COURT FILE NO.: CV-18-00599822-0000

MOTION HEARD: 20210729

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SAEED PASANDIDEH, Plaintiff/ Moving Party

AND:

RAHIM F. VAHIDI, Defendant/Responding Party

BEFORE: MASTER R. FRANK

COUNSEL: D. Zacks, for the Plaintiff/Moving Party

A. Gaertner and K. Sanchez, for the Defendant/Responding Party

HEARD: 29 JULY 2021

REASONS FOR DECISION

INTRODUCTION

[1] This action was commenced in 2018. The named plaintiff is Saeed Pasandideh (“Saeed”). The plaintiff claims repayment of money advanced to the defendant, Rahim Vahidi (“Rahim”). There is no dispute the money was paid to Rahim. However, there is a dispute as to whether the money was a loan (the plaintiff’s position) or a gift (the defendant’s position).

[2] Discoveries took place in April 2019. Following the discoveries, the plaintiff brought a motion in October 2019 to add Saeed’s mother, Laleh Khani (“Laleh”) as a plaintiff in the action (the “Motion to Add”). Master Abrams dismissed the Motion to Add, finding that Laleh could not be added as a plaintiff due to the expiry of the limitation period.

[3] This is a motion by the plaintiff seeking leave to amend the statement of claim to correct the misnaming of the plaintiff. The plaintiff takes the position that Saeed was named as plaintiff in error and that the claim should be corrected to name Laleh as the plaintiff.

[4] For the reasons outlined below, the motion is dismissed.

ISSUES

[5] This motion raises two issues:

a) Whether Saeed is entitled to misnomer relief; and

b) Whether Saeed is barred from seeking misnomer relief based on the doctrines of issue estoppel and abuse of process.

POSITION OF THE PARTIES

[6] The plaintiff takes the position that the naming of Saeed was an error which resulted from a misapprehension that he was the proper plaintiff for reasons that included certain documentation relating to the alleged loan. The plaintiff submits that the “litigation finger test” (outlined below) is satisfied, namely that on reading the statement of claim, Rahim would have said, “of course they must mean Laleh loaned me the money”. The plaintiff points to Rahim’s evidence on discovery that the money was paid to him by Laleh, who sent it to him through Saeed.

[7] The defendant’s position is that misnomer does not apply. Further, the defendant asserts in his factum that Master Abrams considered the issue of misnomer or misdescription in the Motion to Add, and that her decision on that motion effectively rendered the misnomer issue res judicata. At the hearing, however, the defendant backed away from this position, focusing instead on the broader concept of abuse of process. In this regard, the defendant argued that the current motion is an abuse of process because the plaintiff seeks to rely on evidence that is in conflict with the plaintiff’s allegations in the statement of claim, the plaintiff’s documentary productions and Saeed’s evidence and position on the Motion to Add. For the same reasons, the defendant submits that this is not a case of misnomer.

[8] The plaintiff asserts that issue estoppel does not apply in the circumstances because the motion before Master Abrams did not seek relief with respect to misnomer. The plaintiff also argues that there is no abuse of process because the plaintiff is entitled to take reasonable steps to preserve Laleh’s rights against the expiry of a limitation period. Thus, even if this motion could have been brought together with the Motion to Add, the plaintiff submits that it is not an abuse of process for the plaintiff to bring it now.

LAW AND ANALYSIS

(i) Misnomer

[9] The law with respect to misnomer is well-settled.

[10] Rule 5.04(2) provides the court with discretionary jurisdiction to correct a misnomer. The entitlement to misnomer relief is conditional on satisfying the “litigation finger test”. In Stechyshyn v. Domljanovic 2015 ONCA 889 at para. 1, the Court of Appeal described the test as follows:

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.

[11] With respect to misnamed plaintiffs, misnomer relief is available where a party intended to commence proceedings in one name “but, in error, the proceedings were commenced in another name”; see Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CanLII 8620 at para. 48 (Ont. C.A.); and Picov and Picov Farms Ltd. v. Generac Power Systems Inc. et al., 2020 ONSC 852.

[12] Rule 5.06(2) provides the court with a residual discretion to refuse misnomer relief even when the litigation finger test is satisfied. In exercising this jurisdiction, the factors that deserve the greatest weight include whether the correct party was misled or was unduly prejudiced; however, where the mistake is more than a mere irregularity, the court may exercise its residual discretion to refuse to allow the correction; see Ormerod v. Ferner, 2009 ONCA 697 at paras. 28‑32.

