Court File and Parties
COURT FILE NO.: CV-18-00228-00 DATE: 2024 06 27
SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6
RE: HOQ, Sayed, plaintiff AND: DOE, John and DOE, Jane and SINGH, Ranjit and INTERSTATE FREIGHT SYSTEMS INC. and INTERSTATE FREIGHT SYSTEMS INC operating as FLEET 001 and AVIVA GENERAL INSURANCE COMPANY, FORMERLY KNOWN AS RBC GENERAL INSURANCE COMPANY, defendants
BEFORE: Justice D.E. Harris
COUNSEL: MINHAS, R., for the plaintiff rminhas@tmpi.ca KNAPP, M., for the proposed defendant SINGH, Lakhwant mknapp@rickettsharris.com
HEARD: March 19, 2024, by video conference
Endorsement
[1] The plaintiff Sayed Hoq filed a statement of claim dated January 17, 2018 making claims arising out of a multi-vehicle automobile accident. The defendants included Ranjit Singh and Interstate, the owner of Mr. Singh’s vehicle. Also named were John Doe and Jane Doe. John Doe was a placeholder appellation for one of the other drivers involved and Jane Doe was a placeholder for the owner of the vehicle. The statement of claim asserted that John Doe was a yet unidentified person who had driven a vehicle which had allegedly struck the plaintiff’s vehicle and started a chain reaction collision. Because the driver of this vehicle was unascertained, so was the owner of the vehicle, for the meantime dubbed Jane Doe.
[2] The recitation of facts in the statement of claim is that on January 30, 2016 the plaintiff was operating his Toyota in Lane 4 of the westbound collector lanes of Highway 401 in Mississauga, Ontario while Ranjit Singh was operating his Volvo tractor trailer westbound in Lane 2. Suddenly, the John Doe motor vehicle struck the plaintiff’s Toyota, causing the plaintiff to lose control of his Toyota. After losing control, the Toyota struck the median. After this, the Ranjit Singh vehicle hit the plaintiff’s vehicle. The John Doe motor vehicle is said to have fled the collision scene.
[3] More than four years later, on February 14, 2022, the applicant learned that John Doe was in fact Lakhwant Singh. A Wagg motion had been brought by the defendant Aviva in its capacity as the plaintiff’s insurer providing motor vehicle coverage with respect to unidentified drivers. The police notes garnered from the Wagg motion refer to Lakhwant Singh as a witness and note that there was minor damage to the right front fender of his vehicle. In Lakhwant Singh’s own statement to the police, he noted the plaintiff’s vehicle being in front of his own at one point. Afterwards, he pulled his vehicle over to the side of the road and was questioned by the police.
[4] As a result of the respondent’s motion record being served on the applicant plaintiff in January of 2024, Jane Doe, the owner of the unidentified vehicle, was ascertained to be CWH Distribution Services (“CWH”).
The Misnomer Concept
[5] Rule 5.04 (2) of the Rules of Civil Procedure provides that a court can “correct the name of a party incorrectly named” unless there exists non-compensable prejudice. This is to be distinguished from the very different requirements for adding a party: Stechyshyn v. Domljanovic, 2015 ONCA 889 at para. 20. It is common that the names John or Jane Doe are used in pleadings as pseudonyms when a person has yet to be identified.
[6] Rules derived from the common law in England have been developed for determining when a name correction ought to be permitted. As stated in Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672 (Eng. C.A.) at p. 676 and adopted by the Ontario Court of Appeal in Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 at para. 11,
… How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”, then there is a case of me a misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they meet me or not and I shall have to make inquiries”. Then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.
[7] To elaborate further, the pleading must be drafted with sufficient particularity that an objective and generous reading would demonstrate that the “litigation finger” is pointing at the defendant. A properly informed defendant should be able to ascertain that they are the target. “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”: Loy-English v. The Ottawa Hospital et al. 2019 ONSC 6075 para. 21.
[8] In my view, the statement of claim here is sufficiently specific to allow the defendant respondent to know that he is the unidentified driver of the vehicle that clipped the plaintiff’s Toyota. The date is clear although the precise time is not stated. The highway is specified and the direction in which the traffic was moving, westbound. The city, Mississauga is mentioned, which narrows it down still further. Unbeknownst to the plaintiff, the defendant had not fled the scene as referred to in the statement of claim but had pulled over and spoken to police. He had not said he was involved in the accident but claimed to be only a witness. But there was minor damage to the front of his vehicle potentially consistent with the alleged role he had in causing the accident as recounted in the statement of claim. In his statement to the police, the defendant had referred to the plaintiff’s vehicle.
[9] Having actually been on the scene, albeit as a purported witness only, seen the plaintiff’s vehicle and had damage observed to the front of his own vehicle, this evidence would have assisted in further clueing in the defendant that John Doe was in fact him. The damage to the vehicle could have been from an earlier incident but it could have occurred in this one too. The accident was not a garden variety one but because there were three cars involved, was more readily identifiable. No significant assumptions were necessary to make the connection. There were only three drivers involved in the accident alleged in the statement of claim. Particularly given the requirement to take a generous reading of the pleadings, the pointing of the litigation finger is quite clear, in my opinion.
[10] There is a residual discretion to refuse the correction. As a result of the broader approach to Rule 5.04(2) initiated by Ormerod and previous cases, there has been a renewed focus in assessing whether there is non-compensable prejudice that would make it unfair to allow for the name correction: Ormerod, para. 31. Time is not generally enough to constitute this type of prejudice. In Ormerod, the six-year delay did not lead the motions judge to find that there was prejudice sufficient to refuse the correction. The Court of Appeal did not disturb this finding.
[11] In this instance, the delay is also six years from the statement of claim. The respondent also refers to the year and a half since the police file was revealed, but due diligence is not relevant to whether a correction should be allowed: Stechyshyn v. Domljanovic, at paras. 1, 19.
[12] It is argued that because the owner of the vehicle, CWH, no longer has maintenance records, black box data or dash cam footage and the vehicle is no longer owned by the company, the prejudice to the defendant from the correction is palpable and ought to lead to the dismissal of this motion to correct the names. I do not find this persuasive. That such records would have been helpful if they existed in the first place is largely speculative. Furthermore, even a short time after the incident, there records would likely have been written over or been uninformative of the central issue of whether the defendant’s vehicle initiated the accident. The applicant has lost the ability of connecting the damage to the vehicle to the accident but that is prejudice to him, not the defendant. The police records from the accident which do exist should assist to some degree in ascertaining what happened.
[13] In the result, it is ordered the defendant’s name be corrected from John Doe to Lakhwinder Singh and Jane Doe ought to be corrected to CWH Distribution Services Inc. o/a CW Henderson Distribution. It is unnecessary to consider the applicant’s alternative argument based on the discoverability doctrine. An order will go extending by 60 days the time for service of the amended statement of claim on the proposed defendants.
[14] The parties are urged to come to an agreement on costs. If they are unable to do so, the applicant may file a two-page argument supported by a bill of costs while the respondents will have 30 days following the applicant’s filing to respond with two pages and their own bill of costs.