Michael Kealy

The plaintiff sought to amend her statement of claim to correct a misnomer, substituting 'John Doe' with 'Dr. Hung-Tat Lo' as a defendant in a motor vehicle accident claim.

The court considered whether the proposed defendant would have objectively known the litigation was directed at him, applying the 'litigating finger' test.

Despite discrepancies in the pleaded facts and the proposed defendant's account, the court found that he would have recognized himself as the intended target.

The court also determined that the delay in bringing the motion was not inordinate or unexplained.

The motion to amend the statement of claim was granted.

The plaintiff brought a motion to set aside a registrar's dismissal order for delay in prosecuting the action.

The court considered factors including the length and explanation of litigation delay, inadvertence in missing the set-down deadline, promptness of bringing the motion, and prejudice to the defendants.

While the plaintiff failed to adequately explain the litigation delay and did not bring the motion promptly, the court found no significant prejudice to the defendants.

Emphasizing that prejudice is a key consideration and that cases should be determined on their merits, especially when delay results from counsel error, the court granted the motion and set aside the dismissal order.

No costs were awarded.

The plaintiff was previously successful on a motion to amend her statement of claim on the basis of misnomer.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $6,069.30, while the respondents argued there should be no costs because the amendment was an indulgence.

The court agreed with the respondents, finding that the relief granted was discretionary and constituted an indulgence.

Given the plaintiff's delay and the respondents' reasonable opposition, the court ordered no costs for the motion.

The plaintiff brought a motion to amend her statement of claim to add the former owners of a condominium unit as defendants after the expiry of the limitation period.

The plaintiff had originally named the condominium corporation as the owner due to an incomplete title search.

The court granted the motion on the basis of the doctrine of misnomer, finding that the pleading clearly pointed the 'litigating finger' at the owners of the unit and that the proposed defendants would not suffer non-compensable prejudice.

The court rejected the alternative argument based on discoverability, noting that the true owners could have been discovered with due diligence.

The plaintiff pedestrian was struck by a vehicle and commenced an action against the driver.

After the limitation period expired, the plaintiff discovered through an unredacted police report that a second vehicle was involved and commenced a second action against its driver.

The defendant in the second action moved for summary judgment, arguing the claim was statute-barred and an abuse of process.

The court dismissed the motion, finding the plaintiff acted with reasonable diligence in discovering the second driver's identity and that the second action was not an abuse of process as the two actions could be heard together.

The plaintiff brought a motion to add a snow-clearing contractor as a defendant in a slip and fall action after the expiry of the presumptive two-year limitation period.

The plaintiff argued the claim against the contractor was not reasonably discoverable until the defendants advised they intended to add the contractor as a third party.

The court dismissed the motion, finding that the plaintiff's counsel failed to exercise reasonable diligence, as minimal inquiries to the store manager or insurance adjuster would have revealed the contractor's existence well within the limitation period.

The plaintiff brought a motion to amend the original title of proceedings in a statement of claim, issued in 2015 against "John Doe and Jane Doe," to reflect the correct name of the defendant driver, Melissa Gilmour.

The accident occurred in 2013, and the plaintiff's counsel failed to properly identify the defendant and issue the claim correctly within the limitation period.

The court considered the principles of misnomer under Rules 26.01 and 5.04(2) of the Rules of Civil Procedure, emphasizing the overarching goal of resolving cases on their merits.

Despite the plaintiff's counsel's negligence and significant delay, the court found that the proposed defendant's insurer had early notice of the accident and that the "litigating finger" pointed at the intended defendant.

The motion was granted, allowing the substitution of Melissa Gilmour for "Jane Doe." Costs of $2500 were awarded against the plaintiff's counsel's firm, not the plaintiff, due to their errors.

The appellants appealed from a Superior Court order that set aside a Master's decision permitting amendment of the Statement of Claim to substitute the Regional Municipality of York and Brennan Paving and Construction Ltd. for the originally named defendants based on misnomer.

The original claim arose from an accident allegedly caused by a pothole on McCowan Road.

The Court of Appeal dismissed the appeal, finding that the Master's inference that the substituted defendants would have known they were the intended defendants was not available on any reasonable view of the evidence.

