Court File and Parties

Citation: 2017 ONSC 2065 Newmarket Court File No.: CV-14-119730-00 Date: 2017-04-03

Ontario Superior Court of Justice

Between: Glenn Reginald Bowles, Plaintiff – and – Dr. Tim R. Hillson, Orillia Soldiers’ Memorial Hospital and Bausch & Lomb Canada Inc., Defendants

Counsel: Brian A. Pickard, for the Plaintiff Sanjaya Mendis and Carolyn Zayid, for the proposed Defendant, Abbott Medical Optics Canada Inc.

Heard: February 24, 2017

Reasons for Decision

DiTOMASO J.

The Motion

[1] The plaintiff, Glenn Bowles (“Bowles”) brings this motion to amend his Statement of Claim to add Katena Products Inc. (“Katena”) and Abbott Medical Optics Canada Inc. (“AMO”), as defendants, pursuant to the doctrines of discoverability and misnomer. As far as Katena is concerned, the motion is unopposed.

[2] As for AMO, the motion is opposed on the grounds that Mr. Bowles seeks to add AMO after the expiration of the presumptive limitation period.

[3] The action has not been set down for trial and discoveries have not taken place.

[4] All of the proposed defendants to this action are represented by counsel. Only AMO opposes this motion.

Overview

[5] Mr. Bowles underwent cataract removal surgery on August 20, 2012. The surgery was performed by the defendant, Dr. Tim Hillson, at Orillia Soldiers’ Memorial Hospital. During the surgery, a metal fragment from one of the surgical instruments broke off and lodged in the iris of Mr. Bowles’ eye. Follow up surgeries to remove the metal fragment have not been successful and the metal fragment remains in the iris of his eye.

[6] The instruments used were a Rosen Chopper and a Phacoemulsification probe.

[7] The Statement of Claim was issued on August 18, 2014, within the two year limitation period.

[8] Mr. Bowles contends that he did not discover the involvement of Katena and AMO until June 26, 2015, when Dr. Hillson’s lawyer advised Mr. Bowles’ counsel as to the identity of the manufacturers of the surgical instruments used in Mr. Bowles’ surgery.

[9] The motion to amend the Statement of Claim was first launched on or about November 24, 2015. It was adjourned more than once to allow AMO and Katena to retain counsel and to allow for cross-examinations of the Affiants.

[10] AMO contends that a reasonable person with Mr. Bowles’ abilities and his circumstances ought to have discovered AMO’s identity prior to November 24, 2013. This date is two years prior to the date (November 24, 2015) that Mr. Bowles commenced his motion to add AMO as a defendant to the action. As a result, AMO asserts that Mr. Bowles’ claim against AMO is statute barred.

The Issue

[11] The issue to be determined on this motion is whether the Statement of Claim ought to be amended to add AMO as a party defendant where the limitation period has expired.

Position of the Parties

Position of the Plaintiff Bowles

[12] On behalf of Mr. Bowles, it is submitted that the doctrine of discoverability does apply in this case. He and his lawyer exercised due diligence and did everything that they could to identify the manufacturers of the surgical instruments used by Dr. Hillson during the removal of the plaintiff’s cataract. It is submitted that the first notice of either Katena or AMO as the manufacturer of the instruments used by Dr. Hillson during that procedure was disclosed to Mr. Bowles’ counsel by letter dated June 26, 2015, from counsel acting for Dr. Hillson. Prior to this letter, although asked, Dr. Hillson never disclosed to Mr. Bowles or his counsel that AMO was the manufacturer any of the surgical instruments used by Dr. Hillson during the surgery. To the contrary, it was Dr. Hillson’s policy not to tell a patient who manufactured such instruments as he considered it to be “off side”. Mr. Bowles, through his counsel, made inquiries of Dr. Hillson as to who manufactured the surgical instruments but no disclosure was forthcoming until the June 26, 2015 letter.

[13] Whereas Mr. Bowles through his counsel sought and obtained numerous productions such as clinical notes and records from various doctors, together with hospital records, these documents failed to disclose the manufacturer of the instruments used during the surgery.

