A. Shmukler

The plaintiff brought a motion to amend the statement of claim to substitute a named individual for a previously unidentified “John Doe” defendant and to add another individual as a new defendant after the limitation period had expired.

The court considered Rules 5.04 and 26.01 of the Rules of Civil Procedure together with the discoverability principle under the Limitations Act, 2002.

The evidentiary record showed only minimal efforts by the plaintiff to identify the additional proposed defendant prior to the expiry of the limitation period.

The court held that the plaintiff failed to demonstrate due diligence in attempting to discover the proposed defendant’s identity and that the amendment could not be justified on the basis of discoverability or misnomer.

The request to add the additional defendant was dismissed, while the substitution of the identified individual for “John Doe” was permitted on consent.

The plaintiff brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend the statement of claim arising from a motor vehicle accident to advance an uninsured/underinsured claim against the insurer under her husband’s policy.

The defendants opposed the amendment, arguing that it constituted a new cause of action outside the limitation period and that the doctrine of misnomer did not apply.

The court held that although the misnomer doctrine was not satisfied, the evidence did not establish that the limitation period had expired and the proposed amendments were legally tenable.

The court emphasized that amendments must be granted unless non-compensable prejudice is demonstrated and that the merits of the proposed claim should not be determined on the motion.

Finding no prejudice that could not be compensated by costs or adjournment, the court granted leave to amend.