Ormerod et al. v. Strathroy Middlesex General Hospital et al.

[Indexed as: Ormerod v. Strathroy Middlesex General Hospital]

97 O.R. (3d) 321

Court of Appeal for Ontario,

Feldman, Juriansz and MacFarland JJ.A.

October 6, 2009

Civil procedure -- Pleadings -- Amendment -- Misnomer -- Plaintiffs in medical malpractice action suing emergency room doctor who treated deceased -- Plaintiffs naming wrong doctor in statement of claim because of misreading of confusing hospital records -- Named doctor and treating doctor having same insurer -- Plaintiffs bringing motion to amend statement of claim to substitute name of treating doctor several years after discovering that doctor's identity -- Motion judge not erring in finding that this was case of misnomer as treating doctor or her representatives would have known that litigating finger pointed at her -- Motion judge having broad discretion to refuse to correct misnomer -- Motion judge entitled to exercise discretion in favour of plaintiffs.

The plaintiffs in a medical malpractice action sued, among others, the emergency room doctor who treated the deceased. Because of a misreading of confusing hospital records, the plaintiffs named the wrong doctor in the statement of claim. The named doctor pleaded in his statement of defence, which was delivered in June 2003, that he did not treat the deceased. In his examination for discovery, held in December 2004, he identified the treating doctor. In July 2008, the plaintiffs brought a motion to amend the statement of claim to substitute the name of the treating doctor for that of the named doctor. The motion judge found that this was a case of misnomer and that the delay in bringing the motion was not a reason for refusing the amendment as the treating doctor suffered no prejudice other than the passing of time. The motion was granted. The defendants appealed.

Held, the appeal should be dismissed.

The treating doctor and the named doctor had the same insurer. Upon receiving the claim, the insurer would have had no doubt that the plaintiffs intended to claim against the emergency doctor who treated the deceased on the occasion in question. The insurer would have known or could easily have ascertained who that doctor was. The treating doctor's representatives and the treating doctor herself would have known that the litigating finger pointed at her. The motion judge did not err in finding that this was a case of misnomer. A motion judge has a broad discretion to refuse to correct a misnomer. There was no reason to interfere with the motion judge's exercise of that discretion in favour of the plaintiffs.

APPEAL from order of Hockin J., [2008] O.J. No. 5339 (S.C.J.) granting leave to amend a statement of claim.

Cases referred to Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672, [1961] 1 W.L.R. 170 (C.A.); Spirito v. Trillium Health Centre, [2008] O.J. No. 4524, 2008 ONCA 762, 69 C.P.C. (6th) 36, 246 O.A.C. 150, 302 D.L.R. (4th) 654, consd Other cases referred to Kitcher v. Queensway General Hospital (1997), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589, [1997] O.J. No. 3305, 73 A.C.W.S. (3d) 220 (C.A.); Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1974] S.C.R. 1111, [1973] S.C.J. No. 120, 41 D.L.R. (3d) 416; Lloyd v. Clark, [2008] O.J. No. 1682, 52 C.P.C. (6th) 41, 2008 ONCA 343, 165 A.C.W.S. (3d) 812, 44 M.P.L.R. (4th) 159; [page322] Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567, 207 D.L.R. (4th) 492, 152 O.A.C. 201, 15 C.P.C. (5th) 235, 109 A.C.W.S. (3d) 880 (C.A.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.04, (2), 26.01 Authorities referred to Holmested, George S., and Gary D. Watson, Ontario Civil Procedure, vol. 2 (Toronto: Carswell, 1993)

John A. Nicholson and Kevin L. Ross, for defendants (appellants). Barbara Legate, for plaintiffs (respondents).

The judgment of the court was delivered by

[1] JURIANSZ J.A.: -- The appellants, defendants in a medical malpractice action, appeal from the motion judge's order granting the plaintiffs leave to amend the statement of claim to substitute the name "S. Graham" in place of "P. Ferner" on the basis of misnomer. The motion judge's order permitting the amendment rendered moot Dr. Ferner's motion for summary judgment that was scheduled to be heard on the same day. The appellants submit that the trial judge erred in allowing the plaintiffs' application in view of the plaintiffs' extraordinary delay in applying to correct the misnomer.

