When Can An Incorrectly Named Defendant Be Corrected?

Name Corrections Are Generally Allowed Unless Changing a Name Would Actually Be Adding a Name or Unless the Person the Lawsuit Is Aimed At Would Be Surprised Whereas If It is Plain and Obvious Who the Case Is Pointed Towards Then the Person Should Be Without Any Surprise or Prejudice.

Understanding When An Incorrect Name As a Misnomer May Be Amended or Corrected Within the Course of Litigation

Imposed Contract Changes Mistake of name in a lawsuit is fairly common and usually only a minor concern that is easily corrected. It happens usually become a person sued is known by a nickname or middle name and until the lawsuit is underway, details of the formal legal name of the person were unknown. It also happens when suing a business as it is common that a business will actually have various operating names or company divisions and it is difficult to know at the outset of a lawsuit which is the correct name or entity that should be involved. Although corrections of names is usually done, getting the name right in the beginning does help save time and money.

Courts usually allow name corrections when necessary and reasonable. Most often the correction is done on Consent of the parties and is merely a formality, a rubber stamping; however, sometimes contention does arise and a Judge is needed to review the situation. When reviewing, the Judge considers whether the person incorrectly named knew, or ought to know, meaning be without surprise, that the lawsuit is indeed about them. If it is plain and obvious who the actual person the lawsuit is about, and the only concern is that that person's name was spelled wrong, or a nickname used, or other minor error, the amendment will almost always be granted. Additionally, the amendment is usually granted retroactively as if done correctly from the very beginning of the case. This retroactive aspect is commonly referred to using the Latin term nunc pro tunc, which means now for then.

The Law

If a Judge is needed to review and consider whether a name correction should be allowed, the Judge will look at whether the person whose name is sought for change knew, or ought to know, that the litigating finger was pointed towards them the whole time.  Essentially, if the lawsuit names "Bob", and Bob is later discovered as a merely short name for Robert, the Judge will review whether Bob knew that "Bob" meant Robert. If the facts indicate that Bob would know all along that Bob was the person being sued, just being sued under the incorrect name of "Bob" rather than the legally proper name of Robert, then it is highly unlikely that Bob will be available to avoid the lawsuit merely by fighting against the name change.  This principle of law was explained in Lemyre v. Residential Energy Saving Products Inc.2019 ONSC 7378, as well as 5004514 Ontario Inc. v. Poonawalla, 2022 ONSC 1423, whereas it was stated:

[7]  This is an obvious case of misnomer. The test in Davies v. Elsby Brothers Ltd., [1960] 3 All ER 672 was accepted by the Supreme Court of Canada in Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1973] SCJ No. 120. It is:

How would a reasonable person receiving the [statement of claim] take it?   If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong.” Then there is a case of mere misnomer.  If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries,” then it seems to me that one is getting beyond the realm of misnomer.

[8]  In the circumstances there is a strong case that the named defendant is the employer. There is evidence that the proposed defendant was also the employer. There is no prejudice in allowing the plaintiff to plead both.

[9]  The proposed defendant must have known upon reading the statement of claim, “Of course it must mean me.” It operated through the same human beings as the named defendant at the same address. It hired the same lawyer to defend this action. The employer is entitled to arrange its corporate structure as it pleases but the employee is only responsible to serve notice of her complaint in such a way as to bring enough knowledge to the employer to let it defend the claim. She does not have to name the defendant with legal precision.

[10]  For these reasons, I gave leave to the plaintiff to amend the statement of claim as asked.

[16]  The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA:

3  The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the "litigating finger" is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim?  If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as "prejudice" where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305).

[17]  More recently in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, relied on by the Defendants and Kaizer, MacLeod J. provided an updated summary of the law of misnomer, including the applicable test:

19…e. To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the "litigation finger" is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.

