THE CORPORATION OF THE MUNICIPALITY OF SOUTHWEST MIDDLESEX, CARMINE D ARIANO, and UNITED PARCEL SERVICE (Defendants)

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1 CITATION: Patrick v. The Corporation of the Municipality of Southwest Middlesex et al., 2017 ONSC 17 COURT FILE NO.: 2446/15 DATE: 2017/01/03 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CATHERINE PATRICK And: (Plaintiff) THE CORPORATION OF THE MUNICIPALITY OF SOUTHWEST MIDDLESEX, CARMINE D ARIANO, and UNITED PARCEL SERVICE (Defendants) BEFORE: Justice I. F. Leach COUNSEL: Anna Szczurko, for the plaintiff Jonathan de Vries, for the proposed additional defendant, The Corporation of the County of Middlesex HEARD: July 11, 2016 ENDORSEMENT [1] Before me is a motion by the plaintiff in this action. She seeks leave to amend her statement of claim so as to add a further defendant, (The Corporation of the County of Middlesex, hereinafter referred to as Middlesex County ), to this proceeding. [2] In particular, for reasons outlined in more detail below, the plaintiff now believes Middlesex County may have been the municipal authority responsible for alleged poor maintenance of a road said to have caused the first of two separate motor vehicle accidents giving rise to this action. In support of the motion, plaintiff counsel relies primarily on the doctrine of misnomer and, in the alternative, the discoverability doctrine. [3] Middlesex County opposes granting of the requested relief. In doing so, it submits that the plaintiff has not established a case of misnomer, and that the plaintiff similarly has failed to lead evidence sufficient to raise triable discoverability

2 2 issues, as far as the applicable limitation period is concerned. It also relies on the plaintiff s failure to provide timely written notice of her contemplated claim against Middlesex County in accordance with s.44(10) of the Municipal Act, 2001, S.O. 2001, c.25, (hereafter referred to as the Municipal Act ). [4] The three existing defendants, named in the original statement of claim, took no position in relation to the motion. Background [5] Evidence outlining the factual background to the motion was confined to the following affidavit material: an affidavit with attached exhibits sworn on March 8, 2016, by a law clerk employed by plaintiff counsel; a responding affidavit with attached exhibits sworn on May 11, 2016, by the County Engineer of Middlesex County; a supplementary affidavit with attached exhibits sworn on June 16, 2016, by the same law clerk employed by plaintiff counsel. [6] That evidence outlined developments from different perspectives, and touched on different aspects of the matter. However, it also contained little in the way of contradiction. [7] In the result, (and while I will have more to say about the evidentiary record later in these reasons), the largely undisputed background to the motion may be outlined as follows: At all material times, the plaintiff has resided in the Town of Delaware, in the County of Middlesex. On the morning of February 11, 2014, the plaintiff was travelling south on a road known alternatively as Melbourne Road and County Road 9, in the County of Middlesex. The entire length of the road in question lies within the geographic boundaries of the County of Middlesex. In particular, the road extends from its northern terminus at a street intersection located within the Town of Strathroy to its southern terminus at the Thames River, (which forms the municipal boundary between the County of Middlesex and the neighbouring County of Elgin to the south). Heading south beyond the

3 3 Thames River, the route is continued by a road alternatively known as Iona Road and County Road 14, in the County of Elgin. The precise date on which Melbourne Road was constructed, or first came under the jurisdiction over Middlesex County, is unknown. However, it seems Middlesex County has had jurisdiction over all of Melbourne Road since There currently are signs posted on Melbourne Road indicating that it is a county road. The county s engineer believes those signs would have been in place on February 11, At approximately 9:25am on February 11, 2014, while the plaintiff s car was still travelling southbound on Melbourne Road or County Road 9, (although approaching its transition into Iona Road or County Road 14), the plaintiff was involved in a single vehicle accident, which resulted in the plaintiff sustaining serious personal injuries. The affidavit material filed by the plaintiff indicates that her car slid on black ice that had pooled over the white centreline of the road, causing the vehicle to cross the opposite lane of traffic and roll into a ditch 10 feet below. The accident was investigated by the Middlesex County O.P.P., which prepared a Motor Vehicle Collision Report signed by the investigating officer on February 16, In that regard: o The report indicated, in completed text confirmed by a labeled diagram, that the Location of the accident was R1, which in turn was said to be a Trafficway expressly identified as Melbourne Road. Further Location information included provision of the Thames River as a Reference Point, identification of the relevant Municipality as S/W Middlesex, and identification of the relevant County, District, [or] Regional Municipality as Middlesex. o The report s diagram depicted the plaintiff vehicle travelling south on R1, (which had two lanes at that point), approaching a curve leading towards the southwest, but failing to negotiate the curve, crossing southeast over the opposite lane of traffic, and coming to rest southeast of the curve. The only road depicted in the report s diagram was labelled R1, both before and after the point at which the plaintiff s vehicle is shown to have left the road. The Thames River was not depicted in the diagram.

