COURT FILE NO.: CV-19-2700, CV-14-5240 and CV-15-543160

DATE: 2019 10 08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Cheryl McNeil and Daniel William McNeil-Silver, by his Litigation Guardian Cheryl McNeil

Plaintiffs

– and –

Dr. Michael G.F. van Gulik

Defendant

– and –

Dr. Vivek Panchapakesan, Dr. Mehri Habibi, Dr. Muhammad Karim Dhanidina, William Osler Health System, Lissy Keethananick aka Lissy Thomas, Kimberly Cordell, E. Holgate, Mareena Tom W. Abrahim, S, D’Amico, Rupinder Grewal

Defendants

Brian Pickard for the Plaintiffs’ solicitors

Mira Novek and Ljiljana Stanic, for the Defendant Dr. van Gulik

Jennifer Hunter, for the Defendant physicians

HEARD: July 15, 2019

REASONS FOR JUDGMENT

PETERSEN J.

OVERVIEW

[1] The Plaintiff, Cheryl McNeil, suffered a crush injury to her left hand in September 2012. She sought medical treatment at a fracture clinic and was referred to a specialist, Dr. Panchapakesan, who recommended reconstructive surgery. She subsequently underwent surgery at William Osler Health System hospital on December 21, 2012. Dr. Panchapakesan was her surgeon. The anaesthesiologist during the surgery was Dr. Habibi.

[2] After the surgery, Ms. McNeil was transferred to the hospital’s Post-Anesthetic Care Unit (PACU) and was given a morphine pump for pain. The morphine was not effective and she complained to the nurses about severe pain. She was seen by both Dr. Panchapakesan and Dr. Habibi in the PACU and was ultimately admitted to the hospital for overnight care. The anesthesiologist on call for Acute Pain Service that night was Dr. Dhanidina. He saw Ms. McNeil and ordered a reset of her pump. The following morning, a different anaesthesiologist, Dr. van Gulik, was on call. He was contacted by a nurse because Ms. McNeil was reporting ongoing severe pain. He examined her and administered a nerve block. She was then discharged from hospital at approximately 11:30 a.m. that morning, December 22, 2012.

[3] Ms. McNeil returned to the hospital’s Emergency Department around noon the following day, presenting with severe pain, swelling and discolouration in her arm. She was assessed by Dr. Kim, who diagnosed her with compartment syndrome. She underwent emergency surgery that same afternoon. She was left with a twelve-inch scar and problems with strength, mobility, sensation and pain in her left upper extremity.

[4] Ms. McNeil received post-surgical care and underwent a further surgery, but continued to experience pain and impaired function in her left arm, wrist and hand. She claims that as a result of the actions and inactions of the health care professionals who treated her during her hospital stay in December 2012, she sustained permanent neurologic and soft tissue damage. She and her son Daniel commenced litigation against the hospital and several physicians and registered nurses employed by the hospital, alleging professional negligence in the care that she received. (Daniel is claiming damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.)

[5] Two separate Statements of Claim have been issued by the Plaintiffs. The first was issued in Brampton on November 20, 2014. That action was assigned Court File No. CV-14-5240. Dr. van Gulik was not named as a Defendant in the Brampton action.

[6] On May 19, 2015, Dr. Panchapakesan, Dr. Habibi and Dr. Dhanidina filed a Statement of Defence and Cross-Claims in the Brampton action. On October 26, 2015, the hospital and the remaining individual Defendants filed a Statement of Defence and Cross-Claim in the Brampton action.

[7] The second Statement of Claim was issued in Toronto on December 21, 2015. It was assigned Court File No. CV-15-543160. Dr. van Gulik is named as the sole Defendant in the Toronto action.

