Ontario: failing the litigation finger test

The Superior Court decision in Dealer’s Choice Preferred Collision Centre Inc. v. Kircher is noteworthy as an example of a party failing to establish the litigation finger test:

[19]           For these reasons, I conclude that the defendants, on receiving and reviewing the statement of claim, would have had no reason to think that the plaintiff pointing the “litigating finger” at them was other than the named plaintiff Dealer’s Choice Preferred Collision Centre Inc.. The plaintiff’s entire action is based on the May 6, 2013 Agreement with the defendants and the negotiated exclusion of Downtown Auto Collision Centre Limited from the Agreement eliminated any possible reason for the defendants to consider that Downtown Auto was the intended plaintiff. The fact that all parties to the May 6, 2013 Agreement were mistaken as to the status of Dealer’s Choice would not have given the defendants any reason to think that they were really being sued by Downtown Auto. The plaintiff is therefore not entitled to the amendment sought, and the motion is hereby dismissed.

Ontario: failing the litigation finger test

Reimer v. Toronto (City) is an example of failing to make out the litigation finger test.  The plaintiff in a slip and fall action named “John Doe Maintenance Company” as a defendant and sought leave to correct it to the name of the actual maintenance company.  However, she didn’t plead the particulars of the maintenance company’s alleged negligence with sufficient detail so that the company would know on reading the pleading that it was the intended defendant.  It’s a warning not to presume that the court will grant misnomer relief in regards of a John Doe in all circumstances.  These are the material paragraphs:

[14]           I accept that this is a situation where the plaintiff may be able to rely on the doctrine of misnomer. The plaintiff has named a defendant as John Doe Maintenance Company and it is permissible, if properly pleaded, for that one defendant named by pseudonym to stand in place of more than one person.

[15]           In my view, however, the key principle to be considered on this motion is described by Justice MacLeod in Loy-English as follows:

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.

[16]           Certainly, the plaintiff has identified the correct date and location of the accident at the beginning of her statement of claim. The proposed defendants were responsible for general sidewalk maintenance and sidewalk snow removal at that location on that date. At first glance, this appears to point the litigation finger at the proposed defendants.

[17]           However, the John Doe Maintenance Company defendant is not separately described, specified or identified in the initial pleading.[1] The plaintiff’s allegations of negligence are lumped together as applicable to all of the named defendants. The claim has not been drafted to particularize the specific rolls played by any of the unidentified persons. See Loy-English at paragraph 21b. This lack of particularity militates against a finding of misnomer.

[18]           The conclusion that the plaintiff’s claims are partly directed at Maple and Royal becomes even less obvious as the circumstances of the plaintiff’s accident are further particularized in the statement of claim. The location of the plaintiff’s accident is broadly defined as “at or near the intersection of Kennedy Road and Sheppard Avenue East”. The further particulars in the statement of claim state that the plaintiff fell twice. First, on the “sidewalk” when she stepped off the bus and then a second time when she “violently” fell on the “roadway” causing her to sustain personal injuries. It is not at all clear from the language of the pleading that the plaintiff was injured when she first fell on the sidewalk when exiting the bus. The roadway fall clearly suggests resulting injuries, but the roadway was the responsibility of Crupi and not the proposed defendants. The fact that this distinction is made in paragraph 4 of the statement of claim, but not elsewhere, leads to the conclusion, from reading the statement of claim, that the plaintiff’s injuries arose from the fall on the roadway and not the sidewalk.

[19]           In my view, the proposed defendants, when reading the statement of claim as a whole, would more likely conclude that the identity of the John Doe Maintenance Company defendant was Crupi alone and did not also include Maple and Royal. A fair reading of the statement of claim would not lead to the conclusion that the plaintiff must have meant Maple and Royal.

[20]           I have therefore concluded that the plaintiff has not satisfied her onus to show that Maple and Royal should be substituted for the defendant John Doe Maintenance Company on the basis of misnomer.

Ontario: misconceptions about misnomer

In Sora et al. v. Emerson Electrical Co. et al., the court reminds us that entitlement to misnomer relief doesn’t require establishing, as is sometimes argued, that the plaintiff intended to name the correct party and that the correct party knew subjectively that it was the intended defendant:

[21]           The plaintiffs issued their statement of claim before the expiry of the limitation period. The pseudonyms used, “John Doe Retailer” and “John Doe Installer” pointed at the Hurley defendants. The “litigation finger” test is satisfied. In Stechyshyn v. Domljanovic2015 ONCA 889129 O.R. (3d) 236 at para 1 the Court of Appeal clearly stated that showing due diligence is not required:

On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period: see Kitcher v. Queensway General Hospital (1997), 1997 CanLII 1931 (ON CA)44 O.R. (3d) 589 (C.A.), at paras 1 and 4; Lloyd v. Clark, 2008 ONCA 34344 M.P.L.R. (4th) 159, at para. 4.

