COURT FILE NO.: CV-19-630837
DATE: 2022 09 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE ESTATE OF IRENE WINOGRON by its Litigation Administrator, Bill Winogron, BILL WINOGRON personally and FAMILY WINOGRON 1-5, Plaintiffs
- and -
REVERA, REVERA LONG TERM CARE, REVERA LONG TERM CARE INC., REVERA INC., REVERA RETIREMENT, REVERA RETIREMENT LP, GENPAR INC., REVERA RETIREMENT GENPAR INC., REVERA HEALTH SERVICES, REVERA HEALTH SERVICES (2010) INC., REVERA HEALTH SERVICES CLINIC GENPAR INC., REVERA HEALTH SERVICES CLINIC LP, REVERA HEALTH SERVICES HOMECARE GENPAR INC., REVERA HEALTH SERVICES INC., REVERA RETIREMENT, COMCARE HEALTH SERVICES, COMCARE, SUN MANAGEMENT SERVICES INC., SUNRISE SENIOR LIVING, REVERA ASSISTED LIVING INC., REVERA HEALTH SYSTEMS INC., REVERA HEALTH SYSTEMS MANAGEMENT LLC., REVERA HOLDINGS INC., REVERA HOLDINGS LTD., REVERA COMPANIES and COMMUNITIES listed with contact information as 55 Standish Court, 8th Floor, Mississauga, Ontario, and DOE CORPORATION (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 Revera Inc. or any of its related companies or subsidiaries), JANE/JOHN DOES 1-10 and JANE/JOHN DOE DOCTORS 1-5, Defendants
BEFORE: Associate Justice Todd Robinson
COUNSEL: D. Fisher, for the plaintiffs
R. Rullo, for the defendants
HEARD: May 27, 2022 (by videoconference)
REASONS FOR DECISION (Motion to substitute defendant and amend statement of claim)
[1] This action arises from personal injuries sustained by Irene Winogron between June and November 2017 while a resident at the Revera Alta Vista Manor retirement home in Ottawa. The plaintiffs allege that Ms. Winogron was assaulted by another resident and, several months later, was found alone in her room with a severe head laceration. They further allege that Ms. Winogron was continually neglected during her stay, despite repeated complaints by her and her family.
[2] This action was commenced in November 2019. Ms. Winogron passed away in April 2020. A statement of defence was subsequently delivered in October 2020 on behalf of all defendants other than the placeholder Doe Corporation, Jane/John Does 1-10 and Jane/John Doe Doctors 1-5 (the “Revera Defendants”). An order to continue has since been obtained.
[3] The plaintiffs move for an order to add HCN-Revera Leasee (Alta Vista LP) (“Revera Alta Vista”) as a defendant and for leave to issue a fresh as amended statement of claim that would see this action continue only as against Revera Retirement LP and Revera Alta Vista. The plaintiffs assert a misnomer and that they were unaware of the correct name of the proper defendant until the statement of defence was served, in which Revera Alta Vista was identified as the licensee of Alta Vista Manor.
[4] The Revera Defendants oppose the motion on the basis that the proposed amendment is not a simple correction of a misnomer, but is rather an attempt to add a new party to this action several years past the expiry of the two-year limitation period. They submit that the plaintiffs have failed to offer a reasonable explanation why the claim against Revera Alta Vista could not have been discovered sooner and that the motion should be dismissed.
[5] I am satisfied that, in the particular circumstances of this case, there was a misnomer. I am also satisfied that there is no non-compensable prejudice to Revera Alta Vista from allowing the amendment and that the circumstances are such that I should not be exercising my residual discretion to deny it. I am accordingly granting the plaintiffs’ motion.
Analysis
[6] The core dispute on this motion is over whether the plaintiffs are seeking to correct a misnomer to have the intended defendant, Revera Alta Vista, properly named or are, in actuality, seeking to add or substitute a new party beyond the limitation period.
[7] Relief on the motion is sought under subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). Subrule 5.04(2) provides the court with authority to 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. Rule 26.01 directs that the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that cannot be compensated by costs or an adjournment.
[8] The following issues must be decided:
(a) Has the limitations period for pursuing a claim against Revera Alta Vista expired?
(b) If so, are the plaintiffs genuinely seeking to correct a misnaming of the Revera Defendants or are the plaintiffs actually seeking to add or substitute Revera Alta Vista as a new party?
(c) If there was a misnomer, is there any non-compensable prejudice and should I exercise my residual discretion to refuse the amendment?
Issue 1: Has the limitations period expired?
[9] Subsection 21(1) of the Limitations Act, 2002, SO 2002, c 24, Sched B provides that if a limitation period in respect of a claim against a person has expired, then that claim shall not be pursued by adding the person as a party to any existing proceeding. The clear expiry of a limitation period is an absolute bar to the addition of a party to an existing action: Arcari v. Dawson, 2016 ONCA 715at para. 7.
