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Lerners LLP: Trevor Fisher

Don't get caught napping - limitation periods and misnomer

Lerners LLP

By Trevor Fisher

Two recent Ontario decisions demonstrate the importance of investigating potential limitation period issues early and taking action from the outset. In Stechyshyn v. Domljanovic, 2015 ONCA 889, the plaintiff obtained the driver’s licence number, insurance information and license plate of other driver on the date of the accident (June 8, 2006) and provided this information to police. Plaintiff counsel was retained on June 6, 2008 and issued a claim on June 20, 2008 naming John Doe as the defendant driver. On January 5, 2010, plaintiff counsel requested a copy of the police report. Over 18 months later, on July 22, 2011, plaintiff counsel was provided with a copy of the police file which the plaintiff’s insurer had obtained on a motion. This file identified the defendant driver and a motion was brought seeking to substitute the driver for John Doe. This motion was not opposed.

After the defendant driver had been added, a motion for summary judgment was brought on the basis that the limitation period had expired. While the motion was granted at first instance, it was overturned on appeal. The Court of Appeal held that the motion for summary judgment was an indirect or collateral attack on the unopposed motion for substitution. In proceeding in such a manner, the defendant driver wasted “money, time, energy and judicial resources”.

In contrast, in Brown-Vidal v Doe, 2015 ONSC 3362, the plaintiff had the license plate number on the date of the accident (November 22, 2010). An action was commenced on December 23, 2013, well beyond the two year limitation period, naming John Doe as the defendant driver. Plaintiff counsel conducted a licence plate search on December 30, 2013 and identified the defendant driver. A motion was brought on March 19, 2015 seeking to substitute the driver for John Doe on the basis of misnomer. This motion was opposed by the defendant driver.

At first instance, the Master denied the motion finding that the plaintiff had information to discover the identity of the defendant driver since the date of the accident and failed to exercise due diligence in this regard. This finding was upheld on appeal by the Divisional Court (Brown-Vidal v Doe, 2016 ONSC 4359).

While there may have been factual strengths and weakness in each of the above cases, the opposing outcomes still highlight a valuable lesson for defendants: Do not ignore a motion to correct a misnomer to substitute a defendant after a limitation period! An argument regarding the plaintiff’s lack of due diligence should be made in response to a misnomer motion, not on a later summary judgment motion. Defendants should investigate limitations defences early and challenge any motions to substitute as this opportunity may not be available later. This may also require an earlier referral to counsel in these circumstances.

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