ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-0028

DATE: 20141219

BETWEEN:

DEKA HASSAN, FUAD YUSF, EMRAAN YUSUF by his Litigation Guardian Deka Hassan, and EMAN YUSUF by her Litigation Guardian Deka Hassan

Plaintiffs

– and –

DR. VISHAY DUNRAJ, DR. J. DOE I, DR. J. DOE II, DR. J. DOE III and ST. JOSEPH’S HEALTH CENTRE

Defendants

– and –

DR. LEEOR SOMMER and DR. ANDREW SUE-A-QUAN

Proposed Defendants

E. Durant, for the Plaintiffs

No-one appearing, for the Defendants

S. Batner and A. Lewis, for the Proposed Defendants

HEARD: October 31, 2014

REASONS FOR DECISION

McCARTHY, J.:

The Motion

[1] This is a medical malpractice action.

[2] The plaintiffs (“the plaintiff”) moves for leave to amend the statement of claim in the form appended to the Notice of Motion, referred to as the “amended claim”.

[3] There are five defendants named in this action: Dr. Vishay Dunraj (“Dr. Dunraj”), Dr. J. Doe I, Dr. J. Doe II, Dr. J. Doe III (“the Doe defendants”) and St. Joseph’s Health Centre (“St. Joseph’s”).

[4] In this motion, the plaintiff seeks to delete the names of two of the Doe defendants (Dr. J. Doe I and Dr. J. Doe III) and replace them with Dr. Leeor Sommer and Dr. Andrew Sue-A-Quan respectively (“the respondent doctors”).

[5] The respondent doctors oppose the motion. Neither Dr. Dunraj nor St. Joseph’s opposes the relief sought. The Doe defendants are mere fictitious entities.

The Applicable Rules

[6] The motion is brought under Rules 26.01 and 5.04(2) of the Rules of Civil Procedure[^1]. Those rules read as follows:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

5.04 (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.

Limitations

[7] It is agreed by the parties that the applicable limitation for bringing an action in this case is two years. In addition, s. 21 of the Limitations Act, reads as follows[^2]:

21(1) Adding Party

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

21(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

Background Facts

[8] The plaintiff claims damages for injuries arising out of medical treatment received from the present defendants and the respondent doctors between January 16 and 20, 2010.

[9] The plaintiff retained her present counsel in December 2011. A notice of action was issued on January 12 2012, prior to the expiration of the prima facie two year limitation period. Because the plaintiff did not have her medical records for the relevant period, the notice of action was issued naming St. Joseph’s, Dr. Dunraj and the three Doe defendants.

[10] The statement of claim was then filed within thirty days in compliance with the rules of court. The facts pleaded were derived from the plaintiff’s memory. Again, the three Doe defendants were named as co-defendants.

[11] Beginning on January 16, 2012, counsel for the plaintiff set about gathering medical records. She received a copy of the plaintiff’s chart from Dr. Dunraj in February 2012; a copy of the chart from St. Joseph’s on April 26, 2012; and a copy of the plaintiff’s chart from St. Michael’s Hospital and Medical Centre (“St. Michael’s”) on April 16, 2012.

[12] A review of these medical records was undertaken in an effort to discern the actual names of the Doe defendants. The Emergency Registration outpatient record from St. Joseph’s revealed that two physicians attended on the plaintiff in the emergency department of St. Joseph’s on January 16 and 17, 2010. However, plaintiff’s counsel was unable to discern the names of the two physicians from the signatures found on the emergency record.

[13] A defence and cross-claim from both Dr. Dunraj and St. Joseph’s were served on plaintiff’s counsel on September 12 2012, and March 18 2013, respectively. These pleadings did not disclose the identities of the Doe defendants. St. Joseph’s statement of defence merely alleged that the plaintiff had been seen and assessed by independent medical practitioners on the relevant dates.

[14] In an effort to learn the names of physicians who had presumably billed the Ministry of Health for services rendered to the plaintiff on January 16 and 17, 2010, plaintiff’s counsel sought a list of service providers from the Ministry on October 31, 2012, and again on January 10, 2013. That list was received on March 20, 2013. The list revealed that Dr. Leeor Sommer had provided treatment to the plaintiff on January 16, 2010 at the emergency department of St. Joseph’s. The list did not divulge the name of the second emergency department physician who provided treatment to the plaintiff on the relevant date.

[15] Inquiries made by plaintiff’s counsel to the College of Physicians and Surgeons of Ontario confirmed that Dr. Sommer enjoyed privileges at St Joseph’s and held a specialty in family and emergency medicine. Plaintiff’s counsel arrived at the conclusion that Dr. Sommer had been one of the emergency department doctors who treated the plaintiff on the relevant date.

