The 'litigating finger' did not point at the defendant: court
The Ontario Superior Court of Justice recently clarified misnomer motion rules in a hit-and-run case.
In Abramov v. Doe, 2023 ONSC 1232, Avraham Abramov filed a misnomer motion for leave to correct the name of the defendant John Doe to name Nisim Saban and Joseph Algai as defendants to an action involving an unidentified driver in a hit-and-run accident that occurred in 2016.
Abramov collided with a vehicle near Yonge Street and Cactus Avenue in Toronto. The car immediately left the scene. Abramov contacted the Toronto Police Service (TPS) but could not obtain the vehicle's license plate number for privacy reasons. Abramov did not have the name and address of the witness who reported the accident. After numerous attempts to determine the vehicle's license plate number and the driver's identity, Abramov finally obtained the complete TPS files and a redacted copy of the 911 call logs almost four years after the accident. The files confirmed the vehicle's make as a brown Pontiac Montana van and identified Nisim Saban as the owner and Joseph Algai as the lessor of the car.
'Litigating finger' does not point at the defendant
The Ontario Superior Court of Justice ruled that this case did not involve a misnomer. The court said it was not just and reasonable to grant Abramov's application to name Saban as a defendant in the statement of claim.
The court explained that in a misnomer, the plaintiff must have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the "litigation finger" is pointing at the proposed defendant.
In this case, the court found that the statement of claim lacked the necessary particularity and was not sufficiently clear for Saban to know that the "litigating finger" was pointed at him. Saban's evidence shows that he was not driving the vehicle during the alleged date and time of the accident. The court further found that the statement of claim failed to describe the vehicle, including its make, model, colour or kind. Accordingly, the court did not allow adding Saban as a defendant in the statement of claim.
Abramov alternatively sought leave to make his statement of claim to add the defendants after the passage of the presumptive limitation period based on discoverability.
The court found that Abramov discovered Saban's identity in August 2021, which was over five years after the accident and over three years after the passage of the presumptive limitation period. However, the court said Abramov and his counsel made numerous attempts to determine the vehicle's license plate number and the driver's identity. Abramov asserted that he acted with reasonable diligence to ascertain the identity of the car and the driver. The court ruled that the case involved an issue of fact and credibility which must be determined on a full record at trial or on a summary judgment motion. Accordingly, the court said the appropriate remedy was to grant leave to add Saban as a defendant.
The court further said that granting leave to add Saban would ensure that the necessary parties were all included in the action so that the court might resolve all issues between the parties. The court concluded that this would ensure that the true lis of the plaintiff's claims are decided without the possibility that certain defendants might escape potential liability on a technical limitations defence.