Ontario Superior Court of Justice Applies Misnomer to Substitute Plaintiff

In Picov and Picov Farms Ltd. v Generac Power Systems Inc. et al., 2020 ONSC 852 (“Picov Farms”), the Ontario Superior Court of Justice applied the doctrine of misnomer to grant an order amending the Statement of Claim to remove the existing plaintiffs and substitute in their place a different legal entity as the new plaintiff.

On December 25, 2013, a fire occurred in an electrical generator located at 57 Fifth Concession Road East in the Town of Ajax (the “Property”). In December 2015, the plaintiffs, Barry Picov and Picov Farms Ltd. (“Picov and Picov Farms”), commenced an action in time for damages caused by the fire.

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Ontario Superior Court of Justice Summarizes Principles of Misnomer and Discoverability

In Reimer v Toronto (City), 2020 ONSC 1661, the Ontario Superior Court of Justice provided a helpful summary of the analysis that is brought to bear on a motion for an order to correct a misnomer or, in the alternative, to add a proposed defendant after the apparent expiry of a limitation period through discoverability.

The court confirmed that a proper misnomer analysis involves careful scrutiny of the Statement of Claim and that a lack of particulars will weigh heavily against a finding of misnomer.

Where the plaintiff relies on discoverability, the court underscored the plaintiff’s evidentiary burden to provide a reasonable explanation on proper evidence as to why the claim could not have been discovered through the exercise of reasonable due diligence.

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