COURT FILE NO.: CV-19-612270 MOTION HEARD: 2020 03 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Margaret Reimer v. City of Toronto, John Doe Maintenance Company and D. Crupi & Sons Limited
BEFORE: MASTER R. A. MUIR
COUNSEL: Louis P. Covens, agent for the lawyer for the plaintiff Rory McGovern and Daniel Michaud-Shields, agents for the lawyers for the proposed defendants Maple-Crete Inc. and RoyalCrest Paving and Contracting Ltd.
REASONS FOR DECISION
[1] The plaintiff brings this motion for an order granting her leave to further amend her statement of claim to add Maple-Crete Inc. (“Maple”) and RoyalCrest Paving and Contracting Ltd. (“Royal”) as defendants to this action in place of the defendant John Doe Maintenance Company. The plaintiff relies on the doctrine of misnomer. Alternatively, the plaintiff seeks to add Maple and Royal as defendants pursuant to Rule 5.04 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”) on the basis of discoverability.
[2] The defendants take no position. Maple and Royal are opposed.
BACKGROUND
[3] The plaintiff was a passenger on a Toronto Transit Commission (“TTC”) bus on February 7, 2017. She exited the bus near the intersection of Sheppard Avenue East and Kennedy Road. The plaintiff apparently slipped on the sidewalk when she initially exited the bus. She fell again while crossing the road.
[4] At the time of the plaintiff’s accident, Maple had been retained by the defendant City of Toronto (“Toronto”) to perform sidewalk snow removal services at the intersection. Maple, in turn, sub-contracted this work to Royal. The defendant D. Crupi & Sons Limited (“Crupi”) was responsible for salting and maintaining the roadway itself.
[5] It appears that the plaintiff did not provide notice of her accident to Toronto, or any other party, until July 2018 when her former lawyers sent a notice letter to Toronto. The plaintiff retained her current lawyers shortly after this notice letter was sent.
[6] It appears that nothing was done to identify any of the possible defendants, other than Toronto, until January 2019. Just before issuing the statement of claim, the plaintiff’s lawyer had two conversations with an adjuster acting on behalf of Toronto. The adjuster did not have any information at that time as to the identity of other potential defendants. As a result, the plaintiff issued her statement of claim on January 9, 2019 naming John Doe Maintenance Company as a defendant.
[7] On March 13, 2019, Toronto’s lawyer advised the plaintiff’s lawyers of the identity of the sidewalk contractor as Maple and the road contractor as Crupi. This motion was then served in September 2019. Maple did not learn of this incident until September 26, 2019 when it was served with the plaintiff’s motion record. Maple then advised its sub-contractor, Royal, on October 4, 2019.
[8] This motion was initially returnable on October 22, 2019. On that date, Master Mills made an order adding Crupi as a defendant (Crupi did not oppose) and adjourned the balance of the relief. The opposed portions of this motion were ultimately heard by me on March 13, 2020.
MISNOMER
[9] The principles applicable to misnomer are well settled in Ontario. The doctrine recognizes that a pleading may be amended to reflect that a person named in a statement of claim is actually another person or the person identified in a generic manner as John Doe or similar is actually a specific person. Misnomer does not add a party to an action. It inserts a new name into an action as a substitute for another named party. See Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 at paragraphs 99 and 101.
[10] The law of misnomer is well summarized in the recent decision of Justice MacLeod in Loy-English v. Ottawa Hospital, 2019 ONSC 6075. The applicable principles are summarized at paragraph 21 of that decision 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.
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.
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.
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.
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.
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.
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.
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.
i. 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.
[Footnotes omitted]
[11] These are the factors and principles I have considered and applied in determining whether the plaintiff’s proposed amendments fall within the doctrine of misnomer and ought to be permitted on that basis. In my view, the doctrine of misnomer does not assist the plaintiff in the circumstances of this action.
[12] The following paragraphs from the statement of claim are important in determining the question of misnomer:
The Plaintiff, Margaret Reimer, is an individual who resides in the City of Toronto, in the Province of Ontario, who at all material times was a pedestrian walking at or near the intersection of Kennedy Road and Sheppard Avenue East, in the City of Toronto, in the Province of Ontario (hereinafter referred to as the “Premises”).
The defendant, the City of Toronto, is a municipal corporation incorporated pursuant to the laws of the Province of Ontario, and at all material times, was the owner and occupier of the Premises, and was responsible for the inspection, upkeep, snow removal, snow ploughing, ice removal, salting and general maintenance of the Premises.
