SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-404799
MOTION HEARD: JULY 21, 2014

RE: Scott Ruse, Laura Ruse and Shannon Ruse and Marshall Ruse, minors by their litigation guardian Laura Ruse

v.

Dr. Elizabeth Heathcote, Dr. David Kah Heng Wong, Dr. Shannon Lynn Goddard, Dr. Ragiv Ghandi, Dr. Omkar Parthab, Dr. Nadine Abdullah, Dr. Jane Doe, Dr. John Doe, Dr. Thomas Doe, University Health Network, James Doe and Jean Doe

BEFORE: MASTER R.A. MUIR

COUNSEL:
Jillian M. Evans for the plaintiff

Andra L. Maxwell-Baker for the proposed defendants

Robert A. Glasgow for the defendant physicians

REASONS FOR DECISION

[1] The plaintiffs bring this motion pursuant to Rules 5.04(2) and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting them leave to amend their statement of claim to add two additional defendant physicians. The plaintiffs also seek leave to substitute a further five physicians for the named defendants Dr. Jane Doe and Dr. Thomas Doe on the basis of misnomer.

[2] The existing defendants take no position on this motion. The proposed defendants Dr. Sophie Decock and Dr. Charlie Shihn-Kaai Wang do not oppose the plaintiffs’ motion. The proposed defendants Dr. Maria Cino, Dr. Harshna Patel, Dr. Lisa Ann Richardson, Dr. Sarah Kathleen Brode and Dr. Hemant Ashok Shah oppose the relief sought by the plaintiffs.

BACKGROUND

[3] This action arises out of the care and treatment received by the plaintiff Scott Ruse over the course of two separate admissions to the Toronto Western Hospital in the summer of 2008.

[4] Mr. Ruse suffers from a rare genetic disorder known as Crigler-Najjar Syndrome. For many years prior to 2008, Mr. Ruse had been followed by the defendant Dr. Elizabeth Heathcote and her team of liver specialists at the Toronto Western Hospital.

[5] In June 2008, Mr. Ruse was admitted to Toronto Western Hospital in order to undergo knee replacement surgery. He was discharged on June 25, 2008. He subsequently developed complications related to his Crigler-Najjar Syndrome and had to be re-admitted on June 27, 2008. Mr. Ruse remained at Toronto Western Hospital until September 4, 2008. Mr. Ruse was apparently seen and treated by more than a dozen different physicians during his stay at Toronto Western Hospital in 2008.

[6] The plaintiffs allege that Mr. Ruse’s condition was poorly managed before and after his initial admission in June 2008, resulting in permanent and catastrophic motor, communication and cognitive impairments. The plaintiffs seek substantial damages from Mr. Ruse’s physicians and from the defendant hospital.

THIS ACTION

[7] Mr. Ruse was discharged from Toronto Western Hospital on September 4, 2008. It appears that he first contacted counsel in June 2009. Mr. Ruse obtained a copy of his medical records from Toronto Western Hospital around the same time and a copy of those records was provided to his counsel. However, as the plaintiffs’ lawyer stated in her affidavit in support of this motion, it appears that those records were incomplete. The plaintiffs’ lawyer also gave evidence on cross-examination that it was very difficult for the plaintiffs and their lawyers, as non-physicians, to determine which doctors were responsible for Mr. Ruse’s care and treatment.

[8] It appears that the plaintiffs and their lawyers attempted to review the hospital records on their own and identify, as best they could, the physicians responsible for Mr. Ruse’s care and treatment. The plaintiffs were able to identify some of the allegedly responsible physicians, however, the identities of other potential parties could not be ascertained “without disclosure from the Hospital or the Physicians involved in [Mr. Ruse’s] care”.

[9] A statement of claim was prepared and ultimately issued on June 11, 2010. It named a few of the physicians who had treated Mr. Ruse. It identified other potential defendants by using pseudonyms.

[10] The statement of claim was served shortly after it was issued. The plaintiffs were contacted by lawyers retained on behalf of the named physicians and the hospital. The plaintiffs agreed to grant the defendants indulgences with respect to the delivery of statements of defence. The statement of defence of the defendant physicians was not served until June 2012. The statement of defence of the hospital was not served until April 2013.

[11] The plaintiffs’ evidence is that they only discovered the involvement of the physicians they seek to add or now name as defendants in this action when the existing defendants’ defences were delivered and when certain evidence came to light during the course of examinations for discovery in 2013.