[10] There is an exception, though, which is set out in s. 21(2) of the Limitations Act, 2002. The prohibition in s. 21(1) does not prevent correcting a misnaming or misdescription of a party after expiry of a limitation period.
[11] For this motion, if the limitation period to sue Revera Alta Vista has not expired, then I need not address the parties’ arguments on whether there was a misnomer. Rather, I need only deal with whether to exercise my discretion under subrule 5.04(2) and rule 26.01 of the Rules to grant the requested amendments. However, if the limitations period has expired, and the alleged misnaming is not a misnomer, then adding Revera Alta Vista is contrary to s. 21(1) of the Limitations Act, 2002.
[12] In my view, based on the record before me, the plaintiffs have failed to demonstrate that the limitations period to sue Revera Alta Vista has clearly (or even likely) not expired. Accordingly, unless the plaintiffs are able to establish misnomer, the claim against Rivera Alta Vista is statute-barred.
[13] The limitations period to commence a claim against Revera Alta Vista runs from the date on which a claim was discovered, namely the day on which the plaintiffs knew or ought to have known that the injury, loss, or damage had occurred, that it was caused or contributed to by an act or omission of Revera Alta Vista, and that a proceeding would be an appropriate means to seek to remedy the harm: Limitations Act, 2002, supra at ss. 4 and 5(1).
[14] The alleged incidents at issue all occurred between June and November 2017. By operation of s. 5(2) of the Limitations Act, 2002, the plaintiffs are deemed to have discovered their claim against Revera Alta Vista when the acts or omissions occurred (i.e., in 2017), unless the contrary is proved.
[15] The evidentiary burden of displacing the presumption of discoverability in s. 5(2) of the Limitations Act, 2002 falls on the plaintiffs. They must establish that they did not actually know, and could not have known through reasonable diligence, that Revera Alta Vista was a proper defendant until within two years of this motion being brought.
[16] The plaintiffs argue that they did not discover that Revera Alta Vista was a proper party until receiving the Revera Defendants’ statement of defence. In their defence, the Revera Defendants expressly plead, “At the material time, the licensee of Alta Vista Manor was HCN-Revera Leasee (Alta Vista) LP, the controlling interest of which was held by HCN Canadian Leasing Ltd.” The lawyer’s affidavit filed in support of this motion asserts that receiving the statement of defence was the plaintiffs’ first notice that Revera Alta Vista was the correct name of the licensee/owner of the Revera Alta Vista Manor. That is self-serving and entirely unsubstantiated evidence.
[17] Even if I were to accept that the plaintiffs had no actual knowledge that Revera Alta Vista was the correct party until receiving the statement of defence, that fails to address s. 5(1)(b) of the Limitations Act, 2002. There must be evidence supporting that a reasonable person with the abilities and in the circumstances of the plaintiffs could not have discovered that Revera Alta Vista was a proper party sooner.
[18] The Revera Defendants assert and have pleaded that the identity of Revera Alta Vista as licensee of the nursing home was publicly available and accessible information. However, there is no evidence of that before me. The Revera Defendants did not file a responding affidavit. I am asked essentially to take judicial notice that plaintiffs’ counsel regularly represents clients in this area and ought to have known about the websites from which the information was readily obtainable. I am not prepared to take judicial notice of the existence of websites for which there is no evidence before me or the knowledge of particular counsel.
[19] Nevertheless, there is no evidence from the plaintiffs on what, if any, efforts were made to identify the correct defendants and, in particular, Revera Alta Vista. The record before me does not support a finding that the plaintiffs could not, with reasonable diligence, have identified Revera Alta Vista as a proper defendant until the statement of defence was served or at any other point within the two years prior to this motion being brought.
[20] The plaintiffs argue that the limitation period did not actually expire until May 6, 2022, well after the motion was brought. The plaintiffs rely on of s. 7 of the Limitations Act, 2002, which provides that a limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding because of a physical, mental, or psychological condition and is not represented by a litigation guardian. The plaintiffs submit that a litigation guardian was not appointed until the statement of claim was issued on November 12, 2019. They further submit that, by operation of O Reg 73/20, which suspended limitation periods during the pandemic between March 16, 2020 and September 14, 2020, the limitation period applicable to this claim thereby did not expire until May 6, 2022.
[21] There is, however, no cogent evidence on Ms. Winogron’s physical, mental, or psychological state from which I may reasonably find that she was incapable of commencing this proceeding without a litigation guardian. The plaintiffs have tendered a handful of hospital records that mention dementia, but I was directed to nothing confirming the extent of that dementia or its impact on Ms. Winogron’s understanding and decision-making abilities.
