Here’s an interesting question: can you add a defendant to a proceeding with leave to plead a limitations defence and then move to correct the misnaming of that defendant as a John Doe (and avoid the limitations defence)? Yes, held the court in Janet Campagiorni et al. v. Lyne Legare et al.
The plaintiffs obtained leave to add a defendant to their proceeding with leave to the defendant to plead a limitations defence. The added defendant moved for judgment on the limitations defence; in response, the plaintiffs moved to correct the misnaming of the defendant as John Doe (that is, they had originally named John Doe as a defendant to the proceeding, and took the position that John Doe was actually the defendant they had added). The defendant opposed the misnomer motion as an abuse of process: it was an “improper attack” on the court’s order adding the defendant. The court rejected the argument:
[43] The plaintiff brings a cross motion for misnomer on the basis that the pleadings be corrected to accurately reflect the correct name of a party identified but misnamed in the litigation from the outset. Dr. Bednar argues this motion should be dismissed as an abuse of process and is nothing more than an improper attack on the previous order of this court to add Dr. Bednar as a defendant on the condition that a limitation defence was still a live issue at a later date.
[44] The courts have made it abundantly clear that litigants may not have endless opportunities to seek the same remedy using different legal arguments in front of different triers of fact. See Alberta v. Pocklington Foods Inc., 1995 ABCA 111, at para. 8.
[45] I am of the view this is a different situation even though the issue may become moot depending on the decision of the trial judge on the issue of discoverability regarding the appropriate limitation period.
[46] I prefer the reasoning in Loy-English v. Fournier, 2018 ONSC 6212. In that medical malpractice case John Doe was in the claim as a defendant for various allegations of negligence. When the names of the doctors were eventually discovered the presumptive limitation period had expired, and a summary judgment motion was brought. The court concluded that a misnomer motion could have been brought at the same time as the summary judgment motion, putting all issues and all remedies clearly before the court. The court found that the suggestion that the failure to bring a misnomer motion was an abuse of process, was not valid and stated at para. 14, “the plaintiff is entitled to take all reasonable steps to preserve her rights against the expiry of a limitation period”.[47] The court further added “taking various parallel prophylactic steps to avoid the application of the Limitations Act was not an abuse of process or in any event was not worthy of an extreme sanction such as a stay of proceedings.” See: Loy-English v. The Ottawa Hospital et. al., 2019 ONSC 6075, at para. 28. Further the court stated at para. 14, “Even if the manner in which this litigation has been pursued is characterized as abusive, the response should be proportionate and does not follow that loss of the right to litigate is a proportionate remedy.” I agree and any sanction required can ultimately be dealt with by way of costs.
