A-835-77
Hijos de Romulo Torrents Albert S.A. (Appellant)
(Plaintiff)
v.
The Ship Star Blackford and Blandford Shipping
Co. Ltd. and Star Shipping A/S (Respondents)
(Defendants)
Court of Appeal, Pratte, Urie and Le Damn JJ.—
Vancouver, December 7, 1978; Ottawa, February
9, 1979.
Practice — Appeal from dismissal of motion to add three
proposed plaintiffs — Proposed plaintiffs' claims statute
barred — Appellant (plaintiff) without interest in proposed
plaintiffs' property, but arguing that their addition as plain
tiffs necessary to insure all matters in dispute properly
adjudicated — Federal Court Rules 424, 425, 1716.
An action has been brought in appellant's name for damage
to four different lots of woodpulp shipped by the same consig-
nor on the respondent vessel under four bills of lading for
delivery to four different parties. The appellant is entitled to
claim for damage to goods covered by one bill of lading. Those
entitled to claim for the damage to goods covered by the other
bills of lading are said to be three other companies, apparently
unrelated to the appellant. After the expiry of the year fixed by
the Hague Rules for bringing a cargo claim the appellant made
application under Rule 1716 for an order that these companies
be joined to the action, ab initio and nunc pro tunc. Appellant
appeals from the dismissal of that application.
Held, the appeal is allowed. Although this is a case in which
the four companies may be joined as plaintiffs in the same
action by virtue of Rule 1715, it is not one to which Rule 1716
applies. The words of paragraph (2)(b) of the latter Rule have
been understood to mean that the joinder of the proposed
parties must be necessary to assure that the rights asserted by
the original plaintiff may be effectually and completely deter
mined. The joinder of the proposed plaintiffs is not necessary to
the determination of the appellant's claim with respect to the
goods covered in the bill of lading applicable to them. The case,
however, might be regarded as one of misnomer, without doing
violence to that concept and the scope of Rule 425. The
respondent was not misled in any way as to the damage for
which a claim was being made and as to the parties on whose
behalf it was intended to claim. This meets the essential test as
to whether a case should be treated as one of misnomer. With
respect to the cause of action based on each of the other bills of
lading the effect of an amendment would not be so much to add
plaintiffs as to replace the name of the appellant by those of the
other companies.
Ladouceur v. Howarth [1974] S.C.R. 1111, referred to.
Witco Chemical Co., Canada, Ltd. v. The Corporation of
the Town of Oakville [1975] 1 S.C.R. 273, referred to.
Dupuis v. De Rosa [1955] Que. Q.B. 413, referred to.
Leeson Corp. v. Consolidated Textile Mills Ltd. [1978] 2
S.C.R. 2, considered.
APPEAL.
COUNSEL:
S. Harry Lipetz for appellant (plaintiff).
J. William Perrett for respondents (defend-
ants).
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for appellant (plaintiff).
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for respondents (defend-
ants).
The following are the reasons for judgment
rendered in English by
LE DAIN J.: An action has been brought in the
name of the appellant for damage to four different
lots of woodpulp shipped by the same consignor on
the respondent vessel under four bills of lading
numbered GR/B-7, GR/B-8, GR/B-9 and GR/B-
10 for delivery to four different parties. The appel
lant is only entitled to claim for the damage to the
goods covered by bill of lading GR/B-7. Those
entitled to claim for the damage to the goods
covered by the bills of lading GR/B-8, GR/B-9
and GR/B-10 are said to be three other companies
apparently unrelated to the appellant: J. Vilaseca
S.A., Miguel y Costas and Miguel S.A., and S.
Torras Domenech S.A. respectively. After the
expiry of the year fixed by the Hague Rules for
bringing a cargo claim the appellant has made an
application under Rule 1716 for an order that
these companies "be joined as parties to the action
herein, ab initio and nunc pro tunc." The affidavit
in support of the application states that "due to
inadvertence the parties mentioned were not
included as Plaintiffs in the Statement of Claim
filed on February 15, 1977", and that "it is neces
sary to add J. Vilaseca S.A., Miguel y Costas and
Miguel S.A., Miguel Alie la Torre and S. Torras
Domenech S.A. as Plaintiffs in the action herein to
insure that all matters in dispute between the
Plaintiff and the Intended Plaintiffs and the
Defendants be properly adjudicated upon."
Although this is a case in which the four compa
nies may be joined as plaintiffs in the same action
by virtue of Rule 1715, because "if separate
actions were brought by . .. each of them ... some
common question of law or fact would arise in all
the actions", I do not think the case can be said to
be one to which Rule 1716 applies. The words in
paragraph (2)(b) thereof, "whose presence before
the Court is necessary to ensure that all matters in
dispute in the action may be effectually and com
pletely determined and adjudicated upon", or
words to that effect in corresponding rules of
practice, have been understood, as I read the
authorities, to mean that the joinder of the pro
posed parties must be necessary to assure that the
rights asserted by the original plaintiff may be
effectually and completely determined. See, for
example, Armstrong v. Poole (1978) 5 B.C.R. 32.
The joinder of the proposed plaintiffs is not neces
sary to the determination of the appellant's claim
with respect to the goods covered by bill of lading
GR/B-7.
