Skip to content

Brought to you by

Dentons logo

Limitations Law Blog

Updates on key developments on laws involving limitation periods in Ontario.

open menu close menu

Limitations Law Blog

  • Home
  • About us

No Obligation to Sue a John Doe or Jane Doe

By Ara Basmadjian and Barbara Grossman
February 27, 2021
  • Discoverability
  • Misnomer
Share on Facebook Share on Twitter Share via email Share on LinkedIn

Theralase Technologies Inc. v. Lanter, 2021 ONSC 943 (“Theralase”) is an Internet defamation case that contains a small, but noteworthy, comment on the use of pseudonyms and the law of limitations.

The plaintiffs obtained default judgment against several unidentified defendants, including Matthew Singer, using the pseudonym “Truenorthstrong,” for defamatory statements published on the Internet. The court later ordered the substitution of the pseudonyms for the real names of the defendants, without prejudice to their ability to challenge the default judgment. Singer then brought a motion to set aside the default judgment against him.

The court will consider several factors on a motion to set aside default judgment, such as whether the defendant has an arguable defence on the merits. Mr. Singer asserted, among other things, a limitations defence. The court dismissed Mr. Singer’s motion.

According to Justice Myers, a defendant cannot hide his identity and then take the position that he ought to have been sued earlier:

On the merits, Mr. Singer raises limitation defences that are weak at best. In view of the proven, substantial efforts of the plaintiffs to locate Mr. Singer, it is not open to him to conceal his identity and then argue that the plaintiffs ought to have found him sooner or sued him before it did. There is no obligation to sue a John Doe [defendant].

The use of a pseudonym (e.g. John Doe or Jane Doe) is an accepted practice to guard against the expiry of a limitation period when a plaintiff does not know the real name of a defendant. Yet, under section 5(1) of the Limitations Act, 2002, SO 2002, c 24, Sch B, the clock does not start to run until, among other things, the person with the claim first knew, or ought to have known, “that the act or omission was that of the person against whom the claim is made.” Theralase confirms that there is no obligation to commence a lawsuit against a John Doe or Jane Doe defendant.

However, where one wrongdoer is identified and others are not, which was the situation in Theralase, the limitation period does run against the identified wrongdoer. Therefore, when the action is started against the identified wrongdoer, the other wrongdoers can and should be joined by pseudonyms and their true identity can be substituted when they are identified. This approach avoids a later motion to add a party, which might otherwise be opposed on the basis of limitation period arguments. Additionally, as held in the earlier decision in this same case in Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, it is possible to obtain orders for substituted service and a default judgment against a defendant named by pseudonym while efforts continue to determine the true identity.

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Ara Basmadjian

About Ara Basmadjian

Ara Basmadjian is a Partner in the Litigation and Dispute Resolution group at Dentons Canada LLP. His practice involves a variety of complex corporate, commercial and civil litigation matters. Ara has particular experience in cases involving commercial contracts, negligence, product liability, class actions, competition law, cannabis in Canada, and extraordinary remedies, such as injunctions.

All posts Full bio

Barbara Grossman

About Barbara Grossman

As a partner in Dentons Canada LLP's Litigation and Dispute Resolution practice group, Barbara practises in all areas of commercial litigation, including class actions, with an emphasis on insolvency, banking and finance, and real estate litigation. Barbara also has extensive experience in the areas of professional liability, intellectual property litigation, estate, trust and pension litigation, litigation in the aviation industry and injunctions and other extraordinary remedies.

All posts Full bio

RELATED POSTS

  • Discoverability
  • Successors

Indcondo Building Corp. v. Sloan, 2010 ONCA 890 (discoverability in a fraudulent conveyance action brought by a creditor)

By Dentons Limitations Law Group
  • Attempted Resolution
  • Discoverability
  • Tolling/Varying Agreements

Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156 (Discoverability and Tolling Agreements)

By Dentons Limitations Law Group
  • Discoverability
  • Misnomer

No Due Diligence, No Problem: Ontario Court Applies Misnomer in Personal Injury Claim

By Ara Basmadjian

About Dentons

Dentons is designed to be different. As the world’s largest law firm with 20,000 professionals in over 200 locations in more than 80 countries, we can help you grow, protect, operate and finance your business. Our polycentric and purpose-driven approach, together with our commitment to inclusion, diversity, equity and ESG, ensures we challenge the status quo to stay focused on what matters most to you. www.dentons.com

Dentons boilerplate image

Twitter

Categories

  • Acknowledgment
  • Adding a Party
  • Amending Pleadings
  • Attempted Resolution
  • Contribution and Indemnity
  • COVID-19
  • Demand Obligations
  • Discoverability
  • Enforcement of Foreign Judgments
  • General
  • Limitation Periods contained in "Other Acts"
  • Limitation Periods in Federal Court
  • Misnomer
  • Motions to Strike
  • Notable cases in other provinces
  • Special Circumstances
  • Statutory Variation of Time Limits
  • Successors
  • Tolling/Varying Agreements
  • Transitional Provisions
  • Ultimate Limitation Periods

Subscribe and stay updated

Receive our latest blog posts by email.

Stay in Touch

Dentons logo

© 2023 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site