4 4 o Handwritten text accompanying the diagram indicated that the plaintiff was in her vehicle and southbound on the road in question when she began to spin out in accumulated slush/snow on roadway, after which she overcorrected in steering before she then crossed [the] opposite lane and slid into [a] ditch, rolling down the ditch wall. o The report included indications that EMO and Fire emergency equipment attended at the scene of the accident, and provided services that included extraction. o The report also indicated that there was an independent witness to the accident; a gentleman identified by specified first and last names, but without any indicated contact information. o I note that the report also effectively contained further information, indicated indirectly by the insertion of numerals and/or dashes in a series of 68 numbered boxes running down the left and right sides of the report. However, as indicated on the face of the form, that additional information requires reference to a Template to interpret the meaning of the various numerical indications, and the relevant Template was not included in the material provided to me. On June 19, 2015, plaintiff counsel sent notice letters, by registered mail, to the Municipality of Southwest Middlesex and the Municipality of Dutton Dunwich. Each letter advised the recipient municipality that the plaintiff had retained counsel to represent her with respect to injuries she sustained in a motor vehicle accident that occurred on February 11, 2014, at the curve where Melbourne Road transitions into Iona Road, and that the plaintiff was contemplating a claim against the recipient municipality for improper road maintenance and/or design. The plaintiff was involved in a second motor vehicle accident on June 26, On August 6, 2015, a claims examiner employed by the insurer of the Corporation of the Municipality of Dutton Dunwich wrote to plaintiff counsel in relation to the first accident, advising, after a completed investigation, that the area of the loss is not within the jurisdiction of the Municipality of Dutton Dunwich, but rather that of the Municipality of Southwest Middlesex. The same letter indicated that any claim against the Municipality of Dutton Dunwich therefore would be met by a vigorous defence.

5 5 On November 12, 2015, the plaintiff issued her original statement of claim, addressing both of her motor vehicle accidents. The pleading asserts that the plaintiff was driving, at the time of both accidents. In relation to the first accident: o The pleading identified only The Corporation of the Municipality of Southwest Middlesex, (hereinafter referred to as Southwest Middlesex ), as a named defendant. o The plaintiff alleged that, on February 11, 2014, at 9:25am, she was travelling southbound on Melbourne Road approaching its transition into Iona Road, in the Municipality of Southwest Middlesex, when her vehicle slid on black ice that had pooled over the white centreline of the road, causing the vehicle to cross the opposite lane and roll into the ditch, landing 10 feet below the road. o Various allegations of negligent road maintenance and design, (including failure to remedy pooling of water, failure to carry out proper sanding and salting, and failure to maintain or implement any reasonable system of inspection and snow/ice removal), were set forth in thirteen sub-paragraphs. o The plaintiff was alleged to have sustained serious personal injury, (caused by the defendants to both accidents), including fractures of her C1 and C2 vertebrae, concussion with various consequences, (including dizziness, hearing loss, vision issues, loss of balance and memory loss), various soft tissue injuries, widespread pain, (in her neck, shoulders, back and leg), and fatigue. On November 25, 2015, defence counsel retained by Southwest Middlesex served a notice of intent to defend, and requested an indulgence in relation to service of a statement of defence while the matter was being reviewed and investigated. On December 17, 2015, Southwest Middlesex delivered its statement of defence and crossclaim. 1 The pleading included statements by Southwest Middlesex that at all material times, it, its employees and agents, acted 1 The plaintiff s affidavit material suggests the pleading was filed two days earlier, and the pleading itself is dated December 15, However, the relevant cover letter and fax notations indicate that it actually was not served on plaintiff counsel until the afternoon of December 17, 2015.

6 6 reasonably and properly to maintain the road in question, and that Southwest Middlesex took all reasonable steps to maintain the road. On December 21, 2015, plaintiff counsel supplied counsel for Southwest Middlesex with a CD and index containing the documents plaintiff counsel had received to date. Documents listed and produced under the heading INVESTIGATION/LIABILITY included a Motor vehicle collision report dated February 11, 2014 (sic), a Freedom of information (sic) dated February 11, 2014, Elgin County Google Maps, Middlesex County Map, and Letter from Dutton Dunwich advising jurisdiction is Southwest Middlesex dated August 6, Substantial documentation, (some 9-10 pages), pre-dating and post-dating the accident of February 11, 2014, was listed and disclosed under the heading MEDICALS. Additional disclosures were made concerning collateral benefits and accident benefits. On February 16, 2016, (two days after the second anniversary of the plaintiff s first motor vehicle accident), an adjuster acting for Southwest Middlesex and its insurer sent a letter, apparently by regular post, to the attention of the Roads Department of Middlesex County. A date stamp indicates that it was RECEIVED on February 18, In that regard: o The letter advised that the plaintiff and her counsel had served Southwest Middlesex with a statement of claim, in relation to an accident wherein, on February 11, 2014, at 9:25AM Catherine Patrick allegedly lost control of her vehicle while travelling southbound on County Road #9 (Melbourne Road) approaching the bridge section where the road transitions into Iona Road (County Road #14). Further reference was made to the plaintiff s allegation that there was black ice on the road surface from water that had pooled over the white center line of the road causing Catherine Patrick s vehicle to lose control and roll into the ditch, causing the plaintiff to sustain injuries. The letter attached a copy of the plaintiff s original statement of claim. o The letter also indicated that investigation has revealed that County Road #9 also identified as Melbourne Road is clearly a Count of Middlesex Road and is not a lower tiered road that would be the responsibility of the Municipality. In that regard, the letter also attached a series of photographs of the road in question, including photographs of signs bearing a large number 9 in the centre, with the word MIDDLESEX set out above the number and the word COUNTY set out below. One particular photograph, depicting a