[2] I would dismiss the appeal because there is no basis to interfere with the motion judge's exercise of his discretion under rule 5.04(2), Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"), to allow the plaintiffs' application absent prejudice to the appellants that could not be compensated for by costs or an adjournment.

Background

[3] The plaintiffs, family members of Mr. John Ormerod, commenced a medical negligence action in relation to his death on July 9, 2001. According to the statement of claim issued June 27, 2002, Mr. Ormerod, after injuring himself while lifting and pushing a canoe, was first treated by his family practitioner, the defendant Ian K. Ferguson. Dr. Ferguson prescribed muscle relaxants. Three days later, Mr. Ormerod experienced severe abdominal pain and diarrhoea. He went to the emergency department of the defendant Strathroy Hospital on June 25, 2001 and was later discharged. Mr. Ormerod's symptoms continued. He [page323] re-attended at the emergency department of the Strathroy Hospital and was admitted there, then was sent to St. Joseph's Hospital in London for a CT scan. St. Joseph's Hospital transferred Mr. Ormerod to the Victoria Hospital Campus of the London Health Sciences Centre, where emergency surgery was performed. He died of multi-organ failure on July 9, 2001.

[4] The statement of claim names as defendants the three hospitals and the several doctors who attended to Mr. Ormerod. The radiologist who conducted abdominal views, X-rays and a CT scan and reported they were normal on June 28, 2001 was named as "John Doe". "P. Ferner" is included as a named defendant and identified as the emergency doctor who saw Mr. Ormerod on June 25, 2001. The statement of claim alleges that at the emergency department, Mr. Ormerod "advised hospital staff and emergency doctor (Dr. P. Ferner), of the history and of his complaints". It goes on to allege that "Dr. P. Ferner, the emergency physician discharged [him] . . .".

[5] The fact is that Dr. P. Ferner did not treat Mr. Ormerod at all. The emergency department doctor who saw him on June 25 was Dr. S. Graham. Evidently, the confusion arose because the hospital's emergency department record shows Dr. Ferner's typed name with a single stroke through it and hard to decipher handwriting beside it that is Dr. Graham's name.

[6] Dr. Ferner, in his statement of defence delivered on June 4, 2003, pleaded that he did not treat Mr. Ormerod and that Mr. Ormerod was treated by another emergency room physician. In his examination for discovery held on December 14, 2004, Dr. Ferner explained that his name only appeared on the patient's chart as a result of hospital administration procedures and that Mr. Ormerod had been seen by Dr. S. Graham.

[7] At discoveries, the plaintiffs also learned that the radiologist named "John Doe" in the statement of claim was Dr. Bennett. They brought a motion to add Dr. Bennett as a defendant in the action and to correct the name of the defendant, St. Joseph Health Services Association, to its proper name St. Joseph's Health Care London. The order permitting these amendments was granted on November 8, 2005. As will be discussed later, the appellants lay emphasis on the fact that the plaintiffs chose not to include a request to replace Dr. Ferner with Dr. Graham in this motion and took no action to do so for the next two and a half years.

[8] After more than two and a half years, Dr. Ferner brought a motion for summary judgment that was served on July 15, 2008. Two days later, on July 17, 2008, the plaintiffs served an expert report of a pathologist and in their covering letter indicated that, [page324] on the basis of the report, they intended to "add Dr. Graham" to the action. The plaintiffs then brought their motion to "amend the Statement of Claim to substitute the name of the defendant, Dr. Ferner misnamed as a party, with the correct naming of the defendant, Dr. Graham, along with other more specific allegations of negligence and increased prayer for relief". Both motions came before the motion judge on September 19, 2008.

Decision of the Motion Judge

[9] The motion judge heard and determined the plaintiffs' motion first. He granted leave to the plaintiffs to amend the statement of claim as the plaintiffs requested. This rendered Dr. Ferner's summary judgment motion moot.

[10] The motion judge began [at para. 2] his reasons by setting out rule 5.04(2), which provides:

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[11] The motion judge first rejected the appellants' argument that in reality the plaintiffs' motion was not one to correct a misnomer but one to add Dr. Graham after the expiration of limitation periods. The appellants relied upon the test stated by Devlin J. in Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672, [1961] 1 W.L.R. 170 (C.A.), at p. 676 All E.R.:

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 me a misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they meet me or not and I shall have to make inquiries". Then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer. (Emphasis that of the motion judge)

[12] The motion judge then observed that the "reasonable person receiving the document" or the "recipient of the document" referred to in the Davies v. Elsby Brothers Ltd. test is not restricted to Dr. Graham. Rather, the cases have expanded the test to include the "relevant person" who reviews the document.

