Misnomer Legal Issues

Misnomer Legal Issues

If a party sues or is sued under the false legal name such as ROLEPET LTD as opposed to ROLEPET CO LTD, the courts may consider this to be an abuse of language. Misuse of language in law means an error in the name of a person, place or thing, or in the use of a false name to refer to a person or thing. Misuse occurs when a correct part is named incorrectly, not when there is an error in the identity of the part. See U.S. legal definition. What happens when there is abuse of language is that there is an error in the name of the person who is suing or has been prosecuted. Essentially, the right person is brought to justice under a false name. See NJOKU V. U.A.C (1999) 12 NWLR (PT. 632) 557. The doctrine of abuse of language appears to be applied generously enough in most cases to allow litigants to add (or, more accurately, “replace”) litigants to the dispute, usually well in advance of the alleged two-year limitation period. The doctrine allows a procedural act to be amended to indicate that a person named in a claim is in fact another person, or to reflect the fact that a person or entity generically identified in the claim is in fact a specific person or entity.

Although it is the law, the courts, in exercising their discretion in this regard, must carefully consider the facts of the case – in particular, the courts must take into account the intention of the party who made the error – that is, the fact that the name to sue or be sued is a legal person. Thus, as in the example above, it is clear that ROLEPET CO LTD, which the plaintiff sought to sue, is undeniably a legal person. In MAERSK V. ADDIDE INVESTMENT LTD. (2002) 4 SC (PT. 11), p. 157: The Supreme Court held that “.. However, the fact that an accused person is not a legal person does not prevent the Court from changing the title of the action to indicate the exact name of the party sued if it is established, to the satisfaction of the court, that it is an abuse of language. It can be argued that if false names are used in the proceedings, e.g. ROLEPET LTD as opposed to ROLEPET CO LTD, the former name is not a legal entity. Legal personality may be established only by the enabling law. It can be the constitution or a law.

If the law provides for a particular name in a particular way, a party must bring an action or be sued under that particular name and under no other name. See ANYAEGUNAM V OSAKA (2000) 5 NWLR (PT. 657) 386. In ONYEKWULUNNE V NDULUE (1997) 7 NWLR (PART 512) 250 @ 270 – 271 H â A, it was stated that a non-legal person cannot sue or be sued, let alone an injunction can be imposed on it. Specifically, Justice Mohammed at 565 Para B-C noted in NJOKU V.U.A.C. FOODS (1999) 12 NWLR (PART 632) 557 that: “An amendment to replace a non-legal person with a corporation is not feasible at all and must be rejected. There was nothing to replace. See also FAWEHINMI V. NBA (2) (1993) 4 N.W.L.R.

(PART 290) 719. 3 The test for determining whether a change is due to an abuse of language or the addition of a new defendant is whether the “disputed finger” is pointed at the defendant proposed in the application; In other words, would a person with knowledge of the facts know the true identity of an incorrectly named party by reading the complaint? If so, the defendant will be compensated unless there is damage that cannot be compensated by costs or deferral (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakovsky et al. v. Mount Sinai Hospital et al.

(1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] undated No. 1525). The alleged expiry of a limitation period cannot be considered a “disadvantage” if the original claim was brought against the falsely named defendants within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305). If a judge must consider and determine whether a name correction should be allowed, the judge will determine whether the person whose name is requested for change knew or ought to have known that the disputed finger was pointed at them all along. If the trial mentions “Bob” and Bob is later discovered as a simple short name for Robert, the judge will consider whether Bob knew “Bob” meant Robert. If the facts suggest that Bob knew all along that Bob was the person being prosecuted, only under the false name “Bob” and not under the legally correct name of Robert, then it is highly unlikely that Bob would be available to avoid trial by fighting only the name change.

This legal principle was explained in Lemyre v. Residential Energy Saving Products Inc., 2019 ONSC 7378, and 5004514 Ontario Inc. v. Poonawalla, 2022 ONSC 1423, while he said: 19. f. Communication to the defendant within the limitation period cannot be decisive in deciding whether or not there is an abuse of language, for the simple reason that, as already mentioned, there is no obligation to serve a defendant within the limitation period. The question is not whether the defendant knew he was being sued, but whether he would have known if the claim had been interpreted fairly. Kil One defendant cannot be replaced by another on the pretext of abuse of language. See PFIZER INCORPORATED V MOHAMMED (2013) 16 N.W.L.R (PT.1379) 155, AT 174.

24 Even if the plaintiff knew the identity of the defendant (e.g., the name of the emergency room as in Ormerod or the correct municipality as in Lloyd v. Clark, 2008 ONCA 343 (CanLII), 2008 O.J. No. 1682 (CA)), the plaintiff (or defendant, as noted above) always replace the correct name of the defendant despite the expiry of the limitation period. The knowledge of the defendant or the possibility of finding does not affect the examination of the abuse of language, subject to the discretion of the courts (Skribans v. Nowek, 2012 ONSC 532 (Mast.), paragraph 37). [24] The Court of Appeals held that the doctrine of abuse of language applies regardless of the expiration of a limitation period and that due diligence is not required: Rule 124 of the Texas Rules of Civil Procedure provides that no judgment may be rendered against a defendant without proper service. This rule is usually not a problem in case of incorrect designation, because the correct defendant is served even if the service was made under the wrong name. Wilkins v.

Methodist Health Care Sys., 108 pp.3d 565, 570 (Tex. App. – Houston [14th Dist.] 2003, revised for other reasons, 160 pp.3d 559 (Tex. 2005). However, in the context of false identification, this rule raises the possibility of dismissing all applications and/or setting aside a judgment if the applicant does not complete service of the summons on the correct entity once it discovers its error. Id., pp. 570-72. The use of a pseudonym does not give carte blanche to circumvent the limitation period. While the statute does not limit the common law`s understanding of erroneous terms and retains the power of the court to correct them, it prohibits the addition of parts where the limitation period has expired. Distinction is crucial.

This is the difference between correcting the claim to correctly name a part already included in the claim and adding a new part. We wanted to give an introduction or reminder to the law on abuse of language, because this topic often comes up in product liability cases. In response to the application, the plaintiff invoked the doctrine of abuse of language to amend the statement initiating proceedings to replace Maple and Royal as defendants instead of John Doe Maintenance Company. 108 In the case of allegations contained in an application within the meaning of Spirito, vagueness and vagueness make it difficult, if not definitive, to conclude that there has been an abuse of language. The general assertions are ripe for the “moving target” argument and contradict the “process finger” test. The Court is also entitled to consider whether the medical record identified the defendants by name. The delay in attempting to amend the claim by using an improper term must be accompanied by an adequate explanation. All these factors were described by Master Abrams in Parody v.

Fenwick [2004] O.J. No. 3352. (Uriah, points 107 to 108). The dissenting opinion of Justice Kelsey (also author of Richmond v.