COURT FILE NO.: CV-17-00582499

MOTION HEARD: 20210818

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jill Marie Zenchyshyn, Plaintiff

AND:

Peel Condominium Corporation No. 7 and Vero Property Management Services, Defendants

BEFORE: Associate Justice L. La Horey

COUNSEL: Michael Kealy and Maximir Luburic, Counsel for the Moving Party Plaintiff

Sean Frankland, Counsel for the Respondents Vince Greco and Adela Hernando

HEARD: August 18, 2021 by videoconference

REASONS FOR DECISION

OVERVIEW

[1] The plaintiff brings this motion to amend her statement of claim to add Vince Greco and Adela Hernando as defendants (the “respondents”) to the action. In October 2015, the plaintiff fell down a flight of stairs in a condominium townhouse. In May 2017, she retained a lawyer to commence an action for personal injuries. The plaintiff’s lawyer named the condominium corporation in the within action, but did not name the respondents, who were the owners of the actual unit at the time of the fall. Subsequent to the expiry of the limitation period, the plaintiff brings this motion to correct the name of the owner of the condominium townhouse unit in which the plaintiff fell from Peel Condominium Corporation No. 7 (“PCC No. 7”) to Vince Greco and Adela Hernando, relying on the doctrine of misnomer. In the alternative, the plaintiff moves to amend the statement of claim to add the respondents Vince Greco and Adela Hernando as defendants to the proceeding, relying upon the doctrine of discoverability to extend the limitation period.

[2] For the reasons that follow, I grant the plaintiff’s motion on the basis of the doctrine of misnomer.

BACKGROUND AND CHRONOLOGY

[3] The plaintiff alleges that on October 15, 2015, she fell on basement stairs while visiting a friend at premises known as 475 Bramalea Road East, Unit 16, Brampton, Ontario (the Premises”). 475 Bramalea Road East is a condominium development comprising a number of townhouse units including Unit 16. The plaintiff claims damages for injuries she says she sustained as a result of the fall including multiple fractures to her leg.

[4] In May 2017, the plaintiff retained a lawyer (not counsel on this motion) with respect to her fall. The lawyer has filed an affidavit on this motion and was cross-examined.

[5] The lawyer arranged for a title search to be conducted with respect to the Premises on May 29, 2017. A statement of claim was issued on July 31, 2017 against Manpreet Singh and Farah Naz as defendants, the individuals who were the current owners of the Premises at the time the title search was completed (the “First Action”). In mid-August, the defendants to the First Action told the plaintiff’s lawyer that they did not own the Premises at the time of the fall. The lawyer reviewed the title search again, confirmed that those defendants did not own the Premises at the time of the fall, and discontinued the First Action on or about August 24, 2017.

[6] On September 12, 2017, the plaintiff’s lawyer commenced the within action on behalf of the plaintiff in relation to the fall naming as defendants PCC No. 7 and Vero Property Management Services Inc. (“Vero”).[^1]

[7] In their statement of defence dated June 15, 2018, PCC No. 7 and Vero first deny all of the allegations in the statement of claim. They then go on to acknowledge that they were an occupier of the common elements of the 475 Bramalea Road but deny that they were an occupier of Unit 16. They plead that at the time of the fall, the plaintiff was the occupier of the Premises pursuant to the Occupiers’ Liability Act.[^2]

[8] At her examination for discovery on June 18, 2018, the plaintiff testified that on October 15, 2015, she was vising friends who rented the basement at the Premises and fell down the basement stairs during that visit.

[9] In May 2019, the plaintiff’s law firm was advised by defendants’ counsel that the wrong property owner of the Premises had been named and that the respondents were the owners of the Premises until they sold it on July 15, 2016. The plaintiff’s law firm then obtained a new title search. The previous title search that had been obtained did not contain the prior transfers of the Premises that had been deleted from title. The new title search obtained on May 27, 2019 contained the deleted transfers. This title search revealed that the respondents were the owners of the Premises at the time of the fall.

