Court File and Parties

COURT FILE NO.: CV-19-626513

MOTION HEARD: 20220512

REASONS RELEASED: 20220817

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

THE ESTATE OF ALICE MAE MUNDELL, by its Litigation Administrators, Joyce Moore and Ann Boudah, JOYCE MOORE personally, ANN BOUDAH personally, MARGARET TREMELLING and FAMILY MUNDELL 1 - 5

Plaintiffs

• and-

SIENNA SENIOR LIVING INC., LEISUREWORLD SENIOR CARE LP, VIGOUR LIMITED PARTNERSHIP, SIENNA COMPANIES and COMMUNITIES listed with contact information as 302 Town Centre Blvd. Suite 300, Markham, Ontario DOE CORPORATIONS (representing a number of corporations, companies, subsidiaries, wholly or partially owned/controlled corporate entities, retirement communities, nursing homes, assisted living and/or retirement residences, management companies, holding companies, incorporated entities, LP’S LLC’S, related to, held, owned and/or controlled in whatever fashion by SIENNA SENIOR LIVING INC or any of its related companies or subsidiaries), JANE DOES 1-10 and JOHN DOE DOCTORS 1-5

Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: M. Kealy and L. Wamsley E-mail: mkealy@moodiemair.com -for the Plaintiffs

R. Rullo E-mail: rrullo@duttonbrock.com -for the Proposed Defendant Algoma Manor Nursing Home and agent for the Defendants

REASONS RELEASED: August 17, 2022

Reasons For Endorsement

I. Introduction

[1] This is a motion by the Plaintiffs for leave to correct the name of the Defendants Sienna Senior Living Inc., Leisureworld Senior Care LP, Vigour Partnership and Sienna Companies and Communities (collectively, “Sienna”) to Algoma Manor Nursing Home (“AMNH”).

II. Background

[2] Alice Mae Mundell was a resident of AMNH in Thessalon, Ontario from March 2011 until September 2017. In their Statement of Claim issued on August 30, 2019, the Plaintiffs allege that Mrs. Mundell suffered a fracture in July 2017 when a PSW was helping her into bed. Mrs. Mundell complained of pain, however, she was not sent to the hospital for 3 days. While in hospital, Mrs. Mundell contracted pneumonia and passed away on September 16, 2017 at age 83. The Plaintiffs allege that at the time of her death, Mrs. Mundell also suffered from an untreated and undiagnosed gall bladder condition.

[3] Sienna owns and operates 70 nursing homes in Ontario and British Columbia and manages 13 residences for third parties. Letters from AMNH addressed to “Resident/Family Member” dated February 20, 2017 and January 29, 2018 were sent on letterhead with “Algoma Manor Nursing Home” and the address at the top with a “Sienna Senior Living” logo underneath. The letter dated February 20, 2017 is signed by Alice Tener, “Officer Manager Algoma Manor Nursing Home” whose email address is heather.tener@siennaliving.ca.

[4] The Plaintiffs retained Howie Sacks & Henry LLP (“HSH”) in July 2017. At that time, HSH was representing multiple plaintiffs in a mass tort action against Sienna. On September 20, 2019, Melissa Miller of HSH sent a notice letter addressed to “Algoma Manor by Sienna” at AMNH’s address in Thessalon. On October 3, 2019, Jodi Port, an Analyst with Aviva Insurance Company, AMNH’s insurer, sent an email to Ms. Miller advising her that the entity “Algoma Manor by Sienna” did not exist and that AMNH was an independently owned long-term care facility unrelated to Sienna.