The question, as I see it, is whether in the
circumstances the Court should apply Rules 424
and 425, which read as follows:
Rule 424. Where an application to the Court for leave to make
an amendment mentioned in Rule 425, 426 or 427 is made
after any relevant period of limitation current at the date of
commencement of the action has expired, the Court may,
nevertheless, grant such leave in the circumstances mentioned
in that Rule if it seems just to do so.
Rule 425. An amendment to correct the name of a party may
be allowed under Rule, 424, notwithstanding that it is alleged
that the effect of the amendment will be to substitute a new
party, if the Court is satisfied that the mistake sought to be
corrected was a genuine mistake and was not misleading or
such as to cause any reasonable doubt as to the identity of the
party intending to sue, or, as the case may be, intended to be
sued.
The learned Trial Judge referred to the possible
application of Rule 425, but took the view that it
did not apply. He said [[1978] 2 F.C. 189, at
pages 192-193]:
Neither, in my view, can what the plaintiff seeks be character
ized as "an amendment to correct the name of a party" so as to
bring it within Rule 425. I am entirely satisfied that the
omission of the proposed plaintiffs from the statement of claim
was a genuine mistake, and further, as a result of .the earlier
notices of loss, that the defendant was neither misled nor given
cause for reasonable doubt as to the identity of the parties
intending to sue. That said, where Rule 1716 makes specific
provision for cases of misjoinder and nonjoinder of parties, it
would be a strained application of Rule 425 to characterize a
clear case of nonjoinder as a mistake curable by correction of
the name of a party.
On the facts of this case it is admittedly difficult
to draw the line between nonjoinder and misnom
er. In view of the characterization of the mistake
by the appellant itself one should perhaps hesitate
to interfere with the conclusion of the Trial Divi
sion. But the case is in my opinion one that so
clearly calls for the assistance of the Court
because of the complete absence of prejudice to
the respondent that I am disposed to regard it as
one of misnomer if that can be done without doing
violence to that concept and the scope of Rule 425.
The leading authorities on the correction of a
misnomer after the expiration of a period of limi
tation or prescription are, of course, the decisions
of the Supreme Court of Canada in Ladouceur v.
Howarth [1974] S.C.R. 1111; Witco Chemical
Company, Canada, Limited v. The Corporation of
the Town of Oakville [1975] 1 S.C.R. 273; and
Leesona Corporation v. Consolidated Textile
Mills Limited [1978] 2 S.C.R. 2. In all these cases
the correction of the misnomer necessarily
involved the substitution of the name of one
individual or legal entity for that of another. The
decisions in the Ladouceur and Witco cases were
based on the Ontario Rule 136(1) the pertinent
part of which reads, "... where an action has
through a bona fide mistake been commenced in
the name of the wrong person as plaintiff or where
it is doubtful whether it has been commenced in
the name of the right plaintiff, the court may order
any person to be substituted or added as plaintiff."
The decision in the Leesona case is particularly
relevant because it applied Federal Court Rules
424 and 425. As to the test for determining when
the case is truly one of misnomer Pigeon J., deliv
ering the judgment of the Court, quoted [[1978] 2
S.C.R. 2, at pp. 8-9] with approval what was said
by Rinfret J. in Dupuis v. De Rosa [1955] Que.
Q.B. 413, which reads in part as follows:
... if it can be seen from the substance of the proceedings that
the true plaintiff has been a party to these proceedings from the
beginning, even though it has been incorrectly described, this
plaintiff must be permitted to correct the error, to regularize
the situation and to continue the proceedings.
If, on the other hand, the proceedings do not reveal the
presence of the true party behind the error, that party should
not be allowed to continue.
Pigeon J. then said [at p. 9]:
The principle stated by Rinfret J. in Dupuis v. De Rosa does
not differ from the test accepted as correct by this Court in
Ladouceur v. Howarth ... .
Would he say, if a defendant, "this must be myself who is
meant, but I have been named wrongly", or would he be put
to inquiries beyond the contents of the document to ascertain
what was meant? Would he say, if a defendant, "this plain
tiff in the writ is so named by mistake—I have no dealings
with him"?
The action in the present case is brought in the
name of the appellant in respect of the four bills of
lading. Yet from the prior information made avail
able to the respondent indicating who the interest
ed parties were it must have been clear to the
respondent that the appellant could only sue in
respect of one of the bills of lading and that the
plaintiff in respect of the other three had been
wrongly designated. The respondent was not
misled in any way as to the damage for which a
claim was being made and as to the parties on
whose behalf it was intended to claim. This was
found as a fact by the Trial Division. This, it seems
to me, meets the essential test as to whether a case
should be treated as one of misnomer. With
respect to the cause of action based on each of the
other three bills of lading the effect of an amend
ment would not be so much to add plaintiffs as to
replace the name of the appellant by those of the
other companies.
For these reasons I would allow the appeal, set
aside the order of the Trial Division, and grant
leave to the appellant to amend the statement of
claim, with effect from the institution of the
action, in such a manner as to make J. Vilaseca
S.A., Miguel y Costas and Miguel S.A., and S.
Torras Domenech S.A. the plaintiffs in respect of
the causes of action based on bills of lading
GR/B-8, GR/B-9 and GR/B-10 respectively.
* * *
PRATTE J.: I agree.
* * *
URIE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.