Spirito Estate v. Trillium Health Centre, 2008 ONCA 762

CITATION: Spirito Estate v. Trillium Health Centre, 2008 ONCA 762

DATE: 20081114

DOCKET: C47840

COURT OF APPEAL FOR ONTARIO

Rosenberg, Gillese and Blair JJ.A.

BETWEEN:

Mary Spirito, as estate trustee without a will of the estate of the late Emilio Spirito, and the said Mary Spirito, personally, Christopher Spirito, Lori Ann Bertan, personally, and as litigation guardian of Jessica Katherine Berton, minor

Plaintiffs (Respondents)

and

The Trillium Health Centre, The Credit Valley Hospital, Dr. Christopher Cobourn, Dr. Cameron Gelder, Dr. Allan Kagal, Dr. Lee, Dr. Leigh, Doctors, AB, CD, EF, GH, at one or other of the named defendant hospitals, and nurses IJ, KL, MN AND OP at one or other of the named defendant hospitals

Defendants

Jaan Lilles for the proposed defendants (appellants) Dr. Lancelot Tin and Dr. Adam Mohammed

Stewart C.E. Gillis for the plaintiffs (respondents)

No one appeared for the Trillium Health Centre et al.

Heard: August 12, 2008

On appeal from the order of Justice Katherine van Rensburg of the Superior Court of Justice dated October 3, 2007.

Reasons for Decision

Rosenberg J.A.:

[1] The appellant physicians appeal from the order of van Rensburg J. granting a motion by the plaintiffs to add them as defendants in the action. The appellants submit that the motion judge erred in failing to apply s. 21 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, which they say prohibited the amendment because the applicable limitation period under s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23, had expired. Section 38(3) provides for a limitation period of two years from the death of the deceased.

[2] In my view, the motion judge properly found that this was a case of misnomer and accordingly, that the limitation period had not expired. For the following reasons, I would dismiss the appeal.

THE BACKGROUND

[3] This action arises out of the medical treatment of the late Emilio Spirito. Mr. Spirito passed away on November 9, 2003 while being treated at Credit Valley Hospital. The statement of claim was issued on December 9, 2004. At that time, the plaintiffs named Credit Valley, another hospital, various physicians and nurses, as well as “Doctors AB, DC, EF, GH”. The plaintiffs submit that the appellants Drs. Tin and Mohammed are Doctors AB and DC.

[4] The motion to amend the statement of claim to substitute the appellants for Doctor AB and Doctor CD was brought following discoveries more than two years after Mr. Spirito’s death. The plaintiffs allege that it was only after discoveries and disclosure of an additional medical record that they were able to identify by name the appellants as the two surgeons that were involved in the alleged negligent treatment of Mr. Spirito.

[5] The motion judge, applying the so-called “litigating finger” test, held that this was a case of misnomer. Accordingly, the appellants, although misnamed, had been sued within the two year limitation period provided for in the Trustee Act. She therefore permitted the amendment to the claim.

ANALYSIS

[6] The basic submission of the appellants is that s. 21 of the Limitations Act has abolished the common law doctrine that allowed the addition and substitution of parties after expiry of a limitation period where the plaintiff could show special circumstances. Section 21 provides as follows:

s. 21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

[7] This court has recently dealt with s. 21(1) in two cases. Meady v. Greyhound Canada Transportation Corp., 2008 ONCA 468 was a case where the transition provisions of s. 24 of the Act applied because the act or omission took place before the effective date of the new Act (January 1, 2004) but no proceeding against the person sought to be added as a party had been commenced before the effective date. As a result of the transition provisions, this court held that the former limitation period applied, consequently so did the common law of special circumstances. Section 21(1) of the new Act did not apply. In Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, this court dealt with the application of s. 21 where the new Limitation Act did apply. Speaking for the court, Feldman J.A. held that the effect of s. 21(1) was to abolish the doctrine of special circumstances. As she held at para. 16, “s. 21 of the Act precludes the addition of parties to an existing action after the expiry of a limitation period”.

[8] The appellants in this appeal rely upon Joseph. They submit that s. 19 of the Act preserves the limitation period found in s. 38(3) of the Trustee Act and since the two year limitation period expired, the appellants cannot be added as parties. Finally, they submit that Meady does not apply because the transition provision in s. 24 does not apply.

[9] I would leave to another day the issue of the application of s. 24 to a case where the claim was brought after the effective date but the governing limitation period is one preserved by s. 19. In so doing, I am not determining whether s. 21 applies in this case. I do so because I am satisfied that the result in this case is the same whether or not s. 21 of the Act applies.