[10] The plaintiff’s lawyer put the respondents on notice of a claim against them by letter dated May 29, 2019. The plaintiff then commenced this motion on June 28, 2019 to amend the statement of claim to add them as defendants. The motion was originally returnable on August 9, 2019. It was adjourned sine die on that date. There is no evidence before me as to why it has taken so long (two years) for the motion to come back on for hearing. For the purposes of this motion, the relevant date to consider as crystallizing matters is the date that the motion was filed.

[11] The respondents tendered an affidavit from a law clerk who describes how the plaintiff or her lawyer or agent could have obtained the names of the registered owners of the Premises from a title search in 2017. The affiant, who was not cross-examined, states that the plaintiff or her lawyer or agent should have requested a title search selecting the option to “Include Deleted Instruments”.[^3] If that option had not been selected, they should have reviewed the title search which would have revealed that the required information (ownership on October 17, 2015) was missing. The parcel register obtained by the plaintiff in May 2017 indicated that PCC No. 7 was not the owner of the Premises, rather it is shown as having registered a condominium declaration. Further, the parcel register does not show a continuous history of ownership and thus it is clear from a review of the parcel register that the identity of the registered owner(s) for the relevant time is missing.

[12] The respondent Vincent Greco filed an affidavit on the motion. He deposes that he and Adela Hernando purchased the Premises on August 31, 2009 and sold it on July 2016. In August 2015 he and his wife rented the premises to Toni Winchester who was the principal tenant of the Premises and lived there “with children”. At the time of the fall on October 15, 2015, the respondents did not live at the premises. The respondents say that they had no notice of the fall on October 15, 2015, until receiving the notice letter sent on behalf of the plaintiff in May or June 2019. Mr. Greco deposes that as a result of the delay the respondents will suffer prejudice given the lapse of time from the incident on October 15, 2015, and from the expiry of the two year limitation period from October 15, 2017, to the date that the motion was first brought to add the respondents as defendants. Mr. Greco alleges that it may be more difficult to find witnesses, memories may have faded, they cannot obtain timely vocational assessments, defence medicals and surveillance. They also say that they would not have the ability to obtain a timely inspection of the premises. Mr. Greco was cross-examined on his affidavit and his evidence is referred to below.

[13] For the purposes of this motion the relevant portions of the statement of claim are as follows:

a. Paragraph 2 - The plaintiff was an invitee on the “property located at 475 Bramalea Road East, Unit 16, Brampton, Ontario L6T 2X3 (hereinafter “the Premises”));

b. Paragraph 3 - PCC No. 7 was, at all material times, “an owner, property manager and /or occupier of the Premises and had care, custody, and control of said property, and was responsible for the design, maintenance, repair, construction, management, operation, and safety of the Premises”;

c. Paragraph 4 – Vero was the “property manager of the Premises and had care, custody, and control of said property, and was responsible for the design, maintenance, repair, construction, management, operation, and safety of the Premises”;

d. Paragraph 5 – on October 15, 2015 the plaintiff was walking down the stairs to the basement of the Premises when she fell;

e. Paragraph 6 – the defendants were occupiers within the meaning of the Occupiers’ Liability Act and breached their statutory duties as occupiers;

f. Paragraph 7 – the accident was caused as a result of the negligence defendants, with regards to their responsibility for the general condition, safety, maintenance and other obligations in relation to the Premises. There follows a non-exhaustive list of particulars including, failure to install railings, failure to install carpeting on the wood stairs, failing to provide adequate lighting, and permitting the stairs to remain dangerous;

g. Paragraph 16 – the plaintiff pleads the Negligence Act, the Occupiers’ Liability Act and the Insurance Act.

ISSUE 1 – Whether the amendment should be allowed to correct a misnomer

[14] The plaintiff submits that the doctrine of misnomer applies to correct the misdescription of the owners of the Premises from PCC No. 7 to the respondents.

The Law

[15] Section 21 of the Limitations Act, 2002[^4] provides:

Adding party

21 (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

Misdescription

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

[16] Rule 5.04 of the Rules of Civil Procedure states:

Proceeding not to be Defeated

5.04 (1) No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.

Adding, Deleting or Substituting Parties

(2) 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.

