Canada: A Defendant By Any Other Name: Of Limitation Periods, John Doe, And Misnomer

Last Updated: July 12 2016
Article by Eric A.F. Grigg

Having read the reasons for decision in Stechyshyn v. Domljanovic, 2015 ONCA 889 you would be forgiven for wondering whether the panel of the Court of Appeal had taken in a showing of Romeo and Juliet during their deliberations. The Court of Appeal disposed of the plaintiff's appeal from a motion granting summary judgment dismissing his action as time-barred on the neat, if narrow, basis that the defendant's summary judgment motion was itself a collateral attack on the plaintiff's prior unopposed and successful motion to correct a misnomer. However, the panel went further and observed that:

If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff's solicitor's file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply.

In so doing, the Court of Appeal might just as well have posed Juliet's existential question:

What's Montague? It is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What's in a name? that which we call a rose
By any other name would smell as sweet;

Background

The Plaintiff, Stechyshyn, was involved in a motor vehicle accident on or about June 8, 2006. The police were not called to the scene and Stechyshyn copied down the other driver's licence number, the insurance information, and license plate number in a personal notebook. While Stechyshyn was at the hospital, a police officer attended to investigate. In addition to describing the details of the collision to the officer, Stechyshyn gave the officer the page out of his notebook containing the other driver's particulars.

Just less than two years later, on June 6, 2008, Stechyshyn retained counsel, and on June 20, 2008, a Statement of Claim was issued, naming as party defendants, inter alia, John Doe. On January 5, 2010, Stechyshyn's counsel wrote to the Toronto Police Service to request a copy of the police report or investigation notes. Stechyshyn had also added his own insurer, who was successful in obtaining the police file via a motion for third party production under Rule 30.10, which file was provided to the Plaintiff on or about July 22, 2011, and which file identified the driver of the striking vehicle as a Dusan Domlijanovic. Stechyshyn then brought an unopposed motion to amend the Statement of Claim, substituting Dusan Domlijanovic for John Doe.

Having been substituted as a party defendant, Domljanovic moved for summary judgment on the basis that the claim against him was discoverable since the date of the accident, being June 8, 2006, and that the claim as against him was time-barred accordingly. Domljanovic was initially successful before the motion judge, who granted summary judgment and dismissed the claim (2015 ONSC 3289), only to be overturned on appeal. In granting the appeal, the unanimous panel of the Court of Appeal held that:

The respondent's motion for summary judgment was an indirect attack on the motion for misnomer. It would be a waste of money, time, energy and judicial resources to allow the correct defendant to be added on a motion for misnomer and then to allow a motion for summary judgment on the basis that the correction was made after the expiry of the limitation period. The law does not countenance such impracticality. The law treats the naming of the correctly named defendant as a substitution for the incorrectly named defendant and not the addition of a new party or the initiation of the action against the correctly named defendant.

Analysis

Stechyshyn v. Domljanovic is a clear warning to insurers: ignore a motion to correct a misnomer at your peril. No longer may an intended defendant sit back and wait to be added to an action before challenging that plaintiff's lackadaisical efforts to identify her. While the Court of Appeal's additional comments regarding the absence of a due diligence in the misnomer context may be dicta, the unanimous panel was clear that summary judgment motions brought after a successful motion to correct a misnomer will be viewed as an impermissible collateral attack and will be dismissed accordingly. Framed in this way, the Court of Appeal's decision is difficult to challenge. It is also of narrow application and distinguishable in many, if not most, limitations scenarios, as Master Short held in Bowen v. Rengro Ltd., 2016 ONSC 1350, where he rejected a motion to add a new defendant after the expiration of a limitation period and no 'John Doe' placeholder defendant had been named.

What is less clear is how the court is to treat a summary judgment motion after an all too routine consent amendment to add or substitute a party after the expiry of the presumptive two-year limitation period. While the Court of Appeal points to judicial economy as the basis to refuse what was otherwise a collateral attack on the decision in an unopposed misnomer motion, does Stechyshyn not impose on an intended defendant the obligation to oppose every such request at the outset or risk losing forever its limitation argument by default? Is there a difference between a consent order where there is no adjudication on the merits and an unopposed motion resulting in a judicial finding of fact with regard to the identity of the misnamed defendant? I would suggest that there would have to be, but we will undoubtedly see further motions on this issue as the limits of Stechyshyn are worked out in future decisions.

The upshot for insurers generally, and claims handlers in particular, is this: if you have a potential limitations defence, it must be investigated early and challenged aggressively from the outset. This will be expensive, as it will require appointing counsel, locating and interviewing the insured. From this, motion materials will be generated and filed, with almost guaranteed cross-examinations on the affidavits.

While each of us would like to think our name is unique, or unique enough, to mark us out from the mass of humanity with whom we interact on any given day, the common law would seem to disagree. If the Court of Appeal's obiter dicta were adopted, then a plaintiff need not determine if the alleged tortfeasor is in fact Peter or Paul, but could simply plead 'John Doe' and safely end the inquiry. After Stechyshyn, a proposed defendant might well continue to ask, 'what's in a name?' and the plaintiff could gleefully respond: not much.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Eric A.F. Grigg
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