Court File and Parties

COURT FILE NO.: CV-18-596977 DATE: 2022-02-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cuff, Plaintiff AND: Toronto Community Care Access Centre and Saint Elizabeth Health Care, Defendants

BEFORE: Associate Justice Josefo

COUNSEL: R. Naimark & N. Sinjari, for the Plaintiff, moving party L. Graham, for Saint Elizabeth Health Care, responding non-party, proposed new defendant Defendant, Toronto Community Care Access Centre, not participating in this motion

MOTION HEARD: February 16, 2022 DECISION RELEASED: February 22, 2022

Endorsement

Background to the Motion:

[1] Pursuant to my scheduling endorsement of September 3, 2021, the plaintiff’s motion was heard as a “Long Motion” on February 16, 2022. The July 16, 2019 Notice of Motion, originally returnable September 3, 2019 yet adjourned by both participating parties several times prior to the intervention of Covid, sought inter alia to:

• Amend the Statement of Claim, • Remove Toronto Community Care Access Centre (“CCAC”) as a party defendant, • Add Saint Elizabeth Health Care (“Elizabeth”) as a party defendant and to the title of proceedings, and, • Compel Elizabeth to deliver a Statement of Defence in 30 days from date of service of the amended claim.

[2] The plaintiff relies upon the doctrine of “misnomer” in support of the relief sought. Elizabeth opposes the motion, asserting that misnomer does not apply to what it describes as likely negligence on the part of counsel for the plaintiff. If misnomer applies, Elizabeth urges that, due to what it asserts is presumed prejudice arising from the passage of a time-limit, and also due to the passage of time since the event in question, I apply my discretion to not grant the relief sought by plaintiff.

Underpinning Facts/Chronology Leading to the Hearing of this Motion:

[3] The following events leading up to the motion are not in dispute:

• On May 1, 2016, the plaintiff, a client of Elizabeth, slipped and fell in her residence when her caregiver from Elizabeth failed to attend at her residence, as was allegedly scheduled. • In or about June 2016 (the specific date is not known), pursuant to the September 5, 2019 affidavit of Ms. P. Malone, the risk and privacy officer at Elizabeth (“Malone affidavit”), Ms. Malone and a representative of the CCAC met with the plaintiff “at least once again…to discuss the Incident and how to improve communication about such events in the future.” • On December 2, 2016, the first lawyer for the plaintiff sent what is commonly described as a “notice letter” to Elizabeth. This letter identified the plaintiff and referenced May 1, 2016 as the date of loss “with respect to an incident that occurred on that date…”. A copy of the plaintiff’s file from 2013 ongoing was requested, with an authorization letter in that regard provided. The letter ended as follows: o “Please take this letter as your formal notice of our client’s intention to bring a lawsuit against you”. • On June 12, 2017, the second lawyer for the plaintiff sent another notice letter to Elizabeth. It also referenced the name of the plaintiff. It then provided specific details surrounding the May 1, 2016 event. The second lawyer wrote that his firm was retained to act: o “…with respect to a slip and fall incident that occurred on May 1, 2016. [Plaintiff] did not receive any caregiving services from Elizabeth on May 1, 2016 as scheduled, and that caused her to fall and she suffered severe injuries. We will be commencing a legal action against Elizabeth…”. • On August 23, 2017, the third lawyer, the Naimark firm, was hired by the plaintiff. • On May 1, 2018, the claim was issued, yet with the named defendant the CCAC, not Elizabeth. • On June 19, 2019, counsel for CCAC informed counsel for plaintiff that they are the wrong defendant. • On June 21, 2019, counsel for CCAC informed counsel for plaintiff that the caregiving entity for the plaintiff was Elizabeth. • On June 25, 2019, a law clerk at the Naimark firm sought to requisition a motion, which was confirmed on June 27, 2019 as returnable originally on August 23, 2019. • The Naimark lawyer with carriage sought to have the motion adjourned to September 3, 2019. • Elizabeth then sought an adjournment, with a new November 2019 date being provided. Due to a miscounting of days given the Remembrance Day court holiday, the motion was not timely confirmed for that November date. A new date of February 18, 2020 was chosen. • Ultimately, the matter went before a Master (now, Associate Justice) who concluded that there was insufficient time on her list for it to be heard. The matter was to be re-scheduled as a “Long Motion” (“LM”) and, after a hiatus due to Covid and resulting court delays except for urgent matters, it was assigned to me for scheduling. I spoke with the parties on September 3, 2021, with next February 16th being my earliest LM date then available. February 16, 2022 was thus booked for this LM.

