Ontario: two notable misnomer decisions

Master Short’s decision in Frederica Mitchell v. John Doe is notable for its comprehensive summary of misnomer principles.

So too is Master Short’s decision in Livska v. Molina .  It’s an example of the circumstances where the court grants misnomer relief while granting leave to the correct party to plead a limitations defence.  Usually, misnomer relief means the correct party can’t plead a limitations defence because misnomer relief is a correction, not an addition or substitution (although the Court of Appeal is inconsistent on this point).  This means that the correct defendant was always a party to the proceeding, just misnamed, and if the proceeding was commenced in time, there can be no limitation defence for the correct defendant.

In Livska, the plaintiff named Molina, the alleged perpetrator of an assault, as a defendant.  Molina didn’t defend, and the plaintiff noted her in default.  Subsequently, the sister learned that Molina’s sister may have participated in the assault.   Master Short granted misnomer relief on the basis that Molina, correctly named, was in fact both herself and her sister.  Because Molina didn’t defend the action, whether the plaintiff’s proceeding was timely remained a live issue.

Ontario: the principles of misnomer

Master Muir’s decision in Martin v. Doe is worth reviewing for its summary of the principles of misnomer:

[26]      The plaintiff also relies on the doctrine of misnomer in support of the relief she is seeking on this motion.

[27]      The law relating to misnomer has been carefully considered in recent years by the Court of Appeal. See Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital2009 ONCA 697 (CanLII) and Spirito v. Trillium Health Centre2008 ONCA 762 (CanLII). Misnomer requires a finding that the litigation finger be clearly pointed at the intended defendant. Would a reasonable person receiving and reviewing the statement of claim, in all the circumstances of the case, and looking at it as a whole, say to himself or herself “of course it must mean me, but they have got my name wrong”? The Court of Appeal adopts this test at paragraph 12 of Spirito, where the court states as follows:

12     In Dukoff et al. v. Toronto General Hospital et al. (1986), 1986 CanLII 2648 (ON SC), 54 OR (2d) 58 (HCJ), Saunders J. noted the practice, adopted in this case, of using fictitious names where the identity of the parties are unknown.  If it was a case of misnomer, the statement of claim could be corrected by replacing the fictitious name (John Doe in that case) for the correct name, even though the correction was sought after expiry of the limitation period.  He adopted the following test from Davies v. Elsby Brothers, Ltd., [1960] 3 All ER 672 (CA), 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.

[28]      It must also be noted that even if a plaintiff is successful in establishing misnomer, the court retains a residual discretion under Rule 5.04(2) to refuse the proposed substitutions. This part of court’s analysis on a motion like this one is described by the Court of Appeal in Ormerod at paragraphs 28 to 32 as follows:

28     The framework put forward by the appellants is correct. After finding there was a misnomer the motion judge had the discretion to refuse to permit its correction. The Rules make this apparent. Cronk J.A. in Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CanLII 8620 (ON CA), 207 DLR (4th) 492, analyzed the wording of the two rules that deal with the court’s authority to permit amendment in detail — rules 5.04 and 26.01. She contrasted their wording to note that rule 5.04(2) uses the discretionary “may” unlike rule 26.01, which uses “shall”; she also considered the history and development of these two provisions. She said at para. 25:

        • Under both rules, a pleadings amendment is not to be made if non-compensable prejudice would result. In contrast to rule 26.01, however, the language of subrule 5.04(2) imports a discretionary power rather than a mandatory direction.

29     At para. 42 she added that “proof of the absence of prejudice will not guarantee an amendment”. She also cited the discussion of the inter-relationship of the two rules in Holmested and Watson, Ontario Civil Procedure, Vol. 2 (Toronto: Carswell, 1993). The current edition states at p. 5-34:

  •      the same threshold test applies to a motion to amend under either rule 26.01 or rule 5.04(2) and the moving party must demonstrate that no prejudice would result from the amendment that could not be compensated for by costs or an adjournment; once this threshold test is met, under rule 26.01 the granting of leave is mandatory; however, where it is sought to add parties under rule 5.04(2) the court has to discretion whether to allow the amendment, notwithstanding that the threshold test is satisfied.

30     While the authors refer only to “adding” parties, the permissive “may” in rule 5.04(2) grammatically applies to the correction of the name of a party incorrectly named in exactly the same way as it does to the addition, deletion, or substitution of a party.

31     As I see it, as the scope of what the courts treat as a misnomer broadens, it is appropriate to take a wider view of the court’s discretion to refuse the correction of a misnomer. A “classic” misnomer, one in which the claim contains a minor spelling error of the defendant’s name and is personally served upon the intended but misnamed defendant, prompts the application of a standard historically developed to remedy mere irregularities. Now that 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.

32     The factors the motion judge applied in this case, whether the defendant was misled or was unduly prejudiced, are undoubtedly deserving of the greatest weight. As a general principle, these factors should be determinative. A general principle, however, is not an inflexible rule. Where the mistake in naming the defendant involves more than a mere irregularity or in any particular case with exceptional circumstances, the court may exercise its residual discretion under the rule to refuse to permit its correction. It may well be that the motion judge took a narrow view of his residual discretion to refuse to permit the correction of the misnomer. However, I am satisfied he realized he had a residual discretion since the factors he applied are broader than the rule’s threshold of prejudice that cannot be compensated by costs or an adjournment. While the motion judge in this case might have inferred that the plaintiffs, after learning Dr. Graham’s identity, did not resolve to proceed against her until July 2008, he did not make that inference.

 [29]      Paragraph 32 of Ormerod makes it clear that prejudice to the proposed substituted defendants is the most important factor on this part of the analysis. Prejudice is also an important consideration based on the clear language of Rule 5.04(2).