[5] On February 25, 2020, Ms. Miller spoke with John Seyler, an adjuster representing Sienna’s insurer. In his letter dated February 26, 2020, Mr. Seyler advised that Sienna Senior Living acted exclusively as a management consultant for AMNH and was not involved in the care of Mrs. Mundell. On February 26, 2020, Wayne Morris, counsel for AMNH sent a letter to Ms. Miller advising her that Sienna did not carry on business as AMNH nor did it own and operate AMNH and invited her to bring a motion if the Plaintiffs intended to pursue a claim against AMNH. Ms. Miller sent a letter to Mr. Morris on December 7, 2020 requesting various records with respect to Mrs. Mundell. Mr. Morris sent a letter on December 15, 2020 again advising Ms. Miller that the Plaintiffs had named the wrong party.

[6] Plaintiffs’ counsel continued to believe that Sienna was involved in operating AMNH and retained an investigator. After reviewing documentation and making inquiries, the investigator provided a preliminary report in or about April 2021. By email dated April 13, 2021, Ms. Miller advised counsel for AMNH and Sienna that the source of confusion continued to be the presence of Sienna’s logo on AMNH’s correspondence and in email addresses and that the Plaintiffs had been advised by staff that Sienna was in charge of AMNH.

[7] After further correspondence with Sienna’s counsel, Plaintiffs’ counsel concluded that Sienna did not need to be named. The Plaintiffs served their Motion Record in support of this motion on November 1, 2021.

III. The Law and Analysis

Pleadings Amendments Generally

[8] Rules 26.01 and 26.02 state:

"26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

26.02 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or

(c) with leave of the court."

[9] Rule 5.04(2) provides that at any stage of a proceeding the court may 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.

[10] Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).

[11] The Court of Appeal summarized the law on leave to amend motions in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42:

"[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., [2009] O.J. No. 2642, 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 37. [page688]

The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 1996 CanLII 8109 (ON SC), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), revd (1999), 1999 CanLII 3051 (ON CA), 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7105 (ON SC), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.

Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, 1996 CanLII 1762 (ON CA), [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), [2006] O.J. No. 669, 2006 CanLII 5135 (C.A.), at para. 6.

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 1996 CanLII 36 (ON CA), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6." (State Farm at para. 25).

Law of Misnomer

[12] Glustein J. explained the distinction between Rule 26.02 and Rule 5.04(2) in Loblaw Properties Limited v. Turner Fleischer Architects Inc., 2018 ONSC 1376:

"11 Unlike a motion to amend, a party is not seeking to amend a pleading under Rule 26.02 when it asks the court to apply the doctrine of misnomer. Instead, under Rule 5.04(2), the title of a proceeding is corrected. No changes to the pleadings need to be made.

12 To conflate Rule 26.02 and Rule 5.04(2) is contrary to the principles in Mazzuca v. Silvercreek Pharmacy Ltd, 2001 CanLII 8620 (ON CA), 2001 CarswellOnt 4133 (Ont. CA). Cronk J.A. referred to "the difference in language between the two rules [which] suggest that the drafters of the rules intended to preserve for the courts under subrule 5.04(2) a discretion to permit or deny amendments relating to a change of parties" (at para. 26)."

[13] The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA:

"3 The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the "litigating finger" is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim? If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as "prejudice" where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305)."

[14] More recently in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, MacLeod J. provided an updated summary of the law of misnomer, including the applicable test:

"19…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."

[15] As Glustein J. held in Loblaw, limitation period defences do not apply:

"13 The distinction between Rule 5.04(2) and Rule 26.02 is further demonstrated by the settled law that limitation period defences do not apply to a motion to correct a misnomer. Due diligence of the plaintiff (or a defendant) would be irrelevant. Even if a party knew of the existence of the proper name of the defendant, an incorrect name or a John Doe pleading based on no pleaded knowledge of the defendant can still be cured at any time provided the "litigating finger" test is met and there is no non-compensable prejudice arising from the misnomer (Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1, 17, 19; Skribans v. Nowek, 2012 ONSC 532 at paras 30, 34, 41).