[16] A further review of the plaintiff’s St. Michael’s Hospital chart revealed a prescription drug history showing that Dr. Andrew Sue-A-Quan had prescribed the drug Naproxyn to the plaintiff on one of the relevant dates. Initially, plaintiff’s counsel was not able to locate Dr. Sue-A-Quan’s name in the St Joseph’s records. Only after inquiries were made to the College of Physicians and Surgeons was it revealed that he too enjoyed privileges at St. Joseph’s and held a specialty in family and emergency medicine. This led plaintiff’s counsel to conclude that the Dr. Sue-A-Quan was the second emergency room doctor who had treated the plaintiff on the relevant date and that accordingly, Dr. Sue-A-Quan could be properly identified as one of the Doe defendants.

[17] The plaintiff then moved on February 8, 2014, for leave of the court to amend the statement of claim and for an order substituting the two respondent doctors for two of the Doe defendants.

The Position of the Plaintiff

[18] The plaintiff states simply that the rules in question are mandatory and that the respondent doctors are not prejudiced by the proposed amendments or substitutions. The plaintiff relies on s. 21(2) of the Limitations Act which allows for the correction of the name of a misnamed party. The action was issued within the prescribed limitation period. The pleading was necessarily based upon the plaintiff’s recollection of names, events and dates. Nevertheless, the claim provided information sufficient to allow the respondent doctors to reasonably recognize themselves as targeted parties. The correct names of the doctors only became discoverable through plaintiff counsel’s investigation. The matter remains at the pleadings stage. Examinations for discoveries have not yet been completed. There is no suggestion that documentary evidence has been lost or destroyed or that key witnesses have died.

The Position of the Defendants and the Doctors

[19] The respondent doctors oppose the relief sought on three grounds:

▪ The plaintiff has not made out the test for “misnomer”;

▪ There is un-contradicted evidence that the respondent doctors would be prejudiced; and

▪ The plaintiff failed to move diligently in seeking to substitute the respondent doctors for the Doe defendants.

The Law

[20] In motions brought under Rules 5.04(2) and 26.01 of the Rules of the Civil Procedure, the court is not to consider the factual or evidentiary merits of the claim or embark upon a determination of credibility of the case being advanced (Seaway Trust Co. v. Markle, 1990 CarswellOnt 343).

[21] In Ormerod (Litigation Guardian of) v. Strathroy Middlesex General Hospital, 2009 ONCA 697, the Court of Appeal stated that relief under Rule 5.04 remains discretionary and is subject to the common law limitation of adding parties after a limitation period has expired.

[22] When considering a motion of this kind, a court must first determine whether there is a true misnomer. A court should then move to a consideration of the prejudice such relief would cause to the proposed defendants. Finally, before deciding whether it is appropriate to exercise its discretion to permit such an amendment, a court must consider other relevant factors, including whether the plaintiff has been diligent in his or her efforts to discover the proper names of the defendants to be substituted.

Misnomer

[23] The term “misnomer” is defined in Black’s Law Dictionary, Ninth Edition, as follows:

Misnomer: A mistake in naming a person, place or thing, especially in a legal instrument[^3].

[24] The same term is defined in the Concise Oxford English Dictionary as:

Misnomer: A wrong or inaccurate name or term[^4].

[25] On the plain meaning of the word, the description of unknown defendants as “J. Doe” or something equally fictitious in the claim may qualify as a misnomer. Whether the mistake or inaccuracy qualifies as a misnomer deserving of the court’s discretion to permit its correction by way of a substitution or correction order depends on whether the intended party, while not correctly named, is otherwise identifiable from the pleading.[^5] This has become known as the “litigation finger test”.

[26] The litigation finger test was described in the English case of Davies v Elsby Brothers Ltd., [1960] 3 All E.R. 672 (CA), as follows:

How would a reasonable person receiving the documents 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 be me, but they have got the 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.

[27] This test has been adopted and applied in Ontario by appellate courts in cases such as Spirito Estate v. Trillium Health Centre, 2008 ONCA 762 and at this level of court in Rakowski et al. v. Mount Sinai Hospital, 1987 4113 (ON SC), [1987] O.J. no. 2611, and in Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226.

Misnomer Analysis

[28] The original statement of claim in this matter names Dr. Vishay Dunraj, Dr. J. Doe I, Dr. J. Doe II, Dr. J. Doe III and St. Joseph’s Health Centre as defendants. The allegations against Dr. Doe I and III, (proposed to be replaced by Dr. Leeor Sommer and Dr. Andrew Sue-A-Quan), suggest the following:

▪ Both were licensed Toronto physicians who were either on the staff of, or enjoyed privileges at, St. Joseph’s;

▪ Both were responsible for the diagnosis, treatment and care of the plaintiff while she attended St. Joseph’s;

▪ During the third week of January 2010, the plaintiff attended at St. Joseph’s;

▪ The plaintiff was assessed in the emergency department of St. Joseph’s by Dr. J. Doe I who took a patient history and ordered a CT brain scan;

▪ After the CT scan was available, Dr. J. Doe I and III assessed the plaintiff together and jointly discharged the plaintiff from the hospital with a prescription for medication and directions to book an MRI.

