Occasionally a Plaintiff will misname a Defendant. In some cases it may be deliberate, such as when a Defendant is truly unknown (in which case they will be named “Jane Doe” or “John Doe” and renamed later when more evidence comes forward), but in other cases the use of an incorrect name might be inadvertent.
This recent case dealt with a Plaintiff who named the wrong institute as a Defendant, despite the Plaintiff’s lawyer having the name of the correct institute in their file. When the claim was served, the incorrectly named Defendant advised the Plaintiff’s lawyer that the Plaintiff was suing the wrong entity. Soon thereafter the Plaintiff brought a motion for an order allowing them to change the Defendant’s name under the doctrine of “misnomer.” The “new” Defendant resisted the requested name change, asserting that it would be tantamount to allowing a claim to be started against them outside the limitation period, and that it would effectively just be excusing the Plaintiff’s lawyer of clear negligence, since the Plaintiff’s lawyer had the correct name in their file, all along.
The doctrine of misnomer allows for names to be changed, and in the easy cases, this is rarely controversial, such as changing a party’s name from “Garth” to “Gareth.” But when it is a change from John to Stewart, what is a court to do, and does the answer change if the lawyer always had Stewart’s name in the file?
Distilled to its core, the answer doesn’t change if the lawyer always had Stewart’s name in the file. The amendment to change the name should be allowed if the claim was started in time, the proposed Defendant knew or ought to have known that the Plaintiff was going to hold them responsible, the words used in the Statement of Claim made it clear to anyone objectively reading the claim that the “target” was the proposed newly named Defendant, there is no irreparable prejudice to the newly proposed Defendant, and the motion to amend was brought in a timely manner. The fact that the Plaintiff’s lawyer may have been negligent in not immediately naming and serving the correct Defendant despite having that information in his or her file, is irrelevant.
In this case, the amendment was allowed because all the factors above existed. Since the proposed Defendant had been given two written notices prior to the limitation period, it was difficult for the proposed Defendant to argue that they sustained significant prejudice given that such notices ought to have prompted them to investigate the matter and put their insurer on notice of the pending claim. Indeed, in this case, the proposed Defendant actually met with the Plaintiff in order to discuss the incident. Even though prejudice is presumed when a defendant is brought into an claim after the expiration of the limitation period, given the passage of time, the actual and timely knowledge of the incident which the proposed Defendant had within the limitation period, along with their opportunity to investigate, was “sufficient to overcome such a presumption.”
Cuff v. Toronto Community Care Access Centre, 2022 ONSC 1177
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1177/2022onsc1177.html