The Notice of Claim and Statement of Claim, even when read together, were not capable of supporting such an inference without further inquiry.

The plaintiff brought a motion to set aside a Registrar's order dismissing her personal injury action for delay.

The action had stalled for five years because the plaintiff's former lawyer misled her into believing the case had settled, even having her sign release documents.

The court found the Registrar lacked jurisdiction to dismiss the action because there was no reliable evidence of when it was struck from the trial list.

Alternatively, applying the Reid factors, the court set aside the dismissal, finding the plaintiff had a reasonable explanation for the delay, the failure to restore was inadvertent, the motion was brought promptly, and the defendant suffered no actual prejudice.

The motion to restore the action to the trial list was denied as the matter was not yet ready for trial.

The plaintiffs were involved in a motor vehicle accident caused by a pothole.

They initially sued the City of Toronto and 'John Doe Maintenance Company'.

After the limitation period expired, the plaintiffs successfully moved before a Master to substitute the Region of York and Brennan Paving as defendants, relying on the doctrine of misnomer.

The defendants appealed.

The Superior Court of Justice granted the appeal, finding that the Master erred in law by extending the doctrine of misnomer too far.

The court held that the 'litigating finger' did not clearly point to the proposed defendants, as the Statement of Claim identified the accident location in a different municipality, and it was unreasonable to expect the proposed defendants to connect the claim to a notice letter sent nearly two years earlier.

The plaintiff sought a status hearing under Rule 48.14(5) of the Rules of Civil Procedure to establish a timetable for the action and extend the time to set it down for trial.

The motion was opposed by two defendants, Sulekha Patel and Nikita Patel.

The court applied the two-part test for contested status hearings, requiring the plaintiff to provide an acceptable explanation for delay and demonstrate that the defendants would suffer no non-compensable prejudice.

The court found the plaintiff's explanation, citing corporate financial and organizational difficulties, to be adequate.

It also determined that the opposing defendants had not suffered non-compensable prejudice, partly due to their own inaction during periods of delay.

The motion was granted, and a case conference was ordered to set a timetable for the remaining steps, including a potential summary judgment motion, discoveries, and mediation.

Costs were ordered to be borne by each party.

The plaintiff, George MacPherson, brought a motion to add Allan Star Roofing Ltd. and Ebrahim Khezri (Third Parties) as defendants to an action for injuries sustained from a fall off a roof.

The motion hinged on the discoverability principle under the Limitations Act, 2002.

The plaintiff argued he did not discover the identity or potential liability of the Third Parties until examinations for discovery and subsequent undertakings, which revealed Khezri's involvement as a worker and potential duties under the Occupational Health and Safety Act.

The Third Parties contended that the plaintiff knew or ought to have known the material facts earlier and failed to exercise due diligence.

The court found an arguable cause of action in negligence based on the Third Parties' potential failure to report safety issues under OHSA.

Given the low evidentiary threshold for demonstrating due diligence, the plaintiff was granted leave to add the Third Parties as defendants.

Costs were fixed at $5,000 to be paid by the defendants to the plaintiff, in the cause.

The defendants brought a motion for an order requiring the plaintiff to attend a defence assessment with an occupational therapist.

The court noted a jurisdictional issue regarding whether a master has the inherent jurisdiction to order an examination by a non-health practitioner, but proceeded to hear the motion based on prior authority.

Applying the test from Ziebenhaus, the court found that the defendants already had a clear and unequivocal report from a physiatrist stating the plaintiff's injuries did not impact her ability to work or carry out normal activities.

The court concluded the requested assessment was merely to corroborate the existing report or obtain a matching report, which was insufficient.

The motion was dismissed.

The defendant brought a motion to set aside a noting of default in a slip and fall action.

The plaintiff had commenced the action beyond the two-year limitation period and noted the defendant in default after the defendant's insurer closed its file due to a miscommunication.

The court applied the test for setting aside a noting of default, considering the behaviour of the parties, the reasons for delay, the complexity of the claim, and prejudice.

The court found that the defendant had a continuing intention to defend, the delay was adequately explained, and the defendant would suffer clear prejudice if not allowed to defend.

The motion was granted, and the noting of default was set aside with no order as to costs.