffs received a second report from the TSSA. The second report identified the Hurley defendants.

[11] On April 20, 2018, the plaintiffs were granted leave to amend the Statement of Claim. However, through the inadvertence of plaintiffs’ counsel, the Hurley defendants had not been served.^1

[12] On April 25, 2018, the Amended Statement of Claim was filed.

[13] On or about April 28, 2018 the Amended Statement of Claim and the April 20, 2018 order were served on the Hurley defendants.

[14] On or about July 27, 2018, the Hurley defendants retained counsel.

[15] On August 14, 2018 the Hurley defendants delivered a Notice of Intent to Defend.

[16] When it was subsequently discovered that the Hurley defendants had not been served with the plaintiffs’ motion materials in advance of the April 20, 2018 motion, through the inadvertence of plaintiffs’ counsel, the plaintiffs agreed to bring this motion in order to have the April 20, 2018 order set aside, and to permit the motion to be heard again with proper notice to the Hurley defendants.

[17] The parties agree that:

a. Prior to being served, the Hurley defendants had no notice or knowledge of the plaintiffs’ claim; and

b. On reading the claim, the Hurley defendants would know that that they were the intended defendants named in the claim as “John Doe Retailer” and “John Doe Installer”.

B. The Law

[18] The relevant rules in the Rules of Civil Procedure, state:

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. R.R.O. 1990, Reg. 194, r. 1.04 (1).

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. O. Reg. 438/08, s. 2.

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.

[19] Section 21 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, provides:

s. 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 proceeding.

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

[20] The principals in caselaw relating to misnomer were recently summarized by Macleod J. in Loy-English v. Ottawa Hospital, 2019 ONSC 6075. I agree with this summary and adopt it. It presents a concise of the relevant principles (emphasis added, citations inserted):

[21] As with most discretionary remedies, results are fact driven and case specific. Despite, this, a number of principles may be derived from the jurisprudence. It is useful to summarize these as follows:

a. When a plaintiff does not know precisely who to name as defendants it is permissible to name unidentified defendants by way of a pseudonym. It would be better to bring transparency to this practice by naming them as “certain unidentified physicians collectively referred to as Dr. Doe” but the use of “Dr. Doe” or “Dr. X” is a practice that the courts have accepted as appropriate shorthand. [Spirito v. Trillium Health Centre, 2008 ONCA 762, (2008) 302 DLR (4th) 654; Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697; (2009) 97 OR (3d) 321]

b. It is not necessary to name multiple Dr. Doe’s and to precisely guess how many defendants to implicate. Providing the claim is drafted in a manner to identify what allegations are made against individuals filling specific roles, the “litigation finger is divisible” and may point at more than one unknown defendant. Suarez v. Minto Developments Inc., 2009 CarswellOnt 8146; [Stekel v. Toyota Canada Inc., 2011 ONSC 6507 at para. 35]

c. Unlike a claim relying on discoverability to postpone the running of the limitation period, use of a pseudonym and subsequent correction of a misnomer is not subject to a due diligence requirement and will not be defeated by mere delay. [Stechyshyn v. Domljanovic, 2015 ONCA 889 paras. 1 & 19](https://www.canlii.org/en/on/onca/doc/2015/2015onca889/2015onca889.html#par1) effectively overruling [Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc4226/2010onsc4226.html), cited by the defendants. See also [Loblaw Properties Limited v. Turner Fleischer Architects Inc., 2018 ONSC 1376](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc1376/2018onsc1376.html) (SCJ) at paras. [32 - 34](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc1376/2018onsc1376.html#par32) and [McDonald v. Hoopp Realty Inc., 2014 ONSC 6089](https://www.canlii.org/en/on/onsc/doc/2014/2014canlii60811/2014canlii60811.html) (SCJ) at para. [19]

d. Use of a pseudonym does not give carte blanche to get around the limitation period. Although the Act does not narrow the common law understanding of misnomer and preserves the power of the court to correct it, it does prohibit addition of parties if the limitation period has expired. The distinction is critical. It is the difference between correcting the claim to properly name a party already included in the action and adding a new party. [Spirito v. Trillium Health Centre, 2008 ONCA 762; (2008) 302 DLR (4th) 654 at paras. 11, 12, 16 & 17]

e. To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the “litigation finger” is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know. [see Hassan v. Dunraj, 2014 ONSC 7374 (SCJ); Bertolli v. Toronto, 2017 ONSC 7534; aff'd 2018 ONCA 601]

f. Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known. [Chiarelli v. Wiens (2000), 2000 CanLII 3904 (ON CA)](https://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3904.html), 46 O.R. (3d) 780; [Bearss v. Scobie, 2013 ONSC 5910](https://www.minicounsel.ca/scj/2013/5910) at paras. [44 & 45](https://www.minicounsel.ca/scj/2013/5910); [Essar Algoma Steel Inc. v. Liebherr (Canada) Co., 2011 ONSC 1688](https://www.canlii.org/en/on/onscdc/doc/2011/2011onsc1688/2011onsc1688.html) (Div.Ct.) at para. [25]

g. Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion. [see Simmonds v. G & G Pool Services, 2018 ONCA 772; O'Sullivan v. Hamilton Health Sciences Corp., 2011 ONCA 507]

h. Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice. [see Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697; (2009) 97 OR (3d) 321 para 14 and see Ratnakumar v.Dickie's No Frills, 2015 ONSC 1866 (Div.Ct.)]

i. It is not useful for misnomer motions to be decided based on technicalities or vagaries of pleading. The object of pleading analysis should not be one of looking for traps, tricks or loopholes. We should not be engaged in the legal equivalent of “whack a mole” or “gotcha”. Rather, the question in every case should be whether it is reasonable and just to allow the pleading amendment and whether it is permitted by the governing legislation.

C. Analysis

[21] The plaintiffs issued their statement of claim before the expiry of the limitation period. The pseudonyms used, “John Doe Retailer” and “John Doe Installer” pointed at the Hurley defendants. The “litigation finger” test is satisfied. In Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236 at para 1 the Court of Appeal clearly stated that showing due diligence is not required:

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: see 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.

[22] While in many cases “coincidence” exists “between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant” [Lloyd v. Clark, 2008 ONCA 343](https://www.canlii.org/en/on/onca/doc/2008/2008onca343/2008onca343.html), 44 M.P.L.R. (4th) 159 para. [4], this is not a necessary requirement to rely upon misnomer. The question is only whether a reasonable person reading the claim would recognize him or herself as the defendant: see Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672, [1961] 1 W.L.R. 170 (C.A.), at p. 676. To impose a notice requirement would be inconsistent with the broader application of misnomer and subrule 21(2) of the Limitations Act, 2002.

[23] In this case, the limitation period expired two years after the July 6, 2015 fire. The claim was issued July 4, 2017. Under the rules, service was required within six months, by January 4, 2018. On April 28, 2018, it was served on the Hurley defendants.

[24] In exercising my discretion, I have considered all of the facts of the case, including what I regard as a modest delay that occurred beyond the six months for service of a claim provided for in the Rules. I am satisfied that there will be no injustice or prejudice if leave should be granted.

D. Conclusion

[25] For these reasons, leave shall be granted to permit the plaintiff to amend the statement of claim to replace “John Doe Retailer” and “John Doe Installer” with the names of the Hurley defendants.

[26] If no agreement can be reached, I shall receive brief written submissions as to costs not to exceed four pages within 14 days from the plaintiffs and 21 days from the Hurley defendants.

J.C. Corkery J.

Released: March 2, 2020

COURT FILE NO.: 1894/17SR

DATE: 20200302

ONTARIO

SUPERIOR COURT OF JUSTICE

(Action commenced at Oshawa)

BETWEEN:

DEBORAH MARGARET SORA

and DAVID KEI SORA

Plaintiff(s)

– and –

EMERSON ELECTRICAL CO., EMERSON ELECTRICAL CANADA LIMITED, EMERSON CLIMATE TECHNOLOGIES, ENBRIDGE GAS DISTRIBUTION INC., ENBRIDGE INC.,

GOODMAN MANUFACTURING COMPANY,

GOODMAN MANUFACTURING COMPANY L.P.,

GOODMAN MANUFACTURING COMPANY L.P.,

A MEMBER OF DAIKIN GROUP, GOODMAN MANUFACTURING COMPANY OF CANADA,

LIMITED, THE DAIKIN GROUP, DAIKIN APPLIED CANADA INC., DAIKIN APPLIED AMERICAS INC., DAIKIN INDUSTRIES LTD., JOHN DOE MANUFACTURER, JOHN DOE RETAILER, JOHN DOE COMPONENT MANUFACTURER, AND JOHN DOE INSTALLER, LIAM PATRICK HURLEY AND HURLEY MECHANICAL

Defendants(s)

ENDORSEMENT

J.C. Corkery, J.

Released: March 2, 2020