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ARTICLE · 16 OCTOBER 2018

Misnomers And Misdescriptions: The "Litigation Finger Test" To The Rescue!

WeirFoulds LLP
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In the last month, the Court of Appeal decided two cases based on the "litigation finger test".[1] The litigation finger test can assist a plaintiff in cases of misdescription or misnomer of a party.

CanadaLitigation, Mediation & Arbitration
Marie-Andrée Vermette
Marie-Andrée Vermette
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In the last month, the Court of Appeal decided two cases based on the "litigation finger test".1 The litigation finger test can assist a plaintiff in cases of misdescription or misnomer of a party. If the test is met, the plaintiff may be permitted to correct its mistake and "add" the intended person as a party (in correcting the name of the party incorrectly named), even after the expiry of the limitation period.2

The Litigation Finger Test

The original "litigation finger test" was formulated by Lord Devlin in Davies v Elsby Brothers, Ltd. He stated:

The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong". Then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to

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