7 7 curve, bears a captions saying: Accident occurred on this road ; Claimant allegedly travelling on Melbourne Road (Middlesex County Road #9) about to cross the Thames River Bridge ; and Once crossing the bridge the claimant would then be on Iona Road (Elgin County Road #9). Referring to the photographs, the letter expressed the view they clearly convey that this is in fact a County road. o The letter concluded with an indication that the writer was not suggesting negligence or liability on the part of Middlesex County, but was placing Middlesex County on notice with respect to this loss. 2 The engineer for Middlesex County has sworn that, based on his review of the county s records, the aforesaid letter from the Southwest Middlesex adjuster, received on February 18, 2016, was the first notice the County had of any claim being asserted with respect to the plaintiff s February 11, 2014 motor vehicle accident, [emphasis added], and that at no time prior to February 18, 2016, were any freedom of information requests made of the County with respect to the plaintiff s February 11, 2014 motor vehicle accident. He also indicates that Middlesex County does not normally conduct any investigations into motor vehicle accidents that occur within its jurisdiction unless notice of a potential claim against the County has been received. [Emphasis added.] He therefore believes that no investigations were undertaken by the County with respect to the plaintiff s February 11, 2014 motor vehicle accident before written notice of a claim was received on February 18, On March 3, 2016, (approximately three weeks after the second anniversary of the plaintiff s first accident on February 11, 2014), counsel for Southwest Middlesex then faxed a letter to plaintiff counsel, indicating that his client had finally completed its investigation. The letter went on to indicate that Southwest Middlesex did not have jurisdiction over 2 I note that the exhibit included at Tab 1, sub-tab C of the motion record filed by Middlesex County contains not only the letter of February 16, 2016, and its indicated statement of claim and photograph attachments, but an interspersed single page print out depicting a portion of a table apparently found on Wikipedia, containing information under the heading List of numbered roads in Middlesex County. The ninth row of the table contains information, including a reference to Melbourne Road, which someone has marked with a handwritten asterisk at each side. However, neither the page nor any information on the page is referred to in the cover letter, and it therefore is not clear to me whether it formed part of the original package mailed to Middlesex County or somehow found its way into the relevant Tab of the responding motion record through other means. In any event, there is nothing to indicate the origin, nature or significance of the information set out in the table, the column headings of which are missing.

8 8 Melbourne Road at or near the accident location ; that jurisdiction lies with either Middlesex County or Elgin County ; that jurisdiction apparently changes at the bridge over the Thames River where the name of the road changes from Melbourne Road to Iona Road ; and that there was apparently clear signage on both roads identifying them as County roads. According to the evidence filed by the plaintiff, this was the first discovery of an issue concerning jurisdiction over Melbourne Road. On March 4, 2016, plaintiff counsel sent further notice letters by registered mail and fax to Middlesex County and Elgin County. The substantive content of each letter echoes that of the earlier notice letters sent to Southwest Middlesex and the Municipality of Dutton Dunwich. In particular, each of the further notice letters advised that the plaintiff had retained counsel to represent her with respect to injuries she sustained in a motor vehicle collision that occurred on February 11, 2014, at the curve where Melbourne Road transitions into Iona Road, and that the plaintiff would be issuing a claim against the recipient county for improper road maintenance and/or design. The engineer for Middlesex County has sworn that that the county did not receive written notice of a claim directly from the plaintiff until March 4, 2016, at which time it received the notice letter sent by plaintiff counsel earlier that day. Later that same day, (March 4, 2016), a representative from Elgin County sent a responding to plaintiff counsel, acknowledging receipt of the faxed notice letter. In the same , the representative indicated that a determination as to the exact location of the accident was required, as the Iona/Melbourne Road [was] a boundary location between Middlesex and Elgin County. The representative asked in particular if the accident occurred south or north of the bridge over the Thames River. Finally, the representative expressed a belief that plaintiff counsel had sent notice to Elgin County incorrectly, as Elgin County had no record of this collision and no police report on file. On March 7, 2016, plaintiff counsel sent a further to the same Elgin County representative, attaching a copy of the motor vehicle collision report, indicating that the plaintiff was significantly injured and unfortunately does not recall the exact location of where this took place, and noting that Southwest Middlesex had advised that jurisdiction over the road lies with either Middlesex County or Elgin County.

