The supreme litigation finger

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. Domljanovic, 2015 ONCA 889, 129 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 343, 44 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. Clark, 2008 ONCA 343, 44 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. Domljanovic, 2015 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 v. Queensway General Hospital(1997), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589 (C.A.), at paras. 1 and 4; Lioyd v. Clark, 2008 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 Centre, 2008 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.