The trend in modern law is to focus on substance and not on mere form. Errors of process are not intended to defeat otherwise valid claims.
The new Limitations Act forbids adding a party to an existing claim after the limitation period that would run against the party has expired.
But, as today's appeal decision in Lloyd v. Clark, 2008 ONCA 343 makes clear, where the party against whom time has run is already in the claim, albeit misnamed, an amendment to correct the misnomer is to be allowed.
The Court holds:
[2] Section 21 of the Limitations Act provides:
Adding party
21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding. 2002, c. 24, Sched. B, s. 21
...
(2) Subsection (1) does not prevent correction of a misnaming or misdescription of a party. 2002, c. 24, Sched. B, s. 21(2).
[3] We agree with the submission that on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. Moreover, there was clear evidence that Durham immediately knew that it was the intended defendant given the letter sent by Durham's insurance adjustor to the plaintiff's solicitor upon receipt of the statement of claim.
[4] The case law amply supports the proposition that 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. See Ladouceur v. Howarth, [1973]S.C.J. 120 (S.C.C.); Kitcher v. Queensway General Hospital, [1997] O.J. No. 3305 (C.A.) and J.R. Sheet Metal & Manufacturing Ltd. V. Prairie Rose Wood Products, [1986] A.J. No. 7 (C.A.).
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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