Applicable Law:

[4] To situate the subsequent discussion within the applicable law, I excerpt Rule 5.04 of the Rules of Civil Procedure and section 21 of the Limitations Act, 2002. The “push-pull” between the Rule and the applicable section from the Limitations Act, and the resultant need for careful consideration, has often been discussed in the case-law.

MISJOINDER, NON-JOINDER AND PARTIES INCORRECTLY NAMED

Proceeding not to be Defeated

[5] Rule 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

[6] (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.

Limitations Act, 2002, SO 2002, c 24, Sch B

Adding party

[7] 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

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

Misnomer—What it is/How and When it Applies:

[9] Misnomer, or “misnaming”, reflects that, at times, a party can be named incorrectly in a Statement of Claim. Such a pleading can be amended to correct the error. Rule 5.04 provides that, in the circumstances specified therein and as also governed by section 21 of the Limitations Act, a party may be substituted, or a name corrected.

[10] The descriptive test and evolution of the law of misnomer begins, but does not end, with the 1960 decision of the English Court of Appeal in Davies v. Elsby Brothers Ltd [1960] 3 All E.R. 676 [1961] 1 W.L.R. 170 (C.A.). Therein, Lord Devlin stated in part as follows:

The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong", then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries". Then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.

[11] As discussed by RSJ MacLeod in Loy-English v. The Ottawa Hospital et al, 2019 ONSC 6075, the test has over the years evolved and, in Ontario, it has been broadened. RSJ MacLeod stated in that regard the following:

15. Although a passage from the English decision of Davies v. Elsby Brothers Ltd. is frequently cited in misnomer cases, the law of Ontario has evolved since that case was decided. In Davies the test was described in objective terms as whether a reasonable person looking at the statement of claim would realize that the allegation was directed at him or her but the Davies test also stated that the target of the allegation must be evident without the need to make further inquiries. The law in Ontario is broader than this.

[12] RSJ MacLeod, while addressing in particular the use of pseudonyms such as “Jane Doe” used as place-holders for various physicians in the Loy-English case, also helpfully sets out various general legal principles pertaining to misnomer. As this within case does not concern pseudonyms, I only excerpt those what I believe are relevant for this matter, as follows:

21. As with most discretionary remedies, results are fact driven and case specific. Despite, this, a number of principles may be derived from the jurisprudence. It is useful to summarize these as follows:

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 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 [emphasis added].

[13] In Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534, Justice Lederer considered misnomer when addressing the appeal of a decision of a Master which allowed a plaintiff to substitute the Region of York for the defendant City of Toronto, and Brennan Paving and Construction Ltd for “John Doe” Maintenance Company. The case itself involved a car which hit a pothole on McCowan Road, a roadway which spans the boundaries between these two municipal entities.

[14] The Justice observed, at paragraph 17, the following regarding the applicability of misnomer in circumstances similar to what is involved in this within matter:

[17] Once any applicable limitation period has expired the court is not free to substitute one party for another without reference to the doctrine of misnomer [emphasis added].

[15] In my view, contrary to the position of Elizabeth, the above excerpt thus supports that this is indeed the correct legal doctrine which applies to the within matter.

[16] At paragraph 24 of Bertolli, Justice Lederer posed the following question:

The question that remains is whether the Region of York, acting reasonably, upon reading the statement of Claim would have recognized that it was the intended defendant. This is referred to as the “litigating finger test”.

