Misnomers And Misdescriptions: The 'Litigation Finger Test' To The Rescue!

In the last month, the Court of Appeal decided two cases based on the "litigation finger test".1 The litigation finger test can assist a plaintiff in cases of misdescription or misnomer of a party. If the test is met, the plaintiff may be permitted to correct its mistake and "add" the intended person as a party (in correcting the name of the party incorrectly named), even after the expiry of the limitation period.2

The Litigation Finger Test

The original "litigation finger test" was formulated by Lord Devlin in Davies v Elsby Brothers, Ltd. He stated:

The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong". Then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer.3

However, the law on this point has evolved since Lord Devlin's decision in Davies, and the current approach in Ontario has been summarized by the Court of Appeal as follows:

where there is a coincidence between the plaintiff's intention to name a party and the intended party's knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer.4

In applying the litigation finger test, the court is not limited to considering what the intended party would know, but may, in addition, consider the knowledge of the intended party's representatives (such as the party's insurer or lawyer) when they received the statement of claim.5

Even where the test is met, the court retains a residual discretion (under Rule 5.04(2) of the Rules of Civil Procedure) to refuse to permit the correction of the misnomer.6 The Court of Appeal stated the following about the court's residual discretion:

[31] As I see it, as the scope of what the courts treat as a misnomer broadens, it is appropriate to take a wider view of the court's discretion to refuse the correction of a misnomer. A "classic" misnomer, one in which the claim contains a minor spelling error of the defendant's name and is personally served upon the intended but misnamed defendant, prompts the application of a standard historically developed to remedy mere irregularities. Now...