CITATION: Dekermendjian et al. v. York Central Hospital et al., 2016 ONSC 4756

COURT FILE NO.: CV-10-415004

MOTION HEARD: 20160303

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE ESTATE OF HARRY DEKERMENDJIAN, TALINE SAGHARIAN, SHAKE DEKERMENDJIAN, AVEDIS DEKERMENDJIAN, HAROUT SAGHARIAN, and the minors NATALIE SAGHARIAN and CHRISTOPER SAGHARIAN both by their Litigation Guardian, TALINE SAGHARIAN, Plaintiffs

AND:

YORK CENTRAL HOSPITAL, DR. JOHN/JANE DOE and NURSES JOHN/JANE DOE, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Counsel for lawyer for plaintiffs: Brian A. Pickard, Forget Smith Morel Fax: 416-368-7865

Counsel for proposed defendants, Dr. Chan and Dr. Gladman: Keegan Boyd, McCarthy Tetrault LLP Fax: 416-868-0673

REASONS FOR ENDORSEMENT

[1] The issue to be determined on this motion is whether the amendment sought by the plaintiffs is the result of a misnomer or an attempt by the plaintiffs to add proposed defendants to the claim after the expiry of the application limitation period.

[2] The plaintiffs seek to amend the statement of claim and amended statement of claim to replace the defendants, Dr. John/Jane Doe, with Dr. Victoria Chan and Dr. Aviv Gladman, pursuant to rules 5.04(1) and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (“Rules”).

[3] The underlying action arises from treatment that the deceased plaintiff, Harry Dekermendjian (“Harry”), received in September 2009 at York Central Hospital (“Hospital”).

[4] The Hospital took no position on this motion.

Background

[5] This action is a medical malpractice action wherein it is alleged resulted in Harry’s death. Harry attended at the Hospital on September 3, 2009 with complications from chronic pulmonary obstructive disease (COPD). At the Hospital he was given a course of steroids which allegedly induced a steroid psychosis which in turn caused him to fall out of bed two days later, striking his head. He was released from the Hospital but returned on November 2, 2009 with evidence of a cerebral haemorrhage which had to be evacuated. He eventually died from a subdural haematoma and haemorrhage on March 11, 2010.

[6] Dr. Chan and Dr. Gladman are two of the physicians at the Hospital who were involved in Harry’s care in September 2009 and following. At the relevant times, Dr. Chan was the Department Chief of Medicine. Dr. Gladman was an Intensivist in the Department of Medicine.

[7] The plaintiffs allege that Harry was over medicated and there was a lack of supervision by the hospital staff and the two physicians responsible for his care.

[8] The statement of claim was issued on November 24, 2010 against the Hospital and Dr. John/Jane Doe and Nurses John/Jane Doe less than two years after Harry’s first hospital admission on September 3, 2009. The Hospital defended the action on May 25, 2011. The actions by Harry’s family members are brought pursuant to section 61 of the Family Law Act, R.S.O. 1990, c. F. 3. The statement of claim was amended on February 1, 2012 after an Order To Continue was issued by the registrar on December 13, 2011 following Harry’s death on March 11, 2010.

[9] No evidence was filed by any of the plaintiffs. In support of this motion, the plaintiffs filed two affidavits sworn by Alexander Lempp who, at the time he swore his affidavits, was an associate lawyer with the firm of Srebrolow, Lobowitz, Spadafora, lawyers for the plaintiffs. Mr. Lempp’s evidence is that the plaintiffs and their counsel always intended to bring this action against all of the medical practitioners who treated Harry for his pulmonary disease, including Drs. Chan and Gladman. His further evidence is at the time the statement of claim was drafted, the plaintiffs and their counsel only knew that Harry had been admitted twice to the Hospital, and they were not aware of the identities of the physicians who treated Harry. As such, he states that as it was the intention of the plaintiffs to include these doctors in the action, they were named as Dr. John/Jane Doe.

[10] The statement of claim and amended statement of claim identifies Harry by his full name as the injured plaintiff and his residence in the City of Richmond Hill, Ontario.

[11] The defendant doctors are described in paragraph 11 of the amended statement of claim as follows:

Dr. John/Jane Doe is an unknown doctor or doctors who provided medical care to the deceased Plaintiff Mr. Dekermendjian when he was hospitalized at the Hospital in September 2009 and following.

