Court of Appeal for Ontario

Date: September 27, 2018 Docket: C65113

Judges: Simmons, Miller and Fairburn JJ.A.

Between

Konstantina Connie Galanis and Michael Galanis Plaintiffs (Respondents)

and

Kingston General Hospital, Dr. Greg Davies, Dr. Michael McGrath, Dr. John Doe Anesthesiologist and Nurse Jane Doe Defendants (Appellants)

Counsel

Anne Tardif, for the appellants

Ronald P. Bohm, for the respondents

Heard and released orally: September 24, 2018

On appeal from: the order of Justice Hurley of the Superior Court of Justice, dated February 16, 2018.

Reasons for Decision

[1] Relying on misnomer, the motion judge granted the respondents leave to amend their statement of claim to substitute the names of three doctors for Dr. John Doe Anesthesiologist in the respondent's statement of claim. One of the doctors, Dr. Pattee, an anaesthesiologist, did not oppose the request.

[2] Even assuming the motion judge erred in taking account of the allegations in the statement of claim, which the appellants emphasize was served after the limitation period expired, we are not persuaded the motion judge erred in relying on misnomer to permit the substitution or that he misapplied the doctrine. The motion judge articulated the "litigating finger" test in making his decision. Although the motion judge relied on allegations in the statement of claim, he made an alternative finding based upon the notice of action which was served within the limitation period. The motion judge concluded that the two appellant doctors would have known the litigating finger pointed at them based upon the allegations against Dr. John Doe Anesthesiologist in the notice of action, the medical records, and their status as anaesthesiologists at the relevant time (or, in Dr. Dodge's case, as a resident anaesthesiologist). This was a finding of mixed fact and law entitled to deference from this court absent error in principle or palpable and overriding error. We find no such error in the alternative finding.

[3] The appellants do not contend that the motion judge erred in failing to exercise his residual discretion to refuse to substitute the appellants.

[4] The appeal is dismissed. Costs of the appeal will be to the respondents on a partial indemnity scale, fixed in the amount of $12,000, inclusive of taxes and disbursements.

Janet Simmons J.A.

B.W. Miller J.A.

Fairburn J.A.