In my prior post entitled “Limitation Period Bars Slip and Fall Claim Against Snow Removal Contractor”, I outlined some practical tips to avoid having good claims needlessly ended because of tardiness. It went something like this:
“The first practice tip is to undertake the due diligence as soon as practicable after the incident: this is when memories are fresh, and contacts are most easily found.
However, if a litigant and/or their legal representative find themselves in the regrettable circumstance of having to issue a claim at the eleventh hour, the next best thing to do is add place-names for parties (ie: “John Doe,” “Jane Doe,” “Corporation 1,” etc), with descriptions of their likely role in the cause of the alleged loss, and then work hard and diligently in the ensuing days/weeks to better identify those parties, and amend the claim as quickly as possible thereafter to either revamp the place-holder name with the correct name(s), or in some cases remove the place-holder name altogether once it is determined there was no person or entity in that role. Although this is not ideal, it places the plaintiff in the best position possible should they find themselves starting a lawsuit before all their due diligence investigation has been completed prior to any looming expiration of the limitation period. At this point the plaintiff would be seeking to correct a name or misnomer, which is a far easier argument to make than trying to convince a court to extend the limitation period. See my prior posts on cases dealing with misnomer (here and here).”
To summarize: 1) investigate early, 2) if tight for time, plead very carefully with place names (ie: Jane and John Does) so that it is abundantly clear who the litigation finger is pointing at, and 3) if Jane and John Does were pleaded, be vigilant in shoring up the correct identities as quickly as possible thereafter.
This recent decision from the Divisional Court provides a very good illustration of the pitfalls in not following this advice. The case dealt with a Plaintiff who fell twice – first on the sidewalk immediately after getting off a bus, and then a few moments later on the road when she attempted to cross the street.
The Plaintiff took none of the steps recommended above, the net result of which precludes the Plaintiff from suing and recovering from the sidewalk maintenance contractor. The claim against the road maintenance contractor was allowed to proceed because they did not oppose being added to the claim after-the-fact.
So what did the Plaintiff do wrong? First, the Plaintiff didn’t ask any questions of the City about who was responsible for maintaining the city streets and sidewalks until the eve of the two year anniversary date since the accident, raising the potential that the Plaintiff’s claim would soon be barred by the two year limitation period under the Ontario Limitations Act. This runs counter to undertaking the due diligence investigation “as soon as practicable after the incident.”
Second, the Plaintiff issued a Claim with a bunch of John Does (which was good), but then failed to adequately point the finger at the sidewalk maintenance contractor – the Claim was pleaded in a manner that was very road-injury-centric, and the motions judge concluded that not enough detail was pleaded to point the litigation finger to a sidewalk injury at the hands of a sidewalk maintenance contractor. Again, a failure to plead with clarity the role of a named “John Doe.”
Finally, even after the Plaintiff eventually found out the correct identity of the sidewalk maintenance contractor from the City about four months after asking for this information, the Plaintiff took a further six (6) months to bring the motion to correct the “misnomer.” It is not clear whether a quicker motion would have made a difference, but everyone can agree that tardiness rarely assists any party.
The Divisional Court concluded that the associate judge’s reasons were free of any overriding palpable error, such that the Plaintiff’s appeal was dismissed, with costs.
Reimer v. City of Toronto, 2023 ONSC 484
https://www.canlii.org/en/on/onscdc/doc/2023/2023onsc484/2023onsc484.html