ADDITION OF PARTIES

[12] The plaintiffs submit that the two year limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act”) has not yet expired based on the doctrine of discoverability. They argue that they only discovered how Mr. Ruse’s injuries were caused and who caused those injuries when certain information came to light in the defendants’ pleadings and in evidence given on discovery.

[13] The relevant provisions of the Limitations Act provide as follows:

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[14] Rule 5.04(2) provides as follows:

(2) Adding, Deleting or Substituting Parties - 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.

[15] The principles applicable to motions to add parties in circumstances such as those before the court on this motion are set out in the decisions of Master Dash in Wong v. Adler, 2004 8228 (ON SC), [2004] O.J. No. 1575 (S.C.J. – Master); affirmed, 2004 73251 (ON SCDC), [2005] O.J. No. 1400 (Div. Ct.) and Wakelin v. Gourley, 2005 23123 (ON SC), [2005] O.J. No. 2746 (S.C.J. – Master); affirmed, [2006] O.J. No. 1442 (Div. Ct.).

[16] At paragraph 45 of Wong, Master Dash states as follows:

45 What is the approach a judge or master should take on a motion to add a defendant where the plaintiff wishes to plead that the limitation period has not yet expired because she did not know of and could not with due diligence have discovered the existence of that defendant? In my view, as is clearly implied in Zapfe, the motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such issue, the defendant should be added with leave to plead a limitations defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor, were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontradicted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility.

[17] In Wakelin, at paragraphs 14 and 15, Master Dash discusses the nature of the evidence required on motions such as this:

14 The question is how much evidence must the plaintiff put in at the pleadings amendment stage to establish that the proposed defendants could not have been identified with due diligence within the limitation period? The short answer is: not very much. As stated by the Court of Appeal in Zapfe: "In most cases one would expect to find, as part of a solicitor's affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent" and provide "an explanation for why she was unable to determine the facts."

15 Therefore, as long as the plaintiff puts in evidence as to steps taken to ascertain the identity of the tortfeasors and gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence then that will be the end of the enquiry and the defendants will normally be added with leave to plead a limitations defence. This is not a high threshold. If the plaintiff fails to provide any reasonable explanation that could on a generous reading amount to due diligence the motion will be denied. If the plaintiff puts in evidence of steps taken but the proposed defendant also provides evidence of further reasonable steps that the plaintiff could have taken to ascertain the information within the limitation period then the court will have to consider whether the plaintiff's explanation clearly does not amount to due diligence. If there is any doubt whether the steps taken by the plaintiff could not amount to due diligence then this is an issue that must be resolved on a full evidentiary record at trial or on summary judgment. The strength of the plaintiff's case on due diligence and the opinion of the master or judge hearing the motion whether the plaintiff will succeed at trial on the limitations issue is of little or no concern on the motion to add the defendants. The only concern is whether a reasonable explanation as to due diligence has been provided such as to raise a triable issue.

[18] It should also be noted that the Court of Appeal has held that the passing of a limitation period is fatal to a motion under Rule 5.04(2). See Joseph v. Paramount Canada's Wonderland, 2008 ONCA 469 at paragraphs 23 and 25. The former doctrine of special circumstances no longer applies.

[19] I have considered and applied these principles to the evidence before me on this aspect of the plaintiffs’ motion. I have come to the conclusion that the plaintiffs have not met the onus placed upon them to provide a reasonable explanation on proper evidence as to why the information about the cause and responsibility for Mr. Ruse’s injuries was not obtainable prior to the expiry of the presumed limitation period with the exercise of due diligence.

[20] In this case, the presumed limitation period would begin to run, at the very latest, on the day Mr. Ruse was discharged from Toronto Western Hospital. Assuming that date to be the appropriate starting point, the presumed limitation period would expire on September 4, 2010. In June 2009, Mr. Ruse and his lawyers had the Toronto Western Hospital records in their possession. However, even they admit that they knew those records were incomplete and difficult to interpret. By their own evidence, they knew that they were unable to ascertain the names of all of the potentially responsible parties without disclosure from the hospital or the physicians involved.

[21] What did the plaintiffs and their lawyers do to remedy this situation prior to September 2010? The answer appears to be nothing. They simply relied on what they describe as incomplete records to draft a statement of claim which was not issued until one year after the initial consultation. No effort was made to make inquiries of the hospital for assistance in interpreting the records or to obtain a complete version of the records until at least September 2011. No effort was made to issue and serve the statement of claim on an expedited basis and demand defences. The plaintiffs did not request assistance from the hospital in identifying physicians on duty until May 2013. There is no evidence that they consulted independent experts to assist with interpreting the records.