On February 7, 2017, the Plaintiff disembarked from a TTC bus while wearing winter boots. As the bus came to a stop, she stepped down carefully and prudently onto the sidewalk and, suddenly and without warning, she slipped on ice on the unmaintained sidewalk. She was able to stand and proceeded to cross the roadway in the crosswalk and violently fell to the ground a second time on the unmaintained roadway, causing her to sustain serious personal injuries.
[13] Paragraph 5 of the statement of claim goes on to set out numerous and specific acts of negligence. In each case, the specific allegation of negligence in paragraph 5 is made against the defendants collectively and in all but one case refers to the collective “Premises” as defined in paragraph 2 of the statement of claim. Paragraph 5(b) refers to the “roadway”. None of the allegations in paragraph 5 of the statement of claim make specific reference to the sidewalk.
[14] I accept that this is a situation where the plaintiff may be able to rely on the doctrine of misnomer. The plaintiff has named a defendant as John Doe Maintenance Company and it is permissible, if properly pleaded, for that one defendant named by pseudonym to stand in place of more than one person.
[15] In my view, however, the key principle to be considered on this motion is described by Justice MacLeod in Loy-English as follows:
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.
[16] Certainly, the plaintiff has identified the correct date and location of the accident at the beginning of her statement of claim. The proposed defendants were responsible for general sidewalk maintenance and sidewalk snow removal at that location on that date. At first glance, this appears to point the litigation finger at the proposed defendants.
[17] However, the John Doe Maintenance Company defendant is not separately described, specified or identified in the initial pleading. [^1] The plaintiff’s allegations of negligence are lumped together as applicable to all of the named defendants. The claim has not been drafted to particularize the specific rolls played by any of the unidentified persons. See Loy-English at paragraph 21b. This lack of particularity militates against a finding of misnomer.
[18] The conclusion that the plaintiff’s claims are partly directed at Maple and Royal becomes even less obvious as the circumstances of the plaintiff’s accident are further particularized in the statement of claim. The location of the plaintiff’s accident is broadly defined as “at or near the intersection of Kennedy Road and Sheppard Avenue East”. The further particulars in the statement of claim state that the plaintiff fell twice. First, on the “sidewalk” when she stepped off the bus and then a second time when she “violently” fell on the “roadway” causing her to sustain personal injuries. It is not at all clear from the language of the pleading that the plaintiff was injured when she first fell on the sidewalk when exiting the bus. The roadway fall clearly suggests resulting injuries, but the roadway was the responsibility of Crupi and not the proposed defendants. The fact that this distinction is made in paragraph 4 of the statement of claim, but not elsewhere, leads to the conclusion, from reading the statement of claim, that the plaintiff’s injuries arose from the fall on the roadway and not the sidewalk.
[19] In my view, the proposed defendants, when reading the statement of claim as a whole, would more likely conclude that the identity of the John Doe Maintenance Company defendant was Crupi alone and did not also include Maple and Royal. A fair reading of the statement of claim would not lead to the conclusion that the plaintiff must have meant Maple and Royal.
[20] I have therefore concluded that the plaintiff has not satisfied her onus to show that Maple and Royal should be substituted for the defendant John Doe Maintenance Company on the basis of misnomer.
LEAVE TO ADD DEFENDANTS
[21] It is also my view that Maple and Royal cannot be added as defendants to this action on the basis of discoverability.
[22] The relevant provisions of the Limitations Act, 2002, SO 2002, c 24, Sch B (the “Limitations Act”) provide as follows:
- In this Act,
“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause 1(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[23] Rule 5.04(2) provides as follows:
(2) Adding, Deleting or Substituting Parties - 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.
[24] However, section 21(1) of the Limitations Act prohibits the addition of a party to a proceeding where a limitation period has expired. The effect of section 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. See Morrison v. Barzo, 2018 ONCA 979 at paragraphs 26 and 27.
[25] The appropriate analysis the court should adopt on a motion to add a party to a proceeding after the expiry of the presumptive limitation period is set out in the recent Morrison decision. The Court of Appeal stated as follows at paragraphs 29 to 32:
29 Where there is a question as to whether claims covered by the basic two-year limitation period are statute-barred, such that parties cannot be added pursuant to s. 21(1) of the Limitations Act, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the date of actual discovery, as determined by the court, would bring the claim within the limitation period, and the proposed defendant relies on "reasonable discoverability" to contend the claim was brought outside the prescription period, the court must go on to determine under s. 5(1)(b) when "a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)". While a plaintiff's due diligence is relevant to the finding under 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred: see Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, 133 O.R. (3d) 35, at para. 23. This is the case whether expiry of the limitation period is at issue in a motion for summary judgment or in a motion to add a defendant: Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, 24 C.P.C. (8th) 1, at para. 30.
