If you are hurt but don’t know who caused your injuries, are you out of luck if you want to commence a lawsuit? Not necessarily but there are a number of legal issues that arise in these situations which the Ontario Court of Appeal recently explained in its recent Loney v John Doe decision.
In Loney, the plaintiff was involved in a motor vehicle accident and did not know the identity of the driver of the other vehicle and named John Doe as a defendant. John and Jane Doe aren’t particularly negligent people. They are names used as placeholders when the identity of a defendant is unknown when a lawsuit starts. If, during the course of a lawsuit the identity of a defendant is discovered, then the placeholder John or Jane Doe can be changed to the actual name of the defendant, provided that the “litigating finger” test is met and the amendment does not result in non-compensable prejudice which includes the inability to conduct a timely investigation into the accident.
As the Court of Appeal explained, the “litigating finger” test is met if a person with knowledge of the facts of the lawsuit would be aware of the true identity of John or Jane Doe by reading the Statement of Claim. At this point, some might wonder how the “litigating finger” test co-exists with limitation periods (the time by which a party must sue another)? The Court of Appeal answered that question by outlining that so long as the lawsuit against John Doe was brought within the limitation period, if the “litigating finger” test is met, a plaintiff does not need to establish due diligence in its efforts to identify the true name of the defendant.
In Loney, about a year after the lawsuit started against John Doe and the plaintiff’s own insurer, a police motor vehicle accident report identified a witness to the accident. A witness statement was attached to the report along with the witness’ contact information. About three years later, the plaintiff’s lawyer set the action down for trial. In the meantime, the plaintiff’s insurance company obtained a statement from the witness which stated he was the driver of the vehicle that struck the plaintiff’s vehicle and also identified the owner of the vehicle. The plaintiff’s insurance company shared that information with the plaintiff’s lawyer in March 2020. Two and a half years later, the plaintiff brought a motion to add the driver and owner of the vehicle to the claim. The plaintiff’s motion was dismissed, despite the fact the “litigating finger” test had been met.
The Court of Appeal dismissed the appeal. The key finding was the court’s agreement with the motion judge’s decision that the significant delay in attempting to add the names of the driver and owner after learning their identities would render it “unjust” to amend the pleadings. Specifically, the lengthy delay created non-compensable prejudice to the owner and driver. The lawsuit had proceeded for more than nine years. The owner and driver had been denied the opportunity to, amongst other things, conduct examinations for discovery at an early stage of the proceedings.
In summary:
- You can commence a lawsuit even if you don’t know the identity of the defendant;
- The “litigating finger” test has a complex relationship with limitation periods;
- Satisfying the “litigating finger” test does not, on its own, ensure that defendants can be added to ongoing litigation, there must also be an absence of prejudice.
If you have any questions about the complicated relationship between the “litigating finger”, limitation periods, and non-compensable prejudice, Doe(n’t) hesitate to reach out!