9 9 Later that same day, (March 7, 2016), the same representative of Elgin County wrote to plaintiff counsel via regular mail and , again acknowledging receipt of the notice letter sent to the county three days earlier. The letter went on to indicate that, in reviewing the subsequent correspondence from plaintiff counsel and the police report, it appeared that the underlying motor vehicle accident occurred on a road that is not under the jurisdiction of the Count of Elgin, and that the road in question falls under the jurisdiction of the County of Middlesex. On or about March 8, 2016, (five days after learning that Southwest Middlesex now was denying jurisdiction over the road in question), plaintiff counsel served the notice of motion herein, seeking to amend the plaintiff s statement of claim. The proposed amendments seek to add Middlesex County to the style of cause as another named defendant, and replicate, as against Middlesex County, the same allegations of negligent road maintenance made against Southwest Middlesex. The proposed amendments would add to the text of the original pleading without any deletions, including the extant allegations against Southwest Middlesex. On March 10, 2016, an adjuster appointed by the insurers of Middlesex County wrote to plaintiff counsel by , acknowledging receipt of the notice letter sent to Middlesex County on March 4, A lengthy list of information and documentation was requested. The request included advice as to the exact location of the loss, and asked that the plaintiff or plaintiff counsel mark the location in which the accident took place, so that the adjuster could determine who is responsible to maintain that area and subsequently, [the insurers ] position on liability. On May 3, 2016, plaintiff counsel wrote to defence counsel for Middlesex County, requesting production of any and all records pertaining to the subject collision, as well as a copy of the police report provided to Middlesex County, including the date that the report was provided to your client. Plaintiff counsel also asked if a freedom of information request was required to obtain that information. There is no evidence of any response being made to plaintiff counsel s request prior to hearing of the motion. Relevant legislation [8] The plaintiff s proposed claim against Middlesex County for negligent maintenance and/or design of the roadway in question, (like her claim against Southwest Middlesex), is based on legislative provisions found in ss. 44(1) and 44(2) of the Municipal Act, which read as follows:

10 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge. (2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default. [9] The plaintiff s statement of claim and proposed amended statement of claim plead and rely upon the Occupiers Liability Act, R.S.O. 1990, c.o.2, as an alternative basis of liability. However, as conceded by plaintiff counsel during the course of argument, the application of that legislation to municipal defendants for claims of this nature is specifically negated by the Act itself. In particular, s.10(2) of the Occupiers Liability Act, supra, reads as follows: 10. (2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road. [10] It was common ground that claims against municipalities pursuant to the Municipal Act are governed by the presumptive two year limitation period set forth in s.4 of the Limitations Act, 2002, S.O. 2002, c.24, (hereafter referred to as the Limitations Act 2002 ), which in turn is subject to the discoverability provisions set forth in s.5 of that legislation. Those provisions read as follows: Basic limitation period 4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Discovery 5. (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) That the injury, loss or damage had occurred,

11 11 (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). [11] However, claims against municipalities are also subject to a statutory notice requirement, which contains its own internal saving mechanism to alleviate possible hardship in certain cases. Those notice provisions, repeatedly described by our Court of Appeal as a limitation period within a limitation period 3, (as failure to satisfy the notice requirement may bar the claim in a manner equally conclusive as expiry of a limitation period), are found in ss. 44(10) to 44(12) of the Municipal Act, which read as follows: 44. (10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to, (a) (b) the clerk of the municipality; or if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities. (11) Failure to give notice is not a bar to the action in the case of the death of the injured person as a result of the injury. 3 See, for example: Bannon v. Thunder Bay (City), [2000] O.J. No (C.A.), at paragraph 22; and Crinson v. City of Toronto (2010), 100 O.R. (3d) 366 (C.A.), at paragraph 6.

12 12 (12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is a reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence. [12] Rules of Civil Procedure relied upon by the plaintiff, in relation to pleading amendments, include both rule and rule 5.04(2), which respectively read as follows: 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. 5.04(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. [13] The two rules obviously are similar. [14] However, as the rules themselves suggest, in cases of proposed pleading amendments involving misnomer, (to correct the name of a party incorrectly named), or the addition of a party, it is the permissive Rule 5.04(2) rather than the mandatory Rule 26 that governs, and the court has a residual discretion to deny such proposed amendments. 4 [15] Moreover, where pleading amendments are proposed in relation to a party in respect of whom a limitation period may have expired, regard must be had to s.21 of the Limitations Act 2002, which reads as follow: 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. (2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party. 4 See, for example: Mazzuca v. Silvercreek Pharmacy Ltd., [2001] O.J. No (C.A.), at paragraphs 24-30; and Pepper v. Zellers Inc., [2006] O.J. No. 502 (C.A.), at paragraph 14.