24 Consequently, even if the plaintiff knew the identity of the defendant (e.g. the name of the emergency room as in Ormerod or the proper municipality as in Lloyd v. Clark, 2008 ONCA 343, 2008 O.J. No. 1682 (CA)), the plaintiff (or the defendant, as I discussed above) could still substitute the proper name of the defendant despite the passage of the limitation period. Knowledge of the defendant or discoverability does not impact the analysis on misnomer, subject to the courts' discretion (Skribans v. Nowek, 2012 ONSC 532 (Mast.), at para. 37)."

[16] MacLeod J. provided the following guidance regarding the effect of notice in Loy-English:

"19…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."

Application

[17] Having considered the relevant factors and circumstances, I conclude that this is a case of misnomer and that it is just and reasonable in the circumstances to grant the Plaintiffs leave to correct their Statement of Claim to add AMNH as a Defendant.

[18] Based upon an objective, fair and generous reading of the Statement of Claim, I am satisfied that the properly informed defendant having knowledge of the facts would know that the “litigating finger” was pointed at AMNH. AMNH would or should have known from reading paragraph 2 of the Statement of Claim that a claim was being advanced against it:

"2. The deceased plaintiff, Alice Mae Mundell (hereinafter referred to as “the plaintiff”) was a resident of the defendant, Sienna Inc. o/a Algoma Manor, in the Town of Thessalon, in the Province of Ontario, at the times material to this action."

[19] Algoma Manor is specifically referenced in this paragraph and AMNH, the only nursing home in the Town of Thessalon, knew that Mrs. Mundell was a resident of its facility who had died. This is supported by additional facts in the Statement of Claim including that Mrs. Mundell was injured in July 2017 while a PSW was moving her; 3 days later a physiotherapist recognized Mrs. Mundell’s condition and she was sent to the hospital; and Mrs. Mundell died on September 16, 2017 (paras. 11-12, 14, Statement of Claim). This makes it sufficiently clear that the Plaintiffs intended to name AMNH, the owner and operator, as a Defendant from the outset.

[20] I reject AMNH’s submissions that the “litigating finger” is pointed at Sienna due to numerous references to Sienna in the Statement of Claim. This ignores the fact that AMNH’s own letterhead featured a Sienna logo, at least some AMNH staff had Sienna in their email addresses and Sienna’s adjuster advised that Sienna Senior Living acted as a management consultant to AMNH. No explanation has been provided for why a Sienna Senior Living logo appeared on AMNH’s letterhead and no affidavit from anyone at AMNH was filed. In these circumstances, there is no merit to AMNH’s argument that this is not a case of misnomer because there are more references to Sienna than to Algoma Manor in the Statement of Claim. Considering misnomer is not simply an exercise of counting the references to different parties or entities.

[21] A.J. LaHorey’s recent decision in Zenchyshyn v. Peel Condominium Corporation No. 7, 2021 ONSC 6727 supports this conclusion. In that case, the court permitted the correction of the name of a condominium corporation to the names of the actual individual owners of a condominium unit where an alleged slip and fall accident occurred. A.J. LaHorey held that it was sufficiently clear that the “litigating finger” was pointed at the individual owners given that the Statement of Claim correctly identified the address of the unit and date of the accident at a time when they owned the unit. The court further held that although the allegations against the condominium corporation went beyond ownership of the unit (including that it was property manager and had additional duties) this was one of the “vagaries of pleadings” that should not determine the outcome of the motion. Similar to Zenchyshyn, the Statement of Claim here contains facts regarding multiple Sienna entities which go beyond the ownership and operation of AMNH. However, “Algoma Manor” is specifically referenced, it is the only nursing home in Thessalon and Mrs. Mundell was a resident, all of which was pleaded and known to AMNH, I cannot accept that AMNH could be misled or confused given that its name and these facts were pleaded and where Sienna Senior Living was a management consultant with its logo on AMNH’s letterhead.

