142 EXCHEQUER COURT OF CANADA [1955] 1955 BRITISH COLUMBIA ADMIRALTY DISTRICT Mar. 21 BETWEEN : Mar. 28 PACIFIC LIME CO. LTD. PLAINTIFF; AND VANCOUVER TUG BOAT CO. LTD. .... DEFENDANT. Shipping—Practice—Amendment of writ and statement of claim to correct misnomer of plaintiff allowed—No costs to either party.
Ex. C.R. EXCHEQUER COURT OF CANADA In a writ and statement of claim plaintiff was described as Pacific Coast Lime Company Limited whereas its correct name is Pacific Lime Cora- Plaintiff now moves to amend both documents by striking out the Co. LTD. word "Coast". Held: That the amendment should be allowed the running of the Statute VAN of Limitations not being a circumstance that should prevent the rection of a misnomer of panties. MOTION to amend a writ and statement of claim. The motion was heard before the Honourable Mr. Justice Sidney Smith, District Judge in Admiralty for the British Columbia Admiralty District at Vancouver. G. F. McMaster for the motion. J. I. Bird contra. SIDNEY SMITH, D.J.A. now (March 28, 1955) delivered the following judgment: The plaintiff, whose right name is Pacific Lime Company Limited, by a solicitor's slip issued a writ and delivered a statement of claim showing its name as Pacific Coast Lime Company Limited. It now applies toamend both documents by striking out the word Coast. There is no actual company having the name used. The defendant opposes the change, because the action is governed by the Water Carriage of Goods Act, under which an action must be brought within one year. The writ was issued within the year, but the period has now expired and the defendant contends that no amendment can now be allowed. Apart from limitations the writ is amendable under Admiralty Rule 9 and the Statement of Claim under Rule 73. At conclusion of argument I had little doubt how the matter should go; but out 'of deference to the argument and authorities presented, thought it well to reserve for further consideration. The defendant cited a number of cases, several of which showed that, after the statutory period had run, amendment should not be allowed if such amendment would, for the first time, permit an action to be maintained that would otherwise be unmaintainab'le. But none of these authorities cover an amendment like the present and I think W. Hill & Son v. Tannerhill (1), (1) [1944] K.B. 472. 143 1955 `—r IC LIME y. T C U O G U B V OA E T R cor-Co. LTD. in the English Court of
144 EXCHEQUER COURT OF CANADA 11955] 1955 Appeal is ample authority for allowing this amendment. PACIFIC There, as here, the plaintiff's name was wrongly given and LIME Co. LTD. a statute of limitations had run. eoüvEa This is really .a case of misnomer, and in another appeal VAx TUGBOAT case Alexander Mountain & Co. v. Rumere Ltd. (1), the Co. LTD. Court approved an illuminating article which shows that Sidney Smitt the 'defendant here 'could have derived no advantage from D.J.A. the plaintiff's name being wrongly given, even if the plaintiff had taken no step to correct it. This 'article also shows that no distinction can be drawn between a corporate plaintiff and an individual as regards misnomer. I find the question came before our own Courts in Russell v. Diplock-I'Wright Lumber Company (2), a case very like this. There the Court of Appeal held that the running of the statute was not a circumstance that should 'stand in the way of merely a correction of a misnomer of parti11s. I therefore allow the amendment. Now as to costs: No doubt the plaintiff ought to pay for its mistakes if they increase the other side's expense. But here the defendant only appeared to raise objections which I have held to be unfounded. This of course counsel had every right to do for it is not 'competent for him to throw away any point his client may have. On the other hand no expense would have been caused to 'defendant had it simply acquiesced in the application. I therefore give no costs to either party. Order accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.