Simmonds v. G&G Pool Services

Simmonds v. G&G Pool Services Collection Decisions of the Court of Appeal Date 2018-09-20 Neutral citation 2018 ONCA 772 Docket numbers C65259 Judges Juriansz, Russell G.; Brown, David M.; Huscroft, Grant Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Simmonds v. G&G Pool Services, 2018 ONCA 772 DATE: 20180920 DOCKET: C65259 Juriansz, Brown and Huscroft JJ.A. BETWEEN Robert Simmonds Plaintiff (Appellant) and G&G Pool Services and Renovation Limited, 2286120 Ontario Inc., c.o.b. as Kell’s Garden City Landscape Construction Defendant (Respondent) Daniel Zacks and Julia Vizzaccaro, for the appellant Douglas Spiller and Joshua Hemmings, for the respondent, 2286120 Ontario Inc., carrying on business as Kells Garden City Landscape Construction and for the proposed defendant, Kell’s Garden City o/o Garden City Inc. Heard and released orally: September 19, 2018 On appeal from the order of Justice Guy P. Di Tomaso of the Superior Court of Justice, dated March 13, 2018. REASONS FOR DECISION [1] The appellant submits the motion judge erred by not applying the litigation finger test. We agree. [2] In Lloyd v. Clark, 2008 ONCA 343, 52 C.P.C. (6th) 41, this court held, at para. 4, that where there is a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant, an amendment to a statement of claim may be made despite the passage of the limitation period to correct the misdescription or misnomer. [3] Here, the motion judge found that the appellant knew who the proper defendant was but failed to sue the proper party. That satisfies the first branch of the test. [4] Mr. Guido, the principal of Garden City Inc., swore, at paras. 13 and 14 of his March 2, 2018 affidavit, that when the statement of claim arrived at the shared accounting office of 2286120 Ontario Inc. and Garden City Inc., it was forwarded to him. He reviewed it and, after discussion with the principals of 2286120 Ontario Inc., found a lawyer, Mr. Spiller, to defend the claim. [5] Mr. Spiller’s letter to plaintiff’s counsel of June 13, 2017, two weeks before the possible expiry of the limitation period, stated the wrong defendant had been sued and that the plaintiff had contracted with Garden City Inc. The only reasonable inference is that Mr. Spiller received that information from Mr. Guido or someone else at Garden City Inc., the proposed defendant. Accordingly, the intended party – Garden City Inc. – knew that it was the intended defendant. [6] In those circumstances, the appellant has satisfied the litigation finger test for misnomer and the motion judge erred in failing to grant the appellant leave to amend his statement of claim to substitute Garden City Inc. for 2286120 Ontario Inc. [7] The respondent submits that even if the case is one of misnomer, the motion judge retained a discretion to refuse the motion. The motion judge did not purport to exercise such a residual discretion, but dismissed the motion on an erroneous view of the law. [8] For these reasons, the appeal is allowed. The appellant is granted leave to amend his statement of claim to substitute Kell’s Garden City o/o Garden City Inc. in the title of proceedings in place of 2286120 Ontario Inc., carrying on business as Kells Garden City Landscape Construction Inc. [9] The appellant is entitled to his costs of the appeal fixed in the amount of $6,000, together with the costs of the motion below fixed in the amount of $3,500, payable by the respondent, 2286120 Ontario Inc. “R.G. Juriansz J.A.” “David Brown J.A.” “Grant Huscroft J.A.”