Court File and Parties

COURT FILE NO.: 18-67870 DATE: 2021-08-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alice Cullis, Plaintiff AND: Complete Claims Management Professionals, Travel Health Medical Plan and Travel Insurance Specialists, Defendants

BEFORE: Justice D.A. Broad

COUNSEL: Adam Huff, for the Plaintiffs (on the motion only) Pheroze Jeejeebhoy, for the Defendants

HEARD: July 2, 2021

ENDORSEMENT

[1] In this motion the plaintiff seeks leave to amend the Statement of Claim to substitute Industrial Alliance Insurance and Financial Services Inc. (“Industrial Alliance”) for the three current defendants, relying on the principle of misnomer.

Background

[2] In November 2016 the plaintiff submitted an application to “Travel Insurance Specialists” for travel medical insurance coverage for her upcoming trip to Florida. On or about November 23, 2016 the plaintiff received a letter from Travel Insurance Specialists confirming medical insurance coverage for her trip. The insurance product was called TravelHealth Medical Plan, which is underwritten by Industrial Alliance.

[3] In March 2017, while in Florida, the plaintiff became ill and required medical care. She was charged approximately $90,000 US for her medical treatment in Florida.

[4] The plaintiff promptly notified Travel Insurance Specialists of her illness and medical expenses.

[5] On March 21, 2017 the plaintiff received a letter from a claims analyst at “Complete Claims Management Professionals” (“CCMP”) enclosing forms for completion to make her insurance claim. On March 27, 2017 the plaintiff submitted a completed claim to CCMP.

[6] By letters dated April 25 and June 16, 2017 CCMP communicated to the plaintiff that it was denying her claim and voiding her coverage, taking the position that the plaintiff had failed to disclose a pre-existing health condition.

[7] The plaintiff and her daughter thereafter communicated with CCMP and subsequently with its ombudsman, disputing the denial of her claim.

[8] CCMP maintained the denial of the plaintiff’s claim for indemnity in respect of her medical expenses under the “TravelHealth Medical Plan.”

[9] “Travel Insurance Specialists” and “Complete Claims Management Professionals” are each business styles of 1916368 Ontario Inc. (“1916368”). 1916368 sells insurance under the name “Travel Insurance Specialists.” It also provides claims management assistance to the underwriting insurer Industrial Alliance under the name Complete Claims Management Professionals.

[10] By Statement of Claim issued on December 20, 2018 the plaintiff brought an action against “Complete Claims Management Professionals, Travel Health Medical Plan and Travel Insurance Specialists.” Industrial Alliance was not named as a defendant.

[11] The Statement of Claim alleged, inter alia, the following:

3. The Defendants, Complete Claims Management Professionals, Travel Health Medical Plan and Travel Insurance Specialists, are insurance companies incorporated pursuant to the laws of Canada and was (sic) at all material times the issuers of emergency medical insurance being policy number [number omitted].

4. From the period of November 24, 2016, to May 10, 2017, the Plaintiff was insured by a policy of insurance issued by the Defendants. Pursuant to the policy of the said emergency medical insurance the Plaintiff was entitled to receive indemnification for any medical expenses incurred.

5. Despite providing the Defendants with appropriate medical documentation substantiating his (sic) entitlement to indemnification for medical fees expended, the Defendants have refused to indemnify the Plaintiff. The Plaintiff therefore claims the value of the costs of these medical expenses from the Defendants.

6. The Plaintiff states that the Defendants (sic) failure to pay emergency medical expenses to the Plaintiff was done so (sic) in bad faith and without due regard to the affect ((sic) the said refusal would have on the Plaintiff’s medical condition. As a result of the said refusal, the Plaintiff therefore claims aggravated, punitive and exemplary damages from the Defendants.

7. The Plaintiff further states that the defendant has not adjusted this claim fairly or with the duty of good faith and as such their actions are deserving of punitive, aggravated, and/or exemplary damages.

[12] The defendants filed a Notice of Intent to Defend on January 29, 2019.

[13] On April 29, 2019 counsel for the defendants wrote to counsel for the plaintiff (not Mr. Huff) stating in part that:

(a) 1916368 operates under the business names Travel Insurance Specialists (TIS) and Complete Claims Management Professionals (CCMP);

(b) under the TIS business name 1916368 sells travel insurance products to individuals and under the CCMP banner 1916368 operates as a third-party administrator for insurance claims;

(c) 1916368 is not an insurer and did not underwrite the policy described in the Statement of Claim;

(d) TravelHealth Medical Plan is the name of the policy of insurance that was sold by TIS but is not a legal entity.

[14] In the letter, counsel for the defendants requested counsel for the plaintiff to discontinue the action.