Result if the Limitations Act, 2002 Does Not Apply

[10] Prior to the enactment of the Limitations Act, 2002, this court had held that a limitation period does not expire where the statement of claim did not identify the particular defendant by name but otherwise identifies them. The court held in Kitcher v. Queensway General Hospital (1977), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589 (C.A.), at p. 591 as follows:

The appellants’ motion sought to name the defendant correctly not to add him as a party. Dr. Cramer can no more claim the benefit of a limitation period defence than he could if he had been properly named within the prescribed statutory period but not served until after the period had expired. [Emphasis added.]

[11] Similarly, in this case, on the findings of the motion judge, the plaintiffs simply sought to correctly name the appellants, not add them as parties. Thus, no issue of expiry of a limitation period arose. The only issue then is whether the motion judge correctly held that the statement of claim had identified the appellants. Or, put another way, was this a case of misnomer or of adding a party?

[12] In Dukoff et al. v. Toronto General Hospital et al. (1986), 1986 CanLII 2648 (ON SC), 54 O.R. (2d) 58 (H.C.J.), Saunders J. noted the practice, adopted in this case, of using fictitious names where the identity of the parties are unknown. If it was a case of misnomer, the statement of claim could be corrected by replacing the fictitious name (John Doe in that case) for the correct name, even though the correction was sought after expiry of the limitation period. He adopted the following test from Davies v. Elsby Brothers, Ltd., [1960] 3 All E.R. 672 (C.A.), at p. 676:

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 make inquiries”, then it seems to me that one is getting beyond the realm of misnomer.

[13] The motion judge applied the same test in this case. She looked at the statement of claim and particularly paragraphs 15 and 18, which refer to the surgical consult note and the administration of four pints of blood, and concluded that as the surgeons involved in the treatment of Mr. Spirito, the appellants would have known that their conduct was at issue. This was primarily a finding of fact that is entitled to deference in this court. I am satisfied that it was reasonably open to the motion judge to come to the conclusion that she did.

[14] Having found this to be a case of misnomer, the motion judge considered whether the appellants would be prejudiced by the amendment. The appellants did not make any allegation of prejudice, other than the passage of time. The motion judge noted that the appellants did not allege that they were unaware of the claims. There are other circumstances that strongly suggest no prejudice, in particular the fact that Dr. Tin was able to dictate the detailed discharge summary on May 19, 2005, some eighteen months after Mr. Spirito’s death. I see no reason to interfere with the motion judge’s decision.

Result if the Limitations Act, 2002 Does Apply

[15] In my view, the same result follows should s. 21 apply. The opening words of s. 21(1) are: “if a limitation period in respect of a claim against a person has expired”. The effect of this court’s decision in Kitcher is that in a case of misnomer, the limitation period has not expired. Further, s. 21(1) only precludes adding a person as a party, but in the case of misnomer the person is not being added as a party. To repeat a portion of the reasons in Kitcher: “The appellants’ motion sought to name the defendant correctly not to add him as a party.” Finally, s. 21(2) makes it clear that the prohibition against adding a party after expiration of a limitation period in subsection (1) does not prevent the correction of a misnaming of a party. On the facts found by the motion judge, this being a case of misnomer, s. 21(1) did not preclude the amendment: see Lloyd v. Clark, 2008 ONCA 343.

[16] The appellants submit that the test under s. 21(2) relating to misnomer is narrower than the test under the former law. I can see no basis for that assertion. The leading cases in this province such as Dukoff use the term misnomer and in Dukoff, Saunders J. explained that, “A misnomer is a misnaming.” The appellants, however, rely on an excerpt from Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Limitations Act Consultation Group, 1991) that had recommended enacting a provision very similar to s. 21. In the commentary to the recommendation, the Group wrote, at p. 42, “The practice of commencing actions against unnamed defendants (e.g. John Doe) should no longer be necessary with the adoption of the discoverability principle.” The appellants submit that the Legislature’s intention was to do away with the common law of misnomer.

[17] There are two answers to the submission that s. 21 is narrower than the common law understanding of misnomer. First, the Group as part of its recommendation would have included a provision similar to s. 21(2) but only for correction of “a misdescription of a party”. Whatever the distinction between misnaming and misdescription, it seems to me that by including “misnaming” as well as misdescription, the Legislature intended to preserve the established law concerning misnomer as described inter alia in Dukoff. Second, the discoverability principle, now codified in s. 5, may be of no assistance in cases like this where the applicable limitation period, s. 38(3) of the Trustee Act, is preserved by s. 19. This court has held that the discoverability principle does not apply to s. 38(3): Waschkowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.); Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53.

DISPOSITION

[18] Accordingly, I would dismiss the appeal with costs in the amount as agreed of $8,500 inclusive of G.S.T. and disbursements.

Signed: “M. Rosenberg J.A.”

“I agree E.E. Gillese J.A.”

“I agree R. A. Blair J.A.”

RELEASED: “MR” November 14, 2008