[22]           While in many cases “coincidence” exists “between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant” [Lloyd v. Clark2008 ONCA 34344 M.P.L.R. (4th) 159 para. 4], this is not a necessary requirement to rely upon misnomer. The question is only whether a reasonable person reading the claim would recognize him or herself as the defendant: see Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672[1961] 1 W.L.R. 170 (C.A.), at p. 676. To impose a notice requirement would be inconsistent with the broader application of misnomer and subrule 21(2) of the Limitations Act, 2002.

Ontario: unusual misnomer motions

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. Fournier2018 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.
[48]      I further conclude that the issue of misnomer, if it becomes relevant, can best be dealt with by the trial judge hearing all of the evidence on the limitation defence and such other evidence as counsel feel is appropriate on the misnomer issue.

Ontario: misnomer and the John Doe doctor

The decision in Tschirhart v. Grand River Hospital is a good example of a misnomer analysis in regards if a John Doe doctor .  It’s worth noting that the court rejected the doctor’s argument that the Statement of Claim couldn’t satisfy the litigation finger test because it didn’t plead that the plaintiff was seen in the emergency department where the doctor worked:

[36]           In my view, the reasonable person reviewing the Statement of Claim and having knowledge of the facts would know that the “litigating finger” was pointed at Dr.  Benhabib. Assessing the Statement of Claim, I am satisfied that the allegations as against Dr. Benhabib are pleaded with sufficient particularity such that Dr. Benhabib’s insurer and representative, the CMPA, would have known that the litigating finger was pointed at him. Namely, the Statement of Claim sets out the Plaintiff’s name, the name of the hospital he attended (GRH), the date he attended GRH, the symptoms he presented and the fact that he underwent a triage assessment, was examined and sent home without further testing (para. 10).  The Statement of Claim also sufficiently sets out the causes of action and basis for liability (paras.14-15).

[37]           The CMPA, Dr. Benhabib’s insurer, a “relevant person” with access to the relevant notes and records, received the Statement of Claim when the named doctors were served and would have known by reading it that the litigating finger was pointed at the emergency room physician who saw the Plaintiff on April 30, 2015 at GRH and could have easily and quickly ascertained from the ER Records and/or further inquiries of GRH that it was Dr. Benhabib. I also conclude that had he received the Statement of Claim, Dr. Benhabib, who also had access to the relevant notes and records including the ER Records, could have easily and quickly determined that he was the intended emergency physician. As he admitted on cross-examination, although he did not initially remember the Plaintiff, he was able to consult the ER Records to determine that he had in fact seen the Plaintiff on April 30, 2015 at GRH (Cross-examination of Dr. Benhabib held June 3, 2019, Questions 30-43). This conclusion is supported by the fact that, although not a representative of Dr. Benhabib, GRH was able to identify Dr. Benhabib as the emergency room physician who saw the Plaintiff, pleaded this in its Statement of Defence, advised him accordingly and confirmed his identity on examination for discovery.
[38]           In my view, the facts of this case are analogous to Ormerod. In particular, Dr. Benhabib’s name was illegible in the ER Records, however, he could be identified easily and quickly by his insurer and representative, the CMPA, by reviewing the ER Records and/or making inquiries of GRH. I do not accept Dr. Benhabib’s submissions that misnomer does not apply because he and his insurer had to make additional inquiries. Consistent with Ormerod and Spirito, the fact that his insurer could have easily identified him from the ER Records or other inquiries as the physician who saw the Plaintiff as pleaded is sufficient to establish that it would have known that the litigating finger was pointed at him.
[39]           I also reject Dr. Benhabib’s submission that the Statement of Claim is vague and non-specific because it does not explicitly state that the Plaintiff was seen in the emergency department at GRH. The fact that the Statement of Claim states that the Plaintiff “underwent a triage assessment and examination” and “was sent home without further testing” is sufficiently specific. This finding is supported by Dr. Benhabib’s evidence on cross-examination:

It also provides a comprehensive summary of misnomer principles at paras. 15-27.


Ontario: two notable misnomer decisions

Master Short’s decision in Frederica Mitchell v. John Doe is notable for its comprehensive summary of misnomer principles.

