If a Person Is Incorrectly Named In a Lawsuit Can the Name Be Corrected Later?

Names In a Lawsuit Can Usually Be Corrected If the Person Being Sued Reasonably Knew That They Were the Person Being Sued.

Understanding When An Incorrect Name May Be Corrected Within the Course of Litigation

Imposed Contract Changes Mistake of name in a lawsuit is fairly common and usually only a minor concern that is easily corrected. It happens usually become a person sued is known by a nickname or middle name and until the lawsuit is underway, details of the formal legal name of the person were unknown. It also happens when suing a business as it is common that a business will actually have various operating names or company divisions and it is difficult to know at the outset of a lawsuit which is the correct name or entity that should be involved. Although corrections of names is usually done, getting the name right in the beginning does help save time and money.

Courts usually allow name corrections when necessary and reasonable. Most often the correction is done on Consent of the parties and is merely a formality, a rubber stamping; however, sometimes contention does arise and a Judge is needed to review the situation. When reviewing, the Judge considers whether the person incorrectly named knew, or ought to know, meaning be without surprise, that the lawsuit is indeed about them. If it is plain and obvious who the actual person the lawsuit is about, and the only concern is that that person's name was spelled wrong, or a nickname used, or other minor error, the amendment will almost always be granted. Additionally, the amendment is usually granted retroactively as if done correctly from the very beginning of the case. This retroactive aspect is commonly referred to using the Latin term nunc pro tunc, which means 'now for then'.

The Law

When the issue of whether to allow a correction of a name arises, generally the question a Judge needs to decide is whether the person incorrect named knew, or ought to know, that the lawsuit was actually aimed at that person.  If the person knew they were the target of the lawsuit, then the person is unable to feign obliviousness to the allegations and hide from the lawsuit.  Essentially the Judge will take a 'you knew it was you' perspective.  This issue recently came up in the case of Lemyre v. Residential Energy Saving Products Inc.2019 ONSC 7378 where the Judge specifically said:

[7]  This is an obvious case of misnomer. The test in Davies v. Elsby Brothers Ltd., [1960] 3 All ER 672 was accepted by the Supreme Court of Canada in Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1973] SCJ No. 120. It is:

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.

[8]  In the circumstances there is a strong case that the named defendant is the employer. There is evidence that the proposed defendant was also the employer. There is no prejudice in allowing the plaintiff to plead both.

[9]  The proposed defendant must have known upon reading the statement of claim, “Of course it must mean me.” It operated through the same human beings as the named defendant at the same address. It hired the same lawyer to defend this action. The employer is entitled to arrange its corporate structure as it pleases but the employee is only responsible to serve notice of her complaint in such a way as to bring enough knowledge to the employer to let it defend the claim. She does not have to name the defendant with legal precision.

[10]  For these reasons, I gave leave to the plaintiff to amend the statement of claim as asked.

Further case law on more concerning misnomer issues, such as whether the correction of a name is actually the addition of a name after expiry of a limitation period, being the time limit for starting a lawsuit, is provided in detail within the case of Tschirhart v. Grand River Hospital, 2019 ONSC 6650 wherein various references to numerous past cases were made as follows:

[21]  The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA 762 (CanLII) at paragraphs 3-4:

"3  The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the "litigating finger" is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim?  If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as "prejudice" where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305).”

[22]  Ontario courts have regularly cited the following test from Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672 (Eng. C.A.) 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. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.” (Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 (CanLII) at para. 11Spirito v. Trillium Health Centre, 2008 ONCA 762 (CanLII) at para. 12Mohabir v. Mohabir, 2014 ONSC 5484 (CanLII) at para. 13Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534 (CanLII); aff’d 2018 ONCA 601 (CanLII) at para. 19).

[23]  In Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 (CanLII), O’Connell H.K. J. emphasized the importance of assessing the Statement of Claim to determine if there is a “litigating finger” as opposed to “a moving target”, cautioning against vagueness and non-specificity:

107  It is clear that an assessment of the statement of claim is required to analyze whether the case falls within the misnomer category. This assessment will define whether a litigating finger is in play or if the claim aims itself at a moving target. Where fictitious names are used, such as John or Jane Doe, it is the assessment of whether the proposed defendant knew that he/she was the intended defendant that becomes seminal in the analysis.

