REASONS FOR DECISION

[1] The relief sought in respect of the Estate of Maria Naccarato, by its Executor, Joe Naccarato, is granted as being unopposed.

[2] As for the relief sought in respect of Joe Naccarato (in his personal capacity), it is granted, also, for the reasons and with the proviso set out in paragraph 18, below.

[3] The plaintiff, Patricia Ahern, alleges having sustained injury as a result of a slip and fall that she says occurred on January 17, 2018 on the sidewalk located between 134 and 136 Dewhurst Boulevard in Toronto, Ontario.

[4] A lawyer’s letter was sent to the City of Toronto, on behalf of Ms. Ahern, to put the City on notice; and, on January 9, 2019, the City denied liability and referred plaintiffs’ counsel to the contractor that, it said, was responsible for clearing the sidewalk in question, A & F Di Carlo.

[5] At the same time, plaintiffs’ counsel conducted a property search for 134 and 136 Dewhurst Boulevard. The search disclosed the owner of 136 Dewhurst Boulevard to be “Maria Naccarato” and the owner of 134 Dewhurst Boulevard to be “Caine Ian Chow”.

[6] Notice letters addressed to each of Maria Naccarato and Caine Ian Chow were sent. In each letter, the addressee was identified as the “owner/occupier” and a request was made for information as to (a) any other occupier of the addressees’ respective properties and/or (b) anyone else having care, control or jurisdiction over the area where Ms. Ahern said she fell. Each addressee was directed to provide a copy of the letter to her/his insurer.

[7] In March of 2019, Mr. Caine’s insurer wrote to plaintiffs’ counsel. No information was provided in respect of anyone, save the City of Toronto, as a potential defendant. Then, in early April, 2019, plaintiffs’ counsel received a letter from the insurer for the Estate of Maria Naccarato denying liability and pointing the finger at the City of Toronto. No reference was made to any other owner or occupier of 136 Dewhurst Boulevard.

[8] On January 13, 2020, this action was commenced with, inter alia, Maria Naccarato named as a defendant. There was no reference in the statement of claim to Mrs. Naccarato’s Estate.

[9] In early May, 2020, plaintiffs’ counsel received a letter from the insurer for Mrs. Naccarato/her Estate advising, for the first time, that Mrs. Naccarato had died in July of 2014, that her son, Joe Naccarato, is the Executor of the Estate and that Joe Naccarato resided at 136 Dewhurst Boulevard at the time of Ms. Ahern’s alleged fall. In October of 2020, the plaintiffs delivered their notice of motion for the relief now sought.

[10] In respect of Joe Naccarato and the plaintiffs’ motion to bring him into the litigation as a party defendant, the plaintiffs say that, pursuant to R. 5.04(2), the court ought to grant leave to amend the statement of claim as correcting a misnomer and that Joe Naccarato will not suffer any non-compensable prejudice if leave is granted. To Joe Naccarato’s argument that the plaintiffs’ claim is statute barred as it applies to him, the plaintiffs point to s. 21(2) of the Limitations Act, 2002, and say that a misdescription or misnaming can be corrected, nonetheless. Relying on para. 9 of Sorokataya v. Keith, 2010 ONSC 4453, the plaintiffs posit that leave to amend ought here to be granted in that the plaintiffs have demonstrated that they intended, from the outset, to name the correct party and that Joe Naccarato (the intended defendant) had timely notice of the claim.

[11] The notice letters sent on behalf of the plaintiffs indicated that they were intended for the owner and/or occupier(s) of 136 Dewhurst Boulevard. The plaintiffs requested information (as to owners/occupiers) from all whom they put on notice. Plaintiffs’ counsel conducted a title search of 136 Dewhurst Boulevard and sent a notice letter to the only owner on title, Maria Naccarato. The letter was not returned to sender and there was no notification made that anyone other than Maria Naccarato had resided in the home, at the time of Ms. Ahern’s alleged accident—until after this action had been commenced.

[12] In correspondence dated March 7, 2019, Casualty Claims Representative Robert Latimer (on behalf of the insurer for the Estate of Maria Naccarato) advised that, as at then, he had received from “[his] insured” the plaintiffs’ notice letter of January 16, 2019. On a plain reading of Mr. Latimer’s words, the implication was that that the Executor of Maria Naccarato’s Estate, now known to be Joe Naccarato, had been put on notice that the plaintiffs wished to bring claim against the owner and/or occupier of 136 Dewhurst Boulevard. Joe Naccarato had received and, it seems, reviewed the letter such that he knew that it needed to be provided to the Estate’s insurer. That being so, in my view there was a “coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that [he] was the intended defendant” (Lloyd v. Clark, 2008 ONCA 343).

