The “Litigating Finger”
An endorsement from a recent motion held in the Ontario Superior Court of Justice before McGraw AJ has provided an interesting look at the use of misnomers in pleadings and the doctrine of discoverability as it relates to unidentifiable parties.
In Abramov v. Doe,[1] the Plaintiff brought a motion for leave to correct the name of a misnamed Defendant, John Doe, and to add multiple other parties as Defendants, including his former lawyer, based upon discoverability relating to an unidentified driver from a hit and run accident in March 2016 after the presumptive two-year limitation had passed.
The Plaintiff alleged that after colliding with the John Doe vehicle, it immediately left the scene but was subsequently identified by an independent witness, who recorded the license plate and reported it to police. The Plaintiff attempted to obtain the license plate information from the Toronto Police Service but was unsuccessful. He then retained a lawyer who put the OPCF-44R insurer on notice of an unidentified motorist claim, which was commenced in March 2018. The lawyer then sent letters to the Toronto Police Service requesting the John Doe license plate information but were advised it could not be released without the consent of the unidentified driver.[2]
In January 2021, the insurer advised the Plaintiff and his new lawyer that to access the unidentified motorist coverage, he would have to establish that the unidentified driver could not be ascertained or take reasonable steps to do so. By April 2021, five years after the alleged accident, the Plaintiff proceeded with a Rule 30.10 production motion and obtained the relevant unredacted police records.[3]
The Plaintiff then brought the subject motion seeking to amend the Statement of Claim to correct the John Doe misnomer, leave to amend the pleading, and leave to add additional parties based on discoverability despite the passage of the presumptive 2-year limitation period.
The John Doe Defendant argued that the motion record being served was the first time he was aware of the accident and that neither he nor the suspected vehicle, which he had leased from another proposed Defendant, were involved in an accident on the alleged date of loss.
McGraw AJ denied the Plaintiff’s requested relief in misnomer, but allowed the Plaintiff to add the proposed new Defendants.
Amendments to Pleadings
His Honour began his analysis by citing the relevant Rules of Civil Procedure for amending pleadings, generally:
Rules 26.01 and 26.2 state:
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
26.02 A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or
(c) with leave of the court.
Rule 5.04(2) provides that at any stage of a proceeding the court may 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.[4]
Misnomer
McGraw AJ then discussed the principles of a misnomer and cited several relevant cases regarding the law surrounding it, including a recent ruling by MacLeod J in Loy-English v. The Ottawa Hospital,[5] in which the law of misnomer was summarized:
“To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the “litigation finger” is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.”[6]
McGraw AJ considered relevant factors in the case at bar but concluded that this matter was “not one where it would be reasonable in the circumstances to grant the Plaintiff the relief sought to amend the Statement of Claim to include the proposed Defendant.”[7]
In his reasoning, McGraw AJ opined that “based upon an objective, fair and generous reading of the Statement of Claim,” he was not satisfied that the “properly informed Defendant having knowledge of the facts would know that the “litigating finger” was pointed [at him].”[8]
As such, he concluded that the allegations in the Statement of Claim lacked particularity and were not sufficiently clear for the proposed Defendant to know that the “litigating finger” was being pointed [at him], referring to an allegation in the pleading directly:
“The Defendant, John Doe, was at all material times the owner and operator of an unidentified motor vehicle (hereinafter, “the Doe Vehicle”). The identity of John Doe has not been ascertained.”[9]
He continued:
“While the Statement of Claim provides the date and approximate time of the accident, [the proposed Defendant’s] evidence is that neither he nor the vehicle were involved in an accident at that time. In addition to the license plate number, the Statement of Claim does not provide any description of the vehicle, including the make, model, colour or the kind of Vehicle such as a van or minivan. The Statement of Claim further states that the accident occurred at the intersection of Yonge Street and Steeles Avenue West whereas the Collision Report completed by the Plaintiff on the day of the accident states that it occurred at Steeles Ave. and Cactus Ave.”
“I reject the Plaintiff’s submission that the fact that the accident location was “within kilometres” of where [the proposed Defendant] was living at the time is sufficient. The Statement of Claim also identifies the John Doe Defendant as the “owner and operator” of the vehicle when the evidence is that [the proposed Defendant] was a lessee and his evidence on this motion is that he was not driving the vehicle at the time.”[10]
Discoverability
Although the Plaintiff’s misnomer argument failed, he succeeded on the discoverability argument.
The Plaintiff submitted that he and his lawyer acted with reasonable diligence by making numerous inquiries to determine the vehicle’s license plate number and the identity of the driver, but that he was only able to identify the proposed Defendant in August 2021 when his lawyer obtained the results of the license plate search nearly five years after the commencement of the action.[11]
The proposed Defendant argued that the Plaintiff’s claim against him had expired and that acting with reasonable diligence required him to bring the Rule 30.10 production motion or otherwise identify him before the 2-year presumptive limitation period expires.[12]
Because McGraw AJ could not conclude that the Plaintiff failed to act with reasonable diligence to find the identity of the proposed Defendant sooner, he could not decide on the issue of finding the date of “reasonable discovery,” which, in his view, was more an issue of credibility to be determined on the record at an eventual trial or a summary judgement motion. The proposed Defendant was also unable to prove that he would suffer any actual prejudice if leave was granted to add him as a party to the action, along with several other proposed parties, including the former lawyer.[13]
Per his findings, McGraw AJ denied the Plaintiff’s motion to correct the Statement of Claim based on misnomer, but granted leave to add the proposed Defendants as parties to the action. He also granted leave to the newly added defendants to plead limitation defences based upon the age of the claim.
[1] Abramov v. Doe, 2023 ONSC 1232 (CanLII) (“Abramov“).
[2] Ibid at paras 3 – 6.
[3] Ibid at para 10 & 11.
[4] Abramov at para 15 & 16.
[5] Loy-English v. The Ottawa Hospital et. al., 2019 ONSC 6075.
[6] Supra note 2 at para 21 (e).
[7] Abramov at para 24.
[8] Ibid at para 25.
[9] Ibid.
[10] Ibid.
[11] Abramov at para 34.
[12] Ibid at para 35.
[13] Ibid at paras 36 – 40.