108  When dealing with allegations in a claim as stated in Spirito, vagueness and non specificity weigh heavily if not definitively against a finding that misnomer is present. General assertions are ripe for the 'moving target' argument and are contra the 'litigating finger' test. The Court is likewise entitled to refer to whether medical records would have identified the defendants by name. Delay in seeking to amend the claim by resort to misnomer must be accompanied by a reasonable explanation. All of these factors were considered by Master Abrams in Parody v. Fenwick [2004] O.J. No. 3352.” (Urie at paras. 107-108).

[24]  The Court of Appeal has held that the doctrine of misnomer applies notwithstanding the passage of a limitation period and that due diligence is not required:

1 On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period.

19  If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff’s solicitor’s file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply.” (Stechyshyn v. Domljanovic, 2015 ONCA 889 (CanLII) at paras. 1 and 19).

Interestingly, the concern for correcting or amending a name may relate to either a Plaintiff or a Defendant.  In the case of Truscott et al v. Co-operators General Insurance Company et al, 2021 ONSC 7307, the Plaintiff was accidentally named personally, rather than per the name of the corporation owned by the Plaintiff.  This incorrect name became an issue whereas the corporate entity, rather than the human person, was who suffered a loss and who was covered by insurance.  In reviewing the principles of correcting the name of a Plaintiff, and doing so after expiry of a limitation period, the ruling in Truscott stated:

[20]  Rule 5.04(2) of the Rules of Civil Procedure provides that at any stage of a proceeding the court may add, delete or substitute a party or correct the name of a party incorrectly named on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[21]  Section 21(1) of the Limitations Act, 2002 prohibits the adding of a party to existing litigation if the limitation period relating to that party has expired.

[22]  However, section 21(2) states that section 21(1) does not prevent the correction of a misnaming or misdescription of a party which in effect allows for the correction of a misnomer even if the limitation period otherwise expired.

[23]  The issue is whether this is a case of a misnomer of the plaintiff Truscott.

[24]  The leading decision is that of Mazzuca v. Silverplate Pharmacy Limited, 2001 Canlii 8620. The facts are quite similar to the facts of this case.

[25]  In Mazzuca, the plaintiff brought a claim in her own name for damages relating to a fire but the damages were sustained not by her personally but by her corporation. The court affirmed the motions judge’s decision which allowed the amendment to substitute the corporation as plaintiff  for her personally as the error was a misnomer.

[26]  Similar to this case, that action was mistakenly brought in the name of the personal plaintiff. There was no conscious decision to name her personally rather than the name of her company as counsel always intended and was instructed to bring the action to recover damages sustained to the business.

[27]  Most significantly, the defendant always understood that it was the owner of the business who was suing it for damages and on that basis, correcting the misnomer had no impact on the defendant. There was no new cause of action being asserted and no new facts were being alleged.

[28]  The Ontario Court of Appeal in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 confirmed that where the new Limitations Act, 2002 applied, the effect of section 21(1) was to abolish the doctrine of special circumstances. Section 21 of the Act precludes the addition of parties to an existing action after the expiry of the limitation period.

[29]  The Ontario Court of Appeal recently in Lee v. Richcraft Homes Ltd2019 ONCA 7 at para. 20 refers to Mazzuca still being the law of Ontario in particular (with the abolition of the doctrine of special circumstances) because of the concurring reasons of Laskin, J.A. in that case.

[30]  Laskin, J.A. in Mazzuca confirmed that the court when considering a motion under Rule 5.04(2) should grant the amendment where the opposite party has not been misled or substantially injured by the error or in other words, has not suffered prejudice that cannot be compensated for by costs or an adjournment.

[31]  Laskin, J.A. confirmed that the judge hearing the motion to add or substitute a party under Rule 5.04(2) has a discretion to refuse the amendment even where no non-compensable  prejudice would result from allowing it. Laskin, J.A. referred to the Supreme Court of Canada decision of Ladouceur v. Howarth 1973 CanLII 30 (SCC), [1973] S.C.J. 120 (S.C.C.) where the court  allowed an appeal to add the son as a plaintiff after the limitation period had expired who was injured in a car accident in place of his father who was not injured. The son's lawyer mistakenly started the action in the father's name. Spence, J. confirmed the general principle underlying all of the cases that the court should allow the amendment where the opposite party has not been misled or substantially injured by the error. There was no need to show special circumstances.

