COURT FILE NO.

05-CV-288394PD 3

ONTARIO
2007 CanLII 43495 (ON SC)

SUPERIOR COURT OF JUSTICE

B E T W E E N: CHRISTINE GRAHAM

Plaintiff and -

JOHN DOE, JACK DOE AND XYZ INSURANCE COMPANY

Defendants REASONS FOR DECISION MOTION TO AMEND STATEMENT OF CLAIM

COUNSEL: J. Maloney for the plaintiff, moving party J. Dabrusin for the defendant

[1]

The plaintiff Ms. Graham (Graham) has requested an order that the insurance company Traders General Insurance Company be substituted for XYZ Insurance company in this action. Graham was injured in a bicycle-automobile accident where the driver of the auto left the scene of the accident so that she has no information of his insurance coverage. Paragraph ten of the Statement of Claim refers to the attempts to locate her ex-husband/common law spouse (the relationship is not clear from the material before me) to determine whether she had any coverage under his policy but these attempts to locate were not successful. Graham has brought action against the Uninsured Motorist Accident Claims Fund in April, 2005. During her discovery in on August 25, 2006, Graham was asked with whom she was living at the time of the accident

[2]

[3]

and it was determined that she might be covered under her sisters motor vehicle policy. Traders is the insurer for the sister. [4] Rule 5.04(2) states that the court may by order add, delete or substitute a party or correct the name of a party incorrectly named unless prejudice would result that could not be compensated by costs. Traders has consented to its being named a party in this action but does not consent to its name being substituted for XYZ Insurance Company. There is a legal difference between adding and substituting a party. There is no case on point with the facts of this action. Many of the cases in the casebooks filed with the court relate to misnaming of a party and the desire to correct the name. The leading case Mazzuca v. Silvercreek Pharnmacy Ltd. 1 discusses misnomer situations as follows: [the rule] permits an amendment where it was intended to commence proceedings in one name but, in error, the proceedings were commenced in another name. Similarly, this aspect of the subrule may apply in situations where the plaintiff intended to sue one person, but in error sued the wrong person. Such cases reflect an irregularity in the nature of misnomer. This is not a case of misnomer in the narrow sense of a misdescription of the person suing, but rather a case of mistake as to the identity of the person who should have brought suit. Properly characterized, the motion in this case sought to delete one party to the action and to substitute another. the power conferred under subrule 5.04(2) to amend a pleading to change parties is not confined to misnomers of the misdescription type. It extends to the power to substitute parties and, as well, to correct in proper cases the naming of a party by mistake.

[5]

This is not a misnomer case; no one has been misnamed; the plaintiff did not have the name of any insurer to sue. This is a request to substitute a subsequently discovered possible insurer for the john doe corporate name. In the recent decision in Spirito Estate v. Trillium Health Centre 2 the plaintiff moved to substitute the names of two doctors for Drs. AB and CD in the Statement of Claim. They submitted that it was a misnomer case or in the alternative, they sought the amendment on the basis of no

1 2

[2001] O.J. No 4567 (C.A.) 2007 CarswellOnt 6366

2007 CanLII 43495 (ON SC)

prejudice and special circumstances, the usual test for adding a party after a limitation period. Counsel for the doctors argued that it was not a misnomer case. The judge stated: 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. 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.
2007 CanLII 43495 (ON SC)

[6]

Using the litigating finger test as stated above, I find that there is no contemplation in the Statement of Claim of the insurer proposed to be substituted as there is no suggestion that there is a relative whose insurance would cover the plaintiff. The stated possibility is the disappeared spouses insurer. The general statement in paragraph four is not sufficient to meet the test; if it were, every insurer in Ontario could be at risk in any motor vehicle action. Traders will not be substituted for XYZ Insurance in the Statement of Claim. As Traders has consented to be added as a party, I do not have to address the prejudice issue.

[7]

ORDER 1. The motion to substitute Traders General Insurance Company for XYZ Insurance Company in the Statement of Claim is dismissed. 2. On consent, Traders General Insurance Company shall be added as a defendant in this action effective October 26, 2006. 3. Time for service is abridged. 4. Costs fixed at $2500.00 payable by the plaintiff in any event of the cause.

October 16, 2007

_________________________ Master Birnbaum

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2007 CanLII 43495 (ON SC)