[13] In the present case, the plaintiff submits that the litigation finger test is satisfied. The plaintiff relies on Rahim’s evidence that it was Laleh who paid him the money, but that she did so through her son Saeed. Further, Laleh and Saeed’s evidence is that any money recovered from Rahim is Laleh’s, and Saeed was only involved in order to help transfer the money from Laleh to Rahim. The plaintiff argues that the evidence from the examinations makes it plain that: Saeed was only a “middle-man” in the transaction; Saeed had facilitated the transfer because Laleh was unable to access her own funds quickly enough; and Laleh reimbursed Saeed within about a month. The plaintiff argues that when the action was commenced, Saeed and Laleh had misapprehended that Saeed’s role as “middle-man” meant he should be the plaintiff. As a result, the plaintiff submits that Saeed was named plaintiff because of an error, namely a misunderstanding that the right to recover the money from Rahim was his and not Laleh’s.

[14] Relying on Ormerod at para. 27, the plaintiff also asserts that the error was only discovered at discovery. In this regard, the plaintiff submits that although that error could have been discovered with more diligence, due diligence is not a relevant consideration in assessing misapprehension.

[15] The defendant argues that the plaintiff’s current position (i.e. that he was never meant to be the plaintiff) squarely contradicts the allegations in the statement of claim, the plaintiff’s own documentary productions, Saeed’s sworn evidence, and the position Saeed took on the Motion to Add. More specifically, the defendant argues that all facts that would have permitted either Saeed and/or Laleh to have been named as claimants in the action were known by them at the time the action was commenced. As a result, there is no “error”, without which there can be no misnomer.

[16] In my view, there are several problems with the plaintiff’s position. First, contrary to the plaintiff’s assertions, it is not entirely clear that the money was paid by Laleh and that Saeed was only a “middle-man”. Rather, there is evidence that Saeed loaned the money to Rahim. For example, Saeed’s evidence on the Motion to Add included statements that he (Saeed) made loans to Rahim in the amounts of $20,000.00 USD, $30,000.00 USD and $15,000.00 USD. Exhibits to his affidavit included the money transfer slips for those amounts.

[17] Although there is evidence that Laleh partially reimbursed Saeed with respect to the funds advanced to Rahim, the reimbursement was only for the principal amounts advanced and it was done “to alleviate the immediate financial burden of [Saeed] borrowing from interest-bearing loans”. While there is also evidence (from Saeed) that, as a result of this payment, Laleh understood that she would be reimbursed when Rahim repaid his debt, I do not find that this meant that the debt became, let alone that it was always, payable by Rahim to Laleh. As Master Abrams found in the Motion to Add, “[Saeed] says that he ‘and his family’ loaned money to the plaintiff. The references [in the statement of claim] to ‘his family’ notwithstanding, the plaintiff states that the monies loaned (plus interest and interest penalties) are due to him. He alleges that ‘[d]espite numerous verbal and written requests, [the defendant] has not repaid any of the funds loaned to him by [the plaintiff]’ which, in accordance with the plaintiff's own evidence, were to have been repaid by July 7/17--at the very latest (i.e. one month after the last advance was made to the defendant). Three money transfer slips were filed on [the Motion to Add] by the plaintiff (with his name and address listed), totaling the principal sum he says was loaned by him to [Rahim].” Additional evidence from Saeed on the Motion to Add included the following: “Although I was eventually reimbursed the principal, the transactions resulted in significant interest penalties to my credit cards, lines of credit, and bank account, as well as significant loss of opportunity to profitably invest these funds.”

[18] I also do not accept the plaintiff’s argument that the plaintiff only understood the alleged “error” following discoveries. For example, the plaintiff asserts that “It was discovered during Examinations that my mother, [Laleh], was more involved than had previously been considered, as [Laleh] did reimburse me for funds sent to [Rahim], and was thus a proper plaintiff to this matter who should be added as a party.” I do not accept that this is something that was “discovered during Examinations” since it was known to Saeed and Laleh throughout. The plaintiff was not able to point to any relevant facts that were learned through discovery to support the position that an error was discovered, and I find that there is nothing in the record that demonstrates any objective change in the circumstances that supports the plaintiff’s position that the claim was commenced in Saeed’s name in error. This is different than the situation in Picov and Mazzuca where, in each of those cases, it became objectively clear who the plaintiff should have been and that there was a misapprehension. On the evidence here, I do not find an error of the type that occurred in Picov or Mazzuca. The plaintiff’s current position that there was an “error” is also contradicted by the plaintiff’s position on the Motion to Add, which post-dated the discoveries and which, as noted above, is inconsistent with the current motion.

