{"id":1117,"date":"2020-07-16T08:58:31","date_gmt":"2020-07-16T12:58:31","guid":{"rendered":"http:\/\/limitations.ca\/?p=1117"},"modified":"2020-07-16T08:59:24","modified_gmt":"2020-07-16T12:59:24","slug":"ontario-failing-the-litigation-finger-test","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1117","title":{"rendered":"Ontario: failing the litigation finger test"},"content":{"rendered":"

Reimer v. Toronto (City) <\/em><\/a>is an example of failing to make out the litigation finger test.\u00a0 The plaintiff in a slip and fall action named \u201cJohn Doe Maintenance Company\u201d as a defendant and sought leave to correct it to the name of the actual maintenance company.\u00a0 However, she didn\u2019t plead the particulars of the maintenance company\u2019s alleged negligence with sufficient detail so that the company would know on reading the pleading that it was the intended defendant.\u00a0 It\u2019s a warning not to presume that the court will grant misnomer relief in regards of a John Doe in all circumstances.\u00a0 These are the material paragraphs:<\/p>\n

[14]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0I 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.<\/p>\n

[15]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0In my view, however, the key principle to be considered on this motion is described by Justice MacLeod in\u00a0Loy-English<\/em>\u00a0as follows:<\/p>\n

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.<\/p>\n

[16]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0Certainly, 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.<\/p>\n

[17]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0However, the John Doe Maintenance Company defendant is not separately described, specified or identified in the initial pleading.[1]<\/a>\u00a0The plaintiff\u2019s 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\u00a0Loy-English<\/em>\u00a0at paragraph 21b. This lack of particularity militates against a finding of misnomer.<\/p>\n

[18]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0The conclusion that the plaintiff\u2019s claims are partly directed at Maple and Royal becomes even less obvious as the circumstances of the plaintiff\u2019s accident are further particularized in the statement of claim. The location of the plaintiff\u2019s accident is broadly defined as \u201cat or near the intersection of Kennedy Road and Sheppard Avenue East\u201d. The further particulars in the statement of claim state that the plaintiff fell twice. First, on the \u201csidewalk\u201d when she stepped off the bus and then a second time when she \u201cviolently\u201d fell on the \u201croadway\u201d 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\u2019s injuries arose from the fall on the roadway and not the sidewalk.<\/p>\n

[19]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0In 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.<\/p>\n

[20]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0I 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.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Reimer v. Toronto (City) is an example of failing to make out the litigation finger test.\u00a0 The plaintiff in a slip and fall action named \u201cJohn Doe Maintenance Company\u201d as a defendant and sought leave to correct it to the name of the actual maintenance company.\u00a0 However, she didn\u2019t plead the particulars of the maintenance … Continue reading Ontario: failing the litigation finger test<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[591,491,407,440],"class_list":["post-1117","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-john-doe","tag-litigation-finger-test","tag-misnomer","tag-the-supreme-litigation-finger"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1117","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1117"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1117\/revisions"}],"predecessor-version":[{"id":1119,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1117\/revisions\/1119"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1117"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1117"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1117"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}