Category: Misnomer

Loney v. Doe, 2023 ONSC 5123

The plaintiff was injured in a 2013 motorcycle accident and commenced this action in 2015. Two defendants (the driver and owner of a transport truck) were named as John Does. The plaintiff also sued Intact pursuant to OPCF44 coverage. The plaintiff was examined for discovery in 2016 and set the matter down for trial in 2019. In 2022 the plaintiffs brought this motion to substitute the John Does with the names of the driver and owner of the transport truck. Justice Healey denied the plaintiff leave to bring the motion to amend due to the significant unexplained delay in bringing the motion and the prejudice to the proposed defendants.

Scace v. Withers et al., 2020 ONSC 90

The plaintiff homeowner brought a subrogated claim against renovators working on his neighbour’s home, who caused structural damage to the plaintiff’s property. The plaintiff brought a motion to amend the statement of claim to substitute a ‘John Doe’ contractor with the correct contractor name. The motion was brought more than two years after the loss had occurred. The defendant argued that the plaintiff knew the identity of the actual contractor within the limitation period (email correspondence shows that he must have), and if the plaintiff actually intended on bringing a claim against the defendant within the limitation period, he would have done so. Master Sugunasiri granted the plaintiff’s motion. She held that the threshold for the misnomer test was met and that a fair reading of the claim demonstrated that the plaintiff intended to sue the actual contractor for negligent construction. She was not persuaded that the plaintiff’s previous knowledge of the contractor’s identity negated that intention.