[22] I accept that the threshold on this motion is a low one. However, a plaintiff must put forward at least some evidence of the attempts made to obtain information in order to substantiate the assertion that the he or she was reasonably diligent. There is simply no such evidence before the court on this motion. The plaintiffs and their lawyers simply relied on incomplete hospital records that they themselves describe as hard for laypeople to review. In my view, it is not sufficient in such circumstances for a plaintiff to simply issue a claim and then wait for discovery before taking steps to fully identify all potential defendants. I am therefore not prepared to grant leave to the plaintiffs to add Dr. Richardson and Dr. Brode as defendants to this action.

MISNOMER

[23] The plaintiffs seek to add the proposed defendants Dr. Cino, Dr. Patel and Dr. Shah in place of the named defendant Dr. Thomas Doe. The plaintiffs rely on the doctrine of misnomer in support of the relief sought on this part of their motion.

[24] The law relating to misnomer has been carefully considered in recent years by the Court of Appeal. See Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 and Spirito v. Trillium Health Centre, 2008 ONCA 762. Misnomer requires a finding that the litigation finger be clearly pointed at the intended defendant. Would a reasonable person receiving and reviewing the statement of claim, in all the circumstances of the case, and looking at it as a whole, say to himself or herself “of course it must mean me, but they have got my name wrong”? The Court of Appeal adopts this test at paragraph 12 of Spirito, where the court states as follows:

12 In Dukoff et al. v. Toronto General Hospital et al. (1986), 1986 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.

[25] Where fictitious names, such as Thomas Doe, are used in the statement of claim the assessment of whether the proposed defendant knew that he or she was the intended defendant becomes seminal in the analysis. See Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 (S.C.J.) at paragraph 107. Vague and non-specific allegations in a statement of claim will weigh heavily, if not definitively, against a finding that a misnomer is present. See Urie at paragraph 108.

[26] I am not satisfied that the plaintiffs have met this test. The paragraphs of the statement of claim regarding Dr. Thomas Doe state that he was “involved in the care and treatment of [Mr. Ruse] from June 27, 2008”. They also state that Dr. Thomas Doe performed a hepatology assessment of Mr. Ruse on June 28, 2008. All of the allegations describe Dr. Thomas Doe in the singular. A reading of the allegations would appear to indicate that the plaintiffs’ allegations are directed at one specific physician. Indeed, there is one specific physician who appears to meet those descriptions, Dr. Charlie Shihn-Kaai Wang. He did treat Mr. Ruse from June 27, 2008. He did perform a hepatology assessment of Mr. Ruse on June 28, 2008. That is why Dr. Wang does not oppose this motion.

[27] None of Doctors Cino, Patel and Shah treated Mr. Ruse from June 27, 2008 and none of them performed an assessment on June 28, 2008. Moreover, they all would know that they could not have treated Mr. Ruse on June 27, 2008 or performed the assessment on June 28, 2008 because none of them provided any care to Mr. Ruse until after July 1, 2008 when new physician rotations began at Toronto Western Hospital.

[28] In my view, this is a situation where none of these three doctors could conclude that the plaintiffs “must mean me” when describing Dr. Thomas Doe. They were simply not involved with Mr. Ruse’s care in June 2008, unlike Dr. Wang.

[29] In addition, it is my view that the vague and non-specific allegations in paragraph 36(h) of the statement of claim of a “failure to monitor” Mr. Ruse do not overcome the obvious lack of involvement these physicians had with Mr. Ruse’s care in June 2008.

[30] In my view, this is not a case of misnomer with respect to Doctors Cino, Patel and Shah. It is an attempt to add new parties after the expiry of the applicable limitation period. For these reasons, I am not prepared to grant this relief as requested by the plaintiffs.

ORDER

[31] The plaintiffs are hereby granted leave to add Dr. Sophie Decock and Dr. Charlie Shihn-Kaai Wang as defendants and to amend their statement of claim accordingly. They are also granted leave to amend the statement of claim to remove the defendants Dr. Jane Doe and Dr. Thomas Doe and to correct the spelling of the name of the defendant Dr. Ragiv Ghandi. The balance of the relief sought by the plaintiffs is dismissed.

[32] If the parties are unable to agree on the issue of costs, they may make brief written submissions by no later than September 5, 2014.

Master R.A. Muir

DATE: August 7, 2014