[12] The details of the incident are set out in the amended statement of claim at paragraphs 13 through 15. The following details were plead: both dates when Harry was admitted to the Hospital, the reason he was admitted, the names of the medications that he was given; namely, Prednisone and Solu-Medrol, the effect on Harry from the medications; namely, steroid psychosis, the resulting fall out of bed, and the resultant injuries.

[13] Paragraph 9 pleads that the Hospital was the principal and/or employer of its staff doctors and as such is responsible and liable in law for the negligence of its staff doctors.

[14] Harry’s pertinent medical records from the Hospital were filed for this motion. None of the affiants of the affidavits filed were cross-examined.

[15] The medical records confirm the admission dates of September 3, 2009 and November 2, 2009 as well as the evacuation of the subdural haematoma. The records also confirm that Harry was seen and treated by numerous physicians during his stays at the hospital in September and November 2009.

[16] During his first hospitalization in September 2009, Harry was under the care and supervision of Dr. Chan who is described in the records as the “Most Responsible Physician”. Dr. Ali Razian is listed as the Most Responsible Physician on the Patient Summary Sheet for his admission on November 2, 2009. (p. 152 Responding Motion Record) Dr. Chan’s evidence is that she was the department chief for medicine in or around December 2010. Dr. Chan stated that Harry and his family knew her well. She treated Harry on multiple occasions before, during and after September 2009, and she also met with his wife in September 2009 to discuss the circumstances around his fall in the hospital.

[17] The emergency room records and treatment records disclose Harry’s name, identities of the doctors who treated him, description of his symptoms, diagnoses, reason for admission, identity of the hospital, dates of admission, Harry’s medical history, diagnosis and treatment including medication administered.

[18] In particular, it is evident from Dr. Gladman’s Emergency Consultation Report that he saw and treated Harry on September 3, 2009, the day he was admitted to the Hospital. Dr. Gladman is described in the Report as being an Intensivist in the Department of Medicine. Dr. Gladman described Harry as having “known COPD” and who presented himself with “another exacerbation”. He described Harry’s earlier admission on August 18, 2009 as being due to an exacerbation with the admission being complicated by steroid induced delirium. Dr. Gladman believed that he saw Harry briefly at that time because of the delirium. He went on to describe Harry’s symptoms, the treatment of a dose of Solu-Medrol and the effect on Harry. It is evident from his report that he performed a physical examination of Harry, reviewed the hospital records, performed a neurological examination, reviewed a chest x-ray and results of blood tests. His diagnosis was that Harry was having “yet another COPD exacerbation”, and that he was at “high risk of developing steroid delirium again”. Dr. Gladman treated Harry by decreasing the steroid dose of Prednisone which he stated “should hopefully reduce the likelihood of developing delirium”. Lastly, he stated that Harry would be readmitted to the Respirology Service.

[19] Also significant from the records is a Consultation Report of Dr. A. Eric Klevan dated September 5, 2009. The report describes Dr. Klevan as a resident physician in the general surgery department who performed the procedure to close the scalp laceration on Harry’s head. Importantly, a copy of that report was sent to Dr. Chan.

[20] The records also contain a report written by Dr. Nimni of the emergency medicine department who saw Harry on September 4, 2009. A copy of this report was sent to Dr. Gladman. This report was written one day after Dr. Gladman saw Harry. The last line states that Dr. Gladman was “on call” for Internal Medicine on previous day when he saw Harry.

[21] Also on September 4, 2009, Dr. Chan issued a Consultation Report which which copied to Dr. Gladman. She stated that Harry had been assessed by Dr. Gladman for “yet another COPD exacerbation”. She referenced Harry’s hospitalization in August 2009 for the same issue. It is evident from the report that Dr. Chan did a physical examination, reviewed the chest x-ray, ECG and blood work. She also set out her diagnosis and treatment. Lastly, she states that she saw Harry more than two years prior to his August 2009 hospitalization.

[22] Dr. Chan also received a copy of Dr. Watson’s Consultation Report of September 5, 2009. Dr. Watson is an orthopaedic surgeon who saw Harry for his left shoulder injury as result of the fall from his bed.

[23] The records also contain a Discharge Summary report written by Dr. Chan on September 10, 2009. The report sets out her discharge diagnoses, history and in-hospital course.