[13] There is no affidavit evidence from Joe Naccarato on this issue and the evidence of Saiyed Ahmed, the insurer’s legal manager, on the issue does not address the contradiction between Mr. Latimer’s March 7, 2019 correspondence and the suggestion now made that Joe Naccarato became aware of the action only upon receiving a copy of the City of Toronto’s notice of intend to defend months later. Also, and importantly, the source of the information relayed by Mr. Ahmed at paragraph 10 of his January 14, 2021 affidavit is not identified.

[14] But even if I am wrong and there was no coincidence between the plaintiffs’ intention and Joe Naccarato’s knowledge, there was a ‘litigating finger’ clearly pointing at Joe Naccarato throughout (see: Spirito Estate v. Trillium Health Centre, 2008 ONCA 762). I accept that a reasonable person having knowledge of the facts would have been aware that the litigating finger was here pointing to the person or persons who owned and/or occupied 136 Dewhurst Boulevard on January 17, 2018. The statement of claim specifically identifies the “owner and occupier” of 136 Dewhurst Boulevard as being someone against whom the plaintiffs make claim. And the proposed claims against Joe Naccarato as occupier (if not owner) of 136 Dewhurst Boulevard are not different than those made as against Maria Naccarato in the statement of claim.

[15] Even if it the pleading references to Maria Naccarato constitute a misnomer (and I believe that they do), I must still consider whether to exercise my residual discretion to deny the amendment. I have done so and remain prepared to permit the amendment. It wasn’t until after the claim was commenced that the plaintiffs learned of Joe Naccarato’s occupancy as at the time of the slip and fall of which the plaintiffs complain. And while Joe Naccarato argues that the plaintiffs did not do enough to identify him before January 17, 2020, I do not know what more they might have done. To suggest, with the benefit of hindsight, that they ought to have done a search of obituary listings (as is now suggested) is not reasonable, in my view. There was nothing in Mr. Latimer’s March 2019 correspondence to alert the plaintiffs to the fact that Mrs. Naccarato had died several years before Ms. Ahern’s slip and fall and there was no indication from anyone (the plaintiffs’ requests for information notwithstanding), before May 2020, that there was another owner/occupier against whom the plaintiffs might wish to take action. There was a “naked denial of liability” that “should not [have] trigger[ed] a duty on the plaintiff[s] to make further inquiries” (Madrid v. Ivanhoe Cambridge Inc. et al., 2010 ONSC 2235).

[16] Further, and in any event, the evidence before me does not support the contention that Joe Naccarato will suffer non-compensable prejudice if substituted for Maria Naccarato. The evidence proffered on behalf of the plaintiffs is that the witnesses and relevant records (medical and income tax) are still available. Early notice of the claim was provided to all existing parties to the litigation and to the insurer for the Estate of Maria Naccarato[^1]--the same insurer that had counsel argue this motion on behalf of Joe Naccarato. And while the insurer requested certain information in March of 2019, there was no request for the defence-medical or vocational assessment to which Mr. Ahmed now makes reference in his affidavit, as being necessary. Indeed, the action is in the nascent stages. No discovery (written or oral) has been undertaken and the claims have yet to be mediated.

[17] It is true that Mr. Ahmed deposes that Joe Naccarato has no knowledge of the incident and will be exposed to personal liability if added as a party; but, he does not say how he knows this to be so. And exposure to personal liability is not non-compensable prejudice that militates against the relief now sought being granted. If it were, no claims could be brought against persons without insurance (if, indeed, Mr. Naccarato has none and/or his insurance status changed after January 17, 2020).

[18] In all, therefore, I am content to grant the plaintiffs the relief sought by them with one proviso (as agreed to by the plaintiffs). Leave to amend to name Joe Naccarato as a defendant is granted--without prejudice to Mr. Naccarato’s right to plead a limitations defence.

[19] Having regard to the nature of the motion, its history and my ruling, there shall be no costs of this motion to anyone.

January 26, 2021 ________________________

[^1]: By letter dated April 5, 2019, Mr. Latimer indicated that the insurer’s initial investigation (responsive to the plaintiffs’ March, 2019 notice letter) had been completed and that the insurer had concluded, simply, that Ms. Ahern had fallen on a municipal sidewalk such that any claims ought to be directed to the City of Toronto.

Ahern v. City of Toronto, 2021 ONSC 617

Case Summary

REASONS FOR DECISION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1