ANGLIN v RESLER, 2022 ABQB 231
3.26: Time for service of statement of claim
3.30: Defendant’s options
3.33: Reply to defence
3.62: Amending pleading
3.67: Close of pleadings
3.68: Court options to deal with significant deficiencies
3.74: Adding, removing or substituting parties after close of pleadings
11.31: Setting aside service
This decision examines the use of a John Doe (placeholder) name for a Defendant. The Statement of Claim identified a Defendant as “John Doe.” The Plaintiff discovered the Defendant’s actual identity (Rick Pankiw) and served him with the unamended Claim, telling him: “You are the John Doe in this claim.” The Court in this decision ruled that: (1) Mr. Pankiw was a Defendant from the time the Statement of Claim was filed; (2) service of the Statement of Claim on Mr. Pankiw was effected; and (3) a name-change amendment should be permitted, even though it is not necessary and four years later.
The Court determined that Mr. Pankiw was a Defendant from the start because the Rules define “Defendant” as “a person against whom a remedy is sought in a Statement of Claim” and Mr. Pankiw performed the role attributed to John Doe as laid out in the Statement of Claim and a remedy was sought against him.
The Court reviewed Rule 3.62(1)(a) which allows a party to amend a pleading before pleadings close; when pleadings close is outlined in Rules 3.67 and 3.33. Alternatively, Rule 3.62(1)(b) allows a party to amend after the close of pleadings wither permission to the Court pursuant to the Court’s discretion as laid out in Rule 3.74. The Court confirmed that no Rule requires that a “John-Doe-style” Statement of Claim be amended before it is served.
The Court then assessed how to determine when pleadings have closed where no Statement of Defence is filed. Justice Lema stated a Noting in Default (or Default Judgment) represents the “close of pleadings”, and that therefore, if the Plaintiff wanted to amend, it would have to get the court’s permission in accordance with Rule 3.74 (pursuant to Rule 3.62).
However, the Court confirmed that even under Rule 3.74, it is not mandatory for a Plaintiff to amend to correct the name of a party. The Court determined that, theoretically, if the Plaintiff was in a position to enter judgment (on which the Court made no ruling), the Plaintiff could do so by continuing with the existing “John Doe” style of cause. The Court stated that any name-correcting amendment now was purely “housekeeping”, but not necessary.
The Court noted that, once Mr. Pankiw had been served, he “knew or should have known that he had been identified as a defendant from the start. Once Mr. Pankiw had been served, he had three options pursuant to Rule 3.30: (1) apply to the Court to set aside service in accordance with Rule 11.31; (2) apply to the Court for an order under Rule 3.68 (court options to deal with significant deficiencies in claims); or (3) file and serve a Statement of Defence or Demand for Notice. The Court noted that instead of pursuing any of these options, Mr. Pankiw did nothing.
The Court found that no prejudice had been caused to Mr. Pankiw by the “John Doe” style of cause: the Plaintiff sued Mr. Pankiw from the start (albeit using a John Doe name), served him in a timely way, and made it clear to Mr. Pankiw that he was the Defendant with the Declaration.View CanLII Details