So too is Master Short’s decision in Livska v. Molina .  It’s an example of the circumstances where the court grants misnomer relief while granting leave to the correct party to plead a limitations defence.  Usually, misnomer relief means the correct party can’t plead a limitations defence because misnomer relief is a correction, not an addition or substitution (although the Court of Appeal is inconsistent on this point).  This means that the correct defendant was always a party to the proceeding, just misnamed, and if the proceeding was commenced in time, there can be no limitation defence for the correct defendant.

In Livska, the plaintiff named Molina, the alleged perpetrator of an assault, as a defendant.  Molina didn’t defend, and the plaintiff noted her in default.  Subsequently, the sister learned that Molina’s sister may have participated in the assault.   Master Short granted misnomer relief on the basis that Molina, correctly named, was in fact both herself and her sister.  Because Molina didn’t defend the action, whether the plaintiff’s proceeding was timely remained a live issue.

Ontario: the Court of Appeal on failing the litigation finger test

The Court of Appeal’s decision Bertolli v. Toronto (City) is an example of a plaintiff failing to satisfy the litigation finger test in a misnomer matter.  The court found that the correct defendant would not have known on reading the statement of claim that it was defendant the plaintiff intended to name.

[5]         The appeal is dismissed. The delivery and content of the Notice of Claim were facts extraneous to the original accident, and not a record made by a participant or observer at the time of the accident who was in some way connected to the substituted defendants. Moreover, even when read in combination, the Notice of Claim and Statement of Claim were not capable of supporting an inference that the substituted defendants were the intended defendants. Absent reference to the pothole in the Notice of Claim and absent particulars of the precise location of the accident alleged in the Statement of Claim, the reasonable reader could not know, without further inquiry, that the documents referred to the same accident. Put simply, the Master’s inference that the substituted defendants would know they were the intended defendants was not available on any reasonable view of the evidence. The Master’s order was properly set aside.

I also note the court’s use of the language “substitute”.  This, as the court held in Ormerod that a misnomer does not involve a substitution:

[27] In this case, after finding that Dr. Ferner was a misnomer for Dr. Graham, the motion judge applied [at para. 18] the standard that despite the inordinate delay, he should allow the correction of the misnomer unless “the defendant to be substituted did not have timely notice of the claim and will be unduly prejudiced in preparing a defence to the claim”. The motion judge’s reference to “the defendant to be substituted” is unfortunate because in the case of a misnomer, the amendment is made under rule 5.04(2) “to correct the name of a party incorrectly named”. The correction of a misnomer does not involve the substitution of one defendant for another. However, his reasons, read as a whole, make clear that he viewed the remedy as the correction of the misnaming or the misdescription of the emergency doctor rather than the substitution of Dr. Graham as a defendant for Dr. Ferner. The appeal was argued on that basis.

I confess that this always seemed an especially pedantic point, even for me (and also, apparently, for the court itself, which ignored it in Bertolli), but the point is nevertheless valid.


Ontario: S. 21 might include mistake as to identity

In Douglas v. Stan Fergusson Fuels Ltd., the Court of Appeal left open the possibility that s. 21 of the Limitations Act might be broad enough to include mistake as to identity rather than merely a misdescription:

[112]   In my view, while the test for misnomer may be broad enough to embrace a mistake as to the identity of the person who should have brought a suit (rather than a misdescription of the person suing),[8] it cannot do so in this case. This is because, as I have explained above, at the time State Farm chose to commence a claim, it did not have capacity to do so in its own name. As a result, it cannot be said that State Farm made a “mistake” in naming the Douglases as plaintiffs instead of itself.

Ontario: Technicalities will not preclude misnomer relief

The plaintiffs in Galanis v. Kingston General Hospital commenced a proceeding by notice of action within the limitation period, and served the statement of claim outside the limitation period.  When the plaintiffs sought to add defendants on the basis of misnomer, the defendants took the novel position that the court could only look at the notice of action when applying the “litigation finger” test.  The court had none of this rather dubious argument:

[6]               The plaintiffs rely on the doctrine of misnomer. They allege that they did not know the names of the proposed defendants when the notice of action was issued. This evidence is uncontradicted.

[7]               Dr. Pattee does not oppose the motion nor does Ms. Rafuse. Drs. Dodge and Ali do, asserting that the doctrine of misnomer does not apply to them in the circumstances and that, because the limitation period had expired by the date the statement of claim was filed, they should not be added as defendants.

[8]               The short answer to this motion is found in the opening paragraph of Stechysyn v. Domljanovic2015 ONCA 889 (CanLII) :

On a motion to correct the name of the defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period: Kitcher vQueensway General Hospital(1997), 1997 CanLII 1931 (ON CA)44 O.R. (3d) 589 (C.A.), at paras. 1 and 4Lioyd v. Clark2008 ONCA 343 (CanLII)44 M.P.L.R. (4th) 159, at para.4.

