Court File and Parties

COURT FILE NO.: CV-18-00600760

DATE: 20201005

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexandra Solis, Plaintiff

AND:

Canadian Beauty College Inc., Dorotea Bauco aka Dorothy Bauco, Christopher Rich and J. Does 1-3, Defendants

BEFORE: Madam Justice Darla A. Wilson.

COUNSEL: M. Hershkop, for the Plaintiff M. Harris, for the Proposed Defendant Torrecampo A. Gerstl, for the Proposed Defendant Filipe

HEARD: September 2, 2020

ENDORSEMENT

[1] The Plaintiff, Alexandra Solis, (“Alexandra”) brings this action in negligence arising from injuries allegedly sustained at the Defendant premises (“the College”). In the Statement of Claim, the Plaintiff pleads that the Defendants, Bauco and Rich, were the owners and operators of the Defendant Canadian Beauty College Inc. which was a medi-spa and cosmetology school.

[2] The Plaintiff pleads that on May 31, 2016 she was at the College and received cosmetic treatment. Further, it is alleged that in July 2016 she had another cosmetic treatment administered to her legs which caused severe burns and scarring.

[3] In the original Statement of Claim issued June 29, 2018, the Plaintiff pleads that the Defendants J. Does 1-2 were students in training whose identity was unknown, but they were the individuals who provided the cosmetic treatments to the Plaintiff in 2016 which resulted in her injuries. It is further pleaded that J. Doe 3 was the supervisor for J. Doe 1 and 2. This action was commenced pursuant to the Simplified Rules.

[4] At the request of counsel for the Plaintiff, I convened a case conference on June 9, 2020. I approved a consent timetable for various steps in advance of examinations for discovery. One of the items in the timetable required the Defendant College to advise by June 22^nd of the identity and last known contact information for the J. Does. On June 24^th, counsel for the College advised that J. Doe 2 was Caroline Torrecampo (“Torrecampo’) and J. Doe 3 was Amanda Filipe (“Filipe”).

[5] After receiving the information from the College counsel for the Plaintiff advised of his intention to amend the Claim to substitute the names of Torrecampo and Filipe for J. Doe 2 and 3 respectively. Torrecampo retained counsel who advised that the motion would be opposed. As a result, I set the date of September 4^th for the hearing of the motion and directed that counsel deliver responding materials pursuant to an agreed upon timetable.

[6] An affidavit of Torrecampo was filed. Cross-examinations of Mr. Elmaleh who filed an affidavit in support of the Plaintiff’s motion and of Torrecampo were held on July 31, 2020.

[7] The solicitor for the Plaintiff filed the affidavit of Sarah Pham (“Pham”) sworn August 3, 2020. Pham deposes she was present at the College on the day of the Plaintiff’s treatment and she recalls seeing the Plaintiff’s legs. She identifies Torrecampo as the treatment provider.

[8] Filipe filed no materials and her counsel advised that it was likely that the motion would go on consent or would be unopposed. As a result, Mr. Gerstl did not participate in the hearing of the motion, nor did Mr. Klein, counsel for the Defendant College, Bauco and Rich.

Preliminary Issue

[9] Mr. Harris objected to the admission of the Pham affidavit as it was served after the cross-examinations were done. Rule 39.02(2) provides that “[a] party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing…without leave or consent, and the court shall grant leave on such terms as are just where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit.”

[10] I granted leave to the Plaintiff to admit the Affidavit during the course of submissions. In my view, the evidence of Pham was relevant to the issues of the identity of the treatment providers at the College. She was present at the time of the treatments and she was able to identify Torrecampo as a treatment provider to the Plaintiff from a photograph.

[11] Furthermore, granting leave to admit the Pham affidavit does not result in non-compensable prejudice to Torrecampo. Counsel for the Plaintiff has provided a reasonable explanation for why the Pham affidavit was not provided at the outset when the motion materials were filed. After receiving the affidavit of Torrecampo on July 24^th, counsel attempted to contact Pham but was unable to do so until August 3^rd, which date was after the cross-examinations were held.

[12] In my view, the affidavit of Pham ought to have been admitted on consent.

Amendment

The Litigation Finger Test

[13] Rule 5.04(2) deals with cases of substituting the correct name of a party and states “[a]t 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.”

[14] Rule 26.01 states that “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.”

[15] It is important to remember that this is not a case where the Plaintiff is seeking to add a new party after a limitation period has expired; it is a case where the name of the Defendant was not known to the Plaintiff at the time the Statement of Claim was issued but has subsequently been ascertained. This motion seeks to correct the misnomer to correctly name the individual.

[16] The jurisprudence in the area of misnomer is well established. A party is permitted to replace the pseudonym with the name of the defendant whose identity was not known at the time the claim was issued so long as by reading the Statement of Claim a person with knowledge of the facts could know the true identity of a misnamed party: Stechyshyn v. Domljanovic[^1]. This has come to be called the “litigation finger” test.

[17] The law is abundantly clear that a party seeking to replace the name of a Defendant need not demonstrate due diligence; this is to be distinguished from a case where a Plaintiff argues the claim was subject to the principle of discoverability, where the Plaintiff must demonstrate that she did not know of the existence of a claim and could not have known if or by even exercising diligence, at the time the limitation period expired.

[18] More recently, the law of misnomer was canvassed in Loy-English v. Ottawa Hospital[^2]. Justice MacLeod noted, at para. 21, that:

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.

