Ontario Superior Court of Justice Applies Misnomer to Substitute Plaintiff

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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. The Statement of Claim describes Picov and Picov Farms as “the owners of a dwelling, outbuildings, land and premises” at the Property. However, according to a land registry search of the Property, on October 31, 2013, title over the Property was transferred to Norman Picov who then transferred title to Robar Residence Corp. (“Robar”). Therefore, when the fire occurred in December 2013, the Property was, in fact, owned by Robar.

Under Rule 5.04(2) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”), “[a]t any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

Justice Dawe referred to the decision of the Court of Appeal for Ontario in Mazzuca v Silvercreek Pharmacy Ltd., 2001 CanLII 8620 (ON CA), which invoked Rule 5.04(2) as follows:

[48] This language addresses misnomer situations and, in the absence of non-compensable prejudice, permits an amendment where it was intended to commence proceedings in one name but, in error, the proceedings were commenced in another name. Similarly, this aspect of the subrule may apply in situations where the plaintiff intended to sue one person but, in error, sued the wrong person. Such cases reflect an irregularity in the nature of a misnomer, which may be relieved against in proper circumstances.

Justice Dawe recognized that the plaintiffs’ counsel had made a mistake in naming Picov and Picov Farms as the owners of the Property in the Statement of Claim, but was not prepared to allow the defendants to leverage that mistake in the “hope that pinning blame for the error on the Plaintiffs’ counsel will give them a windfall of not having to defend the action on its merits.” Indeed, such an outcome would, according to the court, run counter to the general principle of interpreting the Rules “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

In the result, the court substituted Robar as the plaintiff in place of Picov and Picov Farms because it would facilitate “timely and cost effective justice” rather than allowing the defendants to take advantage of a mistake made by the plaintiffs’ counsel in a situation where the proposed amendment would not cause any material prejudice to the defendants.

The decision in Picov Farms is a reminder that the doctrine of misnomer can be applied to correct the misnaming of a plaintiff (along with the more common misnaming of a defendant), and underscores the court’s desire to resolve lawsuits on their substantive merits.