Court File and Parties

COURT FILE NO.: CV-20-650656 DATE: November 1, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jody Parsons v. 1628139 Ontario Inc. c.o.b. The Canadian Mental Health Association, Kira Kolposkava, Melissa Sulit, Munish Malik, Kelly Goodwin, Roberto Alverez, Young Sun Kim and Jane/John Doe;

BEFORE: ASSOCIATE JUSTICE C. WIEBE

COUNSEL: Allan Cocunato for the plaintiff.; Andrew McCutcheon for the defendants.

HEARD: October 27, 2023.

ENDORSEMENT

[1] This is a motion by the plaintiff for an order granting the plaintiff leave to amend its statement of claim to replace the Jane/John Doe defendant with the name Hadi Bahiraei and correct the name of Kira Kolposkava. The motion also seeks to have the action dismissed against the defendants Sulit, Goodwin, Alverez and Kim without costs. The parties resolved all of the issues except the issue of the replacement of the Jane/John Doe defendant.

[2] On the issue of the Jane/John Doe defendant, the defendants accept that the statement of claim contains sufficient particularity to “point the litigation finger” at Mr. Bahiraei, and that the test of correcting a “misnomer” to name Mr. Bahiraei as a defendant has been met to that extent. The area of contention is the residual discretion retained by the court on the issue. The residual discretion is contained in Rule 5.04(2) which specifies that a court “may” name a party incorrectly named in a pleading. This discretion is to be exercised to deny the correction if it leads to injustice that cannot be compensated by costs or an adjournment. The test is articulated in the decision of Justice MacLeod in Loy-English v. Ottawa Hospital (2019) 2019 ONSC 6075, 149 O.R. (3d) 129 at paragraphs 20 and 21.

Unexplained delay

[3] The courts may consider many things in exercising this discretion. In Tschirhart v. Grand River Hospital, 2019 ONSC 6650 in paragraph 47 Associate Justice McGraw outlined several factors courts consider in exercising this discretion. The first factor he listed was an unexplained inordinate delay in bringing the motion to correct the misnomer. This is the factor that Mr. McCutcheon argued militates against granting the misnomer in this case.

[4] After reviewing the evidence in this motion, I find that this argument carries weight. There are huge periods of delay that were not only not explained, but that were incorrectly explained. First, there was the huge delay after the plaintiff learned about the role played by Mr. Bahiraei. The action is in negligence. It concerns the death by drug overdose of Steven Antonik while he was a resident in one of the facilities owned and run by the Canadian Mental Health Association (“CMHA”). The two staff members who were on duty and in the vicinity were Ms. Kolposkava and Mr. Bahiraei. Ms. Parsons is the mother of Mr. Antonik. CMHA investigated the even and issued a critical incident report. This report clearly identifies Mr. Bahiraei and his role in the event. In her cross-examination, Ms. Parsons admitted receiving and reviewing this report and Mr. Antonik’s file in December, 2018. There was no affidavit from Ms. Parsons explaining why Mr. Bahiraei’s name did not find its way into the statement of claim that was issued almost two years later on November 3, 2020. Instead, she named “Jane/John Doe.”

[5] There was then a further delay. The following facts are clear from the evidence. CMHA was served with the statement of claim on May 4, 2021. CMHA investigated the claim and its lawyer informed Ms. Parsons’ lawyer in June, 2021 of the identify and role played by Mr. Bahiraei. In August, 2021 CMHA delivered its productions which contained the above noted critical incident report. There was a delay in the litigation. CMHA and Ms. Kolposkava were examined for discovery on February 13 and 14, 2023. This motion was then brought in August, 2023.

[6] The plaintiff’s motion record contains an affidavit sworn by Kristina Oliva, a lawyer at the plaintiff’s law firm. Ms. Oliva stated that the plaintiff became aware of the identity and role of Mr. Bahiraei at the discovery of Ms. Kolposkava. This clearly was not the case. Mr. Cocunato admitted this was not the case in argument. He argued that the plaintiff first became aware of Mr. Bahiraei in June, 2021 when he was alerted by CMHA counsel. He argued that the subsequent 26 month delay in bringing the motion was due to “lawyer inadvertence.” But there was no affidavit confirming this alleged “lawyer inadvertence.” This also did not explain the failure to have Mr. Bahiraei named initially in the statement of claim when Ms. Parsons learned about Mr. Bahiraei 23 months prior to the commencement of this action.

[7] This is not a typical “misnomer” case. The typical case involves a plaintiff who knows of the existence of the defendant but not that person’s identity despite all due diligence in trying to find it. Here the plaintiff knew about the subject defendant’s existence and identity within two months of the event. Yet for some unexplained reason, the plaintiff named “Jane/John Doe” and not the person the plaintiff knew or should have known. One of the factors Associate Justice McGraw identified in Tschirhart at paragraph 47 as being what the court considers on these motions is the public policy supporting adherence to limitation periods. The public policy underlying limitation periods is that plaintiffs must act with all due diligence in pursuing their claims and defendants, and that if they fail to do so within the limitation period, their rights are extinguished. Here, without an explanation, the plaintiff named “Jane/John Doe” instead of the defendant whose identity she should have known. There was then an unexplained delay of 26 months in bringing this motion.