[17] In a misnomer case, the court asks whether the plaintiff demonstrated an intention to sue the proposed defendants and the proposed defendants would know that the “litigating finger” was directed at them.[^5] Even after a finding of misnomer, the court retains a residual discretion to refuse to permit the correction.[^6]

[18] The law of misnomer is summarized in the decision of Justice MacLeod in Loy-English v Ottawa Hospital as follows:[^7]

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. 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. 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]

[19] In Tschirhart v Grand River Hospital, Master McGraw reviewed some of the factors that a court may consider in determining whether to exercise its residual discretion to refuse to permit the correction of the misnomer stating:[^8]

46 Although I have concluded that this is a case of misnomer, I must also consider whether to exercise the court's residual discretion to refuse to permit the correction of the misnomer (Ormerod at paras. 26-33). The most important factors are whether the proposed defendant was misled or would be unduly prejudiced (Ormerod at para. 32). However, the absence of prejudice does not guarantee an amendment (Mazzuca at para. 42; Ormerod at paras. 26-30 and 32; Skribans at para. 47). As the Court of Appeal stated in Muzzuca at paragraph 62:

"Where the evidence establishes that the party to be affected by the amendment has not been misled, and will not suffer non-compensable prejudice other than that occasioned by the inability to rely on the limitation defence, amendments to pleadings have been permitted following the expiry of limitation periods, including amendments designed to add, delete or substitute plaintiffs or defendants."

47 In determining whether to exercise its residual discretion, the court may also consider any unexplained inordinate delay in seeking leave to correct the misnomer; lack of notice including how long notice of the claim was given to the proposed substituted defendant after the cause of action and the passage of the presumptive limitation period; the stage of the proceedings and the lack of participation by the proposed substituted defendant; the lack of specificity of negligence; and public policy supporting adherence to limitation periods (Ormerod at paras. 28-32; Skribans at paras. 47-52; Mohabir v. Mohabir, 2014 ONSC 5484 at para. 15; Urie at paras. 108 and 144; Patrick at paras. 28-31). Further, as the scope of what the courts consider a misnomer broadens beyond a "classic" misnomer in which the claim contains a minor spelling error of the defendant's name and is personally served upon the intended but misnamed defendant, it is appropriate to take a correspondingly wider view of the court's discretion to refuse to correct the misnomer, in particular, the extent of its departure from a mere irregularity in all circumstances of the case (Ormerod at para. 31).

Analysis

Whether this is a case of misnomer

[20] The plaintiff says that she has satisfied the misnomer test and that the respondents would know that they were being referred to as the owners of the Premises upon reading the statement of claim. The correct address of the condominium unit is set out in paragraph 2 of the statement of claim. The date of the fall is specified.

[21] The plaintiff relies on the evidence of Mr. Greco. In his affidavit he confirmed that he and his wife owned the Premises on the date of the incident. He also deposed that “I verily believe that I would not know from reading the Statement of Claim that my wife and I were the intended Defendants in the Statement of Claim.” However, at his cross-examination the following exchange occurred:

32 Q. So other than the fact that [the statement of claim] doesn't name you and your wife or your tenant, you're saying those are the two pieces of information you would have needed to know based on reading the Statement of Claim that when they talk about the owner of the premises, they meant you and your wife?

A. If it was intended for me, my name should be there, and the tenant's name should be there. Neither nor are there. Nothing states that it's for me.

33 Q. Is there anything else that you needed –

A. Pardon me?

34 Q. Is there any other information that you say was needed in the Statement of Claim that would have made it more clear to you that they were talking about you and your wife?

A. Yes.

36 Q. Your name and the tenant.

A. Our names, the tenant. What else can I say? If it's not there, and if my wife -- there's no possible way that we could have known this was for us.

[22] Although the test for misnomer depends upon an objective reading of the statement of claim, the plaintiff says that Mr. Greco’s own reading of the statement of claim supports her contention that the statement of claim is clear that the litigating finger is pointed at the respondents, but that they were misnamed.

[23] The plaintiff relies on Acimovic v 8174709 Canada Inc.[^9] as being similar to the case at bar. In that case the plaintiff tripped on a sidewalk in front of a building. The plaintiff intended to sue the owner, occupier and manager of the premises on which he fell. His lawyer conducted a title search and contacted the building’s management office to ascertain the correct names of the defendants. The title search was misinterpreted and the lawyer was given incorrect information by the building management company. The claim named the subsequent owner of the property as the defendant, rather than the owners at the time of the trip and fall. The court granted the motion.