[14] As it was later revealed, Dr. Hillson did have discussions with representatives of the defendant Bosch and Lomb Inc. and AMO regarding the manufacturer of the instruments used by him during Mr. Bowles’ surgery. However, all references to these discussions, conversations and/or emails were absent from Dr. Hillson’s clinical notes and records obtained by Mr. Bowles’ counsel. That information became available much later. It is submitted that there was no evidence whatsoever upon which Mr. Bowles or his counsel could identify AMO as the manufacturer of the Phacoemulsification probe before the letter of June 26, 2015, when Mr. Stephen Schenke (Dr. Hillson’s lawyer) advised Mr. Bowles’ counsel as to the identity of the manufacturer of the surgical instruments used in the plaintiff’s surgery.

[15] It is submitted that time starts to run from June 26, 2015, and that Mr. Bowles is within the two year limitation period to amend the Statement of Claim, adding AMO as a party defendant.

Position of AMO

[16] It is submitted on behalf of AMO that the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B imposes a two year limitation period during which a plaintiff may commence an action. Under s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, a person with a claim is presumed to have known of that claim on the day the act or omission took place, unless the contrary is proved. It is submitted that the presumptive limitation period for bringing an action against AMO expired on August 20, 2014, two years after Mr. Bowles’ unfortunate surgery.

[17] It is also submitted Mr. Bowles’ claim against AMO is statute barred because a reasonable person with his abilities and in his circumstances ought to have discovered AMO’s identity prior to November 24, 2013 (two years prior to November 24, 2015) when Mr. Bowles commenced this action to add AMO as a defendant to the action.

[18] It is further submitted that Mr. Bowles and his counsel failed to take reasonable steps to identify AMO as a proposed defendant. It is submitted that Mr. Bowles and his counsel failed to ask the “right question” which was who manufactured the surgical instruments used by Dr. Hillson in Mr. Bowles’ surgery. AMO asserts that with a modest degree of due diligence, those essential facts were ascertainable immediately after Mr. Bowles’ surgery which took place on August 20, 2012. It is submitted that Mr. Bowles and his lawyer have provided no explanation whatsoever for why this was not done. Further, it is asserted that Mr. Bowles and his lawyer would have easily and without much effort been alerted to the obvious conclusion that there was a potential cause of action against AMO prior to November 24, 2013.

[19] AMO submits that Mr. Bowles’ motion to add AMO as a defendant to this action ought to be dismissed, as AMO’s identity ought reasonably to have been discovered prior to November 24, 2013.

Analysis

The Law

[20] Mr. Bowles seeks to add AMO as a defendant to the action following the expiration of the limitation period. By way of general principles regarding limitation periods, Ontario’s Limitations Act, 2002, S.O. 2002, c. 24, Sched. B imposes a two year limitation period during which a plaintiff may commence an action.

[21] Under s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, a person with a claim is presumed to have known of that claim on the day the act or omission took place, unless the contrary is proved. Accordingly, the presumptive limitation period for bringing an action against AMO, according to AMO, expired two years after the surgery, namely, on August 20, 2014. The law of discoverability applies in respect of the issue between the parties.

[22] Section 5(1)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B codifies the common law rule of discoverability, as it applies both to the discoverability of facts and a potential tortfeasor’s identity:

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

[23] In Longo v. McLaren Art Centre, 2014 ONCA 526, at paras. 40-44, the Ontario Court of Appeal provides a concise analysis regarding s. 5(1) of the Limitations Act.

[24] At paras. 25 and 26 of AMO’s factum, counsel for AMO sets out various principles in play regarding the doctrine of discoverability as follows:

Discoverability does not require perfect knowledge of a potential claim against a defendant. Certainty of the defendant’s alleged responsibility is not a pre-requisite to trigger a limitations period, “the degree of knowledge which must be possessed by the plaintiff or discovered with reasonable diligence is not that of perfect certainty, but rather awareness that there [exists] a possible claim against the defendants”. Coutanch v. Napolean Delicatessen, 2004 ONCA 10091, at para. 26.

The focus in these matters is determining when the plaintiff knew or ought to have known sufficient facts upon which to bring a claim. The plaintiff has a positive obligation to exercise reasonable diligence in discovering the material facts upon which their cause of action is founded. Pepper v. Zellers, 2006 ONCA 42355, at para. 16.

[25] In addition to the question of discoverability, a further consideration is that of due diligence.