Additional law about misnomer, including the concern as to whether the amendment of a name is actually an attempt to add a name after a limitation period is expired, a limitation period being the time limit allowed for commencing a lawsuit, is found within the cases of The Estate of Alice Mae Mundell v. Sienna Senior Living Inc., 2019 ONSC 6650, and Tschirhart v. Grand River Hospital, 2019 ONSC 6650, whereas in each it was respectively said:


Pleadings Amendments Generally

[8]   Rules 26.01 and 26.02 state:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

26.02 A party may amend the party’s pleading,

(a)  without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

(b)  on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or

(c)  with leave of the court.

[9]   Rule 5.04(2) provides that at any stage of a proceeding the court may add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[10]  Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), 2001 CarswellOnt 3139 (C.A.) at para. 37Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).

[11]  The Court of Appeal summarized the law on leave to amend motions in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42:

[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., [2009] O.J. No. 2642, 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 37.

The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 1996 CanLII 8109 (ON SC), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), revd (1999), 1999 CanLII 3051 (ON CA), 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7105 (ON SC), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.

Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, 1996 CanLII 1762 (ON CA), [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), [2006] O.J. No. 669, 2006 CanLII 5135 (C.A.), at para. 6.

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 1996 CanLII 36 (ON CA), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.

Law of Misnomer

[12]  Glustein J. explained the distinction between Rule 26.02 and Rule 5.04(2) in Loblaw Properties Limited v. Turner Fleischer Architects Inc., 2018 ONSC 1376:

11  Unlike a motion to amend, a party is not seeking to amend a pleading under Rule 26.02 when it asks the court to apply the doctrine of misnomer. Instead, under Rule 5.04(2), the title of a proceeding is corrected. No changes to the pleadings need to be made.

12  To conflate Rule 26.02 and Rule 5.04(2) is contrary to the principles in Mazzuca v. Silvercreek Pharmacy Ltd, 2001 CanLII 8620 (ON CA), 2001 CarswellOnt 4133 (Ont. CA). Cronk J.A. referred to "the difference in language between the two rules [which] suggest that the drafters of the rules intended to preserve for the courts under subrule 5.04(2) a discretion to permit or deny amendments relating to a change of parties" (at para. 26).

[13]  The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA:

3  The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the "litigating finger" is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim?  If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as "prejudice" where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305).

[14]  More recently in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, MacLeod J. provided an updated summary of the law of misnomer, including the applicable test:

19…e. To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the "litigation finger" is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.

[15]  As Glustein J. held in Loblaw, limitation period defences do not apply:

13  The distinction between Rule 5.04(2) and Rule 26.02 is further demonstrated by the settled law that limitation period defences do not apply to a motion to correct a misnomer. Due diligence of the plaintiff (or a defendant) would be irrelevant. Even if a party knew of the existence of the proper name of the defendant, an incorrect name or a John Doe pleading based on no pleaded knowledge of the defendant can still be cured at any time provided the "litigating finger" test is met and there is no non-compensable prejudice arising from the misnomer (Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1, 17, 19Skribans v. Nowek, 2012 ONSC 532 at paras 30, 34, 41).

24  Consequently, even if the plaintiff knew the identity of the defendant (e.g. the name of the emergency room as in Ormerod or the proper municipality as in Lloyd v. Clark, 2008 ONCA 343 (CanLII), 2008 O.J. No. 1682 (CA)), the plaintiff (or the defendant, as I discussed above) could still substitute the proper name of the defendant despite the passage of the limitation period. Knowledge of the defendant or discoverability does not impact the analysis on misnomer, subject to the courts' discretion (Skribans v. Nowek, 2012 ONSC 532 (Mast.), at para. 37).

[16]  MacLeod J. provided the following guidance regarding the effect of notice in Loy-English:

19…f. Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.

g. Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

h. Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.

[21]  The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA 762 (CanLII) at paragraphs 3-4:

"3  The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the "litigating finger" is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim?  If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as "prejudice" where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305).”

[22]  Ontario courts have regularly cited the following test from Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672 (Eng. C.A.) at p. 676:

“The test must be: How would a reasonable person receiving the document take it?  If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong". Then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.” (Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 (CanLII) at para. 11Spirito v. Trillium Health Centre, 2008 ONCA 762 (CanLII) at para. 12Mohabir v. Mohabir, 2014 ONSC 5484 (CanLII) at para. 13Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534 (CanLII); aff’d 2018 ONCA 601 (CanLII) at para. 19).