[24] The respondents contend that the pleading is not sufficiently clear and the respondents would not be able to recognize that they were the intended defendants. They note that in paragraph 3 of the statement of claim PCC No. 7 is described in various capacities in addition to being named as an owner. The respondents, as former owners of the Premises, would be aware that the PCC No. 7 was closely connected with the Premises. The respondents say that the statement of claim is drafted in such a way as to suggest that the plaintiff intended to sue the condominium corporation because of its involvement with Premises but that the plaintiff was not aware in what capacity the condominium corporation should be named. They submit that there is nothing to indicate that the plaintiff was naming PCC No. 7 solely in its capacity as owner of the Premises. They submit that a reasonable reading of the statement of claim is that the plaintiff intended to sue the condominium corporation and the property manager as a result of their connection to the Premises.

[25] The respondents contend that this problem is amplified by the fact that PCC No. 7 is described in paragraph 3 as being “responsible for the design, maintenance, repair, construction, management, operation, and safety of the Premises” and that some of these responsibilities would likely fall outside of the range of responsibilities attached to the owners of the Premises, and within the purview of the condominium corporation. Vero, the property manager, is described in paragraph 4 as having the same responsibilities.

[26] In my view the pleading is sufficiently clear that the plaintiff was pointing the litigating finger at the respondents as owners of townhouse Unit 16 of 475 Bramalea Road East. As noted above, paragraph 2 of the statement of claim defines Unit 16 of 475 Bramalea Road East as “the Premises”. In paragraph 3 of the statement of claim, PCC No. 7 is said to be an “owner” of the Premises. Paragraph 5 of the statement of claim says the plaintiff fell on October 15, 2015 while walking down the stairs to the basement of the Premises. The respondents were the owners of the Premises on the date that the fall occurred.

[27] The pleading also contains standard ‘boilerplate’ language employed in slip and fall claims with the relevant entities described broadly out of an abundance of caution. The fact that the description of the roles and responsibilities of the owner and property manager overlap is one of the “vagaries of pleadings”[^10] that should not determine the result of this motion.

Whether the correction should be refused

[28] As noted above, the court retains a discretion to refuse the correction.

[29] The plaintiff says that while the respondents have made bald allegations of prejudice, they have not demonstrated actual prejudice. At the cross-examination of Mr. Greco, the respondents’ counsel agreed that there was no evidence of missing documents, potential witnesses who were not able to testify, or of any changes to the Premises. Since being put on notice of the claim in the summer of 2019, the respondents have not taken any steps to attend at the Premises, made any requests of plaintiff’s counsel or the defendants’ lawyer to identify any witnesses or interview the tenant, nor have they requested any documentary disclosure.

[30] The plaintiff was examined for discovery by the defendants in 2018. Therefore, there is a transcript available of the plaintiff’s sworn evidence, including her evidence of her medical condition, at a point closer in time to the fall. Further, the evidence filed by the plaintiff on the motion demonstrates that the plaintiff has obtained key damages documentation including medical records and OHIP summaries.

[31] The respondents say that there is clear prejudice. The respondents were not made aware of the claim until the summer of 2019, almost four years after the incident. They say that they are unable to conduct a timely investigation into the alleged damages. They also state that it is unclear as to whether any liability evidence has been obtained or preserved.

[32] The respondents rely on Martin v Doe[^11] where the proposed defendants made specific reference to the absence of medical and employment related records. This case is distinguishable as in the case at bar the plaintiff has indicated the availability of damages documentation.

[33] After reviewing the evidence filed, I am not satisfied that the respondents would suffer any non-compensable prejudice if they are substituted as defendants.

[34] Notwithstanding my finding on the absence of prejudice, I must consider whether I should nonetheless exercise my discretion to refuse the correction. In this regard, I note that the plaintiff moved almost immediately to bring this motion after being advised of the true owner of the Premises at the material time.

[35] The respondents point to the delay between the fall in October 2015 and the time that they were put on notice of the claim in the May or June of 2019. While this is a factor that I take into account, it is not fatal in this case.

