A. Gerstl

The plaintiff brought a motion to amend her statement of claim to substitute the names of two individuals for 'John Doe' defendants who allegedly caused her severe burns during a cosmetic laser treatment.

One of the proposed defendants opposed the motion, arguing she did not treat the plaintiff and would suffer prejudice.

The court applied the 'litigation finger' test for misnomer, finding that the statement of claim clearly pointed to the proposed defendant as the intended target.

The court rejected the proposed defendant's denial of liability as irrelevant to a misnomer motion and found no actual prejudice.

The motion to amend was granted.

The defendant brought a motion to dismiss the plaintiff's claim for delay, citing the plaintiff's failure to answer undertakings which required four prior motions to compel.

The court noted that dismissing an action for delay is a severe remedy.

Because the plaintiff had finally answered all undertakings, paid the costs of the prior motions, and passed the Trial Record, the court declined to dismiss the claim.

However, because the motion was necessary to force the plaintiff to advance the matter, the court awarded costs of the motion to the unsuccessful defendant in the amount of $2,000.