13 13 [16] With the above legislation in mind, I turn first to the plaintiff s reliance on the doctrine of misnomer. Misnomer [17] In that regard, I start by emphasizing my recognition that courts may permit amendments correcting true misdescriptions or misnomers in an existing claim despite the intervening expiry of a limitation period. [18] That proposition is reflected in s.21(2) of the Limitations Act 2002, but also finds ample support in the authorities. 5 [19] It is a proposition which makes logical sense. [20] In that regard, it must be remembered that the correction of a true misnomer does not involve the substitution of one party for another, but a situation where a party seeks to name the defendant correctly. 6 [21] In a case of true misdescription or misnomer of a defendant in a claim commenced prior to the relevant limitation period having expired, the plaintiff s claim against the intended defendant therefore is not out of time, even though the request to correct the description or name is brought before the court after passage of the relevant limitation period. To the contrary, the plaintiff actually has commenced a claim against the intended defendant, within the applicable limitation period, but has made a formal error in the description or naming of that defendant which requires correction - - albeit possibly after the limitation period has expired. 7 [22] Alternatively, it has been said that the discretion to correct a misnomer does not require consideration of the applicable limitation period because the test for misnomer is such that the party who has been misnamed will still have been put on 5 See, for example: Ladouceur v. Howarth, [1973] S.C.J. No. 120 (S.C.C.); J.R. Sheet Metal & Manufacturing Ltd. v. Prairie Rose Wood Products, [1986] A.J. No. 7 (C.A.); Kitcher v. Queensway General Hospital (1997), 44 O.R. (3d) 589 (C.A.); and Lloyd v. Clark, [2008] O.J. No (C.A.). 6 See, for example: Kitcher v. Queensway General Hospital, supra, at paragraph 2; Spirito Estate v. Trillium Health Centre, [2008] O.J. No (C.A.), at paragraphs 6 and 15; and Essar Algoma Steel Inc. v. Liebherr (Canada) Co., [2011] O.J. No (Div.Ct.), at paragraph 8. 7 See, for example: Kitcher v. Queensway General Hospital, supra, at p.591; and Spirito Estate v. Trillium Health Centre, supra, at paragraphs 11 and 15.

14 14 notice of the claim, and therefore will not be disadvantaged by being deprived of the benefit of the limitation period. 8 [23] In contrast to situations where the plaintiff effectively is seeking leave to add a new defendant to the litigation after passage of the ostensible limitation period, (considered below), application of the doctrine of misnomer accordingly does not require evidence of due diligence to ascertain the identity of parties. The doctrine can apply even if the plaintiff has made an error in circumstances where he or she knows or ought to have known of the proper description or name of the intended defendant. 9 [24] This nevertheless makes it all the more important to ensure satisfaction of the strict requirements necessary to establish a case of legitimate misdescription or misnomer, permitting correcting amendments despite passage of a limitation period. [25] In that regard, the classic English view of misnomer was quite narrow, permitting only the correction of a minor spelling error in the defendant s name, and only where the document in question was served personally upon the intended but misnamed defendant. [26] However, the scope of the misnomer doctrine has been revisited and expanded by our Court of Appeal through a series of decisions. 10 [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 8 See Ormerod v. Strathroy Middlesex General Hospital, [2009] O.J. No (C.A.); and Sorokataya v. Keith, [2010] O.J. No (S.C.J.). 9 See, for example: Skribans v. Nowek, [2012] O.J. No. 339 (Master), at paragraphs 7, 36-37, and See, in particular: Lloyd v. Clark, supra; Ormerod v. Strathroy Middlesex General Hospital, supra; and Spirito Estate v. Trillium Health Centre, supra.

15 15 would have known being primarily a finding of fact to be made on the basis of the evidence presented by the parties). 11 [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. [31] More generally, where the error or mistake in naming the defendant properly involves more than a mere irregularity, or in any particular case with exceptional circumstances, the court may exercise its residual discretion under Rule 5.04 and refuse to permit its correction. 12 [32] With the above principles regarding misnomer in mind, I turn to their application in this particular case. [33] In that regard, I begin by noting my agreement with submissions by counsel for Middlesex County that it seems counterintuitive to regard the proposed amendments in this case as a legitimate effort to correct an inaccurate description or naming of a defendant in the existing litigation. 11 This second required element has been described in the vernacular as the litigating finger test, in the sense of asking whether a reasonable person, upon reading the plaintiff s pleading, would have known that the litigating finger really was pointing at him or her, despite the actual manner in which the defendant was named or described. In that regard, reference frequently is made to the manner in which the English Court of Appeal articulated the test in Davies v. Elsby Brothers Ltd. (1960), [1961] 1 W.L.R. 170 (Eng.C.A.): I think 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. 12 See, in particular, Ormerod v. Strathroy Middlesex General Hospital, supra, at paragraphs 31 and 32.