[8] Dr. van Gulik filed a Statement of Defence on September 30, 2016. He denied the negligence allegations made against him. He also pleaded that the Plaintiffs’ claim was commenced beyond the two-year limitation period prescribed by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[9] In January 2018, Dr. van Gulik brought a motion for summary judgment to have the Toronto action dismissed as statute-barred and as an abuse of process. The parties exchanged motion records and conducted cross-examinations on affidavits. A production order was obtained by Dr. van Gulik for copies of records in the Plaintiffs’ solicitor’s file relevant to his limitations defence. Then, on July 23, 2018, Brian Pickard – the lawyer for the Plaintiffs’ solicitors – wrote to Dr. van Gulik’s lawyer, advising that he had instructions to proceed with a misnomer motion in the Brampton action to “correct the misnaming of Dr. Habibi instead of Dr. van Gulik.” Mr. Pickard stated, “The outcome of that motion should render the summary judgment motion [in the Toronto action] moot.”

[10] The Plaintiffs issued a Notice of Motion in the Brampton action on November 13, 2018, two weeks prior to the hearing of Dr. van Gulik’s summary judgment motion in the Toronto action. The Plaintiffs’ motion sought leave to amend the Statement of Claim in the Brampton action by removing Dr. Habibi’s name from several passages and replacing it with Dr. van Gulik’s name.

[11] On November 26, 2018, Dr. van Gulik’s summary judgment motion came before Justice Myers for a hearing in Toronto. The Plaintiffs sought an adjournment of the hearing until after their misnomer motion was decided in the Brampton proceeding. Justice Myers granted the adjournment but transferred the summary judgment motion to Brampton, to be heard together with the Plaintiffs’ misnomer motion.

[12] I heard both motions on July 15, 2019. In these Reasons for Judgment, I will first deal with the Plaintiffs’ misnomer motion.

PLAINTIFFS’ MISNOMER MOTION

Positions of the Parties

[13] In their Notice of Motion, the Plaintiffs assert that they always intended to sue the anaesthesiologist who administered the nerve block to Ms. McNeil and discharged her from hospital on December 22, 2012. It is undisputed that Dr. van Gulik is the anaesthesiologist who performed the nerve block. The evidence establishes that Dr. van Gulik was also involved in the decision to discharge Ms. McNeil. The Plaintiffs state that they mistakenly believed Dr. Habibi was the anaesthesiologist in question, so they incorrectly named Dr. Habibi instead of Dr. van Gulik as a Defendant in the Brampton action. They argue that any reasonable person reading their pleadings would know that Dr. van Gulik was the intended Defendant. They seek an order permitting them to amend their Statement of Claim to correct the misnomer. They argue that Dr. van Gulik will suffer no non-compensable prejudice as a result of the proposed amendment.

[14] Dr. van Gulik disputes that there was a misnomer by the Plaintiffs in the Statement of Claim in the Brampton action. He submits that the Plaintiffs always intended to name and pursue Dr. Habibi for her involvement in Ms. McNeil’s care. He argues that the Plaintiffs realized, after conducting discovery of Dr. Habibi, that their claim against her was weak, so they made a strategic decision to sacrifice their claim against her and pursue a claim against him instead. He submits that the Plaintiffs are effectively seeking to add him as a party to the Brampton action, under the guise of a misnomer motion, in an effort to side-step the expiry of the limitation period in the Toronto action.

[15] The Defendant hospital takes no position in the misnomer motion.[^1]

[16] At the hearing before me, counsel for the other Defendant physicians noted that Dr. Habibi understood the Plaintiffs’ claim was against her and defended herself accordingly. She filed a Statement of Defence and Cross-Claim, served a draft Affidavit of Documents, and was examined for discovery. She therefore incurred legal costs. Obviously, it is in her interest to be released as a Defendant in the action, but her counsel made no submissions on the misnomer issue, except to advise the court (and the parties) that Dr. Habibi intends to seek an order for costs if she is removed as a Defendant at this stage of the litigation.

Applicable Rules and Analytical Framework

[17] Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governs amendments to pleadings generally, but Rule 5.04(2) deals specifically with amendments relating to misnomer. Rule 5.04(2) 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.”