[8] The failure to name and move expeditiously are particularly egregious because Mr. Bahiraei was no longer employed by CMHA when the statement of claim was served. CMHA could not find him. This was evident from Mr. McCutcheon’s letter dated June 22, 2021. Indeed, as evidenced by the supplementary affidavit of Rachael Duclos sworn October 6, 2023, Mr. Bahiraei was eventually found by CMHA and notified of this action and motion when this motion was brought and no sooner than September 19, 2023. This is almost five years after the plaintiff became aware of the existence and name of Mr. Bahiraei.

[9] Yet, with reluctance, I am not prepared to deny the motion on this ground. I am not prepared to conclude, as Mr. McCutcheon urged me to do, that the plaintiff’s conduct in not naming Mr. Bahiraei evidenced a deliberate decision by Ms. Parsons not to pursue him. She did after all name Ms. Kolposkava, the other staff member at the time of the death, and “Jane/John Doe” with sufficient particularity to have the “litigation finger” point at Mr. Bahiraei, and she did all this all within the limitation period. There must be another explanation for this oversight in failing to name Mr. Bahiraei. The further delay in bringing the motion after June, 2021 was also not indicative of a deliberate decision not to pursue Mr. Bahiraei. If anything, it indicates lawyer inadvertence, which should not be visited on the client.

[10] In addition, there was no evidence that by being named Mr. Bahiraei will be prejudiced in a way that cannot be compensated by costs or an adjournment. That is the threshold Rule 5.04(2) sets for requiring a denial of the motion. That is not the case here. By being named, Mr. Bahiraei will have to give his evidence at discovery as well as at trial. That is a matter of compensation, not prejudice. The evidence indicates that Mr. Bahiraei will get the benefit of CMHC’s legal representation. His evidence will no doubt rely heavily on and be refreshed by the relevant records CMHA had available in 2021 when CMHA was served with the statement of claim, which was six months after the end of the two year period following the event. There was no evidence that relevant records have been lost. Furthermore, it is undisputed that Mr. Bahiraei’s liability, if any, will be fully covered by the CMHA policy. Finally, while naming Mr. Bahiraei means another attendance at his discovery for CMHA, this is again a matter of compensation, not prejudice.

Plaintiff’s lack of prejudice

[11] The defendants also argued that I should deny the motion on the basis that the plaintiff will not be prejudiced by such a denial. Mr. McCutcheon confirmed that CMHA will undertake to produce Mr. Bahiraei as a witness at trial, thereby ensuring that the plaintiff will have the benefit of his evidence. In addition, the defendants motion material confirmed that CMHC’s insurance policy covers the entirety of the quantum of the plaintiff’s claim, and that CMHA will be vicariously liable for the entirety of Mr. Bahiraei’s liability. Therefore, Ms. Parsons will not have to look to Mr. Bahiraei for recovery.

[12] Mr. McCutcheon referred me to the case of Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (ONCA). Here the City of London was named as a nominal defendant so that it could be bound by any judgment against the co-defendant. Many years after the action was commenced, the plaintiff moved to add substantive claims against the City. The Court of Appeal found against this motion. One of the grounds was that the governing statute made the City entirely liable for the liability of the co-defendant, thereby making a denial of the motion of no consequence to the plaintiff. Mr. McCutcheon argued that the same principle should apply to this motion since CMHA will be fully responsible for any of Mr. Bahiraei’s liability.

[13] I do not agree. Mr. Bahiraei is not a nominal party. He is a significant participant in the subject events. Therefore, getting discovery evidence from him will be vital to Ms. Parsons’ understanding of her case going to trial and any settlement discussions.

Costs

[14] The defendants seek $1,500 in costs thrown away in the event Mr. Bahiraei is ordered to be named. This represents the costs the defendants will have to incur again to have Mr. Bahiraei prepared for discovery. Had he been a part of the February, 2023 discoveries, I am satisfied that the discovery preparation would have been done economically for all the defendants. Now many of these costs will have to be repeated. I order that Ms. Parsons pay the defendants $1,500 in costs thrown away in 60 days.

[15] As for the costs of the motion, counsel advised that the parties agree that the party who succeeds on this motion should get $3,000 in costs. The plaintiff is the successful party. However, my discretion to award costs is not bound by an agreement between the parties. I find that the conduct of the plaintiff made this motion “a very close call,” much more so than it may have been had the plaintiff filed fulsome and accurate affidavits explaining the failure to name Mr. Bahiraei in the statement of claim and the delay in bringing this motion. The plaintiff did not do so and, therefore, does not deserve costs. I have decided to award no costs.

[16] Counsel must prepare a form of order embodying my ruling and send it as soon as possible by way of a PDF attachment to an email to my Assistant Trial Coordinator, and I will get it signed.

DATE: November 1, 2023

ASSOCIATE JUSTICE C. WIEBE