Misnomer Motion Granted Despite Plaintiff’s Knowledge of Correct Defendant

The doctrine of misnomer is quite broad. In the recent decision of Scace v. Withers et al., 2020 ONSC 90, the plaintiff knew the name of a home renovation contactor that he alleged to be negligent, but named the contractor in the statement of claim as a pseudonym, “XYZ Contractor”.

The court permitted the plaintiff to substitute the correct name of the contractor, Cezanne Homes, in place of XYZ Contractor.

The plaintiff is a homeowner who alleges that his home sustained structural damage as a result of his neighbours’ renovation work. Cezanne Homes had a sign on the site that included its name.  Further, after the plaintiff complained of the structural damage, he was copied on emails with Cezanne Homes. Moreover, the plaintiff was present when Cezanne Homes inspected the property.

An affidavit of a law clerk at the plaintiff’s lawyer’s office indicated that counsel was not aware of the identity of Cezanne Homes at the time the claim was issued. In light of the contrary information of the plaintiff’s knowledge of Cezanne Homes, Master Sugunasiri gave no weight to this.

Master Sugunasiri outlined the applicable law as follows:

[13] Traditionally, the law of misnomer was quite narrow, permitting a plaintiff to correct minor spelling errors in a defendant’s name as long as the defendant had been served with the claim. The original law of misnomer is reflected in section 21 of the Limitations Act, 2002 which states that if a limitation period in respect of a claim against a person has expired, the claim shall not be pursued against that person by adding her to an existing proceeding. The rule does not prevent the correction of a misnaming or misdescription of a party. The policy behind the rule was clearly that a plaintiff should not be precluded from pursuing a claim due to typographical or other minor error. If the defendant knew that he was being sued notwithstanding the error, form should not triumph over substance.

[14]  The law has evolved significantly since then. Plaintiffs can now rely on misnomer to substitute the names of defendants who are known, or can readily be known to the plaintiffs, and who have no idea that they have been sued until the plaintiff serves them with the misnomer motion, subject to the existence of non-compensable prejudice or other factors that warrant the court’s protection.

[15] Most recently the test is whether within the limitation period, Mr. Scace has demonstrated an intention to sue Cezanne Homes, and whether a reasonable principal of Cezanne Homes, with all of his knowledge and in all of the circumstances of the case, would know from reading the Claim that Cezanne Homes is an intended defendant. This second portion is often described as the “litigation finger test”. Even if a plaintiff meets this test, the court retains residual discretion to deny the relief having regard to all the circumstances of the case.

Based on the allegations in the claim, Master Sugunasiri held that the plaintiff intended to sue the contractors responsible for the home renovation project, including Cezanne Homes.

Further, Master Sugunasiri was satisfied that, on reading the claim, Cezanne Homes would know that it is at least one of the intended defendants.

Lastly, Master Sugunasiri was satisfied that Cezanne Homes would not be prejudiced, stating: “Sometimes delay in bringing the misnomer motion causes non-compensable prejudice and warrants the court’s protection of the proposed defendant. In this case, I find no significant delay nor delay that would prejudice Cezanne Homes”.

Therefore, the plaintiff’s misnomer motion was granted.