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Rajah Lehal

Errors in your filing can lead to stress

October 27, 2016

Discussion: This case emphasizes the importance of knowing who your counterparty is, in the event that you decide to litigate.

Although the plaintiff in this case was permitted to add the correct party as a defendant after the limitation period had expired, unnecessary litigation expense could have been avoided had the initial filing been done correctly.

The plaintiff was driving a Lexus that had been leased from the defendant, who was carrying on business as Scarborough Lexus Toyota (SLT). At one point the vehicle suddenly hesitated and lurched forward. The driver lost control of the vehicle and got into an accident, which caused her significant physical injuries. In the Statement of Claim, the plaintiffs commenced an action against three defendants: Toyota Canada Inc. (TCI), Toyota Credit Canada Inc. (TCCI) and SLT, seeking damages in the amount of $1,100,000. The plaintiffs alleged that TCI was engaged in the business of manufacturing, servicing and selling automobiles and was the manufacturer of the plaintiff’s motor vehicle. However, TCI was not engaged in the business of manufacturing automobiles and did not manufacture the plaintiff’s vehicle. The car was manufactured by the Toyota Motor Corporation (TMC). The Court of Appeal for Ontario has made it clear that a plaintiff’s pleading concerning a misnomer will be correct where it is apparent (1) that the plaintiff intended to name the defendant; and (2) that the intended defendant knew it was the intended defendant in relation to the plaintiffs claim. Moreover, such a misnomer can be corrected after the expiry of the limitation period. Limitations Act, 2002 s.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. s.21(2): Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

Case Law

Written by Rajah. Rajah Lehal is Founder and CEO of Clausehound.com. Rajah is a legal technologist and technology lawyer who is, together with the Clausehound team, capturing and sharing lawyer expertise, building deal negotiation libraries, teaching negotiation in classrooms, and automating negotiation with software.