[13] As an illustration, the motion judge cited the Supreme Court of Canada's decision in Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1974] S.C.R. 1111, [1973] S.C.J. No. 120. In that case, a writ mistakenly named the father of the intended plaintiff. The Supreme [page325] Court held that the mistake was a misnomer. It was significant that the insurance company of the defendant knew who had been the intended plaintiff. Spence J., writing for the court, viewed the knowledge of the defendant's insurer as much more important than the defendant's own knowledge. He asked what would have been in the mind of the insurance company representative when he received the writ. Upon receiving the writ, the insurer would certainly have known that the plaintiff had been simply misnamed.

[14] Following the logic of Ladouceur, the motion judge included Dr. Ferner, his insurer and his counsel as "relevant persons" as recipients of the statement of claim. These persons would have known a mistake had been made and that the plaintiffs had taken the wrong name from the emergency record of the Strathroy Hospital. Dr. Ferner's insurer and his solicitors knew that the "litigating finger" was pointed at the physician who saw the plaintiff at the hospital on June 25, 2001. Further, Dr. Ferner knew or could easily have discovered that it was Dr. Graham who was the intended defendant. The motion judge observed that Dr. Graham and Dr. Ferner have the same insurer and solicitors. The motion judge concluded [at para. 16] that "the 'litigating finger' pointed at Dr. Graham and that she would have known this, Dr. Ferner did know it and likewise, their representatives in this litigation knew it". Consequently, the motion judge concluded that this was a case of misnomer and not a case of adding a new party.

[15] The motion judge turned to the appellants' second argument -- that the replacement of Dr. Ferner's name with Dr. Graham's should not be permitted because the plaintiffs had not been diligent in moving to correct the misnomer. The appellants argued that six years had passed since the issuance of the statement of claim and almost four years had passed since Dr. Ferner's examination for discovery at which he had sworn it was Dr. Graham who was the emergency doctor who treated Mr. Ormerod.

[16] The motion judge recognized [at para. 18] that there had been the passage of a great deal of time but proceeded on the understanding that "inordinate delay is not a reason for refusing to substitute unless the defendant to be substituted did not have timely notice of the claim and will be unduly prejudiced in preparing a defence to the claim".

[17] As there was no prejudice alleged other than the passage of time, the motion judge granted leave to the plaintiffs to replace the defendant P. Ferner with S. Graham and make the other changes to the statement of claim they had requested. [page326]

[18] The defendants, P. Ferner, T. Tigclelaar, J. Maxted, Ian K. Ferguson, D. Gray and S. Graham appeal to this court. There is no issue as to this court's jurisdiction to deal with the appeal as the motion judge's order is final as far as P. Ferner and S. Graham are concerned.

Issues

[19] The appellants first submit that the motion judge erred by finding that this is a case of misnomer. Second, they submit that if this is a case of misnomer, the trial judge should not have permitted its correction in the circumstances.

Analysis

Misnomer

[20] The appellants rely on Lord Devlin's test in Davies v. Elsby Brothers Ltd. They argue that had Dr. Graham been served with the statement of claim, she would not have said to herself upon her looking at the document, "Of course it must mean me, but they have got my name wrong". The appellants point out that the statement of claim was issued more than one year after Dr. Graham saw Mr. Ormerod in the emergency department. They submit that a reasonable person in Dr. Graham's position would not have remembered Mr. Ormerod's attendance at the emergency department. They observe that Mr. Ormerod reported general run- of-the-mill symptoms. There was nothing unusual or exceptional about his case to make it stand out in the mind of a reasonable emergency physician. They submit that the only conclusion is that a reasonable person in Dr. Graham's position, upon receiving the statement of claim, would have no reason to think that Dr. Ferner had not been correctly named. Without doubt, they say, Dr. Graham would have had to make inquiries in order to discover that she was the real target of the litigation.