[18] An order pursuant to Rule 5.04(2) does not add a new party as a defendant but rather corrects the name of a defendant incorrectly named: Spirito Estate v. Trillium Health Centre, 2008 ONCA 762, at para. 15; Omerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697, at para. 27; McDonald v. Hoopp Realty Inc., 2014 ONSC 6089, at para. 11. For that reason, an order may be granted pursuant to Rule 5.04(2) despite the expiry of the applicable limitation: Limitations Act, ss. 21(1) and (2); Lloyd v. Clark, 2008 ONCA 343, at para. 4; Spirito Estate, at para. 15; Skribans v. Nowek, 2012 ONSC 532, at paras. 32-43.

[19] However, an order to correct a misnomer may only be made where there is “coincidence between the plaintiff’s intention to name a party and the party’s knowledge that it was the intended defendant”: Lloyd, at para. 4; Ormerod, at para. 21; McDonald, at paras. 26-27; Wirring v. The Buffalo Group Developments Ltd., 2012 ONCA 810, at para. 10. The first element of this test involves an assessment of the plaintiff’s subjective intention. The second element of the test focuses on the proposed defendant’s knowledge, but it is not assessed by examining the actual state of mind of the proposed defendant. Rather, the question is whether the proposed defendant (or the proposed defendant’s representatives) would have known or could easily have ascertained that the “litigation finger” was pointing at him or her when they received the Statement of Claim: Ormerod, at para. 24; Hassan v. Dunraj, 2014 ONSC 7374, at pp. 25-27.

[20] When both elements of the test are satisfied and the court concludes that a misnomer occurred – even where no non-compensable prejudice would result from an amendment to the plaintiff’s pleadings – the court retains residual discretion to refuse to grant an order under Rule 5.04(2): Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, at paras. 24-26; Omerod, at paras. 28-30; Skribans, at para. 47; McDonald, at para. 8; Acimovic v. 8174709 Canada Inc., 2015 ONSC 582, at para. 12. This discretion exists primarily to ensure procedural fairness. Consideration must be given to such matters as the state of the action, whether examinations for discovery of all parties have already been held, whether the trial is imminent, etc.: Mazzuca, at para. 25. However, in cases with exceptional circumstances, where the mistake in naming the defendant involves more than a mere irregularity (such as the misspelling of a person’s name), the court may take a broader view of its discretion to refuse to permit the correction: Omerod, at paras. 31-32.

Issues

[21] The Plaintiffs’ motion raises the following issues:

(i) Is this truly a case of misnomer? This question raises two sub-issues:

(a) Did the Plaintiffs intend to name Dr. van Gulik as a Defendant in the Brampton action?

(b) Would Dr. van Gulik or his representatives have known or could they easily have ascertained that he was an intended Defendant in the Plaintiffs’ Statement of Claim in the Brampton action?

(ii) If this is a case of misnomer, will Dr. van Gulik suffer non-compensable prejudice if the Plaintiffs are permitted to correct their error by substituting his name for that of Dr. Habibi in the Brampton Statement of Claim?

(iii) Even if Dr. van Gulik will not suffer non-compensable prejudice, are there reasons why I should not exercise my discretion to grant leave for the Plaintiffs to amend the Statement of Claim?

Did the Plaintiffs intend to name Dr. van Gulik as a Defendant in the Brampton action?

[22] The Plaintiffs filed an Affidavit sworn by Earl Murtha, an associate in the law firm retained by the Plaintiffs’ counsel to bring the misnomer motion.

[23] Mr. Murtha deposed, based on information and belief, that when the Statement of Claim was issued in the Toronto action, the Plaintiffs intended to sue the anaesthesiologist who had administered a nerve block to Ms. McNeil. Mr. Murtha has no direct personal knowledge of the Plaintiffs’ intention. He had no involvement in the file when the Statement of Claim was drafted by the Plaintiffs’ solicitors. He candidly states that his belief regarding the Plaintiffs’ intention is based solely on information provided by one of the Plaintiffs’ lawyers, Jeremy Syrtash.[^2] Mr. Syrtash also had no direct involvement in drafting the Statement of Claim. He was not even working at the Plaintiffs’ solicitors’ firm at the time. He joined the firm in September 2017, almost three years after the Brampton action was commenced. Mr. Murtha’s hearsay evidence regarding the Plaintiffs’ intention at the time of issuing the Statement of Claim is therefore doubly unreliable. For that reason, I give it no weight.