16 16 [34] In particular, this is not a case where the plaintiff seeks to change the pleaded name or description of the municipality with alleged jurisdiction over the road in question from Southwest Middlesex to Middlesex County. To the contrary, as noted above, the plaintiff s proposed amendments would simply amend the style of cause to also name Middlesex County as a defendant, subject to new separate but similar allegations of negligent road maintenance and/or design against Middlesex County. [35] The proposed amendments therefore unquestionably would result in the addition of a defendant rather than a substitution, as all of the plaintiff s original allegations against Southwest Middlesex would remain in place. In other words, the plaintiff essentially seeks to add a municipality that alternatively might have responsibility for maintenance of the road in question, while retaining its ability to pursue the same claim against its originally named municipal target. [36] I am mindful of the following general view expressed by Justice Kenneth L. Campbell in Stekel v. Toyota Canada Inc. (2011), 107 O.R. (3d) 431 (S.C.J.) 13, at paragraph 35: The proper application of the misnomer test cannot be reduced to a simple exercise of counting the number of parties in an effort to ensure that there is the same number of defendants before and after the proposed amendment to the Statement of Claim. Instead, as the authorities suggest, the governing legal analysis requires more nuance, and is focused upon whether there exists a coincidence between the plaintiff s intention to name the defendant and the defendant s knowledge that it was the intended defendant. If, as a result of that misnomer analysis and the making of the proposed amendment, the number of defendants actually increases, then that is a legal result contemplated by s.21(2) of the Limitations Act [37] However, as noted by Justice Campbell himself immediately thereafter, the situation before him actually involved a case of corrective amendments for the purpose of substitution rather than addition, even though it resulted in an increase in the number of named defendants. In particular, the existing defendant named in the Stekel statement of claim initially was alleged to have been liable in a number of capacities; i.e., as distributor and manufacturer. The proposed amendments sought to correct the defendant named as manufacturer, by removing the originally named defendant as the alleged manufacturer, and inserting the newly named 13 I note that Justice Campbell was sitting in appeal from the decision of a Master. Moreover, leave to appeal from Justice Campbell s decision was denied: 2012 ONSC 2572 (Div.Ct.).

17 17 defendant in its place. The proposed amendments thereby effected a corrective substitution in that sense, even though the originally named defendant remained in the litigation as a distributor, such that the overall number of defendants had increased. [38] Justice Campbell s comments about the scope of the misnomer doctrine therefore were somewhat obiter, at least in relation to their possible application to a situation such as the one before me; i.e., where the plaintiff s proposed amendments do not seek to effect any degree of substitution whatsoever to correct a suggested misdescription or misnaming of an existing defendant in any or all of its alleged capacities. [39] However, in my view it is unnecessary to address and resolve that issue, as the plaintiff s reliance on the doctrine of misnomer fails in any event on the particular facts of this case. [40] In that regard, I am prepared to find that, from the outset, the plaintiff has had the requisite intention to name the correct party as a defendant, in the sense of naming the municipal entity having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. In particular, I think the circumstances of this case are closely analogous to those in Lloyd v. Clark, supra, in which our Court of Appeal found a similar intention. 14 [41] However, in my view application of the misnomer doctrine fails in this case because the evidence before me does not establish the necessary coincidence between that plaintiff intention and Middlesex County having had notice of the plaintiff s claim. [42] In that regard, it is not a question of whether or not Middlesex County, upon receipt of the plaintiff s claim, reasonably would have known that the litigation 14 In Lloyd v. Clark, supra, the plaintiff was involved in a motor vehicle accident. Precisely two years later, the plaintiff commenced an action for damages against two specific municipalities; i.e., the Towns of Ajax and Whitby. Shortly thereafter, those two municipal defendants advised the plaintiff that the accident actually took place in the regional Municipality of Durham. Subsequently, and after the expiry of the two year limitation period, the plaintiff brought a motion to substitute the Regional Municipality of Durham for the Towns of Ajax and Whitby. The motions judge concluded that the case was not simply one of misnomer, and refused to make the proposed substitution of defendants, as the plaintiff had deliberately named the parties he wanted as defendants. However, the Court of Appeal reversed that decision, concluding that the motions judge ought to have permitted the title of the proceedings to be corrected to name the Regional Municipality of Durham as a defendant in place of the Towns of Ajax and Whitby, pursuant to s.21(2) of the Limitations Act That conclusion was based in part on the Court of Appeal s view that, on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. [Emphasis added.] In my view, the same can be said about the plaintiff in this case.

