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Rajah Lehal

Know who you are suing

October 26, 2016

Discussion: Stekel v. Toyota Canada Inc (2011 Ont SC) 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”). 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 plaintiff’s claim. Moreover, such a misnomer can be corrected after the expiry of the limitation period.

Limitations Act, 2002 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. Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

Parties
Litigation

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.