[22] The lawyer affiant states that “Ms. Winogron suffered from dementia such that she was not capable of making her own decisions.” However, no source of that information or belief is provided. Nothing in the affidavit indicates that the affiant has ever met with or spoken to Ms. Winogron. The lawyer affiant confirms that Ms. Winogron’s sons were appointed her powers of attorney in 2012. However, the fact that powers of attorney were executed in 2012 is not the same as those powers of attorney being acted upon. Many individuals execute powers of attorney in anticipation of having someone appointed to handle property or personal care decisions in the event of incapacity.
[23] Significantly, the lawyer’s affidavit does not state that the powers of attorney were actually being exercised by Ms. Winogron’s, and, if so, for what kinds of decisions and at one point in time they began being exercised. There is nothing in the record about Ms. Winogron’s sons making decisions for her. Rather, there is only evidence that they were appointed her power of attorney for both property and personal care.
[24] The evidentiary record before me simply does not support a finding that Ms. Winogron was incapable of commencing this proceeding. The roughly six-month extension in limitation periods provided by O Reg 73/20 is thereby legally moot.
[25] In my view, the plaintiffs have failed to meet their evidentiary onus on this motion to demonstrate that the limitations period clearly or arguably had not expired when this motion was brought. Accordingly, if the claim against Revera Alta Vista is not a misnomer, it is statute-barred.
Issue 2: Was there a misnomer?
[26] Establishing a misnomer in this case requires that the plaintiffs demonstrate they clearly intended to sue Revera Alta Vista. Relevant principles on this motion were aptly summarized by MacLeod J. (as he then was) in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, at para. 21(e), as follows:
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.
[27] The “litigation finger” analysis requires that I consider whether Revera Alta Vista, reading the statement of claim, would be aware that it was the intended defendant.
[28] I agree with the plaintiffs that, unlike assessing whether a limitations period has expired, due diligence in identifying a true defendant does not bear on whether correction of a misnomer should be permitted. The misnomer inquiry is focused on whether the true defendant would know on reading the statement of claim that they were the intended defendant: Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1 and 19.
[29] The Revera Defendants submit that a reasonable person would find the number of named defendants confusing, orienting the litigation finger in various directions. I disagree.
[30] The plaintiffs are correct there are a large number of Revera entities named in the statement of claim, with a number of general allegations advanced against them. All but one of the Revera Defendants are being substituted by Revera Alta Vista in the proposed amended statement of claim. Nevertheless, the statement of claim is clear about the location of the nursing home at which Ms. Winogron resided, which is pleaded to be where the alleged incidents and mistreatment occurred. The claim, as drafted, supports that a target of the claim was intended to be the Revera entity that was responsible for that nursing home.
[31] Notably, para. 2 of the statement of claim expressly states that Ms. Winogron was “a resident of the defendant, Revera Inc. o/a Revera Alta Vista, in the City of Ottawa”. Similarly, in describing Revera Inc. at para. 5, the plaintiffs specifically plead that it is the parent company to various corporations “that provide nursing home and elder care to residents similar to the deceased plaintiff, including at the nursing home Revera Alta Vista, a Revera owned and operated business where the plaintiff was a resident.” The alleged incidents and mistreatment of Ms. Winogron are pleaded at paras. 11-13 and 15. Damages claimed on behalf of the plaintiffs relate to those alleged incidents and mistreatment.
[32] On an objective and generous reading of the pleading, the statement of claim clearly deals with Ms. Winogron’s experience as a resident at the Revera Alta Vista Manor and advances a claim for damages against the Revera entities responsible for her care. There is nothing in the pleading suggesting that Ms. Winogron resided at another residence or that the claim arose from any residence other than the Revera Alta Vista Manor.
[33] Also, it appears undisputed that Revera Alta Vista has the same insurer and will be represented by the same counsel as the Revera Defendants. The Court of Appeal has confirmed that knowledge of an insurer and counsel of the correct party may be considered on a misnomer motion: Ormerod, supra at paras. 13-14.
[34] Here, the Revera Defendants expressly pleaded the identity of the correct defendant and asserted that most of the Revera Defendants are improper parties. Further, the Revera Defendants’ statement of defence was filed on behalf of all named Revera entities, including “Revera companies and communities listed with contact information as 55 Standish Court, 8th Floor, Mississauga, Ontario.” It was undisputed on the motion that Revera Alta Vista has a registered office address at that location. In my view, these facts support a reasonable inference that both insurer and counsel understood who the litigation finger was pointed at.
[35] On the evidence before me, I am satisfied that Revera Alta Vista, reading the allegations outlined in the statement of claim about Ms. Winogron’s treatment, would be able to recognize that it was the target of the negligence allegations. The other named Revera Defendants are not the correct parties. In my view, this is a proper case of misnomer.
Issue 3: Should I exercise my discretion to refuse the amendment?