[23]  In Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 (CanLII), O’Connell H.K. J. emphasized the importance of assessing the Statement of Claim to determine if there is a “litigating finger” as opposed to “a moving target”, cautioning against vagueness and non-specificity:

107  It is clear that an assessment of the statement of claim is required to analyze whether the case falls within the misnomer category. This assessment will define whether a litigating finger is in play or if the claim aims itself at a moving target. Where fictitious names are used, such as John or Jane Doe, it is the assessment of whether the proposed defendant knew that he/she was the intended defendant that becomes seminal in the analysis.

108  When dealing with allegations in a claim as stated in Spirito, vagueness and non specificity weigh heavily if not definitively against a finding that misnomer is present. General assertions are ripe for the 'moving target' argument and are contra the 'litigating finger' test. The Court is likewise entitled to refer to whether medical records would have identified the defendants by name. Delay in seeking to amend the claim by resort to misnomer must be accompanied by a reasonable explanation. All of these factors were considered by Master Abrams in Parody v. Fenwick [2004] O.J. No. 3352.” (Urie at paras. 107-108).

[24]  The Court of Appeal has held that the doctrine of misnomer applies notwithstanding the passage of a limitation period and that due diligence is not required:

1 On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period.

19  If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff’s solicitor’s file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply.” (Stechyshyn v. Domljanovic, 2015 ONCA 889 (CanLII) at paras. 1 and 19).

Interestingly, the concern for correcting or amending a name may relate to either a Plaintiff or a Defendant.  In the case of Truscott et al v. Co-operators General Insurance Company et al, 2021 ONSC 7307, the Plaintiff was accidentally named personally, rather than per the name of the corporation owned by the Plaintiff.  This incorrect name became an issue whereas the corporate entity, rather than the human person, was who suffered a loss and who was covered by insurance.  In reviewing the principles of correcting the name of a Plaintiff, and doing so after expiry of a limitation period, the ruling in Truscott stated:

[20]  Rule 5.04(2) of the Rules of Civil Procedure provides that at any stage of a proceeding the court may add, delete or substitute a party or correct the name of a party incorrectly named on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[21]  Section 21(1) of the Limitations Act, 2002 prohibits the adding of a party to existing litigation if the limitation period relating to that party has expired.

[22]  However, section 21(2) states that section 21(1) does not prevent the correction of a misnaming or misdescription of a party which in effect allows for the correction of a misnomer even if the limitation period otherwise expired.

[23]  The issue is whether this is a case of a misnomer of the plaintiff Truscott.

[24]  The leading decision is that of Mazzuca v. Silverplate Pharmacy Limited, 2001 Canlii 8620. The facts are quite similar to the facts of this case.

[25]  In Mazzuca, the plaintiff brought a claim in her own name for damages relating to a fire but the damages were sustained not by her personally but by her corporation. The court affirmed the motions judge’s decision which allowed the amendment to substitute the corporation as plaintiff  for her personally as the error was a misnomer.

[26]  Similar to this case, that action was mistakenly brought in the name of the personal plaintiff. There was no conscious decision to name her personally rather than the name of her company as counsel always intended and was instructed to bring the action to recover damages sustained to the business.

[27]  Most significantly, the defendant always understood that it was the owner of the business who was suing it for damages and on that basis, correcting the misnomer had no impact on the defendant. There was no new cause of action being asserted and no new facts were being alleged.

[28]  The Ontario Court of Appeal in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 confirmed that where the new Limitations Act, 2002 applied, the effect of section 21(1) was to abolish the doctrine of special circumstances. Section 21 of the Act precludes the addition of parties to an existing action after the expiry of the limitation period.

[29]  The Ontario Court of Appeal recently in Lee v. Richcraft Homes Ltd2019 ONCA 7 at para. 20 refers to Mazzuca still being the law of Ontario in particular (with the abolition of the doctrine of special circumstances) because of the concurring reasons of Laskin, J.A. in that case.

[30]  Laskin, J.A. in Mazzuca confirmed that the court when considering a motion under Rule 5.04(2) should grant the amendment where the opposite party has not been misled or substantially injured by the error or in other words, has not suffered prejudice that cannot be compensated for by costs or an adjournment.

[31]  Laskin, J.A. confirmed that the judge hearing the motion to add or substitute a party under Rule 5.04(2) has a discretion to refuse the amendment even where no non-compensable  prejudice would result from allowing it. Laskin, J.A. referred to the Supreme Court of Canada decision of Ladouceur v. Howarth 1973 CanLII 30 (SCC), [1973] S.C.J. 120 (S.C.C.) where the court  allowed an appeal to add the son as a plaintiff after the limitation period had expired who was injured in a car accident in place of his father who was not injured. The son's lawyer mistakenly started the action in the father's name. Spence, J. confirmed the general principle underlying all of the cases that the court should allow the amendment where the opposite party has not been misled or substantially injured by the error. There was no need to show special circumstances.

[32]  Laskin, J.A. also confirmed at para. 86 that Rule 5.04 (2) is not limited to correcting misnomers but also to correct in proper cases, the naming of the wrong plaintiff by mistake. Cronk, J.A. also similarly confirmed that at paragraph 46 - 49 in her decision.

[33]  The defendants submit that the decision of Streamline Foods Limited v. TransCanada Corporation 2012 ONCA 174 supports their position that this is not a case of misnomer and that the plaintiff’s motion should not be granted.

[34]  I disagree.

[35]  Streamline Foods applied the  following reasoning in Lloyd v. Clark, 2008 ONCA where the plaintiff sought to substitute a defendant to one where the plaintiff sought to substitute or add a plaintiff. Misnomer of plaintiffs and misnomer of defendants are governed by the same principles.

The case law amply supports the proposition that where there is a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer.

[36]  The Court in Streamline Foods refused the proposed amendment to add the parent corporation of the plaintiff but that decision is distinguishable on the facts. In that case, the plaintiff was attempting to add its parent corporation as a plaintiff, not substitute it for itself, so that the proposed parent corporation could claim some damages not being claimed by the original plaintiff. The plaintiff was not seeking to correct the name of a party but was seeking to add a party plaintiff so as to pursue that party’s separate claim for damages which would also require additional material facts to be plead to support the parent corporation’s claims.

[37]  The Ontario Court of Appeal in Spirito Estate v. Trillium Health Centre, 2008 ONCA 762 confirmed that the court may correct a misnomer irrespective of whether the Limitations Act applies. That is because no issue of expiry of the limitation period arises when the misnomer is found which includes both misnaming and misdescription of a party.

[38]  In Greater Toronto Airports Authority Association Inc. v. Foster Wheeler Limited, 2010 ONSC 5891 the court applied the principle of misnomer to allow the plaintiff’s amendment when the wrong corporate entity was named as plaintiff.

[39]  Similarly, the court in in Christopher Callow v. Tammy Salinger et al., 2017 ONSC 5992 followed Mazzuca and applied the principles of misnomer to correct the name of the plaintiff who was named personally and replace it with his company when it was his company that was the party to the contract.

[40]  I also accept the reasoning of O’Bonsawin, J. in Callow that this case involves one of misnomer similar to that of Mazzuca as compared to the decision of Veerella v. Khan, [[2009] O.J. No.6347 SC aff’d [ 2009] O.J. No. 4111( Div. Ct.)

[41]  The decision of Picov and Picov Farms Limited v. Generac Power Systems Inc. et al. 2020 ONSC 852 also allowed the plaintiffs to amend their statement of claim claiming damages because of a fire to remove them as plaintiffs and substitute in their place a different legal entity as the new plaintiff when it was discovered that it owned the property in question.

