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: 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: 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.