Can a defendant be added as a misdescription?
Can a defendant be added as a misdescription?
If the test is not satisfied, the amendment would not be permitted as the error would be considered a misdescription. The plaintiff would then have to move to add the proper defendant to the action as a new defendant. Where the limitation period has passed, this may be a useless step. The test has been adopted in Ontario.
Can a lawsuit be filed on the basis of a misnomer?
On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period: see Kitcher v.
Can a defendant be named by a pseudonym?
The plaintiff has named a defendant as John Doe Maintenance Company and it is permissible, if properly pleaded, for that one defendant named by pseudonym to stand in place of more than one person. [15] In my view, however, the key principle to be considered on this motion is described by Justice MacLeod in Loy-English as follows:
Can a court refuse to correct a defendant’s name?
A general principle, however, is not an inflexible rule. Where the mistake in naming the defendant involves more than a mere irregularity or in any particular case with exceptional circumstances, the court may exercise its residual discretion under the rule to refuse to permit its correction.
When to correct a misnomer in a defendant’s name?
The Court of Appeals has explained that: “ [a]n amendment to correct a misnomer in the description of a party defendant may be granted after the expiration of the Statute of Limitations if (1) there is evidence that the intended defendant has in fact been properly served, and (2) the intended defendant would not be prejudiced by the amendment.”
If the test is not satisfied, the amendment would not be permitted as the error would be considered a misdescription. The plaintiff would then have to move to add the proper defendant to the action as a new defendant. Where the limitation period has passed, this may be a useless step. The test has been adopted in Ontario.
Can a plaintiff correct a misnomer on a statement of claim?
The litigation finger test may assist the plaintiff in such cases. If the test is satisfied, then the plaintiff will be permitted to correct the mistake as a misnomer. This would be done by amending the Statement of Claim.
Who is the proper defendant in Crossman v Van Dolan Moore?
In Crossman, therefore, when the plaintiff—who had originally sued and served Van Dolan Moore—discovered after the limitations period that the proper defendant was the son, Van Dolen Moore II, it was too late to add him. Citing Crossman, similar results were reached in: