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Appeal Court Dicta

Civil Litigation - Misnomer ('Litigation Finger')

. Reimer v. City of Toronto [for numbered cites see the case link]

In Reimer v. City of Toronto (Div Court, 2023) the Divisional Court considered the law of 'misnomer' (aka 'litigation finger'):

[9] The Master correctly summarized the principles that apply to substitution of a party (or parties) on the basis of misnomer (Decision, paras. 10-12). He correctly determined that the question before him was whether an “objective and generous reading of the pleading would demonstrate the “litigation finger” is pointing at the proposed defendant.”[2]

[10] The Master then reviewed the statement of claim and concluded that it did not point the “litigation finger” at Maple-Crete. This finding turned on his reading of para. 4 of the statement of claim, which reads:
... As the bus came to a stop, [the plaintiff] stepped down carefully and prudently onto the sidewalk and, suddenly, without warning, she slipped on ice on the unmaintained sidewalk. She was able to stand and proceeded to cross the roadway in the crosswalk and violently fell to the ground a second time on the unmaintained roadway, causing her to sustain serious personal injuries.
[11] The Master found that the statement of claim did not particularize alleged breaches of duty that distinguish between the roadway and the sidewalk. I agree with this finding but conclude that it does not assist in the misnomer analysis: if the plaintiff had no basis to understand that there were separate contractors for the sidewalk and the roadway, it would be unreasonable to expect the plaintiff to plead these issues separately for the sidewalk and the roadway. More significant, though, is the Master’s finding that paragraph 4, quoted above, (i) alleges that the plaintiff’s “serious personal injuries” were caused by the fall on the roadway, and (ii) does not allege injuries caused by the fall on the sidewalk. This reading of the claim is objective, and not ungenerous. The claim alleges that the plaintiff was injured when she fell crossing the street. It points the “litigation finger” at Crupi, but not at Maple-Crete.

[12] I see no error in principle in the master’s statements of principle, and his finding that the litigation finger was not pointed at Maple-Crete is supported by his “objective and generous” reading of the statement of claim.
. Lemyre v. Residential Energy Saving Products Inc. et al

In Lemyre v. Residential Energy Saving Products Inc. et al (Div Court, 2022) the Divisional Court considered the law of misnomer:
[18] In his decision, reported at 2019 ONSC 7378, Ramsay J. determined this was an “obvious case of misnomer.”

[19] At para. 7, he cited the test in Davies v. Elsby Brothers Ltd. [1960] 3 All ER 672, which was accepted by the Supreme Court of Canada in Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1974] S.C.R. 1111:
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.
. Lloyd v. Clark

In Lloyd v. Clark (Ont CA, 2008) the Court of Appeal deals with a situation of misnomer of parties:
[1] We agree with the appellants that the motion judge erred by refusing their request that the title of proceedings be corrected to name the Regional Municipality of Durham (“Durham”) as a defendant in place of the Town of Ajax and the Corporation of the Town of Whitby pursuant to s. 21(2) of the Limitations Act, 2002, S.O. 2002, c. 24.

[2] Section 21 of the Limitations Act provides:
Adding party

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding. 2002, c. 24, Sched. B, s. 21(1).


(2) Subsection (1) does not prevent correction of a misnaming or misdescription of a party. 2002, c. 24, Sched. B, s. 21(2).
[3] We agree with the submission that on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. Moreover, there was clear evidence that Durham immediately knew that it was the intended defendant given the letter sent by Durham’s insurance adjustor to the plaintiff’s solicitor upon receipt of the statement of claim.

[4] 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. See Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1973]S.C.J. 120 (S.C.C.); Kitcher v. Queensway General Hospital, 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305 (C.A.) and J.R. Sheet Metal & Manufacturing Ltd. V. Prairie Rose Wood Products, 1986 ABCA 4 (CanLII), [1986] A.J. No. 7 (C.A.).

[5] Accordingly, the appeal is allowed, the order under appeal is set aside and in its place an order shall issue substituting the Municipality of Durham as defendant for the Town of Ajax and the Corporation of the Town Whitby. The appellant does not seek costs.


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