[26] In Longo v. McLaren Art Centre, 2014 ONCA 526, the Ontario Court of Appeal expressly noted the requirement that a party must act with due diligence in determining whether he has a claim:

A plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). Longo v. McLaren Art Centre, 2014 ONCA 526, at para. 42.

[27] AMO submits that Mr. Bowles’ claim is statute barred. Neither he nor his lawyer took reasonable steps to identify the identity of the manufacturer of the surgical devices used in Mr. Bowles’ cataract removal surgery. It is submitted that Mr. Bowles’ lawyer had all of the relevant facts to meet the criteria established by s. 5(1)(a)(i)-(iv) of the Limitations Act to discover a claim against the manufacturer of the surgical tools. The proper questions were not asked. The proper investigation was not undertaken. A simple inquiry of Dr. Hillson or the hospital would have confirmed what Mr. Bowles and his counsel needed to know regarding the identity of the manufacturer of the surgical instruments. It is submitted that neither Mr. Bowles nor his lawyer have provided any reasonable explanation as to why basic and obvious steps were not undertaken to discover Mr. Bowles’ claim against AMO. It is submitted that recent steps could have led to the discovery of such a claim against AMO, but inexplicably, those steps were not taken.

Findings

[28] For the following reasons, I find that Mr. Bowles and his counsel did not discover the identity of the manufacturers of the surgical instruments used in Mr. Bowles’ surgery until plaintiff’s counsel received a letter dated June 26, 2015, from Mr. Schenke, counsel for Dr. Hillson.

[29] That letter can be found in the plaintiff’s Motion Record marked as Exhibit ‘H’ referred to in the affidavit of Leann Slade sworn October 21, 2015. The letter reads as follows:

Further to your letter of June 2, 2015, requesting the identity of the manufacturer, Dr. Hillson advises me that the Phacoemulsification machine was made by Abbott Medical. The hand pieces were made by either Abbott or Bausch and Lomb, and the Rosen Chopper was made by Katena.

I trust that this information is of assistance to you.

[30] I further find that Mr. Bowles and his counsel exercised the requisite due diligence and did everything they could to identify the manufacturers.

Discoverability

[31] With respect to amendments to add a party based on discoverability, the plaintiff has a “modest” evidentiary burden. Parlette v. Sokkia Inc., 2005 ONSC 2326, at paras. 15 and 16.

[32] If discoverability applies, then the limitation period has not expired and there is no need for the Court to find special circumstances. Wakelin v. Gourley, 2005 CarswellOnt 2808, at para. 3.

[33] In Wakelin, supra, Master Dash conducted a thorough analysis of the moving party’s evidentiary burden when amending a Statement of Claim based on discoverability. In sum, the evidentiary threshold is not high so long as the plaintiff puts in evidence of the 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. Wakelin v. Gourley, 2005 CarswellOnt 2808, at paras. 14 and 15.

[34] With respect to the plaintiff’s claim for due diligence, the court in Wakelin, supra, held:

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. Wakelin v. Gourley, 2005 CarswellOnt 2808, at para. 15.

[35] Further, the discoverability of the claim for relief involves the identification of the wrongdoer as well as the discovery of his or her acts or omissions that constitute liability.

[36] It “is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible: the identity and culpable acts of the wrongdoer must be known or available with reasonable due diligence”. Collin v. Tan, 2016 ONSC 1187, at para. 66.

[37] Bearing in mind that the plaintiff’s evidentiary burden with respect to discoverability is a “modest” one, I find that Mr. Bowles’ counsel amassed a considerable body of evidence supporting the discoverability claim.

[38] The Statement of Claim in this action was issued by Mr. Bowles’ prior counsel, Mr. Russell Howe of the law firm of Boland, Howe. His evidence is that he issued the Statement of Claim on the basis of the information he had at the time. His affidavit evidence is:

4. In preparing the Statement of Claim, I relied upon the best information I had from Mr. Bowles regarding who manufactured the surgical tool, as well as the chart of Dr. Hillson.

