Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to amend the name of a discontinued defendant to add a new proposed defendant via misnomer.

• Court found the remedy of misnomer unavailable because the original named defendant had already been discontinued.

• The motion did not seek to add the new defendant directly, only to amend the existing name, limiting the scope of relief.

• Plaintiff failed to rebut the statutory presumption under the Limitations Act, 2002 that the claim was discoverable on the date of injury.

• Evidence from opposing parties showed plaintiff’s counsel had been advised of the correct party years earlier.

• The court dismissed the motion and awarded partial indemnity costs to the proposed defendant.

Facts and outcome

Onika Julia Coar, the plaintiff, brought a motion seeking to amend the name of one of the defendants in her action—YM Inc. (Sales) operating as Sirens—to La Maison Simons Inc. She claimed this correction was necessary due to a misnomer, arguing that the store involved in her alleged injury was operated by Simons, not Sirens as originally believed.

However, the court noted that Coar had already discontinued her claim against Sirens in October 2024. This was a critical point because the remedy of misnomer is only available where a party has been misnamed but is still actively part of the litigation. Once a party has been discontinued, there is no longer an entity in the pleadings to amend. Therefore, the misnomer doctrine did not apply.

The plaintiff attempted to pivot, arguing that she was within the limitation period to add Simons as a distinct party. However, the notice of motion filed did not include any request to add a new defendant—it sought only to amend the name of an existing one. As a result, the court declined to treat the motion as one to add Simons as a new party.

Even if it had been such a motion, the court found that Coar had not satisfied the burden under the Limitations Act, 2002 to show she did not discover the claim against Simons until recently. The incident giving rise to the claim occurred on November 3, 2019. Under the Act, a plaintiff is presumed to have discovered their claim on the day the injury occurred unless proven otherwise.

The plaintiff did not file an affidavit stating when she became aware of Simons’ involvement. Her lawyer, Mr. Zwiebel, stated only that he saw the name in a defence document served in March 2023, but this was undermined by evidence that Simons was identified in a January 2022 email sent to him by opposing counsel. The lawyer claimed he never received the email, but no supporting evidence was submitted. In fact, the defendants had filed proof of service showing the message was sent to his usual email address.

Based on this record, the court concluded the plaintiff had not overcome the statutory presumption, and the limitation period had likely expired. The motion was dismissed, and the court awarded $2,500 in partial indemnity costs to the proposed defendant, Simons. The decision reinforces the strict procedural requirements for party substitution and the importance of timely and well-supported motions in the context of limitation periods.