{"id":681,"date":"2018-03-02T19:28:51","date_gmt":"2018-03-02T23:28:51","guid":{"rendered":"http:\/\/limitations.ca\/?p=681"},"modified":"2018-03-02T19:28:51","modified_gmt":"2018-03-02T23:28:51","slug":"ontario-the-principles-of-misnomer","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=681","title":{"rendered":"Ontario: the principles of misnomer"},"content":{"rendered":"

Master Muir’s decision in Martin v. Doe<\/em><\/a> is worth reviewing for its summary of the principles of misnomer:<\/p>\n

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[26]\u00a0\u00a0 \u00a0\u00a0\u00a0The plaintiff also relies on the doctrine of misnomer in support of the relief she is seeking on this motion.<\/p>\n

[27]\u00a0\u00a0 \u00a0\u00a0\u00a0The law relating to misnomer has been carefully considered in recent years by the Court of Appeal. See\u00a0Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital<\/em>,\u00a02009 ONCA 697 (CanLII)<\/a>\u00a0and\u00a0Spirito v. Trillium Health Centre<\/em>,\u00a02008 ONCA 762 (CanLII)<\/a>. 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 \u201cof course it must mean me, but they have got my name wrong\u201d? The Court of Appeal adopts this test at paragraph 12 of\u00a0Spirito<\/em>, where the court states as follows:<\/p>\n

12<\/strong>\u00a0 \u00a0\u00a0 In\u00a0Dukoff et al. v. Toronto General Hospital et al.<\/em>\u00a0(1986),\u00a01986 CanLII 2648 (ON SC)<\/a>,\u00a054 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.\u00a0 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.\u00a0 He adopted the following test from\u00a0Davies v. Elsby Brothers, Ltd.,\u00a0<\/em>[1960] 3 All ER 672 (CA), at p. 676<\/span>:<\/p>\n

The test must be:\u00a0 How would a reasonable person receiving the document take it?\u00a0 If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: \u201cOf course it must mean me, but they have got my name wrong\u201d. Then there is a case of mere misnomer.\u00a0 If, on the other hand, he would say:\u00a0 \u201cI cannot tell from the document itself whether they mean me or not and I shall have to make inquiries\u201d, then it seems to me that one is getting beyond the realm of misnomer.<\/p>\n

[28]\u00a0\u00a0 \u00a0\u00a0\u00a0It must also be noted that even if a plaintiff is successful in establishing misnomer, the court retains a residual discretion under\u00a0Rule 5.04(2)<\/a>\u00a0to refuse the proposed substitutions. This part of court\u2019s analysis on a motion like this one is described by the Court of Appeal in\u00a0Ormerod<\/em>\u00a0at paragraphs 28 to 32 as follows:<\/p>\n

28\u00a0<\/b>\u00a0\u00a0 \u00a0The 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\u00a0Rules<\/i>\u00a0make this apparent. Cronk J.A. in\u00a0Mazzuca v. Silvercreek Pharmacy Ltd.,<\/i>\u00a02001 CanLII 8620 (ON CA)<\/a>,\u00a0207 DLR (4th) 492, analyzed the wording of the two rules that deal with the court’s authority to permit amendment in detail —\u00a0rules 5.04<\/a>\u00a0and\u00a026.01<\/a>. She contrasted their wording to note that\u00a0rule 5.04(2)<\/a>\u00a0uses the discretionary “may” unlike\u00a0rule 26.01<\/a>, which uses “shall”; she also considered the history and development of these two provisions. She said at para. 25:<\/p>\n