Case Summary: Scace v. Withers et al., 2020 ONSC 90 (CanLII)

Can you correct a misnomer, in your Statement of Claim, three years after issuing the claim?

The Facts

Neighbour D’s (defendant) household renovations in 2014 lead to their neighbour P (plaintiff) suing the other for damage, caused by the renovations.

P didn’t know the name of all the contractors who had performed the renovation so they named “XYZ Contractor” as one of the defendants.  Their Statement of Claim was started in 2016.

In 2019, P sought to correct the misnomer – i.e. they were not adding a new party but just correcting the name of the defendant (i.e. from XYZ to the specific defendant name).  The defendant contractor contested this motion, in part, by pleading that the limitation period had expired.  This is understandable – i.e. may as well take a shot and try to stop the lawsuit from naming you, properly.

Limitation periods in Ontario are generally two (2) years, after which time you lose the right to sue, forever, except for very specific exceptions (i.e. like discoverability).  So the defendant contractor was arguing that this motion, to correct the misnomer, should have been brought in 2017 or 2018.

Interesting to Note:

• P apparently knew, in 2015, the identity of this defendant contractor, including trading emails with D and the defendant contractor (i.e. when they were emailing each other about problems that had arisen during the renovation);
• D had apparently emailed P, during the limitation period, the name/identity of the defendant contractor; and
• During the renovation, there was apparently signage (i.e. “this job performed by”) of the defendant contractor on D’s lawn, as an advertisement to passersby of their work.

Master Sugunasiri laid out the law of misnomer as follows:

The Doctrine of Misnomer

[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.3F[4]

[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.4F[5] 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.

In this instance, Master Sugunasiri found that the Statement of Claim did particularize its claim / intention against the defendant contractor in such particularity that would have been clear to any reader of their intention.  The misnomer was allowed to be amended.