Susan Guzzo

In a national class action by terminated GM dealers against GMCL and their counsel, Cassels Brock & Blackwell (CBB), CBB brought third party claims against out-of-province local lawyers who provided independent legal advice to the dealers.

The out-of-province third parties brought motions to stay or dismiss the claims for lack of jurisdiction or forum non conveniens.

The court dismissed the motions, finding that the Ontario court had jurisdiction under the fourth Van Breda presumptive connecting factor because the Wind-Down Agreements, which required the independent legal advice, were made in Ontario and were sufficiently connected to the dispute.

The court also found Ontario to be the most appropriate forum.

The plaintiff brought a motion to amend its statement of claim to substitute a corporate defendant, arguing that the originally named defendant was incorrectly identified and that the intended defendant was the American manufacturer of the equipment at issue.

The responding party argued the amendment was not a misnomer because the originally named entity was a distinct legal entity deliberately chosen by the plaintiff.

Applying the modern approach to misnomer under Rule 5.04(2) of the Rules of Civil Procedure and appellate authority, the court considered whether there was a coincidence between the plaintiff’s intention to name the proper party and the intended party’s knowledge that it was the intended defendant.

The court found that the plaintiff always intended to sue the manufacturer and that the manufacturer knew it was the intended defendant based on prior correspondence and the pleadings.

Leave was granted to amend the statement of claim to substitute the proper corporate defendant.