5. Mr. Bowles advised me that Dr. Hillson had indicated to him that the tool was made by Bausch & Lomb Canada Inc. and that the Bausch & Lomb representative lived in Barrie. This was the best information that I had at the time of preparing the Statement of Claim and I believed this information to be true. [12]

[39] It is Mr. Bowles’ evidence that he contacted his surgeon, Dr. Hillson, requesting the identity of the manufacturer of surgical tools and was advised that it was Bausch & Lomb. In his affidavit sworn April 11, 2016, he testified:

5. I have intended all along to present a claim to the manufacturer of the surgical tool which I believed to have been Bausch & Lomb Canada Inc., according to information given to me by Dr. Hillson in late 2012 when I made specific inquiries in this regard in follow up appointments. Dr. Hillson told me that he thought it was Bausch & Lomb that made the instrument.

6. Dr. Hillson told me that he thought the manufacturer was Bausch & Lomb, I called Bausch & Lomb and they were not able to assist me without the tool identification number. I then asked Dr. Hillson for this number a couple of times however he did not provide this number to me. Dr. Hillson also told me that the Bausch & Lomb representative lived in Barrie and then I tried calling him however he was not helpful and indicated he wasn’t the only supplier to the hospital.

7. The identity of the apparently correct surgical tool manufacturer Abbott Medical Optics Inc. and Katena Products Inc. could not reasonably have been known to me prior to Mr. Schenke’s letter dated June 26, 2015 to my counsel. In fact I asked Dr. Hillson for this information several times and he did not provide it. [13]

[40] Although the plaintiff is required to make a reasonable investigation of his claim, that investigation “does not, however, require a pre-discovery discovery of an adverse party”. I find Mr. Bowles, however, took additional steps and attempted several times to obtain the information from Dr. Hillson. Galtoa v. Festival Hall Developments Ltd., 2015 ONSC 6177, at para. 17, aff’d 2016 ONCA 585.

[41] On October 25, 2016, Dr. Hillson was examined in aid of this motion and he did not contradict Mr. Bowles’ evidence.

[42] Dr. Hillson testified that he did not give Mr. Bowles the name of the manufacturer or the serial numbers for the surgical tools used in the surgery. Dr. Hillson testified:

Q. And so is it fair to say that – and I take your point that you don’t recall it, is it fair to say that if Bryce had in fact given you that information then you would have relayed that to Mr. Bowles?

A. Exactly, yes.

Q. Okay, so -

MR. PICKARD: Excuse me a sec. But you have no recollection of ever giving that information to Mr. Bowles?

WITNESS: No, I know I didn’t actually. [15]

[43] With respect to the identity of the manufacturers, Dr. Hillson testified:

Q. And so it stands to reason that you told Mr. Bowles about AMO’s [Abbott] possible instrumentation that could have been used in the surgery?

A. Yes. Now – yes. I would have talked to him about the various instruments used in the eye surgery. I’m not 100% sure that I would have mentioned companies by name.

Q. So I think you said you had a conversation with Mr. Bowles about the instrumentation. You don’t have a specific recollection that you would have used the manufacturer by name?

A. That’s right.

Q. But if – but more likely than not, had he asked you would have told him that Abbott could be one possible source because you’re in contact with them?

A. Yes. Yes that is certainly possible. I’ll just reiterate though that I don’t – I haven’t documented anything that I’ve told the patient. Because I saw him in my office probably three or four times since that and I haven’t documented unfortunately exactly what I said to him or which company I said or anything like that, so I can’t tell you for sure what I told Mr. Bowles.

Q. But sitting here today you have no reason to doubt that you would have mentioned Abbott Medical had he asked?

A. Well I do actually –

Q. Okay. And so you have nothing to contradict what Mr. Bowles says in paragraphs five and six [of his Affidavit]?

A. No, I just would like to comment though that it would be unlikely for me to give a patient contact information for a representative for a company. I wouldn’t do that. And I don’t think I’ve ever done that.

Q. Okay. And in this case you have no recollection of telling Mr. Bowles who the contact information was for Abbott?

A. That’s right. [16]

[44] Dr. Hillson also testified that it was his policy not to give out such information to his patients, specifically:

Q. And you indicated that generally speaking you would not tell a patient of the identity of the manufacturer of any of the instruments you used?

A. No. That would be kind of offside. Like I wouldn’t do that.

Q. Can you explain what you mean by “offside”?

A. Well it’s kind of – if the patient needs to talk to the rep I think I should deal with it.

Q. I see.

A. That would – that’s my job.

Q. So logically in this case you would follow your practice; you would not have told Mr. Bowles about Abbott Medical’s involvement?

