Naming a New Defendant: Commencing a Separate Action vs. Amending Pleadings

A plaintiff has two options when they fail to name a defendant that they should have included in a lawsuit: they can either commence a separate action against that additional defendant, or they can bring a motion to amend their existing pleadings. However, a recent case highlights the perils of commencing a separate lawsuit instead of amending an existing action.

In Sheikh v Kathuria,[1] the plaintiff gave birth prematurely as a result of injuries she sustained in a motor vehicle collision. Her newborn daughter sustained neurological injuries. Sheikh and her daughter commenced three separate actions seeking damages for her daughter’s injuries.

First, the plaintiffs commenced an action against the other driver involved in the collision. They then commenced a second action against the Brampton Civic Hospital where Sheikh’s daughter was born. Finally, more than two years after the collision, they commenced a third action against The Hospital for Sick Children where Sheikh’s daughter was cared for following birth.

The defendants in the third lawsuit brought a motion seeking dismissal of the action. They took the position that if the plaintiffs wanted to sue them, they must obtain leave of the court to amend their existing pleadings.

The Honourable Justice Myers ruled that commencing a separate action to sue an additional defendant constitutes an abuse of process and an attempt to circumvent the Rules when the following factors are present:

• the claim against the additional defendant is based on the same facts, and gives rise to the same damages, as claims against defendants in an existing action; and

• the plaintiff claims joint and several liability among the additional defendant and defendants in an existing action.[2]

Even when a plaintiff is facing an imminent limitation, amending pleadings is most often the correct route to sue an additional defendant when the above factors are met. Many practitioners fear that a motion to amend will not be heard soon enough and they will miss a limitation period. However, that fear is unfounded. The limitation clock stops ticking once the plaintiff files their motion to amend the pleadings.[3]

In Sheikh v Kathuria, Justice Myers stayed the third action, pending the plaintiffs bringing a motion to amend their existing pleadings.

If a plaintiff improperly commences a separate action to sue an additional defendant there is a risk that the court will find the second action is an abuse of process and will strike the new pleadings or stay the second action. By the time the court strikes the new pleadings, the plaintiff may be out of time to add the additional defendant to the initial action.

Justice Myers explained that the situation is different where there is a separate and distinct claim against the additional defendant. He cited the Ontario Court of Appeal’s decision in Abarca v Vargas.[4] In that case, the plaintiffs commenced an action against one defendant for damages arising out of a motor vehicle collision. The defendant’s automobile insurer took an off-coverage position, so the plaintiffs commenced a second action against the original defendant, Economical Mutual (the plaintiffs’ own automobile insurer), and the defendant’s automobile insurer.

Economical Mutual brought a motion seeking dismissal of the action against it. It took the position that it was an abuse of process for the plaintiffs to commence a new action rather than obtain leave of the court to amend their existing pleadings. The Court of Appeal considered that the plaintiffs’ claim against Economical Mutual involved statutory accident benefits (“SABs”), and that SABs claims can be out of sync with related tort claims. The Court of Appeal concluded that “it is impractical and unnecessary, from the timing standpoint, for the court to insist that any lawsuit over SABs must always be joined with the related tort action.” The Court of Appeal found it was not an abuse of process to commence a separate action against Economical Mutual in relation to the underinsured automobile coverage issue.[5]

While plaintiffs would always prefer to name all necessary defendants from the outset of the litigation, subsequent investigation can reveal new parties. If such a situation arises, the plaintiff must carefully consider the specific facts of their case before they simply commence a second lawsuit. As noted above, failing to do so could result in a dismissal, at which point it could be too late to amend existing pleadings.

[1] 2021 ONSC 3273, at para 28 [Sheikh].

[2] Ibid, at para 28, citing Maynes v Allen-Vanguard Technologies Inc., 2011 ONCA 125.

[3] Becerra v Ronchin, 2016 ONSC 4232 at para 31; Philippine v Portugal, 2010 ONSC 956 at paras 34 and 45.

[4] Sheikh, supra note 1, at para 28, citing Abarca v Vargas, 2015 ONCA 4 [Abarca].

[5] Abarca, supra note 4, at paras 22–27.

About the Authors

Rayanna is devoted to advocating for clients so they can focus on rebuilding their lives. She has seen firsthand the profound impact an injury can have on a victim and their families and believes that navigating a complex legal system should be the least of their worries. Effective communication, compassion and commitment is the cornerstone of Rayanna’s practice.

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