



COURT OF APPEAL FOR ONTARIO

CITATION: Bertolli v. Toronto (City), 2018 ONCA 601

DATE: 20180628

DOCKET: C64833

Simmons, Huscroft and Miller JJ.A.

BETWEEN

John P. Bertolli, Norma K. Bertolli and

Kathleen R. Tomlinson

Plaintiffs

(Appellants)

and

City of
    Toronto and

John Doe
    Maintenance Company

Defendants

(Respondents)

Michael Kealy, for the appellants

Miranda Serravalle and Karen Bernofsky, for the respondents

Heard and released orally: June 22, 2018

On appeal from the order
    of Justice Lederer of the Superior Court of Justice, dated December 15, 2017.

REASONS FOR DECISION

[1]

Following the expiry of the limitation period for damages arising from
    an accident caused by alleged non-repair of a highway (a pothole), a Master
    permitted the respondents to amend their Statement of Claim to substitute the
    Regional Municipality of York and Brennan Paving and Construction Ltd. (the substituted
    defendants) for the originally named defendants (the City of Toronto and John
    Doe Maintenance Company) based on misnomer.

[2]

Although the site of the accident as identified in the Statement of
    Claim was not particularized beyond alleging that it occurred on McCowan Road
    in the City of Toronto, the Master concluded that the substituted defendants
    would have known they were the intended defendants upon reading the Statement
    of Claim. He assumed that the substituted defendants would have knowledge of a Notice
    of Claim delivered to them within days of an alleged accident, which identified
    the precise location of the alleged accident at a particular point on McCowan
    Road, which was in the Regional Municipality of York.
[1]
(McCowan Road traverses both the City of Toronto and Regional Municipality of
    York.)

[3]

Relying on assumed knowledge of the Notice of Claim and misnomer, the Master
    permitted the amendment.

[4]

On appeal to the Superior Court by Brennan, the motion judge set aside
    the Masters order in its entirety. The respondents appeal from the motion
    judges order.

[5]

The appeal is dismissed. The delivery and content of the Notice of Claim
    were facts extraneous to the original accident, and not a record made by a participant
    or observer at the time of the accident who was in some way connected to the
    substituted defendants. Moreover, even when read in combination, the Notice of
    Claim and Statement of Claim were not capable of supporting an inference that
    the substituted defendants were the intended defendants. Absent reference to
    the pothole in the Notice of Claim and absent particulars of the precise location
    of the accident alleged in the Statement of Claim, the reasonable reader could
    not
know
, without further inquiry, that the documents referred to the
    same accident. Put simply, the Masters inference that the substituted
    defendants would know they were the intended defendants was not available on
    any reasonable view of the evidence. The Masters order was properly set aside.

[6]

Further, the motion judge did not err in setting aside the Masters
    order as against the Regional Municipality of York at the request of Brennan.
    Evidence on the motion indicated Brennan is contractually bound to defend and
    indemnify the Regional Municipality of York from claims such as this.

[7]

The appeal is dismissed.

[8]

Costs of the appeal are to Brennan, on a partial indemnity scale fixed
    in the amount of $6,000, inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.





[1]
The Notice of Claim identified the City of Markham as the relevant
    municipality. Markham forwarded the Notice to the Regional Municipality of York
    who, in turn, forwarded it to Brennan.