[42]  I agree with the following reasoning of Justice Dawe in Picov:

…my principal difficulty with Veerella is that Mr. Sproat appears to have treated the Ontario Court of Appeal decision in Mazzuca as having become entirely overtaken by the subsequent changes to the Limitations Act that eliminated the common law doctrine of special circumstances. While I agree that  Cronk J.A.’s decision in Mazzuca about using rule 5.04(2) to add plaintiffs whose claims would otherwise be statute barred has indeed be superseded by the new legislation, I do not think that the statutory commitments go so far as to overturn her holdings concerning the expanded scope of the doctrine of misnomer. As discussed above, a number of subsequent decisions of this Court have treated this latter aspect of Mazzuca as still good law and as still binding and I agree with this interpretation.

[43]  R. Smith, J in Maxrelco Inc.v. Jim Pattison Industries Limited, 2016 ONSC 3182 also followed Mazzuca in granting the plaintiff’s motion to correct the misnomer of its name to the correct name of the corporate plaintiff where plaintiff’s counsel’s evidence was that she intended to sue and believed she had sued in the name of the owner of the property of the plaintiff.

[44]  I find that in this case, plaintiff’s counsel naming Joseph Truscott rather than Truscott PC  was a misnomer or misdescription of the proper plaintiff.

[45]  The issue then is whether or not I should exercise my discretion to permit a correction or refuse the motion.

[46]  The important question in this case is whether or not the defendant Co-operators has been misled or unduly prejudiced in any way. It is clear that they have not as they were aware at the outset of the fire and since that date that Truscott PC was the named insured and proper plaintiff to make the claim. The statement of claim is clear that  the claim for damages under the commercial/business insurance policy is that of the chartered accountancy business which is Truscott PC rather than Truscott personally. The defendants have not been misled and in fact have conceded in their examination for discovery that they have suffered no prejudice.

[47]  I do not accept the submission of defendants’counsel that the defendants will suffer prejudice if the motion is granted as the defendants may not be able to make a claim for costs against Mr. Truscott personally. They would not have been able to claim costs against Truscott personally in the first place if Truscott PC was named from the outset nor is there any suggestion that the plaintiffs Truscott PC and 121 Ontario cannot satisfy any potential award for costs.

[48]  The fact that plaintiffs’ counsel did not immediately bring this motion after receipt of the statement of defence in May  2018 and not until January 2020 after the defendants brought their motion for summary judgment in September 2019 is a  factor I have considered in the exercise of my discretion. However, it is not a determining one.

[49]  As Laskin,  J.A. confirmed in Mazzuca, the distinction whether the mistake in naming the wrong plaintiff was unintentional or a deliberate and informed decision is not helpful and should not dictate the result. The focus should be on the prejudice caused by the mistake regardless of its characterization.

[50]  In Ormerod. v. Strathroy Middlesex General Hospital et al (2009) 2009 ONCA 697 (CanLII), 97 O.R. 321, the statement of defence delivered in June 2003 pled that the defendant Dr. Ferner did not treat the plaintiff who was treated by another emergency room physician.

[51]  In December 2004 on the examinations for discovery, the defendant Dr. Ferner confirmed that it was Dr. Graham who treated the plaintiff.

[52]  In July 2008, three and a half years later, Dr. Ferner brought a motion for summary judgment to dismiss the action against him.

[53]  Two days later,  the plaintiff then brought their motion to amend the statement of claim to substitute for the name of the defendant Dr. Ferner misnamed as a party with the correct naming of the defendant Dr. Graham.

[54]  The motion judge’s decision allowing the plaintiff to amend the statement of claim based on Dr. Ferner being a misnomer for Dr. Graham was upheld by the Court of Appeal. The court confirmed that the motion judge’s remedy was a correction of the misnaming or misdescription of the doctor rather than a substitution of Dr. Graham as a defendant for Dr. Ferner. The correction of the misnomer does not involve the substitution of one defendant for another.

[55]  The court at paragraph 31 confirmed that as the concept of misnomer has been broadened to apply to a wider range of situations, the standard used to permit its correction should take into account the extent of its departure from mere irregularity in all the circumstances of the case. The court found that whether the defendant was misled or unduly prejudiced were undoubtedly factors deserving of the greatest weight and as a general principle, should be determinative but this is not an inflexible rule.