[19] In the instant case, the Statement of Claim pleads that the defendants provided services and treatment to the Plaintiff’s legs at the Canadian Beauty College in May and July 2016. It is pleaded that as a result of the negligent treatment, the Plaintiff sustained “severe burns in both legs, causing very serious and permanent visible scarring.”

[20] It is further pleaded that following the allegedly negligent treatment, the Plaintiff returned to the Defendant College and reported the treatment and an incident report was generated.

[21] In her affidavit, Torrecampo acknowledges that she had attended the College as a student and graduated in 2016. She denies knowing the Plaintiff and deposes that she has no recollection of her involvement in the incident giving rise to this claim. She makes a bald allegation that she “would suffer extreme prejudice if forced to defend this action” but fails to articulate the prejudice.

[22] Torrecampo’s defence that she did not provide the treatments that caused the damages alleged is no defence to a motion to correct a misnomer. She was positively identified by Pham as the treatment provider; she acknowledges that she was a student at the College and provided various treatments.

[23] Much of the submissions of counsel for Torrecampo are directed at evidence produced thus far, and Mr. Harris urges the Court to find that the Defendant Doe could not have been Torrecampo based on her statements in her affidavit that she had graduated from the College and was no longer providing services there. Counsel urges me to give much weight to her statement that she did not treat the Plaintiff. On this basis, counsel for Torrecampo submits the motion should be dismissed.

[24] With respect, that is not what the Court must consider on a misnomer motion. The fact that a proposed defendant denies liability is not relevant on this motion. Furthermore, Mr. Harris’s submissions ignore the fact that there is evidence on this motion that directly contradicts the assertions of Torrecampo. It is not for a judge on a misnomer motion to determine liability or to make findings of fact.

[25] The arguments of counsel for Torrecampo seem to conflate a defence to a claim with a defence to a motion to correct a misnomer. They are quite distinct. As Justice MacLeod noted in Loy-English, at para. 2: “The device of naming defendants by a pseudonym or a placeholder is an accepted practice when a plaintiff does not know the identity of all of the defendants and wishes to protect against the expiry of a limitation period.”

[26] When deciding a motion to correct a misnomer, briefly put, the court must determine whether the litigation finger was adequately pointed at the party the Plaintiff wishes to substitute and whether such a substitution would result in prejudice such that the order would be unjust.

[27] It is clear that the Plaintiff did not know the identity of the treatment providers at the time the Statement of Claim was drafted. She has learned the identity as a result of the disclosure made by the College pursuant to my order.

[28] In my view, a generous reading of the Statement of Claim clearly points the litigation finger at Torrecampo. I do not accept the submission of counsel for Torrecampo that the failure to provide the exact dates of the treatment in May and July 2016 results in an inability of Torrecampo to ascertain that she was the intended Defendant. The College was small with only a few students and a couple of instructors. There was only a single laser used for treatments.

[29] Torrecampo may deny that she administered the treatments to the Plaintiff, but that is a defence to the action, not a defence to a misnomer motion. In my view, reading the Statement of Claim, Torrecampo would know that she was the aesthetician who the Plaintiff alleges negligently performed cosmetic services to her legs resulting in damages.

The Prejudice Issue

[30] Having satisfied myself that this is a case of misnomer, I now consider whether the amendment would result in prejudice to Torrecampo. The bald statement in her affidavit does not establish prejudice. The onus is on Torrecampo to establish actual prejudice that would result from the order sought on this motion. The law is clear that an amendment shall be made at any stage unless it results in prejudice that cannot be compensated for by costs or an adjournment.

[31] At her cross-examination, Torrecampo testified that she did not keep notes of the treatments she provided nor of her patients at the College. She agreed that she did not remember the patients she treated as an intern so it is unclear on what basis the addition of her name to this claim would result in prejudice. Any records made contemporaneously would be in the possession of the College so that cannot be a ground of prejudice.

[32] This action is at the pleadings stage. It will proceed to documentary productions and then to examinations for discovery where all of the issues will be canvassed thoroughly.

[33] Rule 1.04 of the Rules of Civil Procedure states that the Rules are to be interpreted liberally to ensure a just resolution. In this case, when the action is at the pleadings stage, it is clear that all of the parties should be correctly named prior to attending discovery. There is an obligation on a proposed party to lead evidence of actual prejudice when opposing a motion to correct a misnomer. Here, Torrecampo has failed to do so. She cannot baldly state there is prejudice and expect that is sufficient. I do not find the order sought would result in actual prejudice and Torrecampo should be named as a defendant and her name substituted for that of J. Doe 2.

[34] In the factum of Torrecampo, Mr. Harris criticizes the affidavit filed in support of the motion to amend. He submits that the affidavit ought to have been in the name of the Plaintiff and makes lengthy submissions citing case law urging me to attach no weight to the affidavit. While that argument may have strength on other types of motions, it is inappropriate on a motion to correct a misnomer and I reject it. As Justice MacLeod noted in Loy-English, at para. 21, in his summary of the law, “[i]t is not useful for misnomer motions to be decided based on technicalities.… 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.”

Conclusion

[35] I am satisfied leave should be granted to substitute the name of Caroline Torrecampo for J. Doe 2 and the amendments necessary as a result of my order.

[36] In my view, this motion ought not to have been opposed. If the parties cannot agree on the costs of this motion, I may be contacted.

Date: October 6, 2020

[^1]: Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236, at para. 19.

[^2]: Loy-English v. The Ottawa Hospital et al, 2019 ONSC 6075, 149 O.R. (3d) 129.