[17] At paragraph 26, Justice Lederer concluded that the Region of York could not reasonably have known that it was the intended litigation target or defendant, for these reasons:

…In this case the City of Toronto is geographically separate and distinct from the Region of York. From the documents, there was a very real question as to where this accident happened. The letter giving notice is precise. The Statement of Claim is clear only to the extent that it occurred on McCowan Road, in the City of Toronto. The presumption in the Master's finding is that whoever, at the Region of York, received and read the Statement of Claim would have known about the letter giving notice and should have recognized from the reference to McCowan Road that this was the same incident it referred to. In this there is an assumption that the reasonable reader would have recognized that the error was in the Statement of Claim. It would be equally reasonable for the reader at the Region, having made the connection to the letter, to conclude that subsequent to the notice being provided it must have been learned that, in fact, the accident occurred in Toronto. To return again to Ormerod v. Strathroy Middlesex General Hospital, the Master was prepared to assume whoever read the Statement of Claim at the Region was a "relevant person".

[18] Clearly, in Bertolli, the plaintiff’s litigating finger was wavering and shaky, rather than pointing with precision at the intended litigation target. As in the above-referenced Davies decision, the Region of York, on reading the imprecise Statement of Claim, alone, and without resort to any notice letters, would have been left uncertain whether it was or was not the intended recipient or target of the claim. Accordingly, the amendments of the claim and the addition of the Region of York were not permitted.

[19] In Mazzuca v. Silvercreek Pharmacy Ltd, 2001 8620 (ON CA), 2001 CarswellOnt 4133, The Court of Appeal then had confirmed that the doctrine of misnomer extended beyond its earlier traditional boundaries. In Mazzuca, at paragraph 49, the Court addressed the broadened doctrine as follows:

… Properly characterized, the motion in this case sought to delete one party to the action and to substitute another. An amendment request for this purpose engages a different aspect of subrule 5.04(2) which need not depend for success on proof of a misnomer in the nature of a misdescription of a party. Stated differently, the power conferred under subrule 5.04(2) to amend a pleading to change parties is not confined to misnomers of the misdescription type. It extends to the power to substitute parties and, as well, to correct in proper cases the naming of a party by mistake... [emphasis added].

[20] Counsel for Elizabeth argued that misnomer did not apply to this case involving what counsel described as a “mistake”, emphasizing that plaintiff’s counsel always had the correct information yet on more than one occasion failed to check his file for that information. It was submitted that such repeated inadvertence bordered on negligence. In my view, however, the Bertolli and Mazzuca decisions are clear that, when facts such as in this within matter arise, misnomer is the applicable legal doctrine to consider, as it is a potential remedy for the plaintiff, to potentially allow for correction of what counsel for plaintiff in this within matter has candidly acknowledged was a mistake.

[21] In Stechyshyn v. Domljanovic, 2015 ONCA 889, the Court of Appeal reiterated, moreover, that, if the true defendant knew that it was the target, then issues of alleged negligence do not matter because due diligence is not required. Stechyshyn involved a pedestrian hit by a car on June 8, 2006, who noted the respondent’s licence plate and other information. He gave the paper with that information to a police officer, whose name the plaintiff could not later recall.

[22] A claim naming a “John Doe” defendant was issued on June 20, 2008. Only on January 5, 2010 did plaintiff’s counsel seek the police file. Subsequently, on March 30, 2011, the defendant’s insurer obtained by court order the police file, which on July 22, 2011 was given to the plaintiff’s counsel. On November 25, 2011, a Master granted leave on an unopposed motion to amend the claim to substitute the respondent Domljanovic for “John Doe”. The respondent then sought and obtained an order from a Justice summarily dismissing the plaintiff’s claim as it was brought beyond the two-year limitation period. Indeed, the respondent was only substituted for John Doe more than five years after the accident, and more than three years beyond the limitation period.

[23] In overturning the decision of the Justice dismissing the plaintiff’s claim, the Court of Appeal held as follows:

1. 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: Kitcher v. Queensway General Hospital (1997), 1997 1931 (ON CA), 44 O.R. (3d) 589 (Ont. C.A.), at paras 1 and 4; Lloyd v. Clark, 2008 ONCA 343, 44 M.P.L.R. (4th) 159 (Ont. C.A.), at para. 4.

2. In this case, after the appellant's successful misnomer motion substituting the name of the respondent for John Doe, the respondent successfully brought a motion for summary judgment on the grounds that he was not sued until after the expiry of the limitation period and that the appellant plaintiff did not exercise due diligence in identifying the true defendant.