[36] Notwithstanding my finding that there was a misnomer, it is nevertheless still within my discretion to refuse to permit the correction: Ormerod v. Ferner, 2009 ONCA 697 at paras. 29 and 32.
[37] The Revera Defendants submit that there is actual prejudice from Ms. Winogron’s passing, since she can no longer be examined, and presumed prejudice from the passage of time. Conversely, the plaintiffs submit that there is no evidence of actual prejudice, since the Revera Defendants did not file any responding affidavit, and that there is no non-compensable prejudice to Revera Alta Vista from correcting the misnomer. The plaintiffs have tendered evidence that medical records and liability documents have been retained and, further, that Revera Alta Vista has relevant records in its own possession, control, or power that have not yet been disclosed.
[38] I am not satisfied that Ms. Winogron’s passing is sufficient prejudice to deny the amendment. I accept the plaintiffs position that their evidence on preservation of records mitigates the prejudice from Ms. Winogron’s passing. Relevant and material records are also reasonably within the possession, control, or power of Revera Alta Vista. In any event, the fact of a litigation guardian calls into question whether Ms. Winogron would even have been produced for examination.
[39] I am also not convinced by the Revera Defendants’ arguments that, in the particular circumstances of this case, I should put weight on the presumption of prejudice from the passing of a limitation period. I accordingly find no non-compensable prejudice from delay.
[40] Nevertheless, the Revera Defendants correctly point out that proof of the absence of prejudice does not guarantee an amendment: Ormerod, supra at paras. 29 and 31.
[41] The Revera Defendants argue that I should consider the unexplained delay in appointing a litigation guardian since Ms. Winogron’s dementia allegedly pre-dates the incidents giving rise to the claim. In the circumstances of this case, I do not agree that such pre-litigation delay bears on deciding whether I should permit the correction of the misnomer. It is, to my view, more relevant in assessing the validity of the limitations defence, which I need not decide.
[42] The Revera Defendants further argue that there has been significant delay in bringing this motion, which itself is a basis to refuse the amendment. They point to the decision in O’Sullivan v. Hamilton Health Sciences Corp., in which the motions judge refused to substitute a John Doe defendant on the basis of that the plaintiff had known the true identity of the defendant three years before the motion was brought and there was no evidence explaining the delay in bringing the motion: O’Sullivan v. Hamilton Health Sciences Corp., 2010 CarswellOnt 10862, 204 ACWS (3d) 512 (SCJ). The Court of Appeal affirmed the motion judge’s decision, holding that it was not an error to consider unexplained delay in bringing the amendment motion after learning the identity of the correct defendant: O’Sullivan v. Hamilton Health Sciences Corp., 2011 ONCA 507 at para. 3.
[43] O’Sullivan is distinguishable. In that case, as noted by the Court of Appeal, the true defendant had no notice of the claim until five years after the incident. That defendant was also the manufacturer of a balloon catheter used during the medical procedure giving rise to the claim. It was not a related entity to other defendants, as is the case here.
[44] I agree that delay in bringing the motion is a relevant factor in my exercise of discretion. I also agree that the plaintiffs have not fully explained the delay in bringing this motion. They had clear notice of the true identity of the correct defendant upon receiving the statement of defence in October 2020. The Revera Defendants raised a limitations challenge to adding Revera Alta Vista in February 2021. This motion was not brought until August 2021.
[45] However, there has been some explanation for the delay. In the period from January through July 2021, plaintiffs’ counsel was communicating with counsel for the Revera Defendants about proposed amendments to the statement of claim. A definitive position that the amendments were opposed and that this motion would be necessary was given by the Revera Defendants’ counsel in July 2021. Also, during the same period, an order to continue was taken out (albeit quite delayed in relation to the date of Ms. Winogron’s passing). That was a necessary step to advance the litigation and was also necessary before bringing this motion.
[46] I am not satisfied that the nature and extent of procedural delay in this particular case is sufficient to warrant denying the amendment. In my view, this is a proper case of misnomer where no non-compensable prejudice to Revera Alta Vista has been demonstrated. In my view, modest procedural delay should not be a bar to the plaintiffs’ claim against the owner/licensee of the nursing home at which Ms. Winogron is alleged to have suffered abuse and mistreatment. In these circumstances, I find no basis upon which to refuse the amendment.
Disposition
[47] For the above reasons, the plaintiffs are granted leave to correct the misnomer and substitute Revera Alta Vista as a defendant and are further granted leave to amend their statement of claim in the form of fresh as amended statement of claim submitted. This order is without prejudice to pursuing a limitations defence, as already pleaded by the Revera Defendants.
[48] The parties agreed that costs of this motion would be fixed in the amount of $3,500, payable by the unsuccessful party. The plaintiffs are accordingly entitled to costs payable by the Revera Defendants in the amount of $3,500, including HST and disbursements, to be paid forthwith. Order accordingly.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: September 28, 2022