[21] In Davies v. Elsby Brothers Ltd., the English Court of Appeal did indeed take a narrow view of what fell within the scope of a "misnomer". The correction sought in that case, to change "Elsby Brothers (a firm)" to "Elsby Brothers Ltd." was in fact refused. Since both entities existed, the court found that it was not a case of misnomer. However, the law has evolved a great deal since the Davies case was decided in 1960. This court recently summarized the current approach at para. 4 of Lloyd v. Clark, 2008 ONCA 343, [2008] O.J. No. 1682, 52 C.P.C. (6th) 41 (C.A.):

The case law amply supports the proposition that where there is a coincidence between the plaintiff's intention to name a party and the intended [page327] party's knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer. See Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1973] S.C.J. No. 120 (S.C.C.); Kitcher v. Queensway General Hospital, 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305 (C.A.) and J.R. Sheet Metal & Manufacturing Ltd. V. Prairie Rose Wood Products, 1986 ABCA 4, [1986] A.J. No. 7 (C.A.).

[22] The motion judge found the facts before him to be indistinguishable from those in Spirito v. Trillium Health Centre, [2008] O.J. No. 4524, 2008 ONCA 762. In Spirito, this court upheld the decision of the motion judge allowing the replacement of pseudonyms with the names of the initially unknown doctors who were the intended defendants. The motion judge had found that the unknown doctors identified by the pseudonyms Doctors AB and CD would have known that the litigating finger pointed at them. Therefore, she concluded the defendant doctors had been simply misnamed.

[23] The appellants sought to distinguish Spirito on the facts. They argued that the medical treatment of the patient in Spirito was highly unusual. The doctors would therefore have remembered the unusual treatment and known from the details in the statement of claim that they were the intended defendants. In this case, the appellants argued that Mr. Ormerod's attendance at the emergency department was of the utmost routine and Dr. Graham could not know from reviewing the claim that she was the intended defendant.

[24] This is a factual argument and must be rejected according to the findings of the motion judge. The motion judge found that Dr. Graham would have known the litigating finger pointed at her. He reached this conclusion after pointing out that in applying the Davies test the court is not limited to considering what the litigant would know, but may, in addition, consider the knowledge of the intended litigant's representatives when they received the statement of claim. Here the motion judge relied on the fact that Dr. Graham had the same insurer as Dr. Ferner. Upon receiving the claim, the insurer would have had no doubt that the plaintiffs intended to claim against the emergency physician who treated Mr. Omerod on June 25, 2001. The insurer would have known or could easily have ascertained that the intended defendant was Dr. Graham. In the motion judge's analysis, Dr. Graham's representative, upon receiving and reading the claim as a whole would have said "of course it must mean Dr. Graham, but they have got her name wrong". Consequently, he found that Dr. Graham's representatives and Dr. Graham herself would have known that the "litigating finger" pointed to her. As the court in Spirito observed, the finding of what the intended defendant would have known is primarily a [page328] finding of fact. This finding of fact led to the motion judge's conclusion that the inclusion of Dr. Ferner's name in the claim as the emergency physician instead of Dr. Graham was a misnomer.

[25] It seems to me that the appellants are attempting to forestall a development in the law that has already taken place. This court has already applied the misnomer approach, in three cases, [See Note 1 below] in equivalent circumstances where the intended defendants, though not personally served with the originating process, were found to have had knowledge of the claim when it was issued. There is no basis to interfere with the motion judge's finding that this was a case of misnomer.

Discretion to refuse to permit correction

[26] Even if the naming of Dr. Ferner was a misnomer, the appellants submit that the motion judge erred by allowing the plaintiffs to correct it. They submit that a motion judge has discretion to permit or refuse the correction of a misnomer. In this case, they say, the motion judge should have refused to permit the correction for two reasons. The first reason is the plaintiffs' inordinate delay in bringing their motion. Second, the plaintiffs, after learning it was Dr. Graham who treated Mr. Omerod, made a conscious decision not to pursue an action against her and later changed their minds. The appellants submit that the correction should not be allowed in these circumstances.