[24] Mr. Murtha notes in his Affidavit that Dr. Habibi is female and that Dr. van Gulik is male. These facts are relevant because the Plaintiffs used male pronouns to refer to Dr. Habibi in the Statement of Claim. The Plaintiffs argue that this evidence of mis-gendering shows that they meant to name the male anaesthesiologist who administered the nerve block (Dr. van Gulik) and not the female anaesthesiologist who was part of the surgical team (Dr. Habibi).

[25] The Plaintiffs assert in their factum that the naming of Dr. Habibi instead of Dr. van Gulik was the result of misreading confusing hospital records, but no specifics are provided in that regard. There is no evidence in the record to support this assertion.

[26] Dr. van Gulik disputes the Plaintiffs’ claim that he was always the intended Defendant. He argues that the manner in which the Plaintiffs drafted their pleadings and the manner in which they conducted the litigation demonstrate a continued and settled intention to pursue Dr. Habibi as a Defendant.

[27] The content of the Plaintiffs’ pleadings is relevant and probative evidence of who they intended to sue. I will therefore review the pleadings in some detail.

[28] In their Statement of Claim (in the Brampton action), the Plaintiffs set out a lengthy narrative of the facts pertaining to Ms. McNeil’s injury and treatment. They provide a detailed chronology of the care she received in the hospital, including summaries of the roles and actions of the various Defendant physicians and nurses. At the end of the narrative, they allege that Ms. McNeil sustained injuries and damages caused by the negligence of the Defendants, either jointly or severally. They then provide particulars of the negligence allegations against each of the named Defendants.

[29] As part of the narrative, the Plaintiffs correctly identify Dr. Habibi as the anaesthesiologist who was present during Ms. McNeil’s surgery. They also summarize Dr. Habibi’s involvement in her post-surgical care. As part of that summary, they plead that Dr. Habibi was contacted to provide Ms. McNeil a nerve block for pain while she was recovering from surgery in the PACU. They further plead that Dr. Habibi examined Ms. McNeil at 12:37 p.m. on December 21, 2012 and chose not to offer her a nerve block. These pleadings are correct statements of fact. They relate to care that was provided by Dr. Habibi, as confirmed by hospital records and by Dr. Habibi during her examination for discovery.

[30] There is one paragraph in the Plaintiffs’ narrative that is factually incorrect with respect to Dr. Habibi’s involvement in Ms. McNeil’s post-surgical care. The Plaintiffs accurately state that on the morning of December 22, 2012, the Acute Pain Service was contacted because Ms. McNeil was reporting severe pain. They then plead that Dr. Habibi attended and “he” examined Ms. McNeil, noted that there was “continuing pain unable to control/cope”, discussed the situation with Dr. Panchapakesan and administered a nerve block. This latter pleading is incorrect, not only because it refers to Dr. Habibi using a male pronoun, but because Dr. van Gulik was the anaesthesiologist who responded to the nurse’s call and administered the nerve block on December 22, 2012.

[31] In the section of the Statement of Claim that provides particulars of each Defendants’ alleged negligence, twelve specific allegations are made against Dr. Habibi, including: that “he” failed to understand the significance and act upon the signs and symptoms of compartment syndrome displayed by Ms. McNeil; that “he” failed to conduct a proper examination of her arm in order to rule out the onset of compartment syndrome; that “he” failed to accurately diagnose compartment syndrome in a timely way; that “he” failed to test or measure the compartment pressure in her arm; and that “he” failed to take proper steps to reduce the pressure and treat the condition.