A. Well I wouldn’t ask him to deal directly with the representative.

Q. Okay.

A. Like it wouldn’t be my practice to say, you know, this is the company and this is who you have to deal with. It would be, you know, I’m looking after it and here’s what I’m doing. [17]

[45] Dr. Hillson also testified that neither he, nor anyone in his office, gave Mr. Bowles’ contact information to AMO, nor did they give Mr. Bowles the contact information for anyone at AMO. [18]

[46] With respect to the involvement of Bausch & Lomb, Dr. Hillson testified that “there were still Bausch & Lomb instruments circulating through our OR for some of the cases” and he may have advised Mr. Bowles of this. [19]

[47] Finally, with respect to the involvement of AMO and Bausch & Lomb, Dr. Hillson also testified:

Q. Nothing. And you don’t specifically recall speaking with him [Bowles] and advising him that Abbott was the manufacturer?

A. No, I don’t.

Q. Okay. But you were aware that at one point in time I guess some of the ends of the machinery was (sic) made by Bausch & Lomb?

A. Right.

Q. So it’s possible Bausch & Lomb came up in your conversation with Mr. Bowles, but you don’t recall?

A. That’s right. I don’t remember that.

Q. Okay, but it’s possible it could have been?

A. Yes. [20]

[48] There were a series of email exchanges between Dr. Hillson and Bryce Collins and Valerie Sedyicki of AMO. However, Dr. Hillson testified that:

(c) None of the emails were copies to Mr. Bowles;

(d) The emails were not part of his clinical notes and records and therefore were never sent to Mr. Howe (plaintiff’s former lawyer) when Dr. Hillson’s records were sent to him (Howe); and,

(e) Copies of emails were never sent to either Mr. Howe or Mr. Bowles, so they were completely unaware of them. [21]

[49] With respect to Dr. Hillson’s clinical notes and records, those records identify the instrumentation used but they do not identify the manufacturer of any of the surgical instruments used in Mr. Bowles’ surgery. [22]

[50] Finally, Dr. Hillson admitted that because he was dealing directly with AMO, the only way for Mr. Bowles to know the identity of the manufacturer of the surgical instruments was if he (Dr. Hillson) told him. [23]

[51] I find Dr. Hillson’s evidence can be summarized as follows:

(a) Bausch & Lomb Inc. did manufacture some of the surgical tips used in the operating room;

(b) Dr. Hillson cannot contradict Mr. Bowles’ evidence that Dr. Hillson told him that Bausch & Lomb Inc. manufactured the parts of the instrument used in the surgery;

(c) Dr. Hillson has no recollection of ever advising Mr. Bowles of the identity of the manufacturer and that it was Dr. Hillson’s practice and policy not to provide such information;

(d) Dr. Hillson’s clinical notes and records do not identify the manufacturer;

(e) The email exchange between Dr. Hillson and representatives of AMO were never given to Mr. Bowles or his lawyer.

(f) The email exchange between Dr. Hillson and AMO was not contained in his clinical notes and records and were therefore not sent to Mr. Bowles’ lawyer when the clinical notes and records were sent; and,

(g) There is no way that either Mr. Bowles or his lawyer, could know about the involvement of AMO and Katena unless Dr. Hillson told them.

[52] I find it was not until Dr. Hillson’s lawyer, Mr. Stephen Schenke, wrote to the plaintiff’s current lawyer, Mark Johnston, on June 26, 2015, that Mr. Bowles learned for the first time that the manufacturers were AMO and Katena. [24] [25]

[53] On March 12, 2015, Dr. Hillson served his Statement of Defence and Crossclaim. Dr. Hillson cross-claimed against Orillia Soldier’s Memorial Hospital and Bausch & Lomb Canada Inc. There is no mention of either AMO or Katena in his Statement of Defence or Crossclaim. Dr. Hillson claimed only against the hospital and Bausch & Lomb. [26]

Due Diligence

[54] It is submitted that Mr. Bowles and his counsel did everything they could to identify the manufacturers. To the contrary, AMO asserts that they did virtually nothing and in what little they did, they failed to ask the “right question”. I disagree and reject the submission on behalf of AMO that Mr. Bowles and his counsel failed to exercise due diligence. Rather, I find that Mr. Bowles made repeated requests to Dr. Hillson for the information as to the identity of the manufacturers of the surgical instruments. [27]