[9]               Drs. Dodge and Ali advance the novel position that I can look only at the notice of action and, if I am restricted to that pleading, the requisite “litigation finger” points solely at Dr. Pattee. Alternatively, I should exercise my residual discretion and not allow the addition of Dr. Dodge because, at the time of the alleged malpractice, he was a resident in anesthesiology, acting under Dr. Pattee’s direction. Although this submission is not made on behalf of Dr. Ali in the factum, counsel urged me in oral submissions to do the same because of his limited involvement in the care of Ms. Galanis.

[10]           There is no reported decision that makes the distinction between a notice of action and statement of claim relied upon by the proposed defendants. The decisions in Stechysyn and Spirito Estate v. TrilliumHealth Centre2008 ONCA 762 (CanLII), both say that, as long as a litigation finger is pointing from the statement of claim, that is sufficient. I consider these decisions binding on me even when the proceeding is commenced by a notice of action.

The court also rejected the proposed defendants’ argument that the plaintiffs using a singular rather than plural pseudonym was of some consequence:

[12]           The fact that a singular, not plural, pseudonym was used is of no moment; to accede to the proposed defendants’ argument that only one party can be substituted if “Doe” rather than “Does” appears in the title of proceedings would be to allow form to triumph over substance.  In this regard, I rely on subrules 1.04(1) and 2.01(1)(a) of the Rules of Civil Procedure.


Ontario: the principles of misnomer


The decision in Corp. of Township of North Shore v. Grant has a helpful summary of misnomer principles:

[18]           Nonetheless, motions to correct misnomer or misdescription are still permitted pursuant to s. 21 of the Limitations Act, 2002, which provides:

(1)   If a limitation period in respect of a claim against the person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

 (2)   Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

 [19]           Section 21 has been held to apply equally to motions in which a plaintiff seeks to substitute a plaintiff in an action, notwithstanding language that appears to refer only to defendants being substituted:  Horgan v. Tanktek Environmental Services Ltd. (2009), 178 A.C.W.S. (3d) 87 (Ont. S.C.), aff’d 2009 ONCA 820 (CanLII).

[20]           There is a debate in the jurisprudence as to whether a request to amend a pleading by adding a party who was omitted altogether from the style of cause is properly characterized as a request to correct a misnomer or misdescription.  Some cases have held that it is not and, instead, have allowed the amendment using the court’s power to cure a “technical irregularity”:  see Hastings v. Halton Condo Corp. to 324 et al.2012 ONSC 175 (CanLII)Toronto Standard Condominium Corporation No. 810 v. King Spadina Development Corporation2014 ONSC 5560 (CanLII)2014 ONSC 5560 (Master).

[21]           Regardless of the manner in which a request to substitute a plaintiff is characterized, the jurisprudence is clear that an amendment will be permitted where there is a “coincidence” between a plaintiff’s intention to sue and the intended defendant’s knowledge of the plaintiff’s intention.  In Lloyd v. Clark2008 ONCA 343 (CanLII), the plaintiff was denied leave by the motion judge to name the Regional Municipality of Durham as a defendant in place of the Town of Ajax and the Corporation of the Town of Whitby.  In a brief endorsement allowing the appeal, the Court of Appeal held:

The case law amply supports the proposition that where there is a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer.  [Citations omitted.]

 [22]           Although Lloyd was a case in which a plaintiff sought to substitute a defendant, it has frequently been applied in cases in which a plaintiff seeks to substitute or add a plaintiff: see, for e.g., Streamline Foods Ltd. v. Jantz Canada Corp.2010 ONSC 6393 (CanLII), aff’d 2011 ONSC 1630 (CanLII)2011 ONSC 1630 (Div. Ct.)2012 ONCA 174Tetreault v. Nussbaum2015 ONSC 6226 (CanLII)Asset Strategy Corp. v. Rodinia Lithium Inc.2016 ONSC 5337 (CanLII) .

[23]           Thus, an amendment to add the name of one or more plaintiffs to a statement of claim should be permitted notwithstanding the expiry of a limitation period where the court is satisfied that the plaintiffs sought to be added to an action were intended plaintiffs prior to the expiration of the limitation period, that the defendant knew that they were intended plaintiffs, and where no prejudice arises that cannot be compensated for in costs.

[24]           I am satisfied that this is the situation here.  There is ample evidence in this case both of the intentions of the Council Members to claim against the defendant and of the defendant’s knowledge of those intentions.