COURT OF APPEAL FOR ONTARIO

DATE: 2003-08-12 DOCKET: C39754

RE: LARRY BOURQUE and DOROTHY BOURQUE (Plaintiffs (Respondents)) - and - ST. JOSEPH'S HEALTH CENTRE, DOCTOR GLEN McDONALD, DOCTOR M. WOOD, DOCTOR SIGMUND KRAJDEN, DOCTOR FRANK WELLAND, DOCTOR ANTHONY PETRASEK, DOCTOR JOHN DOE NO. 2 and DOCTOR JOHN DOE NO. 3 (Defendants (Appellants))

BEFORE: ABELLA, ROSENBERG, GOUDGE JJ.A.

COUNSEL: Peter M. Callahan, for the plaintiff (respondents) Larry Bourque Monique Jilesen, for the defendant (appellants) Dr. Petrasek et al

HEARD & ENDORSED: August 12, 2003

On appeal from the order of Justice T. M. Dunn of the Ontario Superior Court of Justice dated March 11, 2003.

APPEAL BOOK ENDORSEMENT

[1] In our view, the test under Rule 26 for substituting Dr. Petrasek for John Doe 1 has not been met. It is far from clear from the Statement of Claim that Dr. Petrasek could have identified himself as having been directly implicated. The only direct reference that the respondent claims points to Dr. Petrasek, is about the positioning of Mr. Bourque for surgery. There is, however, no evidence that Dr. Petrasek did the positioning or was responsible for it.

[2] Given that, there was nothing in the Statement of Claim to point the "litigating finger" at Dr. Petrasek, and he not ought to have been substituted.

[3] Accordingly, the appeal is allowed, the order of Justice Dunn is set aside, and the motion under Rule 26 is dismissed with costs fixed in the amount of $2,000.