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Civil Litigation - Misjoinder. Dealer’s Choice Preferred Collision Centre Inc. v. Kircher
In Dealer’s Choice Preferred Collision Centre Inc. v. Kircher (Div Ct, 2021) the Divisional Court considered an appeal of a R5.04(4) motion to add, delete or substitute a party:[2] The Associate Justice cited the applicable Rule (R.5.04(2)) and the governing principles set out in the jurisprudence: Sorokataya v. Keith, 2010 ONSC 4453 and Corp. of Township of North Shore v. Grant, 2018 ONSC 503. The Associate Justice then summarized the applicable principles as follows:… where a plaintiff seeks to amend or substitute the name of a defendant on the basis that the defendant has been misnamed, the issue is whether the intended defendant was given notice of the claim and ought reasonably to have known that the plaintiff’s “litigating finger” was pointed at them (Sorokataya, para. 9). Where, as in this case, a plaintiff seeks to amend or substitute another entity for itself, the issue is whether the “new” plaintiff was an intended plaintiff when the action was commenced and the defendant reasonably ought to have been aware of which entity was pointing its litigating finger in its direction (North Shore v. Grant, para. 23). [emphasis in original] (Decision, para. 11) This statement of principle is correct. See also Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 OR (3d) 768 (CA), paras. 48-49.
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