18 18 finger was pointing in its direction. To the contrary, the evidence suggests that, knowing the roads over which it had maintenance jurisdiction, Middlesex County would have realized from a reading of the statement of claim and the description therein of the accident and its location that Middlesex County was the plaintiff s intended litigation target. [43] From the plaintiff s perspective, the problem with application of the misnomer doctrine is that, according to the uncontradicted evidence filed on this motion, Middlesex County did not receive notice of the plaintiff s claim until February 18, 2016; i.e., four days after the ostensible limitation period had expired. 15 [44] In the circumstances, the rationales outlined above for permitting amendments outside the limitation period on the basis of misnomer, without regard to questions of due diligence and discoverability, fall away. [45] In particular, it cannot be assumed that the plaintiff commenced her claim against Middlesex County in time, or that Middlesex County was put on notice of the claim within the limitation period, thereby preventing it from being disadvantaged if it is deprived of its benefit. To paraphrase Master Haberman s rhetorical question at paragraph 55 of Brown-Vidal v. John Doe, [2015] O.J. No (Master), on what basis can the plaintiff claim that Middlesex County had knowledge that it was the intended defendant in an action it would have known nothing about, until sometime after the limitation period had expired? [46] As I read the authorities, permitting amendments on the basis of misnomer after passage of a limitation period contemplates and requires coincidence of both elements of the requisite plaintiff intention and requisite intended defendant knowledge within that limitation period. 16 That is not the case here, which in itself seems sufficient to reject the plaintiff s argument that the desired amendments should be permitted through application of the misnomer doctrine. 15 The situation before me therefore is distinguishable from cases such as Lloyd v. Clark, supra, where there was clear evidence that the proposed defendant immediately knew that it was the proposed defendant, (given a letter sent by its insurance adjuster to the plaintiff s solicitor upon receipt of the statement of claim), or Stekel v. Toyota Canada Inc., supra, (where there was evidence of a close relationship between the existing and proposed corporate defendants, as well as indications of common legal representation and relaying of information throughout the relevant corporate network and hierarchy, permitting an inference of probability that the proposed defendant knew all about the plaintiffs claims ). 16 See, for example, Wolkowicz v. Avignon Inc., [2011] O.J. No (Master), at paragraph 38.

19 19 [47] If I am mistaken about that, in the particular circumstances of this case I would exercise my residual discretion under Rule 5.04 to deny leave to make the desired amendments on the basis of misnomer. [48] Without limiting the generality of the foregoing, it seems to me that the intended defendant having no notice of the claim within the limitation period constitutes an exceptional circumstance that takes the situation outside of mere irregularity, and raises the definite prospect of such a defendant being unduly prejudiced if the amendments are permitted simply on the basis of misnomer. Limitation Period [49] If the doctrine of misnomer does not apply so as to bring the situation within s.21(2) of the Limitations Act 2002, then s.21(1) may apply. Again, that subsection dictates that, 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. [50] The provision articulates an important general rule, and the language of the rule is mandatory. On its face, it admits no discretionary application. It appears to be designed to ensure that the expiry of a limitation period against a potential defendant is not somehow procedurally overcome by the simple expedient of adding that party as a defendant to some proceeding already commenced within the limitation period. 17 [51] However, an applicable limitation period actually may not have expired, despite the passage of a specified anniversary date, in circumstances where the plaintiff can establish that its operation has been postponed by discoverability considerations. [52] Strict application of the s.21(1) prohibition, without any allowance for such discoverability concerns, therefore would create the potential for injustice from the plaintiff perspective. [53] On the other hand, freely allowing plaintiffs to add defendants by the mere mention of possible discoverability issues would be tantamount to ignoring s.21(1) altogether, and create potential injustice from the perspective of proposed defendants. 17 See Stekel v. Toyota Canada Inc., supra, at paragraph 13.

