In Solis v. Canadian Beauty College et al., 2020 ONSC 6051 (“Solis”), the Ontario Superior Court of Justice held that a proposed defendant’s denial of liability is not a relevant consideration on a misnomer motion. The Endorsement of Justice Wilson is a reminder that counsel should be careful not to conflate a defence to a claim with a defence to a motion to correct a misnomer, as they are analytically distinct positions in the proceeding.
The plaintiff, Alexandra Solis, apparently suffered personal injuries in July 2016 when she received cosmetic treatment at the premises of Canadian Beauty College Inc. (the “College”). By Statement of Claim issued on June 29, 2018, the plaintiff commenced an action in negligence against the College, its owners and operators, and J. Does 1-3. The plaintiff’s claim alleges that J. Does 1-2 were students in training who administered the cosmetic treatments to the plaintiff’s legs in 2016, which caused severe burns and scarring, and that J. Doe 3 was the supervisor for J. Does 1-2.
On June 24, 2020, the College advised the plaintiff that J. Doe 2 was Caroline Torrecampo (“Torrecampo”) and that J. Doe 3 was Amanda Filipe (“Filipe”). The plaintiff, in turn, brought a motion to amend the Statement of Claim to substitute the names of Torrecampo and Filipe for J. Doe 2 and J. Doe 3, respectively. Torrecampo opposed the motion on the principal basis that she did not treat the plaintiff.
Rule 5.04(2) of the Rules of Civil Procedure, RRO 1990, Reg 194 states that “[a]t any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”
Under Rule 26.01, “[o]n motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”
According to Justice Wilson, “[a] party is permitted to replace the pseudonym with the name of the defendant whose identity was not known at the time the claim was issued so long as by reading the Statement of Claim a person with knowledge of the facts could know the true identity of a misnamed party […]. This has come to be called the ‘litigation finger’ test.”
The misnomer analysis requires a critical examination of the pleading at issue. In this regard, Justice Wilson quoted from the decision in Loy-English v. The Ottawa Hospital et. al., 2019 ONSC 6075, as follows:
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 pleading 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.
In the case at bar, the Statement of Claim pleads that the defendants provided cosmetic treatments to the plaintiff’s legs at the College in 2016. The Statement of Claim further pleads that as a result of the negligent treatment, the plaintiff suffered personal injuries.
Torrecampo, for her part, maintained that she did not treat the plaintiff and that the motion should therefore be dismissed. The court rejected this argument as neither here nor there. Justice Wilson confirmed that “[t]he fact that a proposed defendant denies liability is not relevant on this motion.” Indeed, “[t]he arguments of counsel for Torrecampo seem to conflate a defence to a claim with a defence to correct a misnomer. They are quite distinct.”
Justice Wilson determined that the litigation finger clearly pointed at Torrecampo. The remaining issue was whether the amendment would result in non-compensable prejudice. In her affidavit, Torrecampo made the bald assertion that she “would suffer extreme prejudice” if the plaintiff’s motion was granted. Yet, as Justice Wilson stated, “[t]here is an obligation on a proposed party to lead evidence of actual prejudice when opposing a motion to correct a misnomer. Here, Torrecampo has failed to do so. She cannot baldly state there is prejudice and expect that is sufficient.” As a result, the court granted the plaintiff’s motion to correct the misnomer and substituted the name of Torrecampo for J. Doe 2.
Solis is a noteworthy decision because it confirms that a proposed defendant’s denial of liability is not relevant on a motion to correct a misnomer. The decision also demonstrates that where a misnomer is established, a proposed defendant relying on the court’s residual discretion to deny the amendment because of non-compensable prejudice must articulate the prejudice through proper evidence rather than an unsubstantiated assertion.
