Court File and Parties

COURT FILE NO.: CV-17-588446 MOTION HEARD: 20220329 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hui Na Le, Plaintiff AND: John Doe, John Doe, and the Superintendent of Financial Services, Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Michael Kealy, agent for counsel for the moving party plaintiff Troy Asselin, counsel for the proposed defendant Dr. Hung-Tat Lo

HEARD: 29 March 2022

Reasons for Decision

[1] The plaintiff brings this motion pursuant to Rule 5.04 of the Rules of Civil Procedure to amend the statement of claim to correct the misnomer of John Doe to Dr. Hung-Tat Lo (“Lo”).

Overview

[2] This accident took place in December 2015. Plaintiff’s counsel wrote to the police for the motor vehicle accident report in April 2016 and continued to follow up, albeit sporadically, in order to identify the name of the driver and owner of the vehicle involved in the accident.

[3] In July 2020 plaintiff’s counsel received search information that identified Lo and they wrote to him putting him on notice of the accident. When plaintiff’s counsel learned the identity of Lo’s insurer in November 2020, they wrote to them as well, and sent a further letter to Lo. On 12 November 2020, after receiving the plaintiff’s damages evidence and productions, Lo’s insurer advised that it not consent to but would not oppose the misnomer motion. By February 2021, the insurer sent the matter to its in-house counsel who then advised that they would oppose the motion.

[4] The parties agree that the motion turns on whether Lo would have known that the litigating finger was pointed at him when he read the statement of claim. The plaintiff does not seek to add a new defendant but to properly name the John Doe defendant. The parties agree that the Limitations Act, 2002 is not in issue as the claim was issued against John Doe within the limitation period. While Lo does not argue prejudice per se (conceding that the plaintiff’s records have been maintained and produced and Lo has a good memory of the events), he does argue that the delay has been sufficiently long that the court should exercise its inherent jurisdiction to dismiss the motion.

[5] For the reasons set out below, I find that Lo would have known that the plaintiff meant to identify him as involved in the accident. Further, while time has passed, it is not so significant that the motion should be denied.

Facts

[6] The plaintiff was involved in a cycling accident in December 2015. In her statement of claim, she sets out the timeframe for the accident, the location and the fact that she was struck and injured.

[7] Paragraph 6 of the statement of claim reads as follows:

On or about December 20, 2015, the Plaintiff was a cyclist, proceeding on Dundas West Street, at or near its intersection with Denison Avenue. In a safe and prudent fashion, the Plaintiff crossed in front of the side of the Defendant Motor Vehicle stopped at the intersection. Suddenly and without warning, the Defendant Motor Vehicle struck the Plaintiff and knocked her to the ground. The Defendant John Doe #1 thereafter left the scene of the accident in the Defendant Motor Vehicle.

[8] In response to the plaintiff’s allegation that she was struck by the defendant vehicle and knocked to the ground, Lo deposed that “I opened my door a couple of inches to look behind my car, looking westbound for eastbound traffic. I heard a noise, I turned around completely to look behind me and saw a cyclist in the eastbound through lane on the ground between the two streetcar tracks.”

[9] When he saw the plaintiff on the ground, Lo walked to her to see if she was okay and to stop any potential traffic. Someone called 911 and, at the request of the caller, Lo agreed to remain to meet the police, as he was the first person to attend to the plaintiff. He spoke to the police who took down his information, including his licence and registration and his description of the accident. He was not charged.

Analysis

[10] Lo advances at least four reasons why he does not believe he was the intended John Doe. First, while he acknowledges that he was in the vicinity of Dundas and Denison, he argues that the location of the accident is incorrect as he was not “at” the intersection. He was parked on Dundas between Kensington Street and Denison.

[11] Second, his vehicle was stationary and the allegations of negligence contained in paragraph 9 of the statement of claim describe John Doe’s vehicle as travelling at an excess rate of speed and failing to apply the brakes to avoid a collision. Third, he did not leave the scene. Fourth, his vehicle was not unidentified, as alleged in paragraph 7 of the statement of claim.

[12] Lo also takes issue with how the accident occurred and any suggestion that his actions even caused the plaintiff to fall. He denies that the cyclist had reached his car and believes that she fell due to the streetcar tracks. He maintains that he was a witness rather than a participant in the accident.

[13] In support of his position that he could not have objectively known he was the John Doe defendant, Lo notes that the John Doe defendant is alleged to have been driving “when his ability to drive was impaired by alcohol, drugs, fatigue, talking on a cell-phone, using an electronic device, or a combination thereof”. Lo argues that he was not on his cell phone and was not impaired. That is akin to many pleadings in which a plaintiff alleges an incident occurred in a certain way and the defendant denies not only that the incident occurred but also how it is alleged to have happened.

[14] These are the kinds of details best left for discovery but they do not mean that a person reading the claim objectively would not conclude that the plaintiff meant Lo when she described an accident that occurred when her bicycle came into contact with the defendant’s car near the intersection of Dundas West and Denison on or about 20 December 2015 and she was knocked to the ground and injured.

[15] While the mechanics of the accident are in issue, it is conceded that Lo was interviewed by the police when the plaintiff fell off her bike onto the road at or near his vehicle and he spoke to her at the time. Unlike Reimer v. Toronto, 2020 ONSC 1661, the plaintiff is not pleading that there was more than one vehicle involved such that there would be confusion in Lo’s mind about whether she meant his vehicle or another in the same vicinity on or about the same day. I have considered the principles in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, among them that:

“To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleadings would demonstrate that the “litigation finger” is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.”

[16] I am satisfied that an objective and generous reading of the statement of claim would demonstrate that the litigating finger was pointed at Lo. While he may and does disagree with the circumstances pleaded, I am satisfied that he would be aware the plaintiff intended to sue him as the person operating the vehicle she believed knocked her off her bicycle and to the ground. The language pleading alternative causes of the accident are standard in actions involving motor vehicles and would not cause Lo, on an objective read of the claim, to expect that he was not the target of the bicycle accident claim.

[17] Following the principles set out in Loy-English, supra, I would not exercise my residual discretion to refuse the relief sought in these circumstances. While the motion was brought late, the delay was neither unexplained nor inordinate (Tschirhart v. Grand River Hospital, 2019 ONSC 6650 at paragraph 47). As noted above, the plaintiff took steps to identify Lo starting in 2016 through to 2020. Further, Lo’s insurer initially advised that it not oppose the relief, likely giving the motion less urgency in the plaintiff’s mind.

Conclusion

[18] In adopting the dicta of Loy-English, supra at paragraph 21 (i), I find in all the circumstances that it is reasonable and just to allow the amendment to correct the misnomer of John Doe to Hung-Tar Lo.

[19] The plaintiff’s motion for leave to amend her statement of claim to substitute the name Hung-Tat Lo for the John Doe defendant and for consequential amendments is granted.

[20] The parties have each uploaded their costs outlines. If they cannot agree on costs by 6 May 2022, they may each send costs submissions no more than three pages in length to my assistant trial coordinator by email to Christine.Meditskos@ontario.ca.

Associate Justice Jolley Date: 7 April 2022