3. We held that the jurisprudence governing misnomer governed and that in the circumstances, summary judgment ought not to have been granted. Accordingly, we allowed the appeal and indicated reasons would follow. These are those reasons. …

4. If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff's solicitor's file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply [emphasis added].

[24] Referring briefly to the Kitcher decision cited in Stechyshyn, those facts are akin to this within matter: in Kitcher, the wrong defendant was sued even though the correct defendant was always known to plaintiff’s counsel, as the name of that correct defendant was in counsel’s file. So, too, in this case, Elizabeth was always known to be the proper defendant. It is not in dispute that Mr. Naimark was aware and that he had recorded such information. Yet unfortunately, neither his clerk nor his associate, when preparing the claim, checked the file to verify the proper defendant. Again, however, as was held by the Court of Appeal, due diligence is not a requisite in such matters. The initial, key question is whether the defendant, Elizabeth, would objectively know on reading the claim that it was always the intended defendant.

[25] Of course, notwithstanding the answer to that question above, such does not obviate the need to consider the second part of the test, applying my discretion and the issue of prejudice, which I shall address subsequently. Yet before arriving at that second part of the test, I turn to the Statement of Claim.

The Statement of Claim—pointing with precision:

[26] From the original Statement of Claim which named the CCAC, paragraphs two to four identify the parties (or, in the case of the defendant CCAC, erroneously identifies it) and concisely plead the facts of what happened and when, before delving into damages allegedly arising from the alleged breach. These relevant paragraphs read as follows:

2. The Plaintiff, Monica Cuff, (hereinafter referred to as "the Plaintiff") is an individual who resides in the City of Toronto, in the Province of Ontario, and was at all material times a resident and tenant residing at [address of plaintiff omitted for privacy reasons], in the City of Toronto, in the Province of Ontario, (hereinafter referred to as “the Premises").

3. The Defendant, Toronto Community Care Access Centre/ Centre D'Access Aux Communautaires De Toronto (hereinafter referred to as 'Personal Care Service Provider") is a corporation duly incorporated pursuant to the laws of the Province of Ontario with its principal place of business located at 250 Dundas Street West, Unit 5, in the City of Toronto, in the Province of Ontario, and at all material times they provided Personal Care services to the Plaintiff.

4. The Plaintiff states and the fact is that on or about May 1, 2016, the Personal Care Service Provider failed to attend the Plaintiff's residence to provide personal care service nor did they provide reasonable and adequate notification of their inability to provide care on that date. As such, the Plaintiff did not have a reasonable opportunity to find alternative care. The absence of the Service Provider created a situation of danger, in which the Plaintiff slipped and fell due to the lack of support and assistance which she required.

[27] When comparing this pleading to the proposed amended Statement of Claim, there is no change in the description of the event. Paragraphs two and four are identical. Paragraph three only proposes amendments to correct the alleged misnomer, substituting Elizabeth for the CCAC. Other than a similar change to the style of cause, paragraphs five through to and including eighteen, the final paragraph of the pleading, are also unchanged.

[28] At paragraph 23 of the Loy-English decision, RSJ MacLeod made clear that affidavits of the putative defendants claiming, in essence, that it “wasn’t me” were bald and self-serving, attracting little weight. In my view, whether a putative defendant would or ought to know, on reading a claim, that it was the always intended target, is ultimately a question of fact for the jurist to objectively decide.

[29] In this matter, paragraph two of the claim clearly and unequivocally identifies the plaintiff, and where she resides. Paragraph four provides full details of the date of the event and what, from the perspective of the plaintiff, happened to cause her alleged injuries. On a reasonable reading of the claim, let alone a generous one (which, in this case, is not required given the clarity in the claim), Elizabeth would or ought to surely know, without the need for any assumptions, who the plaintiff was, since she was a client of Elizabeth. Elizabeth would or ought to also surely know that it was thus always the intended defendant since it was contracted to provide services for the plaintiff, including on the day in question, but that on that day it had failed to do so. In my view, this is a case of the proverbial litigation finger firmly and unequivocally pointing straight at Elizabeth, with no wavering nor doubt. I find that, on reading the claim, Elizabeth surely would know that it was the intended target of this litigation.