[56]  Similarly in this case, there is no prejudice to the defendants because of plaintiffs’ counsel not bringing this motion on their receipt of the statement of defence and before the alleged limitation period in January 2019 or until after being served with the defendants’ motion for summary judgment. The amendment to the name of the proper plaintiff Truscott PC will result in no alteration of the nature of the claims against defendants and there are no new facts, causes of action or claims for relief alleged against the defendants who have always been aware of the name of the proper plaintiff  being Truscott PC since the date of the fire.

[57]  These factors are more significant than the threshold of prejudice factors under rule 5.04(2) that cannot be compensated by costs or an adjournment.

Conclusion

[58]  For these reasons, an order is granted that Joseph A. Truscott Chartered Accountant a Professional Corporation be added as the plaintiff in this action in the place and stead of Joseph Truscott and that the title of proceedings in the statement of claim be amended as noted in Schedule A of the plaintiffs’ fresh as amended motion record.

Intended Misnomer

In some circumstances, a Plaintiff may need to begin a lawsuit before knowing the actual name of the Defendant.  In such circumstances, a Plaintiff may issue the lawsuit by naming the Defendant as John Doe or Jane Doe.  When a John Doe or Jane Doe is named as a Defendant, the Plaintiff, upon learning the actual name at a later date, may seek to amend the lawsuit documents so to properly name the previous incorrect name.  With this said, a Plaintiff must often act quickly and diligently in the effort to direct the lawsuit documents towards the actual person so to ensure that the actual person becomes aware that the litigating finger is pointed toward the actual person.  This issue was explained well in the case of Reimer v. Toronto (City), 2020 ONSC 1661, where it was said:

[9]  The principles applicable to misnomer are well settled in Ontario. The doctrine recognizes that a pleading may be amended to reflect that a person named in a statement of claim is actually another person or the person identified in a generic manner as John Doe or similar is actually a specific person. Misnomer does not add a party to an action. It inserts a new name into an action as a substitute for another named party. See Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 at paragraphs 99 and 101.

[10]  The law of misnomer is well summarized in the recent decision of Justice MacLeod in Loy-English v. Ottawa Hospital, 2019 ONSC 6075. The applicable principles are summarized at paragraph 21 of that decision as follows:

a. When a plaintiff does not know precisely who to name as defendants it is permissible to name unidentified defendants by way of a pseudonym. It would be better to bring transparency to this practice by naming them as "certain unidentified physicians collectively referred to as Dr. Doe" but the use of "Dr. Doe" or "Dr. X" is a practice that the courts have accepted as appropriate shorthand.

b. It is not necessary to name multiple Dr. Doe's and to precisely guess how many defendants to implicate. Providing the claim is drafted in a manner to identify what allegations are made against individuals filling specific roles, the "litigation finger is divisible" and may point at more than one unknown defendant.

c. Unlike a claim relying on discoverability to postpone the running of the limitation period, use of a pseudonym and subsequent correction of a misnomer is not subject to a due diligence requirement and will not be defeated by mere delay.

d. Use of a pseudonym does not give carte blanche to get around the limitation period. Although the Act does not narrow the common law understanding of misnomer and preserves the power of the court to correct it, it does prohibit addition of parties if the limitation period has expired. The distinction is critical. It is the difference between correcting the claim to properly name a party already included in the action and adding a new party.

e. To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the "litigation finger" is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.

f. Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.

g. Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

h. Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.

i.  is not useful for misnomer motions to be decided based on technicalities or vagaries of pleading. The object of pleading analysis should not be one of looking for traps, tricks or loopholes. We should not be engaged in the legal equivalent of "whack a mole" or "gotcha". Rather, the question in every case should be whether it is reasonable and just to allow the pleading amendment and whether it is permitted by the governing legislation.

Summary Comment

The law on correcting an incorrectly named person appears relatively clear where the issue is merely whether a person named should be corrected because the name is incorrect; however, where the issue of correcting a name may actually be a backdoor effort to adding a new name or adding a new person after expiry of a limitation period, the case law becomes more complicated; however, generally, where the issue is simply that a person was named incorrectly and an amendment is sought to correct the incorrect name, the courts will allow the correction and apply the correction retroactively as if correct from the start.

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