At our weekly meeting, Pip Swartz discussed the recent decision in Kifle, et al. v. Penava, et al., 2022 ONSC 552. This decision concerned a motion brought by the plaintiffs to amend the statement of claim to correct a misnomer.
The primary plaintiff, Ida Kifle, alleged that she received negligent medical care in 2014. The defendants are physicians and entities that were responsible for Ida’s medical care. One defendant physician is unnamed in the pleadings, and referred to as ‘Dr. John/Jane Doe Gynecological Attending’ in the statement of claim. The plaintiffs brought a motion on June 14, 2021, to substitute ‘Dr. Renato Natale’ for ‘Dr. John/Jane Doe Gynecological Attending’ in their statement of claim.
The motion judge granted leave to the plaintiffs to amend their statement of claim to correct the misnomer. If the judge had refused to permit the substitution sought by the plaintiffs as a matter of misnomer, the plaintiffs likely would have been unable to sue Dr. Natale due to the expiry of the limitation period.
The motion judge applied rule 5.04(2) of the Ontario Rules of Civil Procedure to this case, which reads:
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
The “Litigation Finger” Test
The judge noted that a plaintiff cannot rely on rule 5.04(2) to substitute a party’s name for a pseudonym (such as Jane or John Doe) if the pseudonym is just being used as a ‘placeholder’ for any potential future defendant. The judge applied the ‘litigation finger’ test to determine whether the plaintiff intended for the pseudonym ‘Dr. John/Jane Doe Gynecological Attending’ to act as a placeholder, or if it was truly meant to refer to Dr. Natale.
The litigation finger test asks the following: if a person who knew the relevant facts of the case read the statement of claim, would they be able to identify the unnamed defendant? If so, the litigation finger test is satisfied and rule 5.04(2) applies.
The judge found that the pseudonym ‘Dr. John/Jane Doe Gynecological Attending’ passed the litigation finger test because the word ‘Attending’ made the pseudonym sufficiently specific.
After finding that the pseudonym passed the litigation finger test, the judge consider his ‘residual discretion’ in deciding whether to grant the plaintiff’s motion. In making this determination, the judge stated that ‘the most important factors are whether Dr. Natale was misled or would be unduly prejudiced’.
In assessing the prejudice faced by the defendant, the judge noted that the length of time between the alleged incident (2014) and when the defendant was served (2020) was ‘troubling’. The defendant argued that they were prejudiced because they were unable to remember an incident from over 6 years ago.
The judge accepted this argument, but ultimately found that the defendant did not face any additional prejudice. The judge stated that the defendant would not have remembered the incident even if the action had been brought against him sooner. The judge also noted that any prejudice the defendant faced was mitigated by the CMPA’s involvement in their case.
Because ‘the absence of prejudice does not guarantee an amendment’, the judge continued their analysis and assessed the plaintiff’s diligence. The judge stated that ‘while not relevant to the issue of the Litigation Finger test, diligence ought to be considered in the exercise of the court’s discretion.’
In assessing the plaintiff’s diligence, the judge compared this case to similar cases. The judge found that while the plaintiff could have been more diligent, their conduct was not as egregious as the conduct of plaintiffs in similar cases.
The judge found the harms the plaintiff would face if the motion was refused outweighed the potential harms Dr. Natale could face if the motion was granted. The judge accordingly granted the plaintiff’s motion.
This case illustrates that on a motion to amend to address a misnomer, ‘the cards are stacked against’ the defendant. In his reasons for this decision, the judge cited multiple arguments that seemingly favor the defendant. His Honour noted that plaintiffs should not ‘sit on their laurels’, and that the plaintiff in this case could have ascertained the defendant’s identity earlier. The defendant was retired, and the judge acknowledged his ‘entitlement to repose so long after the alleged actions or inactions on his part.’
Despite these facts, the judge ultimately granted the plaintiffs’ amendment. The judge identified that the low bar to correct a misnomer reflects a ‘policy decision’ that balances ‘the rights of aggrieved parties to bring forth claims, and the rights of alleged wrongdoers to have repose from actions after a certain period of time.’ This case illustrates that on motions to amend misnomers, plaintiffs are afforded significant leeway, even despite the expiry of a limitation period.
 The litigation finger test is described in Spirito Estate v. Trillium Health Centre,  O.J. No. 3832 (Ont. S.C.J.) (S.C.J.); aff’d 2008 ONCA 762 at para 3.
 At para 70.
 To support this statement, the judge referenced Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 at para 32.
 At para 61.
 Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 (Ont. S.C.J.); Mohabir v. Mohabir, 2014 ONSC 5484 (Ont. S.C.J.)
 At para 68.
 At para 68.
 At para 57.