The Test for Misnomer

The court’s decision in Sora et al v. Emerson Electrical Co. et al, 2020 ONSC 1374, provides a summary of the applicable principles when a plaintiff attempts to substitute a defendant into an action based on misnomer. Justice Corkery referred to a previous decision, which stated as follows:

• When a plaintiff does not know precisely who to name as defendants, it is permissible to name unidentified defendants by way of a pseudonym.
• It is not necessary to name multiple unidentified defendants and to precisely guess how many defendants to implicate. Providing the claim is drafted in a manner to identify what allegations are made against individuals filling specific roles, the “litigation finger is divisible” and may point at more than one unknown defendant.
• Unlike a claim relying on discoverability to postpone the running of the limitation period, use of a pseudonym and subsequent correction of a misnomer is not subject to a due diligence requirement and will not be defeated by mere delay.
• Use of a pseudonym does not give carte blanche to get around the limitation period. Although the Limitations Act does not narrow the common law understanding of misnomer and preserves the power of the court to correct it, it does prohibit addition of parties if the limitation period has expired. The distinction is critical. It is the difference between correcting the claim to properly name a party already included in the action and adding a new party.
• To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the “litigation finger” is pointing at the proposed defendant.
• Put another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.
• Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies since there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant knew he or she was being sued but whether, on a fair reading of the claim, he or she would have known.
• Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.
• Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case, it may not be unfair to correct the misnomer once the identity of the other defendant is known, even in the absence of actual notice.
• It is not useful for misnomer motions to be decided based on technicalities or vagaries of pleading. The question in every case should be whether it is reasonable and just to allow the pleading amendment and whether it is permitted by the governing legislation.

Therefore, in order to rely on misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The allegations against the misnamed defendant must be sufficiently clear such that a properly informed defendant would be able to recognize that he or she was the intended defendant.

The court retains discretion to refuse to correct a misnomer when the proposed defendant would be prejudiced. Notice and delay are relevant to the issue of prejudice.