The Superior Court decision in Dealer’s Choice Preferred Collision Centre Inc. v. Kircher is noteworthy as an example of a party failing to establish the litigation finger test:
[19] For these reasons, I conclude that the defendants, on receiving and reviewing the statement of claim, would have had no reason to think that the plaintiff pointing the “litigating finger” at them was other than the named plaintiff Dealer’s Choice Preferred Collision Centre Inc.. The plaintiff’s entire action is based on the May 6, 2013 Agreement with the defendants and the negotiated exclusion of Downtown Auto Collision Centre Limited from the Agreement eliminated any possible reason for the defendants to consider that Downtown Auto was the intended plaintiff. The fact that all parties to the May 6, 2013 Agreement were mistaken as to the status of Dealer’s Choice would not have given the defendants any reason to think that they were really being sued by Downtown Auto. The plaintiff is therefore not entitled to the amendment sought, and the motion is hereby dismissed.