[29] The proposed amended statement of claim aims to do three things: (1) to add the respondent doctors’ names specifically; (2) to make the more obvious cosmetic corrections required; and (3) to specify the dates on which the plaintiff was assessed and treated by the respondent doctors.

[30] I find that the litigation finger is sufficiently pointed at the respondent doctors. I do not accept the suggestion by the respondent doctors that the allegations in the original claim could refer to “any number of doctors”. The pleading is hardly vague. It provides the following:

(a) The proper name of the plaintiff;

(b) Both the name and the department of the hospital where the plaintiff was treated;

(c) A general description of the respondent doctors’ credentials;

(d) The respondent doctors’ association with St. Joseph’s;

(e) The respondent doctors’ location of practice within the hospital;

(f) A general, if not precise, time period during which the plaintiff attended the hospital;

(g) The nature of the plaintiff’s complaints upon attendance; and

(h) A summary of the treatment and assessment the plaintiff received while there.

[31] A review of St. Joseph’s Emergency Registration Outpatient Record reveals that the targeted individuals could not have been any number of doctors, but rather, only one or two individuals identifying themselves by signatures entered in the box marked “Staff Emerg”.

[32] Counsel for the respondent doctors pointed out that her clients and St Joseph’s are entirely distinct entities. They do not share a commonality of interest in the litigation. They are separately insured. St. Joseph’s will not be providing a defence or indemnity to the respondent doctors. All of this is undoubtedly true but it does not change the fact that the Doe defendants named and described in the original pleadings were entirely capable of being identified by the defendant hospital. Moreover, I find that, had that pleading come to the attention of the respondent doctors, they would have either recognized themselves as the Doe defendants or would have quickly done so with even a minimum of investigation such as checking their own calendars or asking to review St. Joseph’s emergency records.

[33] I accept that the respondent doctors have busy practices. I accept that more than two years passed between the events in question and the time when the respondent doctors may have first become aware that a claim had been served. I also accept that during this interval, the respondent doctors likely treated and assessed hundreds of patients at the emergency department at St. Joseph’s. All of these facts would make it more difficult for the respondent doctors to remember or recall this isolated incident involving the plaintiff.

[34] Nevertheless, it seems to me that even the most cursory review or inquiry would have led the respondent doctors to the inescapable conclusion that they were the Doe defendants, albeit, improperly named. While it is true that any number of doctors could have treated and assessed the plaintiff at the emergency department at St. Joseph’s during the time period suggested in the claim, the fact remains that only two did. Dr. J. Doe I and Dr. J. Doe III could only have been the respondent doctors. This would have been plainly obvious to the respondent doctors had they reviewed the original claim and embarked on even the slightest degree of inquiry or investigation. Ultimately, I find that the litigation finger was pointed squarely at them in the original claim.

[35] Having found that the litigation finger was pointed at the responding doctors in the original claim, it follows that the naming of the Doe defendants was a misnomer.

Prejudice

[36] I move now to a consideration of prejudice to the respondent doctors.

[37] The respondent doctors have filed affidavits setting out the prejudice they now face given the passage of time between the events in question and February 2014. The respondent doctors had very limited involvement in the plaintiff’s care. They have, at best, a vague recollection of the care each of them provided. Dr. Sommer’s affidavit states that had the action been brought against him in a more timely fashion, it is possible that he would have remembered more about his interaction with the plaintiff. This, in itself, establishes real prejudice.

[38] The respondent doctors argue that this evidence of prejudice is not contradicted. The plaintiff elected not to cross-examine on these affidavits. The onus to disprove prejudice is on the plaintiff seeking the relief. The plaintiff has failed to discharge that burden. The court must take the evidence as unchallenged.

[39] The plaintiff states there is an almost complete absence of prejudice to the respondent doctors. There is no evidence before the court that documents have gone missing, that records have disappeared, that witnesses have passed away or are otherwise unavailable.

[40] In my view, it still lies within the court’s discretion to consider and weigh the evidence before it regardless of whether it is challenged or not. In addition, I must consider what specific prejudice the motion to amend the statement of claim could cause the parties opposing the motion. It is not enough to set out a very general statement of prejudice.