[15] Following receipt of the letter from the defendants’ counsel, counsel for the plaintiff reviewed the policy again and, upon doing so, realized that Industrial Alliance and not the named defendants, was the issuer of the policy.

[16] Counsel for the Plaintiff (not Mr. Huff) initially brought a motion for leave to amend the Statement of Claim to name 1916368 Ontario Inc. as a defendant carrying on business as Complete Claims Management Professionals and as Travel Health Medical Plan and Travel Insurance Specialists and to add Industrial Alliance as a defendant in the title of proceedings and to amend paragraph 3 to read as follows

3. The Defendants, 1916368 Ontario Inc. carrying on business as Complete Claims Management Professionals, TravelHealth Medical Plan and Travel Insurance Specialists, and Industrial Alliance Insurance and Financial Services Inc., are insurance companies incorporated pursuant to the laws of Canada and was (sic) at all material times herein the issuers of emergency medical insurance bearing policy number [policy number omitted].

[17] Subsequently Mr. Huff, counsel for the plaintiff (now acting for the plaintiff on the motion for leave to amend the Statement of Claim) served a Fresh as Amended Notice of Motion seeking leave to amend the Statement of Claim to name Industrial Alliance as the sole defendant and to amend paragraph 3 to read as follows:

The Defendant, Industrial Alliance Insurance and Financial Services Inc., is an insurance company incorporated pursuant to the laws of Quebec and was at all material times herein the issuer of emergency medical insurance bearing policy number [policy number omitted].

[18] The stated grounds set forth in the Fresh as Amended Notice of Motion included the grounds that the doctrine of misnomer applies to the proposed amendments, that the plaintiff intended to sue the issuer of the subject policy and that there was coincidence between the plaintiff’s intention to correctly name Industrial Alliance, and Industrial Alliance’s knowledge, upon reading the Statement of Claim, that it was the intended defendant.

Legal Framework

[19] Rule 5.04(2) of the Rules of Civil Procedure provides that

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.

[20] Subsection 21(1) of the Limitations Act, 2002, S.O. 2002, c. 24 Schedule B provides that if a limitation period in respect of a claim has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding. However, subsection qualifies the prohibition in subsection (1) by stating that it does not prevent the correction of a misnaming or misdescription of a party. Thus, even if a limitation period has otherwise expired, an amendment to correct a misnomer may be permitted.

[21] In order to support a finding of misnomer, the moving party must establish that it intended to sue the proposed defendant and that the proposed defendant, upon reading the statement of claim, would know that it was the intended defendant. 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 (see Lloyd v. Clark, 2008 ONCA 343 at para. 3 and 4).

[22] Where a party is named incorrectly due to a mistake by the plaintiff’s lawyer, a finding of misnomer does not turn on whether the lawyer’s mistake was deliberate or unintentional (see Christopher Callow v. Tommy Zollinger, 2017 ONSC 5992 (S.C.J.) citing the concurring reasons of Laskin, J.A. in Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768 (Ont. C.A.)).

[23] Neither discoverability nor whether the plaintiff’s counsel exercised due diligence are relevant considerations in a court's analysis of whether the doctrine of misnomer ought to apply. To require that a plaintiff establish when and how efforts were made to identify the proposed defendant, or to prove that they were diligent in those efforts, would conflate the doctrine of misnomer and discoverability, since misnomer applies despite the passage of the limitation period (see Cooper v. City of Toronto, 2020 ONSC 9 (Master) citing Skribans v. Nowek, 2012 ONSC 532 (Ont. S.C.J.), at para. 41).

[24] Master Short in Cooper at para 37 confirmed that there is a two-stage process for a motion under Rule 5.04(2) to correct the name of a party incorrectly named. The first stage involves a determination of whether the proposed amendment is, in fact, a case of misnomer. When such a finding is made, the Court moves on to a determination of whether there is a persuasive reason (beyond from the passing of the limitation period) to discretionarily deny the correction.

[25] Master Short in Cooper also confirmed that the doctrine of misnomer is not restricted to a "one for one" switch or substitution. The result may be the inclusion of an additional party without removing the original mischaracterized party should the circumstances of the case call for it.

[26] In the case of Sora v. Emerson Electrical Co., 2020 ONSC 1374 (S.C.J.) Corkery, J. adopted at para. 20 the summary of the principles relating to misnomer laid down by McLeod, J. in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075 (S.C.J.). These principles, inter alia, include the following:

(a) 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. 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;

(b) 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. 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) notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies. 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;

(d) notice is relevant to the question of prejudice in the exercise of discretion as actual notice to the proposed defendant will generally obviate any injustice and subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

Discussion

[27] In my view the doctrine of misnomer applies in the case at bar. The plaintiff has established that it intended to sue Industrial Alliance, the issuer of the policy of insurance called “TravelHealth Medical Plan” which she identified by policy number. Upon reading the Statement of Claim, Industrial Alliance would know or ought to know that it was the intended defendant. Moreover, there is no persuasive reason to discretionarily deny the correction. Industrial Alliance has not shown that it has suffered any prejudice by the misnomer, or that there has been any delay on the part of the plaintiff in moving to correct it so as to cause prejudice.