[32] The twelve particulars of alleged negligence are all directed at Ms. McNeil’s post-operative care. There are no allegations of negligence relating to the anaesthetic care provided by Dr. Habibi prior to or during the surgery. The Plaintiffs submit that this is further evidence of their intention to pursue Dr. van Gulik, the anaesthesiologist who administered the nerve block the day after the surgery.

[33] I do not find this to be particularly probative evidence because both Dr. Habibi and Dr. van Gulik examined Ms. McNeil and made decisions about her treatment and care during the post-operative period at the hospital. The fact that no allegations of negligence were directed at the anaesthetic care provided prior to or during the surgery therefore does not exclude Dr. Habibi as a Defendant. It is not probative of an intent to pursue Dr. van Gulik rather than Dr. Habibi.

[34] More compelling, in my view, is the fact that the twelve particulars of Dr. Habibi’s alleged negligence make no mention of the nerve block administered on December 22, 2012, or of Ms. McNeil’s discharge from hospital. These are the two bases upon which the Plaintiffs claim that they always intended to name Dr. van Gulik as a Defendant. If that were true, I would expect to see references to the nerve block and the discharge in the negligence pleadings.

[35] The nerve block is mentioned in the narrative portion of the Statement of Claim, but simply as one fact in a lengthy chronology of events. There is no specific pleading that the nerve block was administered improperly. The particularized allegations of Dr. Habibi’s negligence focus on the delayed diagnosis and treatment of Ms. McNeil’s compartment syndrome. There is no pleading that the nerve block caused or contributed to her compartment syndrome, or to any other injuries or damages that she may have sustained.

[36] A comparison of these pleadings with the pleadings in the Toronto action against Dr. van Gulik is instructive. The two Statements of Claim include a very similar narrative summary. However, in the Toronto claim, the Plaintiffs correctly identify Dr. van Gulik as the on-call anaesthesiologist who examined Ms. McNeil on the morning of December 22, 2012 and administered a nerve block. The Plaintiffs then set out seventeen particulars of Dr. van Gulik’s alleged negligence. Many of the particulars overlap with those that were directed at Dr. Habibi in the Statement of Claim in the Brampton action. In addition, the Plaintiffs allege that Dr. van Gulik failed to conduct a proper examination of Ms. McNeil’s left arm, wrist and hand before administering the nerve block, failed to obtain proper informed consent to the treatment provided,[^3] performed the nerve block in an improper manner, and failed to properly warn Ms. McNeil to monitor herself for relevant symptoms that may reflect the onset of compartment syndrome while the nerve block was in effect. No similar pleadings are contained in the allegations against Dr. Habibi in the Statement of Claim in the Brampton action.

[37] In my view, the wording of the pleadings suggests that when the first Statement of Claim was drafted, the Plaintiffs did not intend to pursue Dr. van Gulik for his involvement in Ms. McNeil’s care. His only involvement was the administration of the nerve block and subsequent discharge. Those events are not mentioned in the particularized allegations of negligence against Dr. Habibi.

[38] The conduct of the litigation further supports a finding that the Plaintiffs did not make a mistake when they named Dr. Habibi as a Defendant. There is no question that they mis-gendered her in the Statement of Claim; they incorrectly referred to her with male pronouns. They also incorrectly identified her as the anaesthesiologist who administered the nerve block. However, they correctly identified other aspects of her involvement in Ms. McNeil’s treatment and care and demonstrated an intention to sue her in respect of her involvement.

[39] In her Statement of Defence, Dr. Habibi did not plead that the Plaintiffs had misidentified her. Instead, she responded to the merits of the allegations in the Statement of Claim. She confirmed that she was the anaesthesiologist during Ms. McNeil’s surgery on December 21, 2012. She confirmed that she saw Ms. McNeil in the PACU after the surgery. She confirmed that she assessed Ms. McNeil at approximately 12:45 p.m. on December 21, 2012, in response to complaints of pain. She pleaded that Ms. McNeil’s colour, movement and sensation were normal. She confirmed that she declined to order a nerve block at that time.