[36] I have not been persuaded that this is an appropriate case for me to exercise my residual discretion to deny the plaintiff’s motion.

Conclusion on Misnomer

[37] In summary, I am of the view that the doctrine of misnomer applies and that it is appropriate to correct the statement of claim to name the respondents as defendants.

ISSUE 2 – Whether the doctrine of discoverability applies

The Law

[38] Under the Limitations Act, 2002[^12] the date of “discovery” is the key to determining whether or not a limitation period has expired. Sections 4 and 5 of the Limitations Act, 2002 provide as follows:

4. 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.

5.(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).

(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.

[39] In Morrison v Barzo, Justice van Rensburg, speaking for the Court of Appeal, set out the test for adding a party where a limitation period may have expired:[^13]

[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] O.J. No. 1745, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd. (2016), 133 O.R. (3d) 35, [2016] O.J. No. 3906, 2016 ONCA 585, 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] O.J. No. 3129, 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.

Analysis

[40] In the alternative to substituting the respondents for PCC No. 7 on the basis of a misnomer, the plaintiff submits that that the respondents should be added as defendants, relying on the discoverability principle to extend the limitation period. They say that the plaintiff relied on an incomplete property search which did not identify the respondents as the owners of the Premises at the time of the fall and the plaintiff moved to add the respondents within weeks of learning of the identity of the respondents.

[41] The parcel register that the plaintiff’s lawyer obtained on May 26, 2017 was placed in evidence. The document states at the top that deleted instruments are not included. PCC No. 7 is shown as a party in connection with a Declaration and a number of Condo By-Laws. The defendants to the first action, Manpreet Singh and Faraz Naz, are shown as taking title to the Premises on January 5, 2017 pursuant to a transfer from Zareena Ahsan. However the parcel register does not disclose the particulars of the transfer to Zareena Ahsan. It is apparent from the face of the document that PCC No. 7 is not the owner of the Premises and that the current owners (as of the date of the search) are Manpreet Singh and Farah Naz. It is also apparent from the document that the full ownership history is not included. This information, with the note that deleted instruments are not included would put the reader on notice that further searches may be required and the deleted instruments should be obtained. It is not disputed that it was possible to obtain a property search that would have identified the respondents as registered owners of the Premises on the date of the fall.

[42] The plaintiff’s evidence on discovery was that on the date of the fall she was visiting her friend who lived in the basement at the Premises and that her friend’s daughter rented the premises along with her fiancé. There is also no evidence as to whether or not the plaintiff tried to find out the identity of the owners of the Premises from her friend or the tenants. The plaintiff did not file an affidavit on this motion.

Conclusion on Discoverability

[43] I do not accept the plaintiff’s position that doctrine of discoverability applies to extend the limitation period in this case. The identity of the respondents could have been discovered with the exercise of due diligence on the date of the fall, October 15, 2015, or shortly thereafter (within 30 days), and therefore the limitation period expired by no later than November 15, 2017.

DISPOSITION

[44] The plaintiff’s motion for leave to amend the statement of claim to substitute the names of Vince Greco and Adela Hernando for Peel Condominium Corporation No. 7 and for consequential amendments is granted.

[45] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed three pages (double-spaced) excluding costs outlines. The plaintiff shall deliver her costs submissions by October 29, 2021 and the respondents shall deliver their costs submissions two weeks thereafter.

L. La Horey, A.J.

Date: October 8, 2021

[^1]: The defendants did not participate in this motion. [^2]: R.S.O. 1990, c. 0.2 [^3]: The evidence filed by the plaintiff also confirms that a title search would not show all previous owners if it was pulled without deleted transfers. [^4]: S.O. 2002, c. 24 [^5]: Omerod v Strathroy, 2009 ONCA 697 at paras 21 - 22 [^6]: Omerodat paras 28 - 32 [^7]: Loy-English v Ottawa Hospital, 2019 ONSC 6075 at para 21 [^8]: 2019 ONSC 6650 (Master) [^9]: 2015 ONSC 582 (Master) [^10]: Loy-English v. Ottawa, para 21i [^11]: 2017 ONSC 6955 (Master) [^12]: S.O. 2002 c. 24 [^13]: 2018 ONCA 979 at paras 29 - 32