[24] Dr. Chan is also shown on the Hospital Patient Profile as Harry’s doctor. (page 68, Responding Motion Record)

[25] The hospital records also contain a Discharge Summary report by Dr. Sunny Wong dated November 6, 2009. Dr. Wong notes that Harry’s COPD is stable and that he is being followed by Dr. Chan as an outpatient.

[26] In addition, there are two Consultation Reports by Dr. P. Yahyavi and Dr. J. Thayaparan, both members of the Department of Medicine at the hospital, who saw Harry on November 3 and 4, 2009, respectively, as a result of complications from the subdural hematoma he sustained during his hospitalization in September 2009.

[27] The Hospital performed an investigation and issued a report (undated). (Presumably the investigation was done in late 2009 after the Hospital learned of Harry’s claim.) In addition, the Hospital or its insurer retained the services of Cunningham Lindsey to investigate the plaintiffs’ claim. Six reports were issued by Cunningham Lindsey dated from May 2010 to April 29, 2011. It is important to note that Cunningham Lindsey’s reports are dated prior to and after the statement of claim was issued and served on the Hospital. These reports have not been produced by the Hospital on the grounds of privilege.

[28] The statement of claim was issued on November 24, 2010. The evidence does not state the date of service of the statement of claim on the Hospital; however, shortly after the statement of claim was issued, on December 21, 2010, Dr. Larry Grossman, Chief of Staff of the Hospital, wrote a confidential memo to Dr. Chan. The memo appears to be a standard form of memo with space to add handwriting. The subject line of the memo is “Request for review”. The following are relevant portions of the memo. I have italicized some words for emphasis which will be addressed later.

I have received notification that a claim has been/may be received by the hospital regarding patient Harry Dekermendjian Y#:542568.

Claim revolves around use of steroids in a patient with previously documented steroid psychosis. (handwritten)

This case should be reviewed and any recommendations emanating from that review should be shared with your department. . . .

I would appreciate it if you could undertake the necessary discussions about this case in a timely fashion and report back to me as soon as possible. . . . I don’t feel we can wait for the legal proceedings to determine if there are changes that need to be made to our practice here.

[29] In my view, the italicized words or phrases in the memo are significant for the following reasons:

a. “I have received notification that a claim has/may be received by the hospital”: This phrase states that the Hospital received notice that Harry made a claim, or would be making a claim against the Hospital. Therefore, it is evident that by December 21, 2010, the Hospital, Dr. Grossman and Dr. Chan were aware that Harry had or would be making a claim.

b. “patient Harry Dekermendjian”: To state the obvious, this statement identifies Harry by his full name and, secondly, it identifies Harry as having been a patient at the Hospital.

c. “Y#542568”: This number is the same number as in Dr. Gladman’s Emergency Consultation Report as well as Dr. Klevan’s Consultation Report. It appears to be a patient identification number.

d. “Claim” “legal proceedings”: The word “claim” is repeated twice and the words “legal proceedings” is used in the second last paragraph. It is evident that “claim” references a legal proceeding that has been or will be commenced.

e. “Claim revolves around use of steroids in a patient with previously documented steroid psychosis”: Dr. Grossman handwrote these words. It is not known how Dr. Grossman became aware of these details of the claim. Plaintiffs’ counsel may have sent a notice letter to the hospital prior to commencing the action or the hospital had already been served with the statement of claim. In any event, it is evident that as of December 21, 2010 at the latest, the Hospital, Dr. Grossman and Dr. Chan not only had notice of the claim, but also the name of the patient, his likely patient identification number, his treatment involving the use of steroids, and the fact that it was “previously documented” that Harry been diagnosed with steroid psychosis.

f. “This case should be reviewed and any recommendations emanating from that review should be shared with your department”: The evidence is that Dr. Gladman was a member of the Department of Medicine and Dr. Chan was the department chief of medicine at the relevant times. Dr. Chan also attested to having issued a report in response to Dr. Grossman’s memo; however, she was unable to recall the contents. Further, she states that she was unable to “access a copy of the report at this stage”.

[30] In my view, it is reasonable to infer from the evidence that after receipt of the memo from Dr. Grossman, Dr. Chan obtained the hospital’s records pertaining to Harry’s hospitalizations in August, September and November 2009, reviewed the records, and if she made any recommendations that emanated from the review, she shared them with her department, which would have included Dr. Gladman, who it appears from the hospital records, was the only physician other than Dr. Chan who treated Harry for COPD.