[40] Dr. Habibi further pleaded that she left the hospital at the end of her regular work day on December 21, 2012 and had no further involvement in Ms. McNeil’s care. She did not say so specifically, but she implied that she was not the on-call anaesthesiologist who administered the nerve block the following day. When the hospital filed its Statement of Defence on October 26, 2015, it explicitly identified Dr. van Gulik as the physician who performed the nerve block on December 22, 2012. This information did not prompt the Plaintiffs to bring a misnomer motion, which suggests that the nerve block procedure was not the basis upon which they were pursuing Dr. Habibi.

[41] Instead, the Plaintiffs initiated the Toronto action against Dr. van Gulik on December 21, 2015 and proposed to consolidate it with the Brampton action, such that Dr. Habibi and Dr. van Gulik would become co-Defendants. The Plaintiffs continued to pursue Dr. Habibi, despite learning that she was not the doctor who administered the nerve block. Notably, the Plaintiffs examined Dr. Habibi for discovery in January 2016. The examination included numerous questions about various aspects of the care she provided to Ms. McNeil during the post-operative period. For example, Plaintiffs’ counsel asked Dr. Habibi about her usual practice of transferring patients to the PACU following surgery and whether she typically sees patients in the PACU as a matter of routine or only when called by nursing staff. Dr. Habibi was asked multiple questions about her physical examination of Ms. McNeil at 12:37 p.m. on December 21, 2012, such as whether she would have removed Ms. McNeil’s cast, palpitated Ms. McNeil’s wrist, done a passive stretch of Ms. McNeil’s fingers, etc. Had the Plaintiffs erroneously named Dr. Habibi as a Defendant because they mistakenly believed that she was the anaesthesiologist who administered the nerve block, they would have had no reason to examine her for discovery in this fashion after learning of their error. They would not have wasted time and resources examining the wrong party for discovery on facts that had no bearing on the Plaintiffs’ claims.

[42] Finally, the timing of the misnomer motion is further circumstantial evidence that the Plaintiffs did not have the anaesthesiologist who administered the nerve block in mind when they named Dr. Habibi as a Defendant in their Statement of Claim. The misnomer motion was filed approximately two weeks prior to the scheduled hearing of Dr. van Gulik’s summary judgment motion in the Toronto action. The significance of this timing is explained below.

[43] Dr. van Gulik’s summary judgment motion seeks dismissal of the Toronto action against him on the basis that it is statute-barred. In opposition to that motion, the Plaintiffs rely on the doctrine of discoverability. Their position is that the Statement of Claim in the Toronto action is timely because it was issued less than two years from the date they discovered Dr. van Gulik’s identity as the anaesthesiologist who performed the nerve block.

[44] The Plaintiffs filed materials in response to the summary judgment motion, including Affidavits sworn by Ms. McNeil and Mr. Syrtash (one of the Plaintiffs’ lawyers). Both Affiants deposed that when Ms. McNeil first met with Plaintiffs’ counsel on July 2, 2014, she had only 25 pages of her medical records. They further deposed that the records she gave to Plaintiffs’ counsel did not contain any notations made by Dr. van Gulik or any other information from which he could be identified. Mr. Syrtash deposed that Plaintiffs’ counsel did not obtain a complete copy of Ms. McNeil’s hospital records, which contained two notations written by Dr. van Gulik, until November 21, 2014. The Plaintiffs argue that this is the earliest date upon which the two-year limitation period could begin to run.

[45] During his cross-examination in April 2018, Mr. Syrtash was forced to retract part of his affidavit evidence. He admitted that Plaintiffs’ counsel must have had a copy of at least one of Dr. van Gulik’s notations because they quoted from it in the Statement of Claim issued in the Brampton action. He later acknowledged (during re-examination in August 2018) that Ms. McNeil had in her possession and provided to Plaintiffs’ counsel 247 pages of medical records at some point between December 21, 2013 and March 14, 2014. Mr. Syrtash further acknowledged that these records included Dr. van Gulik’s two notations.