[19] Further, looking at the timeline of events and the position taken by the plaintiff at the time the claim was commenced, on discovery and on the Motion to Add, the evidence and pleadings indicate that the choice of Saeed as plaintiff was intentional and tactical. This included a tactical reason for naming Saeed as the plaintiff, namely that the documents relating to the transfer of the funds to Rahim were between Saeed and Rahim and between Saeed and his lenders/various financial institutions. Saeed’s affidavit evidence on the Motion to Add included the following: “At that time, I believed that, as my name was on the loan documents that we were to submit in evidence, I was the sole and proper plaintiff in this matter, despite my mother currently bearing the financial burden of the transactions until I could repay her.” This is relevant both in terms of proving the alleged loan and in terms of the amounts that being claimed, namely the interest and other costs and charges incurred by Saeed in connection with the funds he paid to Rahim.

[20] Further, the position that the plaintiff takes on the current motion is internally inconsistent in that it asserts that the claim belongs to Laleh while at the same time asserting that various charges and costs amount to losses suffered by Saeed rather than Laleh. The plaintiff’s position is also inconsistent with certain of the grounds listed in the plaintiff’s notice of motion from the Motion to Add, including the following:

a) It was discovered during Examinations that Saeed was eventually reimbursed for his personal contribution to the loan by his mother, Laleh. He had not understood this to offset the wrong done to him by Rahim.

b) Saeed did suffer losses as a result of his original payment and months of deprivation, both of opportunity to invest these funds profitably and as regards interest penalties suffered while this loss remained in his accounts, and was the primary figure in orchestrating the logistics of the loan and acted as an intermediary for Laleh.

[21] Finally, in all the circumstances of the case, including my conclusion set out below with respect to the issue of abuse of process, I would exercise my residual discretion to refuse misnomer relief even if I had concluded that the action was commenced in Saeed’s name in error; see Ormerod at para. 32.

(ii) Issue estoppel and abuse of process

[22] Although I have found that misnomer is not available in the circumstances, for completeness I have also considered whether the plaintiff is barred from seeking misnomer relief based on the doctrines of issue estoppel or abuse of process.

[23] The plaintiff asserts that issue estoppel does not apply in the circumstances. The plaintiff argues that the motion before Master Abrams was limited to the issue of whether Laleh could be added as a plaintiff, the determination of which is based on a different legal test, and that different evidence would have been adduced with respect to such a motion. The plaintiff also asserts that the comments by Master Abrams that “This is not a case of misnomer or misdescription” are obiter and not binding, and that it would have been outside of Master Abram’s jurisdiction to determine the question of whether misnomer applied when there was no motion before her seeking such relief.

[24] I find that issue estoppel does not arise from the Motion to Add. Although there may have been some references to misnomer in the defendant’s factum, and although Master Abrams may have asked counsel some questions about misnomer at the hearing of the motion, that does not mean that the parties joined issue on the question of misnomer or that the issue of misnomer was before the Court. The notice of motion from the Motion to Add does not make any reference to relief for misnomer and, as noted above, the defendant did not seriously pursue this argument at the hearing of the motion. Rather, it is clear on a proper reading of Master Abrams’ endorsement from the Motion to Add that she was merely commenting that the motion before her was not seeking a determination of misnomer or misdescription.

[25] In terms of abuse of process, the plaintiff argues that a failed motion to add the correct party as a plaintiff does not bar a subsequent motion for misnomer relief, nor is the subsequent motion an abuse of process; see Janet Campagiorni v. Lyne Legare, 2020 ONSC 667.

[26] Plaintiff’s counsel acknowledged that although litigants are not entitled to endless opportunities to seek the same remedy using different legal arguments in front of different triers of fact, the misnomer motion was not an abuse of process because “the plaintiff is entitled to take all reasonable steps to preserve her rights against the expiry of a limitation period” see Campagiorni at para. 46.

[27] The defendant submits that although the current motion would not be an abuse of process per se (i.e. simply because of the prior Motion to Add), it is an abuse of process here because the subsequent motion (the misnomer motion) is based on evidence from the plaintiff that contradicts the plaintiff’s evidence on the first motion (the Motion to Add).

[28] I agree with the plaintiff that the previous Motion to Add is not a bar to the current motion, per se. However, I find that Campagiorni is distinguishable because, in this case, the two motions are grounded upon contradictory assertions, which was not the case in Campagiorni. As such, I find that the current motion is an abuse of process.

CONCLUSION

[29] For the reasons set out above, the plaintiff’s misnomer motion is dismissed.

[30] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines). The plaintiff’s cost submissions shall be filed by August 20, 2021 and the defendants’ submissions shall be filed within 7 days of receipt of the plaintiff’s submissions.

MASTER ROBERT FRANK

DATE: 9 AUGUST 2021