[31] This motion was served on the Hospital and the proposed defendants, Dr. Chan and Dr. Gladman, in December 2014.

Law

[32] Rule 26.01 is mandatory in nature. It provides:

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.

[33] Rule 5 deals with joinder of claims and parties. In particular, subrule 5.04(1) provides in part that a proceeding shall not be defeated by reason of incorrectly naming a party. It states:

No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.

[34] Subrule 5.04(2) gives the court discretion to substitute a party or correct the name of a party incorrectly named on terms as are just unless there is non-compensable prejudice. That rule states:

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.

[35] The plaintiffs also rely on the general rules, namely, rule 2.01 regarding the effect of non-compliance with the rules, rule 2.03 regarding dispensing with compliance, and rule 3.02 regarding extension and abridgment of time under the rules.

Doctrine of Misnomer

[36] The Ontario Court of Appeal has considered in recent years the law relating to misnomer in Omerod v. Strathroy Middlesex General Hospital 2009 ONCA 697 and Spirito Estate v. Trillium Health Centre, 2009 ONCA 762. Misnomer requires a finding that the litigation finger be clearly pointed at the intended defendant. In other words, would a reasonable person receiving the statement of claim and looking at it as a whole, in all the circumstances of the case, say to himself or herself “of course it must mean me, but they have got my name wrong”? The Court of Appeal adopted this test from the English case of Davies v. Elsby Brothers, Ltd., [1960] 3 All E.R. 672 (C.A.):

In Dukoff et al. v. Toronto General Hospital et al. (1986), 54 O.R. 2(d) 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 be to make inquiries”, then it seems to me that one is getting beyond the realm of misnomer.

[37] However, even if a plaintiff is successful in establishing misnomer, the court retains a residual discretion under rule 5.04 to refuse the proposed amendments. The Court of Appeal in Omerod addressed this part of the court’s analysis at paragraphs 28 to 32 as follows:

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 CanLII 8620 (ON CA), 207 D.L.R. (4th) 492, 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 Holmested and 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 “any” 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 applications 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 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.

Analysis

[38] For the following reasons, I am satisfied on the whole of the evidence filed on this motion that the plaintiffs have met the initial test for establishing misnomer. The amended statement of claim includes numerous specific details of Harry’s full name, as well as the following:

a) dates of hospitalizations;

b) reason for the admissions being COPD exacerbation;

c) proposed physicians were responsible for Harry’s care;

d) specific treatment of steroid medication;

e) names of medications, being Prednisone and Solu-Medrol;

f) adverse effect of Prednisone and Solu-Medrol on Harry; namely, caused him to go into steroid psychosis;

g) effect of steroid psychosis; namely, caused Harry to fall out of bed;

h) results of the fall; namely, injuries to his forehead, left shoulder, fracture of the clavicle;

i) Harry was monitored by the proposed physicians;

j) Reason for Harry’s admission on November 2, 2009;

k) Harry’s subsequent transfer to Toronto Western Hospital for surgeries as a result of his fall from bed on September 9, 2009.

[39] Further, the independent adjusting firm of Cunningham Lindsey conducted an investigation regarding the plaintiff’s claim which generated numerous reports from May, 2010 to April 2011. It is reasonable to conclude therefore that Dr. Chan and her department which included Dr. Gladman, the Hospital, Dr. Grossman, the Patient Quality Assurance Board, and the Hospital’s insurer all had knowledge of the claim before the statement of claim was served and before the applicable limitation period expired.

[40] With respect to Dr. Chan, her evidence is that she treated Harry before, during and after the subject incident. More compelling is the fact that she received Dr. Grossman’s memo in December 2010 and responded to his enquiry by issuing a report which, if she made any recommendations, was to be reviewed by members of her department. This included Dr. Gladman. Furthermore, the medical records indicate that she continued to follow-up with Harry as an outpatient, although there is no evidence of the length of time she treated him.