[46] During Mr. Syrtash’s first cross-examination, the Plaintiffs refused multiple requests for production of documents from their solicitors’ file that were relevant to the limitations issue. Their refusals necessitated a production motion by Dr. van Gulik, which was successful. The motion resulted in a production order being issued and an adjournment of the summary judgment motion hearing to November 26, 2018.

[47] Shortly after the production order was made on June 21, 2018, the Plaintiffs advised Dr. van Gulik, for the first time, of their intention to bring a misnomer motion to add his name to the Brampton action.

[48] Dr. van Gulik was required to bring two further motions to obtain compliance orders relating to the production order. He eventually obtained full disclosure of relevant records from the Plaintiffs’ solicitors’ file. Mr. Syrtash attended for a re-examination on August 17, 2018, as directed in the production order. As discussed below (in my Reasons for Judgment on the summary judgment motion), the records from the solicitors’ file and the evidence given by Mr. Syrtash during his re-examination lend support to Dr. van Gulik’s limitations defence.

[49] As set out above, the Plaintiffs issued their Notice of [misnomer] Motion on November 13, 2018 and requested an adjournment of the summary judgment motion scheduled on November 26, 2018.

[50] The timing of the misnomer motion suggests that it was brought to try to avoid the summary judgment hearing on Dr. van Gulik’s limitations defence. Based on the totality of the evidence, I conclude on a balance of probabilities that the Plaintiffs realized their discoverability argument had limited chance of success once all the relevant evidence regarding the limitations issue was produced. I agree with Dr. van Gulik’s submission that, having already discovered Dr. Habibi and having assessed the strength of their case against her, the Plaintiffs made a strategic decision to sacrifice the tested claim against Dr. Habibi in favour of an untested claim against Dr. van Gulik. The Plaintiffs recognized that they likely would not be able to pursue both Defendants in a consolidated action as they had originally hoped, so they used misnomer as a pretext to side-step the limitations issue in their claim against Dr. van Gulik. The fact that they had mis-gendered Dr. Habibi in their Brampton pleadings and had mistakenly identified her as the anaesthesiologist who administered the nerve block lent plausibility to their misnomer argument. However, the strategic replacement of one Defendant with another to avoid a limitations defence is not a true case of misnomer, nor an appropriate case for an order pursuant to Rule 5.04(2).

[51] For the above reasons, I conclude that the Plaintiffs did not intend to name Dr. van Gulik as a Defendant at the time of the issuance of the Statement of Claim in the Brampton proceeding. This finding is dispositive of the Plaintiffs’ motion, which is hereby dismissed.

Would Dr. van Gulik or his representatives have known or could they have easily ascertained that he was the intended Defendant?

[52] It is unnecessary for me to deal with this issue or any other issues raised in the misnomer motion. I note, however, that even if I am incorrect in my conclusion regarding the Plaintiffs’ intention to pursue Dr. van Gulik as a Defendant in the Brampton action, I would nevertheless find that this is not a case of misnomer because the second condition for misnomer is not met.

[53] In my view, the Plaintiffs’ Statement of Claim in the Brampton proceeding would not have led Dr. van Gulik (or his representatives) to conclude that the allegations of negligence pleaded against Dr. Habibi were actually directed at him.

[54] I agree with the Plaintiffs’ submission that, had he checked his notes, Dr. van Gulik would have realized that he was the anaesthesiologist on call who administered the nerve block to Ms. McNeil. He would have realized that he participated in the decision to discharge her. However, as discussed above, there are no pleadings of negligence in the Brampton claim that relate specifically to the nerve block or to her discharge.

