In Reimer v Toronto (City), 2020 ONSC 1661, the Ontario Superior Court of Justice provided a helpful summary of the analysis that is brought to bear on a motion for an order to correct a misnomer or, in the alternative, to add a proposed defendant after the apparent expiry of a limitation period through discoverability.
The court confirmed that a proper misnomer analysis involves careful scrutiny of the Statement of Claim and that a lack of particulars will weigh heavily against a finding of misnomer.
Where the plaintiff relies on discoverability, the court underscored the plaintiff’s evidentiary burden to provide a reasonable explanation on proper evidence as to why the claim could not have been discovered through the exercise of reasonable due diligence.
On February 7, 2017, the plaintiff exited a bus in the City of Toronto (the “City”) near the intersection of Sheppard Avenue East and Kennedy Road. The plaintiff apparently slipped on the sidewalk. She fell again while walking across the road. The City had retained Maple–Crete Inc. (“Maple”) to perform sidewalk snow removal services. Maple, for its part, sub-contracted the work to RoyalCrest Paving and Contracting Ltd. (“Royal”).
By Statement of Claim issued on January 9, 2019, the plaintiff commenced an action against the City and John Doe Maintenance Company. On March 13, 2019, the City advised the plaintiff of the involvement of its sidewalk contractor, Maple. The plaintiff was later notified of Royal’s involvement on October 22, 2019.
The plaintiff brought a motion for leave to amend her claim to correct the alleged misnomer of John Doe Maintenance Company by substituting Maple and Royal. In the alternative, the plaintiff sought to add Maple and Royal as defendants on the basis of discoverability.
The doctrine of misnomer provides that a pleading may be amended to reflect that a person named is actually another person or the person identified in a generic manner, such as John Doe, is actually a specific person.
Master Muir quoted from the decision of Justice MacLeod in Loy-English v The Ottawa Hospital et al, 2019 ONSC 6075 for a summary of the law of misnomer:
- When a plaintiff does not know precisely who to name as defendants it is permissible to name unidentified defendants by way of a pseudonym. It would be better to bring transparency to this practice by naming them as “certain unidentified physicians collectively referred to as Dr. Doe” but the use of “Dr. Doe” or “Dr. X” is a practice that the courts have accepted as appropriate shorthand.
- It is not necessary to name multiple Dr. Doe’s and to precisely guess how many defendants to implicate. Providing the claim is drafted in a manner to identify what allegations are made against individuals filling specific roles, the “litigation finger is divisible” and may point at more than one unknown defendant.
- Unlike a claim relying on discoverability to postpone the running of the limitation period, use of a pseudonym and subsequent correction of a misnomer is not subject to a due diligence requirement and will not be defeated by mere delay.
- Use of a pseudonym does not give carte blanche to get around the limitation period. Although the Act does not narrow the common law understanding of misnomer and preserves the power of the court to correct it, it does prohibit addition of parties if the limitation period has expired. The distinction is critical. It is the difference between correcting the claim to properly name a party already included in the action and adding a new party.
- 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.
- Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.
- Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.
- Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.
- It is not useful for misnomer motions to be decided based on technicalities or vagaries of pleading. The object of pleading analysis should not be one of looking for traps, tricks or loopholes. We should not be engaged in the legal equivalent of “whack a mole” or “gotcha”. Rather, the question in every case should be whether it is reasonable and just to allow the pleading amendment and whether it is permitted by the governing legislation.
Master Muir reviewed the Statement of Claim and determined that it had not been drafted to particularize the specific roles played by any of the unidentified parties. Indeed, John Doe Maintenance Company was not separately described and the plaintiff’s allegations of negligence were simply lumped together as against all of the named defendants.
Further, the Statement of Claim did not make it clear that the plaintiff was, in fact, injured when she first fell on the sidewalk after leaving the bus. The plaintiff’s injuries apparently occurred from the fall on the road, which was not the responsibility of the proposed defendants.
In that context, Master Muir was not prepared to recognize a misnomer because the proposed defendants, when reading the Statement of Claim as a whole, would not be able to recognize that they were targets of the action.
Section 4 of the Limitations Act, 2002, SO 2002, c 24, Sch B(“Limitations Act”) states that “[u]nless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”
According to section 21(1) of the Limitations Act, “[i]f a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.”
The two-year limitation period begins to run on the day the claim was discovered. The date of discovery is the earlier of the two dates under section 5(1) of the Limitations Act; that is, when (a) the person with the claim had knowledge of, or (b) a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have knowledge of, the matters referred to in section 5(1)(a)(i) to (iv).
Master Muir referred to the leading decision in Morrison v Barzo, 2018 ONCA 979 in which the Court of Appeal for Ontario described the two-part evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period:
First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court’s finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.
Second, the plaintiff must offer a “reasonable explanation on proper evidence” as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff’s explanation should be given a “generous reading”, and considered in the context of the claim: Mancinelli, at paras. 20 and 24.
Although the plaintiff overcame the statutory presumption that her actual discovery of the identity of the proposed defendants was not on the date of her accident, she failed to provide a reasonable explanation on proper evidence as to why the claim could not have been discovered through reasonable due diligence.
The plaintiff failed to meet her low evidentiary burden as no attempt was made to contact the City to obtain the names of any winter maintenance contractors before January 9, 2019. Further, the evidence of the proposed defendants established that the identity of Maple, for example, could have been obtained through simple Internet and telephone inquiries, or by properly notifying the City of the potential claim.
Based on the timeline, Mater Muir held that the date for the reasonable discovery of the identity of the proposed defendants would have been the end of June 2017 at the latest. The plaintiff’s motion was not brought until more than two years after that date. Accordingly, the plaintiff’s claim against the proposed defendants is statute barred.