



COURT OF APPEAL FOR ONTARIO

CITATION: Streamline Foods
    Ltd. v. Jantz Canada Corporation, 2012 ONCA 174

DATE: 20120320

DOCKET: C54450

Simmons, Cronk and Watt JJ.A.

BETWEEN

Streamline Foods Ltd.

Plaintiff (Appellant)

and

Jantz Canada Corporation

Defendant (Respondent)

James M. Wortzman and Karey
    Anne Dhirani, for the appellants Streamline Foods Ltd. and Streamline Foods,
    Inc.

Scott A. Rosen and Bryan Fromstein, for the respondent

Heard and released orally: March 2, 2012

On appeal from the order of Justice Thea Herman of the
    Superior Court of Justice (sitting in the Divisional Court), dated March 15,
    2011, dismissing the appellants appeal from the decision of Master Robert A.
    Muir, dated November 19, 2010.

ENDORSEMENT

[1]

Following the expiry of the relevant limitation
    period, Streamline Foods Ltd. moved to amend its statement of claim by adding
    its parent corporation as a plaintiff and by adding assertions that it was the
    parent corporation that was entitled to some of the damages claimed. Streamline
    relied on misnomer as the basis for its proposed amendments and conceded that
    the amendments were otherwise barred by the operation of the
Limitations
    Act, 2002
.

[2]

Master Muir dismissed the motion, holding
    that "this is not a case of misnomer but rather an attempt to add an
    additional plaintiff."

[3]

Herman J. dismissed the appellants' appeal
    from the Master's decision.

[4]

On appeal to this court, the appellants
    argue that the courts below erred in holding that this was not a case of
    misnomer and further erred in failing to find that s. 21(1) of the
Limitations
    Act, 2002

does not apply to plaintiffs and that the doctrine of
    special circumstances continues to permit the addition of plaintiffs based on
    special circumstances.

[5]

We agree with the courts below that this
    is not a case of misnomer. The appellants sought to add the parent corporation
    of the original plaintiff as a party to the action because it was the parent
    corporation who incurred certain losses, not the original plaintiff. However,
    in order to advance a claim on behalf of the parent corporation, it was
    necessary to add the parent corporation as an additional party and also to
    plead additional material facts to support the parent corporations claims.

[6]

This, in our view, is not misnomer or misdescription.
    The appellants were not seeking to correct the name of a party; rather, they
    were seeking to add a party and to pursue that partys claims.

[7]

On these facts, the special circumstances
    doctrine, even if it survived the enactment of the
Limitations Act,
    2002
, would not assist the appellants.

[8]

In any event, in our
    view,
Joseph v. Paramount Canada's Wonderland
2008 ONCA 469 stands for the proposition that the special circumstances
    doctrine did not survive the enactment of the
Limitations Act, 2002
, as
    the appellants seek to argue. A challenge to that determination would require
    consideration by a five-person panel of this court.

[9]

Costs of the appeal and the leave application
    are to the respondent on a partial indemnity basis, fixed in the amount of
    $10,000, inclusive of disbursements and applicable taxes.

Signed:        Janet
    Simmons J.A.

E.
    A. Cronk J.A.

David
    Watt J.A.