[41] With respect to Dr. Gladman, the evidence is that he treated harry in August 2009 at the Hospital for an exacerbation of his COPD. He also saw Harry as a referral from the emergency department when he was on call on September 3, 2009. At that time he treated Harry and admitted him to hospital. Subsequently he issued a consultation report. He was also copied with the consultation report of Dr. Chan the following day. It is recognized that this was just over five years from the date he was served with the motion record herein. However, both Dr. Gladman and Dr. Chan’s evidence are silent regarding whether Dr. Chan consulted with Dr. Gladman when she performed her review of Harry’s case in December 11, 2010 following Dr. Grossman’s memo. The evidence is that Dr. Gladman was a member of the department of medicine of which Dr. Chan was chief. Dr. Chan states that she has no recollection of the contents of her report which she has not produced. While she states that she is unable to access a copy of her report at this stage, she fails to provide any explanation. Notably, Dr. Chan’s report was not included in the hospital records which form part of the evidentiary record on this motion, nor was it listed in Schedule “B” to the Hospital’s affidavit of documents. It is logical to conclude that in December 2010 or early 2011 when Dr. Chan reviewed the plaintiff’s claim, both Drs. Chan and Gladman learned about Harry’s fall and the resultant injuries, he readmission to the Hospital in November 2009 due to complications from the fall.

[42] Given that Dr. Chan did not produce her report, nor was it produced as part of the hospital records, I make an inference against Drs. Chan and Gladman in finding that it is more likely than not that Dr. Chan reviewed Harry’s case with Dr. Gladman in December 2010 or early 2011. Therefore, I find that Dr. Gladman would have reviewed Harry’s case at that time such that there would have been approximately four years from then to the date he was served with the plaintiffs’ motion record in December 2014.

[43] I find that the plaintiffs intended to name Drs. Chan and Gladman in the statement of claim and amended statement of claim. It is obvious from reviewing the medical records that only Drs. Chan and Gladman treated Harry for COPD with steroids. Further, the records indicate that Harry was not treated for COPD when he was admitted to the hospital in November 2009.

[44] It is also my view that upon reviewing the amended statement of claim the proposed physicians would have to say “of course it must mean me, but they have got my name wrong”. In other words, I find that the litigation finger was pointed at Drs. Chan and Gladman.

[45] Having found that the plaintiffs were successful in establishing misnomer, I must now turn to the issue of the court’s residual discretion under rule 5.04 to refuse the proposed amendments.

[46] The Ontario Court of Appeal in Mazzuca, at para. 25, has outlined factors the court should consider as a guide in deciding whether or not to exercise that discretion. The following factors include procedural fairness and prejudice:

. . . under Rule 5.04(2) the Court has discretion whether to allow the amendment, notwithstanding that the threshold test is satisfied: the discretion is to ensure procedural fairness and consideration has to be given to such matters as the state of the action, whether the trial is imminent, whether examinations for discovery of all parties have already been held, whether it would be a proper joinder of a new cause of action, whether the purpose in adding a party defendant was improper such as simply to obtain discovery of the party added, whether the proposed added party was a necessary or proper party and whether a variety of special rules were observed (such as those respecting class actions, representation orders, trade unions, assignees, insurance, trustee, infants, personal under disability, amicus curiae, accrual of the cause of action and limitations).

[47] However, the proposed defendants submit that in exercising its discretion under rule 5.04(2), a court must also consider whether the plaintiff was diligent in his efforts to discover the proper names of the defendants to be substituted. They rely on the decisions in Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226, [2010] O.J. No. 3962 (Sup. Ct.), at para. 137, and Hassan v. Dunraj, 2014 ONSC 7374, at para. 22.

[48] It is noteworthy that the Court of Appeal in Mazzuca did not consider as a factor the plaintiff’s efforts to discover the proper names of the proposed defendants.

[49] Further, I concur with the findings of Master Glustein in Skribans v. Nowek, 2012 CarswellOnt 796, 2012 ONSC 532, at paras. 41-43, that a plaintiff is not required to provide evidence of what efforts were made to identify the tortfeasor. He found that such requirement would “conflate the doctrine of misnomer and discoverability, since misnomer applies despite the passage of the limitation period”. He further held that to require “an evidence of effort” requirement into the doctrine of misnomer would effectively impose a discoverability test into the misnomer doctrine, which is not supported by the Court of Appeal in its decisions in Lloyd v. Clarke (2008), 2008 ONCA 343, 52 C.P.C. (6th) 41, 2008 CarswellOnt 2456, and Omerod.

[50] With respect to prejudice, it appears from the evidence that all Harry’s medical records have been produced. There is no evidence that relevant documents have not been preserved. On that point, Dr. Chan’s evidence is that she was unable to access her report; however, as no reason was provided, it is reasonable to conclude that she will be able to produce that report in the future if this motion is granted. Further, the proposed defendants will have the benefit of the work already done by the co-defendants, including the investigations done by the Hospital and the insurer. Of particular significance is the fact that the proposed defendants will have the benefit of the investigation and analysis of Harry’s treatment and his claim performed by Dr. Chan and her department in late December 2010 or early January 2011. Dr. Chan issued a report from the investigation which, although not yet produced, will more than likely be produced in the future and the proposed defendants will benefit from that investigation and report.