[41] As stated by Laskin JA in the Court of Appeal’s decision Chiarelli v. Weins, 46 O.R. (3d) 780, 2000 3904 (ON CA), 2000 CarswellOnt 280 at para. 14:

Although the onus remains on the plaintiffs to show that the defendants will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details.

[42] In this case, there is insufficient detail to establish prejudice of any substance. Memories fade with time; that is natural and to be expected. I cannot accept that the respondent doctors would have retained an appreciably clearer recollection of such a subjectively obscure event as the routine assessment and treatment of an outpatient at the emergency department had the matter first come to their attention in July 2012 (the latest date by which the original claim should have been served under the rules) as opposed to February 2014, when notice of this motion was first provided.

[43] There is no evidence that any records have gone missing. The handwritten notes on the records made by doctors other than the responding doctors can be transcribed and deciphered. There is no suggestion that witnesses are unavailable. Examinations for discovery have not yet taken place. In the absence of any evidence to the contrary, I am prepared to draw the inference that nothing has been lost that might benefit the defence of the proposed doctors. This is in keeping with the approach taken by my brother McIsaac J. in McArthur v. Kaal, 147 A.C.W.S. (3d) 972, 2006 CarswellOnt 2310.

[44] On the evidentiary record before me, I am satisfied that there is no prejudice to the responding doctors sufficient to warrant a denial of the relief being claimed by the plaintiff.

Diligence

[45] There remains for me to consider the exercise of diligence by the plaintiff and her counsel. I agree with the responding doctors’ counsel that diligence is one of the factors that a court should consider when exercising its discretion to permit the correction of a misnomer after the expiration of the presumptive limitation period.

[46] The word “diligence” is defined in Black’s Law Dictionary, Ninth Edition:

Diligence – 1. a continual effort to accomplish something. 2. Care; caution; the attention and care required from a person in a given situation[^6].

[47] The same word is defined in the Concise Oxford English Dictionary:

Diligence – careful and persistent work or effort[^7].

[48] Unfortunately, neither party was able to point me to a case where the term “diligence” was extensively analyzed. One can appreciate that there are degrees of diligence, ranging from the lower end of functional but uninspired to the more medium range of assiduous or careful, to the higher end of the spectrum characterized by near perfection.

[49] In my view, the required level of diligence in misnomer cases is established when the plaintiff can demonstrate that she has made reasonable inquiries and has conducted meaningful and timely investigations in an effort to uncover the true identity of persons intentionally misnamed. It is then incumbent upon the plaintiff to proceed with dispatch in seeking an amendment of her pleading and the accompanying substitution of parties.

[50] On the evidentiary record before me, that reasonable level of diligence has been made out. After being retained and issuing the claim naming the fictitious Doe defendants, plaintiff’s counsel set about accumulating charts and records from St. Joseph’s, the family doctor, the Ministry of Health and St. Michael’s Hospital. During this time, pleadings were being served and received. I disagree with counsel for the responding doctors that the identities of the emergency room doctors are easily discernible from the emergency record. The scribbles and signatures found there would not permit a person unfamiliar with them from determining who those entries belong to. While the plaintiff could have sought the information from the St Joseph’s directly or from counsel for the co-defendants once counsel was appointed, there would have been no obligation on the those parties to divulge that information prior to the discovery process. Indeed, the pleadings of the co-defendants do not divulge that information.

[51] The fact that the respective identities of the respondent doctors might have been derived from a more careful review of the drug listing in the St. Michael’s Hospital records, does not, in all of the circumstances persuade me that plaintiff’s counsel fell below the standard of reasonable diligence. A reasonably diligent person would have anticipated that the information would come to light from the St Joseph’s emergency records, the Ministry of Health’s list of services or the pleadings. Finally, the decision to bring the motion in question only after the two respondent doctors had both been identified was reasonable and economical of both cost and effort. Moreover, it spared the court having to deal with an almost identical motion on two occasions.

Disposition

[52] For the foregoing reasons, the plaintiff’s motion is allowed. The court grants leave to the plaintiff to amend the statement of claim in accordance with the proposed amended claim as set out in the motion record. If the parties are unable to agree on the issue of costs, either side may contact the trial co-ordinator at Barrie to arrange for an appointment before me to address that issue.

J.R. McCARTHY J.

Released: December 19, 2014

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[^2]: Limitations Act, S.O. 2002 c. 24, Sched. B.
[^3]: Bryan A. Garner, ed, Black’s Law Dictionary, Ninth ed (St. Paul, US: West Publishing Co., 2009).
[^4]: Catherine Soanes & Angus Stevenson, eds, Concise Oxford English Dictionary, Eleventh Edition (New York, US: Oxford University Press, 2008).
[^5]: Kamboj v Sidhu, 2013 ONSC 2478 at para 42.
[^6]: Supra note 3.
[^7]: Supra note 4.