In Zenchyshyn v. Peel Condominium Corporation No. 7, 2021 ONSC 6727 (“Zenchyshyn”), the Ontario Superior Court of Justice allowed the plaintiff to amend her statement of claim to substitute the names of the owners of the townhouse unit for the condominium corporation. Although the court rejected the plaintiff’s alternative submission that discoverability applied to extend the limitation period, it concluded through the doctrine of misnomer that the statement of claim was “sufficiently clear” that the plaintiff was pointing the “litigating finger” at the owners of the premises at all material times. The decision in Zenchyshyn demonstrates that the correction of a misnamed defendant in the title of proceedings is not dependent on a plaintiff’s due diligence.
On October 15, 2015, the plaintiff, Jill Marie Zenchyshyn, fractured her leg when she fell down a flight of stairs at a townhouse unit in Brampton, Ontario. The plaintiff commenced an action against Peel Condominium Corporation No. 7 and Vero Property Management Services on September 12, 2017.
In May 2019, the defendants advised the plaintiff that she had sued the wrong parties. Shortly thereafter, the plaintiff, through counsel, obtained a new title search which revealed that Vince Greco and Adela Hernando were, in fact, the owners of the townhouse unit at the time the plaintiff fell down the stairs
The plaintiff brought a motion on June 28, 2019 to correct the names of the owners of the townhouse unit on the basis of misnomer. In the alternative, the plaintiff moved to amend the statement of claim to add Mr. Greco and Ms. Hernando as defendants based on the doctrine of discoverability. The motion was scheduled to be heard on August 9, 2019, but was inexplicably adjourned sine die for two years and came back on for hearing in 2021.
Substituting Defendants under the Misnomer Test
Rule 5.04(2) of the Rules of Civil Procedure, RRO 1990, Reg 194 allows the court to correct the name of a party incorrectly named in a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
On a motion to correct a misnomer, the court must be satisfied that the plaintiff intended to sue the proposed substituted defendants; and that the proposed substituted defendants would know that the “litigating finger” was pointed at them. Even if a misnomer is established, the court retains a residual discretion to deny the motion where the proposed defendants were misled or would suffer undue prejudice.
Associate Justice La Horey quoted from the leading decision in Loy-English v. Ottawa Hospital, 2019 ONSC 6075 for a summary of the law of misnomer:
a. 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.
b. 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.
c. 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.
d. 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.
e. 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.
f. 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.
g. 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.
h. 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.
i. 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.
The court reviewed the statement of claim and determined that the allegations were “sufficiently clear” in pointing the “litigating finger” at Mr. Greco and Ms. Hernando. The statement of claim identified the location of the townhouse unit and the date on which the plaintiff apparently fell down the stairs. The allegations established that the plaintiff intended to sue the owners of the townhouse unit but had incorrectly named the condominium corporation. Mr. Greco and Ms. Hernando owned the property on the date when the incident took place. As such, the court corrected the misnomer by substituting the names of Mr. Greco and Ms. Hernando for Peel Condominium Corporation No. 7. In the absence of non-compensable prejudice, the court was not prepared to exercise its residual discretion to deny the plaintiff’s motion.
Discoverability and Due Diligence
Although the court was prepared to grant the plaintiff’s motion on the basis of misnomer, it went on to address the plaintiff’s alternative argument that Mr. Greco and Ms. Hernando could be added as defendants on the grounds of discoverability.
Section 4 of the Limitations Act, 2002, SO 2002, c 24, Sch B (the “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.”
Section 5 sets out the scheme for determining when a claim is 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).
In Morrison v. Barzo, 2018 ONCA 979 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, as follows:
[…] 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.
The plaintiff did not deliver an affidavit on this motion. Accordingly, there was “no evidence as to whether or not the plaintiff tried to find out the identity of the owners of the Premises from her friend or the tenants.” The parties did not dispute that it was possible to obtain a property search that would have identified Mr. Greco and Ms. Hernando as the registered owners of the townhouse unit at the date of the fall.
Associate Justice La Horey concluded that “[t]he identity of the respondents could have been discovered with the exercise of due diligence on the date of the fall, October 15, 2015, or shortly thereafter (within 30 days), and therefore the limitation period expired by no later than November 15, 2017.” The doctrine of discoverability did not apply to extend the limitation period in the circumstances.
There are two principles that a plaintiff will generally invoke on a motion to add a defendant to an action after the expiry of the basic two-year limitation period: misnomer and, in the alternative, discoverability. The distinction between these two concepts is important. From an evidentiary perspective, a plaintiff relying on discoverability must provide an explanation as to why the claim could not have been discovered earlier through the exercise of reasonable due diligence. This usually involves filing an affidavit setting out the various inquiries made by the plaintiff. By contrast, as Zenchyshyn demonstrates, the application of misnomer is not subject to a due diligence requirement but depends on whether the plaintiff intended to sue the proposed substituted defendants when the action was commenced, and whether the proposed substituted defendants knew, or would know, that the “litigating finger” was pointed in their direction.