The Doctrine of Misnomer Permits Plaintiff to Swap Husband with Wife as Owner of Defendant Vehicle
In my previous post entitled “The Doctrine of Misnomer excuses Solicitor Inadvertence,” I highlighted a case dealing with the doctrine of misnomer, which allowed a plaintiff to introduce a new defendant institution after the limitation period expired, because the plaintiff got the name wrong: however, for all intents and purposes, once the Statement of Claim was served, the “new” defendant would be well aware that the Plaintiff had intentions of coming after them (albeit in the initial phases the plaintiff failed to properly name them).
In this recent court decision, the plaintiff was injured by a limousine. The driver was well known to the plaintiff, and the plaintiff sued the driver, and the driver’s business who the plaintiff believed owned the car in question. Unfortunately, many years later, during the discovery, the defendant asserted that the limousine he was driving was his private limousine (rather than his business limousine), and that the ownership was in his wife’s name. The Plaintiff brought a motion to add the wife, and the motion was granted under the doctrine of misnomer.
What I find odd in this case, however, is that the plaintiff agreed to remove the husband’s business from the action given that the wife was disputing the allegation that the limousine registered in her name was involved in the accident. To me it would have been more prudent to keep both alleged owners in the claim until the ownership issue was resolved. Perhaps the concern was that misnomer is typically applied to swap names and not add names.
Gipson v McCaugherty, 2022 ONSC 3728
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3728/2022onsc3728.html