[55] It is submitted by counsel for AMO that Mr. Bowles and his counsel failed to ask the “right question”. The “right question” would have been a simple one, namely, who manufactured the surgical instruments used during Mr. Bowles cataract operation. It is clear that Mr. Bowles did make inquiries of Dr. Hillson but was told by Dr. Hillson that it would be “off side” to provide any such information to a patient. Rather, Dr. Hillson would prefer to deal with the matter himself which he did with Mr. Collins and Ms. Sedyicki of AMO. These dealings were not known or disclosed to Mr. Bowles and his counsel because those emails did not form part of the clinical notes and records of Dr. Hillson. Mr. Bowles and his lawyer knew nothing about these emails or conversations between Dr. Hillson and representatives of AMO. If those communications were disclosed, AMO might have a more plausible argument instead of simply asserting that Mr. Bowles and his counsel failed to ask “the right question”.

[56] Mr. Bowles’ evidence on his cross-examination supports that he did ask “the right question”:

Q. Understood. Did you ask Dr. Hillson to hold onto the tools you had used in your surgery just to preserve them?

A. I asked him if I could get a hold of the tools, if he could give them to me, the tool that he operated with, so I could see what the number was on it, what make of tool it was, that type of thing. And he said he didn’t know where it was or what tool was used. He didn’t know anything – didn’t know what happened to it or anything. [28]

[57] Further, I find that Mr. Howe, the former lawyer for Mr. Bowles, ordered and reviewed Dr. Hillson’s chart. [29] [30]

[58] A corporate profile search was conducted on Bausch & Lomb Inc. and it did not show any connection between Bausch & Lomb and either AMO or Katena. [31]

[59] Records were ordered by the plaintiff’s former lawyer, from:

(a) Orillia Soldier’s Memorial Hospital

(b) Dr. Dan Whittle

(c) Royal Victoria Hospital

(d) Dr. Egleal K. Ahmed

(e) Dr. Donald Advent

(f) Southlake Regional Health Centre

(g) Dr. Steven J. Eman

(h) Dr. Ian Erkelens [32]

[60] None of these records identified the manufacturers of the surgical instruments.

[61] Given that Mr. Bowles has a “modest” evidentiary burden, these steps taken on the part of the plaintiff demonstrates due diligence in order to add a party based on discoverability.

[62] I find that the information as to the identity as to who manufactured the surgical instruments could only have come from Dr. Hillson and that information was not forthcoming until the letter from his counsel dated June 26, 2015 was sent. I find Mr. Bowles and his counsel had asked “the right question.” However, it is clear they were not provided with the “right answer” until June 26, 2015.

[63] I find there were no records available to Mr. Bowles or his counsel which identified the manufacturer of the instruments and there was no way for Mr. Bowles to discover this information. On the totality of all of the evidence, Mr. Bowles and his counsel could not have discovered the identity of the entities responsible for manufacturing the instruments used in his cataract surgery any earlier than they did discover it, i.e. on June 26, 2015.

[64] I find on the totality of the evidence that Mr. Bowles and his lawyer exercised due diligence in determining the identity of the proper parties.

Misnomer

[65] As for misnomer, Mr. Bowles submits that the doctrine of misnomer permits the amendment where it was intended that proceedings be commenced with one defendant, but in error, the proceedings were not commenced against all the defendants, or a defendant was misnamed. It is submitted that at any stage of the litigation, this can be correct.

[66] AMO submits this is not a misnomer case. Rather, it is a discoverability case. I agree. I find the doctrine of misnomer does not apply in this case.

Conclusion

[67] Accordingly, for these Reasons, Mr. Bowles’ motion is granted. Abbott Medical Optics Canada Inc. shall be added as a party defendant. Katena did not oppose this motion. It is ordered that the Statement of Claim shall also be amended to add Katena Products Inc. as a party defendant.

Costs

[68] On consent, AMO and Mr. Bowles agree that the successful party shall be awarded the sum of $3500 in costs all-inclusive, payable within 45 days. Mr. Bowles is the successful party on this motion and AMO shall pay Mr. Bowles $3500 all-inclusive for costs within 45 days of this Order.

DiTOMASO J. Released: April 3, 2017