20 20 [54] The authorities accordingly have adopted an approach which effectively attempts to strike a balance between those extremes. In particular: To take advantage of the discoverability principle, a plaintiff must show that, before seeking to add a proposed defendant, he or she neither knew, nor by reasonable diligence could have known, that he or she had a claim against that proposed defendant. A plaintiff who seeks to add a proposed defendant to a claim, after passage of the ostensible limitation period, accordingly must put forward some evidence of his or her diligence. 18 In most cases, one would expect to find, as part of a solicitor s affidavit offered to substantiate the assertion that the party was reasonably diligent, a list of attempts made by the solicitor to obtain information, as well as an explanation as to why certain steps were not taken and/or why he or she was unable to determine the facts. 19 Generally, however, as long as the plaintiff tenders evidence of steps taken to ascertain the identity of the tortfeasors, and gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence, that will be the end of the enquiry, and the proposed defendant or defendants will be added with leave to plead a limitations defence. The threshold is not a high one. If the plaintiff fails to provide any reasonable explanation that could on a generous reading amount to due diligence, the motion will be denied. If the plaintiff puts in evidence of steps taken but the proposed defendant also provides evidence of further reasonable steps that the plaintiff could have taken to ascertain the information within the limitation period, then the court will have to consider whether the plaintiff s explanation clearly does not amount to due diligence. If there is any doubt whether the steps taken by the plaintiff could not amount to due diligence, then that is an issue which must be resolved on a full evidentiary record at trial, or by way of summary judgment. In such cases, it therefore is appropriate to permit the amendment adding the proposed defendant, after which the defendant can in turn plead application of the limitation period Burtch v. Barnes Estate, [2006] O.J. No (C.A.), at paragraphs 25 and Zapfe v. Barnes, [2003] O.J. No (C.A.), at paragraph See Wong v. Adler (2004), 70 O.R. (3d) 460 (Master), affirmed [2005] O.J. No (Div.Ct.), and cited with approval by our Court of Appeal in Pepper v. Zellers Inc., supra. See also Banque nationale de Paris (Canada) v. Canadian Imperial Bank of Commerce, [2000] O.J. No. 134 (S.C.J.), at paragraph 25; Wakelin v. Gourley, [2005] O.J. No (Master), at paragraph 15; and Burtch v. Barnes Estate, supra, at paragraphs 27 and 29.

21 21 Applying the discoverability principle, so as to permit a plaintiff to add a defendant notwithstanding ostensible expiry of an applicable limitation period, nevertheless remains a matter of judicial discretion. 21 [55] In my view, the present case is not comparable to numerous decisions, relied upon by Middlesex County, in which the court found a complete failure on the part of the plaintiff to provide any evidence supporting a claim of due diligence, or any explanation as to why the plaintiff failed to determine the identity of a proposed defendant at an earlier stage. [56] For example, in Higgins v. Barrie, [2011] O.J. No (S.C.J.), the affidavit material filed by the plaintiff was totally deficient and devoid of any due diligence, reasonable efforts or steps undertaken by the plaintiff or his counsel to identify the proposed defendants or any other potential defendants. The court found it reasonable to infer that no such steps were taken; an inference supported by plaintiff counsel s admission during the course of the hearing that he made no inquiries and took no steps to determine the identities of any proposed defendants. 22 [57] Middlesex County similarly made reference to numerous decisions cited and relied upon in Higgins v. Barrie, supra, such as: Hamilton v. Svedas Koyanagi Architects, [2009] O.J. No (S.C.J.), wherein there was no evidence presented as to attempts made by the plaintiff to identify the proposed additional defendant or obtain information pointing to its possible liability, and the court drew the inference that nothing was done; and Mbobi v. Zurich Canada, [2010] O.J. No (S.C.J.), in which the plaintiff advanced no reasonable explanation for its failure to identify the proposed defendant earlier, and could very well have obtained the relevant information within the limitation period. [58] Middlesex County also relied on the Court of Appeal s decision in Pepper v. Zellers Inc., supra, wherein the plaintiffs material failed entirely to address whether they ought to have known [the proposed defendant s] identity, and what, if any, steps they took to determine that identity. The affidavit material 21 Burtch v. Barnes Estate, supra, at paragraph Higgins v. Barrie, supra, at paragraphs

22 22 provided no particulars of any steps taken to obtain information and did not explain why no steps were taken, and the plaintiffs offered no explanation other than to say that no one gave them the information. 23 [59] However, this simply is not a case where the plaintiff made no effort to ascertain possible defendants. [60] Nor is it a case where the plaintiff has failed to file evidence of the steps taken to ascertain the identity of relevant tortfeasors, or evidence of an explanation as to why it failed to identify the proposed additional defendant earlier through the exercise of due diligence. [61] The evidence in that regard is certainly not as coherently organized, explicit or direct as it might have been, (particularly insofar as it was presented by a law clerk rather than the plaintiff s lawyer), but in my view the evidence is there. It includes direct and implicit indications that: The plaintiff was alone in her vehicle at the time of her first accident, sustained serious injuries, (including concussion and memory loss), and has no recollection of the exact location where the accident took place. Within the limitation period, the plaintiff nevertheless did not sleep on her rights. To the contrary: o She retained counsel to assist with investigation and pursuit of a legal claim relating to her accident and injuries. o Plaintiff counsel then took active steps to ascertain the location of the accident from other sources; e.g., by obtaining and reviewing the relevant Motor Vehicle Collision Report, (apparently through a Freedom of Information Request), as well as maps of the relevant area. o Plaintiff counsel also took active steps to determine the municipal entity responsible for maintaining the road. Notice letters were sent to the lower tier municipalities in the relevant area, Southwest Middlesex and Dutton Dunwich. (There is no express indication as to why plaintiff counsel chose to focus initially on lower tier municipalities, but the Motor Vehicle Collision Report may have suggested such a focus by referring to the relevant road as 23 Pepper v. Zellers Inc., supra, at paragraphs