[51] Furthermore, as the examinations for discovery of the hospital have not been held, the proposed defendants will be able to have their counsel attend that discovery to protect their interests.

[52] Undoubtedly there will be some delay to allow the proposed defendants to defend the action and deliver affidavits of documents; however, there is no evidence of any upcoming event that would have to be adjourned to allow for the delay.

[53] The evidence of both Drs. Chan and Gladman relating to the issue of prejudice involve poor recollections of Harry’s care given the passage of time since they treated him. Dr. Chan speaks of not having the opportunity to record more detailed recollections of various aspects of Harry’s care. In my view, the fact that several investigations were performed by Dr. Chan and her department which included Dr. Gladman, as well as the investigations by the Hospital and Cunningham Lindsay for the insurer, weighs against the proposed defendants’ position on prejudice. The investigations and resultant reports likely demonstrate that memories of events and treatments were recorded early on in this proceeding and have been preserved.

[54] Lastly, it is undisputed that the applicable limitation period has expired. However, the Ontario Court of Appeal has made it clear that the prohibition in section 21(1) of the Limitations Act, 2002, does not prevent the correction of a misnaming of a party. (Spirito Estate v. Trillium Health Centre, 2008 ONCA 762, 2008 CarswellOnt 6684, at paras. 15-16).

[55] Master Muir in Mohabir v. Mohabir, 2014 ONSC 5484, 2014 CarswellOnt 12885, at para. 24, stated that the doctrine of misnomer should not be used as a means to avoid the application of a limitation period given important public policy considerations supporting limitation periods. In citing the Ontario Court of Appeal in Zapfe v. Barnes, 2003 CanLII 52159 (ON CA), [2003] O.J. No. 2856, at paras 19 and 20, he stated further that “[a]t some point a proposed defendant should be free from having to account for past obligations when arranging his or her affairs” and a “proposed defendant should not be required to preserve relevant evidence for an unlimited period of time”.

[56] In Mohabir, Master Muir found that an order adding the proposed substituted defendants at that time was not in keeping with the policy objectives of the limitations laws in this province as they knew nothing of the claim for nearly five years after the events in questions and for nearly three years after the presumptive expiry of the limitation period. Further, Master Muir noted that the action was at an advanced stage.

[57] Unlike the proposed defendants in the Mohabir action, in the within action, as I found above, Drs. Chan and Gladman were aware of this action shortly after it was commenced in 2010, only one year after the events in question, and prior to the expiry of the applicable limitation period. It is my view that adding Drs. Chan and Gladman at this stage would not offend the policy objectives of the limitations laws given the fact that this action is at an early stage and where several investigations were conducted prior to the expiry of the limitation period.

Conclusion

[58] For the above reasons, the plaintiffs’ motion is granted.

Costs

[59] The proposed defendants submit that if the plaintiffs are successful on this motion, they should not be entitled to costs given their lack of diligence in ascertaining the names of the proposed defendants which was a reasonable basis for opposing this motion.

[60] As I found earlier, the plaintiffs’ efforts to determine the names of the proposed defendants is not a relevant factor.

[61] While I agree that it was reasonable for the defendants to oppose this motion, I also note that the amount of costs, including tax and disbursement, sought by the plaintiffs is extremely reasonable in all the circumstances.

[62] Therefore, the plaintiffs’ partial indemnity costs are fixed in the amount of $4,077 payable within 30 days.

New Timetable

[63] In my endorsement of February 10, 2016, I extended the date by which this action was to be set down for trial to February 28, 2017 as the previous set down date was to expire on February 29, 2016.

[64] It is now July 2016 and the new defendants still have to deliver statements of defence and discoveries must be completed. Thus it is very likely that this action will not be ready to be set down for trial by February 28, 2017.

[65] The parties are encouraged to agree to a discovery plan for completion of all steps in this action.

[66] In the meantime, the current date of February 28, 2017 to set the action down for trial shall be extended to December 31, 2017.

(original signed) ___ Master Lou Ann M. Pope

July 26, 2016