Doctrine of misnomer continues to evolve

by Scott W. Beattie

Scott W. Beattie

Scott W. Beattie

As a result of the new Limitations Act in Ontario, the only way to add a party to an action after the expiry of the limitation period is by using the doctrine of misnomer. The Act requires parties to commence actions within the limitation periods and a failure to do so can be fatal to a claim. The doctrine of misnomer can preserve a litigant’s claim in the event of errors in naming a party at an early stage in the litigation.

In the recent decision of Casselman v. Casselman (2014 ONSC 1267), Justice Tucker used the doctrine of misnomer to add a party to a claim after the expiry of the limitation period.

In Casselman, the Plaintiff was injured when the car in which she was a passenger was struck by an unidentified vehicle. The driver of the vehicle in which the Plaintiff was a passenger was insured by Economical, which was liable for injury and damage caused by unidentified vehicles up to a maximum of $200,000.00. The Plaintiff was independently insured by Aviva who would be liable for any damages in excess of that amount.

Shortly after the accident, the Plaintiff put Economical on notice of a potential claim under the unidentified/uninsured provisions of the driver’s policy. Unfortunately, when the Statement of Claim was issued, it inadvertently failed to name Economical as a defendant. The only insurer named in the action was the Plaintiff’s own insurer, Aviva. The language of the Claim did refer to uninsured, unidentified, and underinsured motorist coverage.

The Plaintiff brought a motion seeking to correct this, but after the relevant limitation period for commencing a claim had expired. The Plaintiff relied on subrule 5.04(2) of the Rules of Civil Procedure, which states 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 costs of an adjournment”, and subsection 21(2) of the Ontario Limitations Act, which allows for the correction of a misnamed or incorrectly described party, even after the expiry of a limitation period. The Plaintiff argued that, despite not being named in the pleading, the “litigating finger” pointed to Economical and the doctrine of misnomer should be applied to allow it to be added to the action.

Economical took the position that this was not a misnomer case, but a substitution case. It argued that adding Economical as a defendant was an improper attempt to add a party when the limitation period had expired.

Justice Tucker used the principles of the doctrine of misnomer and allowed the addition of Economical after the expiry of the limitation period. She held that the Statement of Claim clearly asserted a claim for uninsured/unidentified motorist coverage and that the plaintiff intended at all times to name Economical as a defendant. Furthermore, Economical was put on notice of the claim and received relevant information about it, so there was no prejudice.

The Casselman decision is an example of the evolution of the doctrine of misnomer to apply to the addition of a party. Plaintiffs who fail to properly name defendants in time may find the doctrine of misnomer to be the only arrow left in the quiver in resisting the possible dismissal of their claims.