Theralase Technologies Inc. v. Lanter, 2021 ONSC 943 (“Theralase”) is an Internet defamation case that contains a small, but noteworthy, comment on the use of pseudonyms and the law of limitations.
The plaintiffs obtained default judgment against several unidentified defendants, including Matthew Singer, using the pseudonym “Truenorthstrong,” for defamatory statements published on the Internet. The court later ordered the substitution of the pseudonyms for the real names of the defendants, without prejudice to their ability to challenge the default judgment. Singer then brought a motion to set aside the default judgment against him.
The court will consider several factors on a motion to set aside default judgment, such as whether the defendant has an arguable defence on the merits. Mr. Singer asserted, among other things, a limitations defence. The court dismissed Mr. Singer’s motion.
According to Justice Myers, a defendant cannot hide his identity and then take the position that he ought to have been sued earlier:
On the merits, Mr. Singer raises limitation defences that are weak at best. In view of the proven, substantial efforts of the plaintiffs to locate Mr. Singer, it is not open to him to conceal his identity and then argue that the plaintiffs ought to have found him sooner or sued him before it did. There is no obligation to sue a John Doe [defendant].
The use of a pseudonym (e.g. John Doe or Jane Doe) is an accepted practice to guard against the expiry of a limitation period when a plaintiff does not know the real name of a defendant. Yet, under section 5(1) of the Limitations Act, 2002, SO 2002, c 24, Sch B, the clock does not start to run until, among other things, the person with the claim first knew, or ought to have known, “that the act or omission was that of the person against whom the claim is made.” Theralase confirms that there is no obligation to commence a lawsuit against a John Doe or Jane Doe defendant.
However, where one wrongdoer is identified and others are not, which was the situation in Theralase, the limitation period does run against the identified wrongdoer. Therefore, when the action is started against the identified wrongdoer, the other wrongdoers can and should be joined by pseudonyms and their true identity can be substituted when they are identified. This approach avoids a later motion to add a party, which might otherwise be opposed on the basis of limitation period arguments. Additionally, as held in the earlier decision in this same case in Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, it is possible to obtain orders for substituted service and a default judgment against a defendant named by pseudonym while efforts continue to determine the true identity.
