![]() ![]() Would include the knowledge or powers of their insurer, their lawyer and their superiors when they received and reviewed the Limited to considering what the receiving defendant would know, but may, inĪddition, consider the knowledge of the intended party’s representatives. In applying the litigation finger test in Ontario, the court is not 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. Strathroy Middlesex General Hospital as follows: The test has been summarized by the Court of Appeal in Ormerod et al. Where the limitation period has passed, this may be a useless step. The plaintiff would then have to move to add the proper defendant to the action as a new defendant. If the test is not satisfied, the amendment would not be permitted as the error would be considered a misdescription. The effect would be to substitute the proper defendant’s name in place of the incorrectly named defendant. This would be done by amending the Statement of Claim. ![]() If the test is satisfied, then the plaintiff will be permitted to correct the mistake as a misnomer. The litigation finger test may assist the plaintiff in such cases. Did the Statement of Claim point the litigation finger at the right defendant, such that they would know it was meant for them despite the naming error? and became known as the “litigation finger test”. This test was first developed by the English Court of Appeal in Davies v. If, on the other hand, the conclusion reached is that the defendant would not reasonably be able to conclude it was meant for them and would need to make other enquiries, then the mistake is more than a misnomer and would be a misdescription. If the answer is yes, then the misspelling is known as a misnomer. The court, on being asked to correct the name, must determine whether a reasonable defendant in looking at the document as a whole, and in all the circumstances, would conclude that they were, in fact, the defendant. What happens then when the claim is served on the right person but has incorrectly spelled or identified the defendant’s correct legal name? Despite searches and inquiries, the ignorance may continue with the defendant being improperly named in the Statement of Claim. It is not uncommon for a plaintiff to be uncertain about a defendant’s correct legal name. ![]()
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