30 Reasonable discoverability of a claim under s. 5(1)(b) that precludes adding a party contrary to s. 21(1) requires an evidentiary foundation. The court must be satisfied that a reasonable person in the plaintiff's circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable "before the expiry of the limitation period", without explaining why. It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence: Mancinelli, at paras. 31 and 34.
31 The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court's finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.
32 Second, the plaintiff must offer a "reasonable explanation on proper evidence" as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff's explanation should be given a "generous reading" and considered in the context of the claim: Mancinelli, at paras. 20 and 24.
[26] The issue before the court on this motion, in terms of section 5 of the Limitations Act, is the identification of the proposed defendants and their involvement with the plaintiff’s accident.
[27] First, the plaintiff must overcome the presumption in section 5(2) of the Limitations Act and lead evidence as to the date the identity of the proposed defendants was actually discovered. The plaintiff has provided satisfactory evidence to meet this part of the test. The plaintiff was not aware of Maple’s involvement until her lawyers were advised of this information by Toronto’s lawyers on March 13, 2019. The plaintiff did not become aware of Royal’s involvement until its lawyers provided the plaintiff’s lawyers with this information on October 22, 2019. The plaintiff has therefore shown that her actual discovery of the identity of the proposed defendants was not on the date of her accident.
[28] However, the plaintiff must also provide a reasonable explanation on proper evidence as to why the identity of the proposed defendants could not have been discovered earlier through the exercise of reasonable diligence. I note that when doing so, the evidentiary burden on a plaintiff is low and her evidence must be given a generous reading. See Morrison at paragraph 32.
[29] In my view, the plaintiff has failed to meet even this low evidentiary hurdle. The plaintiff has provided no evidence to suggest that anything was done to determine the identity of the proposed defendants prior to January 9, 2019. On that date, the plaintiff’s lawyer contacted an adjuster for Toronto and inquired as to the identity of any winter maintenance contractors. The adjuster was unable to provide that information at the time and the plaintiff then issued her statement of claim the same day naming John Doe Maintenance Company as a defendant.
[30] The cross-examination of the plaintiff’s lawyer confirms that she had no evidence that any prior attempt was made to contact Toronto to obtain the names of any winter maintenance contractors prior to January 9, 2019. She was also unaware of whether any simple internet searches were conducted in an attempt to obtain this information.
[31] There is no direct evidence from the plaintiff’s former lawyers who prepared the notice letter sent to Toronto. The evidence does shows that they put Toronto on notice of this potential claim in July 2018. However, that notice letter referenced an incorrect date for the accident. It is therefore not known whether the identity of the proposed defendants would have been obtained soon after had the notice letter included the correct date.
[32] The evidence from the proposed defendants, however, shows that the identity of Maple could have been obtained from Toronto’s website or by calling Toronto’s 311 telephone line.
[33] The evidence on this motion also shows that the identity of Maple (and Crupi) was provided to the plaintiff’s lawyer approximately two months after the January 2019 inquiry. The identity and involvement of Royal was known approximately one month after Maple became aware of this potential claim.
[34] From all of this evidence, I conclude that a reasonable person in the plaintiff’s circumstances, by making a few simple internet and telephone inquiries, or by accurately notifying Toronto of the potential claim, could have easily discovered the identity of Maple within 30 to 60 days after the accident. The identity of Royal could have then been discovered within a similar time period after putting Maple on notice. Based on this timeline, I have concluded that the date for the reasonable discovery of the identity of the proposed defendants would have been the end of June 2017 at the latest. This motion was not brought until more than two years after that date, in September 2019. The plaintiff’s claim against Maple and Royal is therefore statute barred.
[35] For these reasons, it is my view that the plaintiff has failed to meet her onus on this part of the motion. I am not prepared to add Maple and Royal as defendants on the basis of discoverability.
ORDER AND COSTS
[36] The relief the plaintiff is seeking against Maple and Royal is dismissed.
[37] I encourage the parties to attempt to agree on the issue of costs. I note the comments of the Chief Justice in his notice to the profession dated March 15, 2020:
During this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters.
[38] If the parties are unable to resolve the issue of costs, they shall arrange for a telephone case conference by contacting the court by email after the court’s regular operations have resumed.
Master R. A. Muir
DATE: 2020 04 06
[^1]: The statement of claim was eventually amended to separately identify the maintenance contractor but that was not done until more than seven months after the expiry of the presumptive limitation period. The amended statement of claim did not make any distinction between the sidewalk and the roadway.