[22] AMNH’s assertion that it would not have known that the Plaintiffs intended to advance claims against them because Mrs. Mundell had a common name or that she resided in various units have no merit and no basis on the record. Similarly, AMNH’s assertion that AMNH was an independently owned facility in a remote community with no connection to Sienna ignores the fact that Sienna Senior Living was in fact involved as a management consultant and the other indicators of connections to Sienna.

[23] AMNH has also not established that it would suffer any actual prejudice if it is added as a Defendant. The Plaintiffs have preserved Mrs. Mundell’s medical records and there is no suggestion or evidence that AMNH has lost any opportunities in the litigation including lost documents or the availability of witnesses. This action is still in the pleadings stage and AMNH has been aware of the claim against it since September 20, 2019. While, as discussed below, I do not conclude that there was inordinate delay in bringing this motion, even if I had I am satisfied that the Plaintiffs have rebutted any presumption of prejudice (State Farm at para. 22).

[24] To deny the correction to AMNH where the Statement of Claim refers to Mrs. Mundell as a resident of Algoma Manor, the only nursing home in Thessalon, together with additional relevant facts, would be to engage in the overly technical approach rejected by MacLeod J. in Loy-English:

"19..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."

[25] I am also satisfied that this is consistent with the Court of Appeal’s conclusions regarding Rule 1.04(1) in Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CarswellOnt (C.A) at paragraph 23:

"The combined effect of Rules 26.01, 5.04 and 1.04(1) generally is to focus the issue of non-compensable prejudice in the wider context of the requirement that a liberal construction is placed on the Rules to advance the interests of timely and cost-effective justice in civil disputes."

[26] I further decline to exercise the court’s residual discretion to refuse to permit the correction of the misnomer (Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 at paras. 26-33). In determining whether to exercise this discretion, the most important factors are whether the proposed defendant was misled or would be unduly prejudiced though the absence of prejudice does not guarantee an amendment (Mazzuca at para. 42; Ormerod at paras. 26-30 and 32; Skribans at para. 47). 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 v. Peterborough Regional Health Centre, 2010 ONSC 4226 at paras. 108 and 144; Patrick at paras. 28-31).

[27] AMNH has had notice of the Plaintiffs’ claim since Ms. Miller sent the notice letter on September 20, 2019. While there was delay in bringing the motion, I cannot conclude that the delay was inordinate and, as set out above, I have concluded that AMNH would incur no actual prejudice if it is added as a Defendant. Ms. Miller testified that this matter “fell off her radar” from February until December 2020 due to the pandemic. After that, the investigator was retained to make inquiries regarding Sienna given the evidence of its involvement with AMNH. I am satisfied that in all of the circumstances, this is a reasonable explanation for the delay.

[28] 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). The present case is not a mere irregularity. However, given the references in the Statement of Claim to Algoma Manor and other relevant pleaded facts, the departure from an irregularity is not so significant as to justify refusal of the relief sought.

[29] AMNH relies on O’Sullivan v. Hamilton Health Sciences Corp., 2011 ONCA 507 in which the Court of Appeal upheld the dismissal of a motion to correct “John Doe Detachable Balloon Manufacturer” to the proper name of a balloon catheter manufacturer. This case is distinguishable. In O’Sullivan, the defendant did not have notice of the claim against it for approximately 5 years as compared to 2 years in the present case. There was also no affidavit from plaintiff’s counsel explaining the delay and no connections between the misnamed defendant and the proper defendant as there is here. Further, the name of the proper defendant and other relevant facts identifying the proper defendant did not appear in the original Statement of Claim.

[30] Having concluded that misnomer applies and there is no actual prejudice, it is not necessary for me to consider AMNH’s submissions regarding limitation periods.

III. Disposition

[31] Order to go granting the Plaintiffs leave to correct the misnomer of Sierra to add AMNH as a Defendant and the necessary related amendments.

[32] If the parties are unable to agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) with me on a timetable to be agreed upon by counsel.

Released: August 17, 2022

Associate Justice McGraw