[30] It is also clear to me from the evidence, and not disputed by Elizabeth, that the plaintiff always intended to sue Elizabeth. Indeed, Elizabeth acknowledged that fact. The Malone affidavit confirms that fact, as follows:

5. Upon my review of the letters referred to in paragraphs 3 and 4 [referring to the two notice letters described above], from lawyers retained by Ms. Cuff with respect to the Incident, I verily believe that Ms. Cuff was aware at least as early as December 2, 2016, that Saint Elizabeth provided her with personal support worker ("PSW") services at or around the time of the Incident, and that she intended at that time to bring a legal action naming Saint Elizabeth as a Defendant.

6. Based on my review of the letters from counsel retained by Ms. Cuff, dated December 2, 2016, and June 12, 2017, I verily believe that Ms. Cuff believed at least as early as December 2, 2016, that Saint Elizabeth was responsible for failing to provide PSW services on the specific date of the Incident. Further, I verily believe that Ms. Cuff intended, as of December 2, 2016, to name Saint Elizabeth as a Defendant in an action claiming damages for negligence [emphasis added].

[31] In paragraph 12 of her affidavit, Ms. Malone thus also acknowledged that she believed that Elizabeth would be sued, and that Ms. Malone had come to this knowledge in December 2016, after receiving the first notice letter. That knowledge on the part of Elizabeth thus leads to Patrick v. The Corporation of the Municipality of Southwest Middlesex et al, 2017, ONSC 17. In that decision involving a MVA on a road which, similar to Bertolli, passed through different municipal entities, the wrong municipal entity was initially sued. A motion to correct the misnomer was brought. Justice Leach addressed the evolution of the doctrine of misnomer thusly:

[27] In particular, it now has been established that amendments to correct a misdescription or misnomer may be made despite the passage of the limitation period if the evidence establishes a coincidence between:

i. the plaintiff's intention to name the correct party,(which must have been intended from the beginning); and

ii. the intended party's knowledge that it was the intended defendant; i.e., that it had notice of the claim,(with what the intended defendant would have known being primarily a finding of fact to be made on the basis of the evidence presented by the parties).

[32] In this matter, the two parts above enunciated by Justice Leach have been met:

• The plaintiff herein always intended to name the correct party. Defendant has described what happened as a “mistake”, even akin to negligence. Yet, leaving that aside, it is clear from the Malone affidavit, and all the material before me, that the plaintiff always intended to sue Elizabeth. It was in error that the CCAC was instead named. • Elizabeth knew that it was the intended defendant. It had not one but two warnings, through the notice letters, that it would be sued. As Ms. Malone testified, she expected Elizabeth to be sued. Indeed, the evidence before me is that it was Elizabeth who voluntarily tendered the two notice letters in their responding motion materials. This was disclosed in the Malone affidavit.

[33] Yet, as discussed in Patrick, given the expansion of the doctrine of misnomer, there still is discretion to not permit the amendments sought. Patrick, in that regard, reads as follows:

[28] Even then, however, the court retains its residual discretion under Rule 5.04(2) to refuse the desired corrective amendments.

[29] In that regard, our Court of Appeal has emphasized that, as the scope of what the courts consider a "misnomer" broadens, it is appropriate to take a correspondingly wider view of the court's discretion to refuse to correct the misnomer.

[30] In particular, now that the concept of "misnomer" has been broadened to apply to a wider range of situations beyond mere spelling mistakes, the standard used to permit its correction should take into account the extent of its departure from mere irregularity in all the circumstances of the case. For example, if the defendant was misled or will be unduly prejudiced by the amendment, that will be given great weight and generally will be determinative. Similarly, the court may decline to permit the amendment if the plaintiff has delayed bringing his or her motion to amend for an inordinate period of time [emphasis added].

Discretion to Refuse the Order:

[34] The above excerpt leads me to the second part of the test, and whether I should exercise my discretion to refuse the proposed amendments in this matter. In considering that issue, I return to what RSJ MacLeod wrote in Loy-English: “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”.