[32]  Laskin, J.A. also confirmed at para. 86 that Rule 5.04 (2) is not limited to correcting misnomers but also to correct in proper cases, the naming of the wrong plaintiff by mistake. Cronk, J.A. also similarly confirmed that at paragraph 46 - 49 in her decision.

[33]  The defendants submit that the decision of Streamline Foods Limited v. TransCanada Corporation 2012 ONCA 174 supports their position that this is not a case of misnomer and that the plaintiff’s motion should not be granted.

[34]  I disagree.

[35]  Streamline Foods applied the  following reasoning in Lloyd v. Clark, 2008 ONCA where the plaintiff sought to substitute a defendant to one where the plaintiff sought to substitute or add a plaintiff. Misnomer of plaintiffs and misnomer of defendants are governed by the same principles.

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.

[36]  The Court in Streamline Foods refused the proposed amendment to add the parent corporation of the plaintiff but that decision is distinguishable on the facts. In that case, the plaintiff was attempting to add its parent corporation as a plaintiff, not substitute it for itself, so that the proposed parent corporation could claim some damages not being claimed by the original plaintiff. The plaintiff was not seeking to correct the name of a party but was seeking to add a party plaintiff so as to pursue that party’s separate claim for damages which would also require additional material facts to be plead to support the parent corporation’s claims.

[37]  The Ontario Court of Appeal in Spirito Estate v. Trillium Health Centre, 2008 ONCA 762 confirmed that the court may correct a misnomer irrespective of whether the Limitations Act applies. That is because no issue of expiry of the limitation period arises when the misnomer is found which includes both misnaming and misdescription of a party.

[38]  In Greater Toronto Airports Authority Association Inc. v. Foster Wheeler Limited, 2010 ONSC 5891 the court applied the principle of misnomer to allow the plaintiff’s amendment when the wrong corporate entity was named as plaintiff.

[39]  Similarly, the court in in Christopher Callow v. Tammy Salinger et al., 2017 ONSC 5992 followed Mazzuca and applied the principles of misnomer to correct the name of the plaintiff who was named personally and replace it with his company when it was his company that was the party to the contract.

[40]  I also accept the reasoning of O’Bonsawin, J. in Callow that this case involves one of misnomer similar to that of Mazzuca as compared to the decision of Veerella v. Khan, [[2009] O.J. No.6347 SC aff’d [ 2009] O.J. No. 4111( Div. Ct.)

[41]  The decision of Picov and Picov Farms Limited v. Generac Power Systems Inc. et al. 2020 ONSC 852 also allowed the plaintiffs to amend their statement of claim claiming damages because of a fire to remove them as plaintiffs and substitute in their place a different legal entity as the new plaintiff when it was discovered that it owned the property in question.

[42]  I agree with the following reasoning of Justice Dawe in Picov:

…my principal difficulty with Veerella is that Mr. Sproat appears to have treated the Ontario Court of Appeal decision in Mazzuca as having become entirely overtaken by the subsequent changes to the Limitations Act that eliminated the common law doctrine of special circumstances. While I agree that  Cronk J.A.’s decision in Mazzuca about using rule 5.04(2) to add plaintiffs whose claims would otherwise be statute barred has indeed be superseded by the new legislation, I do not think that the statutory commitments go so far as to overturn her holdings concerning the expanded scope of the doctrine of misnomer. As discussed above, a number of subsequent decisions of this Court have treated this latter aspect of Mazzuca as still good law and as still binding and I agree with this interpretation.

[43]  R. Smith, J in Maxrelco Inc.v. Jim Pattison Industries Limited, 2016 ONSC 3182 also followed Mazzuca in granting the plaintiff’s motion to correct the misnomer of its name to the correct name of the corporate plaintiff where plaintiff’s counsel’s evidence was that she intended to sue and believed she had sued in the name of the owner of the property of the plaintiff.

[44]  I find that in this case, plaintiff’s counsel naming Joseph Truscott rather than Truscott PC  was a misnomer or misdescription of the proper plaintiff.