[27] In this case, after finding that Dr. Ferner was a misnomer for Dr. Graham, the motion judge applied [at para. 18] the standard that despite the inordinate delay, he should allow the correction of the misnomer unless "the defendant to be substituted did not have timely notice of the claim and will be unduly prejudiced in preparing a defence to the claim". The motion judge's reference to "the defendant to be substituted" is unfortunate because in the case of a misnomer, the amendment is made under rule 5.04(2) "to correct the name of a party incorrectly named". The correction of a misnomer does not involve the substitution of one defendant for another. However, his reasons, read as a whole, make clear that he viewed the remedy as the correction of the misnaming or the misdescription of the emergency doctor rather than the substitution of Dr. Graham as a defendant for Dr. Ferner. The appeal was argued on that basis. [page329]

[28] The framework put forward by the appellants is correct. After finding there was a misnomer, the motion judge had the discretion to refuse to permit its correction. The Rules make this apparent. Cronk J.A. in Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567, 207 D.L.R. (4th) 492 (C.A.) analyzed the wording of the two rules that deal with the court's authority to permit amendment in detail -- rules 5.04 and 26.01. She contrasted their wording to note that rule 5.04(2) uses the discretionary "may" unlike rule 26.01, which uses "shall"; she also considered the history and development of these two provisions. She said, at para. 25:

Under both rules, a pleadings amendment is not to be made if non-compensable prejudice would result. In contrast to rule 26.01, however, the language of subrule 5.04(2) imports a discretionary power rather than a mandatory direction.

[29] At para. 42, she added that "proof of the absence of prejudice will not guarantee an amendment". She also cited the discussion of the inter-relationship of the two rules in George S. Holmested and Gary D. Watson, Ontario Civil Procedure, vol. 2 (Toronto: Carswell, 1993). The current edition states, at p. 5-34:

. . . the same threshold test applies to a motion to amend under either rule 26.01 or rule 5.04(2) and the moving party must demonstrate that no prejudice would result from the amendment that could not be compensated for by costs or an adjournment; once this threshold test is met, under rule 26.01 the granting of leave is mandatory; however, where it is sought to add parties under rule 5.04(2) the court has to discretion whether to allow the amendment, notwithstanding that the threshold test is satisfied

[30] While the authors refer only to "adding" parties, the permissive "may" in rule 5.04(2) grammatically applies to the correction of the name of a party incorrectly named in exactly the same way as it does to the addition, deletion or substitution of a party.

[31] As I see it, as the scope of what the courts treat as a misnomer broadens, it is appropriate to take a wider view of the court's discretion to refuse the correction of a misnomer. A "classic" misnomer, one in which the claim contains a minor spelling error of the defendant's name and is personally served upon the intended but misnamed defendant, prompts the application of a standard historically developed to remedy mere irregularities. Now that the concept of "misnomer" has been broadened to apply to a wider range of situations, the standard used to permit its correction should take into account the extent of its departure from mere irregularity in all the circumstances of the case.

[32] The factors the motion judge applied in this case, whether the defendant was misled or was unduly prejudiced, are undoubtedly [page330] deserving of the greatest weight. As a general principle, these factors should be determinative. A general principle, however, is not an inflexible rule. Where the mistake in naming the defendant involves more than a mere irregularity or in any particular case with exceptional circumstances, the court may exercise its residual discretion under the rule to refuse to permit its correction. It may well be that the motion judge took a narrow view of his residual discretion to refuse to permit the correction of the misnomer. However, I am satisfied he realized he had a residual discretion since the factors he applied are broader than the rule's threshold of prejudice that cannot be compensated by costs or an adjournment. While the motion judge in this case might have inferred that the plaintiffs, after learning Dr. Graham's identity, did not resolve to proceed against her until July 2008, he did not make that inference.

[33] In the final analysis, in this case, the motion judge exercised his discretion under the rule to permit the plaintiffs to correct what he concluded was a misnaming of the emergency physician. That discretion was his, not this court's, to exercise. I see no basis to interfere.

Conclusion

[34] For these reasons, I would dismiss the appeal. The respondents' costs are fixed in the amount of $8,000 inclusive of disbursements and GST as agreed by counsel.

Appeal dismissed.

Notes

Note 1: Kitcher v. Queensway General Hospital (1997), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589, [1997] O.J. No. 3305 (C.A.); Spirito v. Trillium Health Centre, supra; Lloyd v. Clark, supra.