O’Sullivan v. Hamilton Health Sciences Corporation (Hamilton General Hospital Division), 2011 ONCA 507

DATE: 20110711

DOCKET: C53119

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Cronk and Rouleau JJ.A.

BETWEEN

Lois O’Sullivan, Tara O’Sullivan and Michael O’Sullivan

Plaintiffs (Appellants)

and

Hamilton Health Sciences Corporation (Hamilton General Hospital Division), John Doe Detachable Balloon Manufacturer, Dr. John Doe #1, Dr. John Doe #2, Dr. Jane Doe #1, Dr. Jane Doe #2, John Doe Nurse #1, John Doe Nurse #2, John Doe Nurse #3, John Doe Nurse #4, Jane Doe Nurse #1, Jane Doe Nurse #2, Jane Doe Nurse #3 and Jane Doe Nurse #4

Defendants (Respondent)

Counsel:

Paul R. Sweeny, for the appellants

Emily McKernan, for the respondent

Heard and released orally: July 6, 2011

On appeal from the order of Justice Wendy L. MacPherson of the Superior Court of Justice, dated December 15, 2010.

ENDORSEMENT

[1] We see no basis on which to interfere with the motion judge’s discretionary decision to refuse the pleadings amendment requested by the appellants.

[2] The motion judge directed herself to the applicable test for the determination of a motion to amend a pleading to correct an alleged misnomer in the naming of a defendant, as set out in Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697. Although the appellants argue that the motion judge erred by failing to expressly consider the question of prejudice to the respondent arising from the proposed pleadings amendment, the motion judge indicated that she had undertaken a balancing of the interests of the parties engaged on the motion. Further, she expressly stated that her decision was based on her review of the evidence before her and the circumstances of the case, both of which specifically included allegations of actual prejudice to the respondent and the appellants’ submissions as to the absence of non-compensable prejudice to the respondent. There is no reason to conclude that the motion judge did not proceed precisely in the fashion that she described.

[3] In these circumstances, the motion judge did not err by taking into account the appellants’ essentially unexplained significant delay in moving to amend their pleading after learning of the correct name of the defendant and the public policy reasons supporting adherence to established limitation periods. She also noted, properly in our view, that the respondent had no notice of the appellants’ potential claim against it for about five years after the date of the incident.

[4] On the facts before the motion judge, these circumstances established that the alleged mistake in naming the defendant involved far more than a mere irregularity. It was therefore open to the motion judge, in the exercise of her residual discretion under rule 5.04(2), to refuse the requested pleadings amendment. As this court noted in Ormerod, at para. 33, this discretion was that of the motion judge, not that of this court, to exercise.

[5] The appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the amount of $4,279.00, inclusive of disbursements and all applicable taxes.

“D. O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”