[45]  The issue then is whether or not I should exercise my discretion to permit a correction or refuse the motion.

[46]  The important question in this case is whether or not the defendant Co-operators has been misled or unduly prejudiced in any way. It is clear that they have not as they were aware at the outset of the fire and since that date that Truscott PC was the named insured and proper plaintiff to make the claim. The statement of claim is clear that  the claim for damages under the commercial/business insurance policy is that of the chartered accountancy business which is Truscott PC rather than Truscott personally. The defendants have not been misled and in fact have conceded in their examination for discovery that they have suffered no prejudice.

[47]  I do not accept the submission of defendants’counsel that the defendants will suffer prejudice if the motion is granted as the defendants may not be able to make a claim for costs against Mr. Truscott personally. They would not have been able to claim costs against Truscott personally in the first place if Truscott PC was named from the outset nor is there any suggestion that the plaintiffs Truscott PC and 121 Ontario cannot satisfy any potential award for costs.

[48]  The fact that plaintiffs’ counsel did not immediately bring this motion after receipt of the statement of defence in May  2018 and not until January 2020 after the defendants brought their motion for summary judgment in September 2019 is a  factor I have considered in the exercise of my discretion. However, it is not a determining one.

[49]  As Laskin,  J.A. confirmed in Mazzuca, the distinction whether the mistake in naming the wrong plaintiff was unintentional or a deliberate and informed decision is not helpful and should not dictate the result. The focus should be on the prejudice caused by the mistake regardless of its characterization.

[50]  In Ormerod. v. Strathroy Middlesex General Hospital et al (2009) 2009 ONCA 697 (CanLII), 97 O.R. 321, the statement of defence delivered in June 2003 pled that the defendant Dr. Ferner did not treat the plaintiff who was treated by another emergency room physician.

[51]  In December 2004 on the examinations for discovery, the defendant Dr. Ferner confirmed that it was Dr. Graham who treated the plaintiff.

[52]  In July 2008, three and a half years later, Dr. Ferner brought a motion for summary judgment to dismiss the action against him.

[53]  Two days later,  the plaintiff then brought their motion to amend the statement of claim to substitute for the name of the defendant Dr. Ferner misnamed as a party with the correct naming of the defendant Dr. Graham.

[54]  The motion judge’s decision allowing the plaintiff to amend the statement of claim based on Dr. Ferner being a misnomer for Dr. Graham was upheld by the Court of Appeal. The court confirmed that the motion judge’s remedy was a correction of the misnaming or misdescription of the doctor rather than a substitution of Dr. Graham as a defendant for Dr. Ferner. The correction of the misnomer does not involve the substitution of one defendant for another.

[55]  The court at paragraph 31 confirmed that as 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. The court found that whether the defendant was misled or unduly prejudiced were undoubtedly factors deserving of the greatest weight and as a general principle, should be determinative but this is not an inflexible rule.

[56]  Similarly in this case, there is no prejudice to the defendants because of plaintiffs’ counsel not bringing this motion on their receipt of the statement of defence and before the alleged limitation period in January 2019 or until after being served with the defendants’ motion for summary judgment. The amendment to the name of the proper plaintiff Truscott PC will result in no alteration of the nature of the claims against defendants and there are no new facts, causes of action or claims for relief alleged against the defendants who have always been aware of the name of the proper plaintiff  being Truscott PC since the date of the fire.

[57]  These factors are more significant than the threshold of prejudice factors under rule 5.04(2) that cannot be compensated by costs or an adjournment.

Conclusion

[58]  For these reasons, an order is granted that Joseph A. Truscott Chartered Accountant a Professional Corporation be added as the plaintiff in this action in the place and stead of Joseph Truscott and that the title of proceedings in the statement of claim be amended as noted in Schedule A of the plaintiffs’ fresh as amended motion record.

Summary Comment

The law on correcting an incorrectly named person appears relatively clear where the issue is merely whether a person named should be corrected because the name is incorrect; however, where the issue of correcting a name may actually be a backdoor effort to adding a new name or adding a new person after expiry of a limitation period, the case law becomes more complicated; however, generally, where the issue is simply that a person was named incorrectly and an amendment is sought to correct the incorrect name, the courts will allow the correction and apply the correction retroactively as if correct from the start.

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