



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 Kells 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, Kells 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
    plaintiffs intention to name a party and the intended partys 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. Spillers letter to plaintiffs 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 Kells 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.


