Ladouceur v. Howarth

Ladouceur v. Howarth

The misnaming was a mere misnomer; because the solicitor and the defendant's insurer knew the claim was for Paul and were not misled or substantially prejudiced, the amendment to substitute Paul for Conrad Joseph was permissible under Rule 136(1) despite the expiration of the limitation period; the original Local Master order allowing amendment is to be restored.

Citation
[1974] SCR 1111
Parties
Plaintiff Appellant: Paul Ladouceur; Defendant Respondent: Robert Norman Howarth
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
27 August 1973
Procedural Posture
Civil Action Personal Injury (appeal) / Final Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal allowed; order permitting amendment of writ to show plaintiff as Paul Ladouceur restored; plaintiff may apply to Local Master for leave to serve the writ despite lapse of limitation; limited costs order
Legal Topics
Misnomer, Amendment of Pleadings, Rule 136(1) Ontario, Statute of Limitations, Service of Process
Source Language
English
Civil Procedure Torts Insurance Law Misnomer Amendment of Pleadings Rule 136(1) Ontario Statute of Limitations Service of Process

Case Brief

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Parties

Paul Ladouceur

Plaintiff Appellant

Robert Norman Howarth

Defendant Respondent

Procedural Posture

Civil Action Personal Injury (appeal) / Final Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether the misnaming of the plaintiff in the writ was a mere misnomer amendable under Rule 136(1)
  2. 2 Whether substitution of the correct plaintiff may be permitted after the limitation period has expired
  3. 3 Whether the defendant or his insurer was misled or substantially prejudiced by the misnomer

Ratio Decidendi

The misnaming was a mere misnomer; because the solicitor and the defendant's insurer knew the claim was for Paul and were not misled or substantially prejudiced, the amendment to substitute Paul for Conrad Joseph was permissible under Rule 136(1) despite the expiration of the limitation period; the original Local Master order allowing amendment is to be restored.

Court Disposition

Appeal allowed; order permitting amendment of writ to show plaintiff as Paul Ladouceur restored; plaintiff may apply to Local Master for leave to serve the writ despite lapse of limitation; limited costs order

Orders

  • Appeal allowed
  • Order of the Local Master dated March 12, 1970 permitting amendment of the writ to show the plaintiff as Paul Ladouceur restored