[35] In this case, while unfortunately time has obviously passed since the event in 2016, there is no explicit evidence of actual prejudice from the proposed defendant. Ms. Malone did not assert in her affidavit that any actual prejudice would arise if the relief was granted. Yet clearly, she could have so testified if she believed that Elizabeth would suffer prejudice. I find accordingly that it is likely there is no actual prejudice as none was alleged, and for reasons explained ahead.

[36] Referring to the chronology at the outset of these reasons, in 2019, as soon as the error was discovered, counsel for plaintiff then moved to put the proposed defendant on notice of this motion. Elizabeth was thus aware, since early to mid-July 2019, that this motion was pending. The lack of timeliness outside of the limitation period in this matter was accordingly approximately 14 months. Of course, any breach is serious, yet a shorter period is, arguably, more forgivable than is a longer period. In stating that however, I note that the gap in Stechyshyn was significantly longer yet was still ultimately not fatal to the plaintiff. It is likely reasonable to therefore conclude that there is no hard and fast rule. Rather, it is a matter of impression, acting judiciously, and, importantly, if there is actual prejudice as well as the ability of the plaintiff to overcome the presumption of prejudice.

[37] What is compelling herein is that, well within the limitation period, Elizabeth received not one, but two, notice letters. The second one was quite explicit and detailed regarding the event at issue. Based on that, I find that Elizabeth was likely well able to investigate the matter, and also could have been expected to put their insurer on notice of the pending claim. As part of their response to the incident, Elizabeth also met with the plaintiff in June 2016 to discuss the incident. As described in the Malone affidavit at paragraphs nine and ten, there was “at least” one meeting and phone conversations about the incident, close in time to its occurrence. Addressing presumed prejudice arising due to the missing of a limitation period, I find that the actual and timely knowledge of the incident which Elizabeth had within the limitation period, plus an opportunity to investigate, is sufficient to overcome such a presumption.

[38] Referring to Patrick at paragraph 30, above, I also cannot herein find that Elizabeth was “misled”, as there is no evidence of this. There is no evidence that a claim was somehow not expected, after all. Nor would Elizabeth be “unduly prejudiced” by the amendment, if indeed it was prejudiced at all, nor even that there was genuine delay in bringing this motion (beyond what timelines counsel agreed to, and what was caused by Covid) once the error was discovered. In my view, accordingly, it is reasonable and just, in all the circumstances of this case, to exercise my discretion to allow the amendments, so to substitute Elizabeth for the CCAC. In summary, I find that the proposed new defendant will suffer no actual prejudice from this outcome, and any presumption of prejudice has, on these facts, been rebutted. Were I not to allow the motion, while the plaintiff would still have her remedy against arguably a different defendant, in my view, in this particular case, that outcome would simply not be just.

Disposition:

[39] I thus grant the plaintiff’s motion to Amend the statement of claim, to remove Toronto Community Care Access Centre (“CCAC”) as a party defendant, and to add Saint Elizabeth Health Care (“Elizabeth”) as a party defendant and to the title of proceedings. I trust the parties themselves can agree upon a reasonable schedule for the delivery of the Statement of Defence, pending any possible appeal of my disposition.

Costs and an Order:

[40] Costs were not discussed at the conclusion of oral submissions. Usually, costs follow the event.

[41] Elizabeth might assert that, when granting the plaintiff an “indulgence”, typically, the plaintiff would not be entitled to costs. Yet Justice Lederer in Bertolli (at paragraph 40) found that, if there was a finding of misnomer, allowing a party to amend is not an indulgence but rather is an application of the law. Applying that decision, the usual rule of costs would then arguably apply.

[42] I urge the parties themselves to try to agree on costs. Failing which, a short tele-case-conference with me can be scheduled through ATC Mr. Magnante. In advance of that, in addition to any Bills of Costs, counsel will be able to file submissions on costs not to exceed four pages, using normal font and spacing.

[43] I trust the parties can agree on the form of an Order. Such may be sent to ATC Mr. Magnante for my review and signature. If the parties also agree on costs, the quantum for such can then be added into the draft Order.

Associate Justice J. Josefo Date: February 22, 2022