[28] Industrial Alliance, by its representative CCMP, has known about the plaintiff’s claim for benefits under the policy since she first made her application immediately after she incurred medical expenses in the United States. The plaintiff appealed the denial of her benefit claim to the ombudsman prior to commencing the action. Industrial Alliance is now represented by the same counsel as the incorrectly named defendants.

[29] Counsel for Industrial Alliance seeks to analogize the case at bar to the situation in Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 (S.C.J.) pointing to the following passage at para 114 of O’Connell J.’s decision at para. 114:

Starting with a review of the statement of claim, issued on June 20, 2005 which is the same date as the anniversary of the two year limitation expiration under subsection 38(3) of the Trustee Act, the claim can best be described as a shotgun approach to identifying the relevant persons who are said to have been negligent in the care of Mr. Urie. It is far from a document that points the litigating finger. The claim is poorly drafted and devoid of specificity as it relates to the torts alleged. Essentially it was originally an attempt to capture a pool of medical professionals within the nomenclature of a total of 15 John Does. There appears to be no justification for picking 15 such persons as distinct from the now proposed seven or for that matter any other arbitrary number. Given the date of issuance of the claim, which just made it under the wire of the limitation period, it is fair to assume that the claim was meant to be a prophylactic attempt to place the plaintiffs under the umbrella of the limitations period, without regard to any attempt to actually name those that are suggested to have been negligent in the care or Mr. Urie.

[30] I am unable to accept Industrial Alliance’s position. The original Statement of Claim in the case at bar cannot fairly be described as taking a “shotgun approach to identifying the relevant persons” who committed the alleged breach causing loss to the plaintiff. Paragraph 5 stated that “the Plaintiff was insured by a policy of insurance issued by the defendants. Pursuant to the policy… the Plaintiff is entitled to receive indemnification for any medical expenses incurred.” Para 6 went on to allege that “despite providing the defendants with appropriate medical documentation substantiating his (sic) entitlement to indemnification for medical fees expended, the defendants have refused to indemnify the Plaintiff.”

[31] In my view, an objective and generous reading of the Statement of Claim would demonstrate that the “litigation finger” is pointing to Industrial Alliance as the issuer of the policy.

[32] Industrial Alliance also submits that the history of the motion to amend is important pointing to the original Notice of Motion in which it was sought to describe the three originally named defendants as business names of 1916368 and to add Industrial Alliance as an additional named defendant. It argues that the motion, as originally constituted, failed to set forth a proper framework to permit the proposed defendant to discern the nature of the claim against it.

[33] I am also unable to accept this submission. The motion before the court is represented by the Amended Notice of Motion which seeks to amend the Statement of Claim to name Industrial Alliance as the sole defendant as issuer of the policy. As mentioned previously, is not useful for a misnomer motion to be decided based upon technicalities or vagaries of pleading, nor should the court be looking for traps, tricks or loopholes.

[34] Finally, Industrial Alliance submits that the second part of the test relating to the question of whether the court should exercise its discretion to allow the correction is not limited to the issue of prejudice, relying on Omerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697, [2009] O.J. No. 4071 (C.A.) in which Juriansz, J.A., writing for the panel, observed at para. 32 that whether the defendant was misled or was unduly prejudiced, are undoubtedly deserving of the greatest weight and as a general principle, should be determinative, but this general principle is not an inflexible rule. Thus, where the mistake in naming the defendant involves more than a mere irregularity or in any particular case with exceptional circumstances, the court may exercise its residual discretion under the rule to refuse to permit its correction.

[35] In my view, Industrial Alliance has failed to show that the misnaming of the defendant was more than an irregularity or that there are exceptional circumstances which would justify overriding the absence of prejudice which is to be given the greatest weight. I am not persuaded that I should exercise my discretion to deny the amendment which is based on misnomer. To the contrary I find that it would be reasonable and just to allow the proposed amendment.

Disposition

[36] For the foregoing reasons leave is granted to the plaintiff to file the proposed Amended Statement of Claim appended to its Fresh as Amended Notice of Motion.

Costs

[37] In accordance with the agreement of counsel, it is ordered that Industrial Alliance pay to the plaintiff costs of the motion fixed in the sum of $10,000 inclusive. This amount is to be paid within 30 days hereof.

D.A. Broad

Date: August 3, 2021