[55] Upon reading the particulars of the allegations in the Statement of Claim, there would be no reasonable basis for Dr. van Gulik (or his representatives) to conclude that he was the true target of the pleadings. There would be no reasonable basis for him (or his representatives) to conclude that the allegations of negligence related to anything other than Dr. Habibi’s involvement in Ms. McNeil’s care. The fact that an incorrect male pronoun was used to refer to Dr. Habibi is not sufficient evidence to establish that Dr. van Gulik (or his representatives) would have known the proverbial “litigation finger” was pointed at him.

[56] It is unnecessary for me to address any of the other issues raised by the misnomer motion and I will not do so. I will now proceed to consider Dr. van Gulik’s summary judgment motion in the Toronto action.

DR. VAN GULIK’S SUMMARY JUDGMENT MOTION

Positions of the Parties

[57] Dr. van Gulik moves to have the action against him (CV-15-543160) summarily dismissed pursuant to Rule 20.01(3) of the Rules of Civil Procedure. He argues that the claim is statute-barred and constitutes an abuse of process.

[58] The Plaintiffs deny that the claim is an abuse of process and argue that it is timely. They do not submit that the motion raises a genuine issue requiring a trial. Rather, they ask the court to rule in their favour on the summary judgment motion, effectively removing the limitations defence pleaded by Dr. van Gulik as an issue to be decided at trial.

Is this an appropriate case for summary judgment?

[59] Rule 20.04(2) stipulates that summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or if the parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[60] In a summary judgment motion, each party must “put their best foot forward” and “lead trump or risk losing all”: Babjak v. Karas, 2018 ONSC 2093, at para. 10; Lawless v. Anderson, 2010 ONSC 2723, at para. 17, aff’d 2011 ONCA 102; Loy-English v. Fournier, 2018 ONSC 6212, at para. 22; Slack v. Bednar, 2014 ONSC 3672, at para. 54. The court is entitled to assume that the motion record contains all of the evidence that would be presented at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 27, aff’d 2014 ONCA 878, leave to appeal dismissed, [2015] S.C.C.A. No. 97.

[61] In this case, affidavits and transcripts of cross-examinations have been filed. Significant credibility issues have already been resolved through admissions during cross-examinations and subsequent retractions of sworn evidence by witnesses. The motion record contains relevant hospital records, which (for the purposes of this motion) do not require explanation by viva voce evidence. In the circumstances, I am confident that the record allows me to make the necessary findings of fact, apply the relevant legal principles to those facts, and arrive at a just result through a fair process: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 4. Where necessary, I have exercised the powers conferred upon me by Rule 20.04(2.1) to weigh evidence, evaluate credibility and draw reasonable inferences from the record. I am of the view that the issues raised by the motion do not require a trial.

[62] I recognize that the Plaintiffs’ request to have Dr. van Gulik’s motion dismissed essentially entails a partial summary judgment motion in the Plaintiffs’ favour (on the limitations defence). I am mindful of the potential dangers of granting motions for partial summary judgment: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, at paras. 1 and 32-40; Loy-English, at paras. 37-38; Cornacchia v. Rubinoff, 2018 ONSC 2732, at paras. 49-59. The Court of Appeal for Ontario has ruled that partial summary judgment ought to be granted only in the clearest of cases in which the judgment sought is on a severable issue: Butera v. Chown Cairns LLP, 2017 ONCA 783, at paras. 22-35. I have therefore considered the advisability of a partial judgment in the context of this litigation as a whole.

[63] The issues raised in this motion (limitations and abuse of process) are discrete issues that can readily be bifurcated from the other issues (negligence) to be determined if the action proceeds to trial. There is no risk of duplicative or inconsistent findings. If the motion is successful, it will dispose of the entire action against Dr. van Gulik. Moreover, even if it is unsuccessful, it will shorten and reduce the expense of the trial by narrowing the issues (subject to appeals). It is precisely for these reasons that limitations issues are frequently decided by way of motions for summary judgment: Brown v. Wahl, 2015 ONCA 778, at para. 20, aff’g 2015 ONSC 1328; Liu v. Wong, 2016 ONCA 366, aff’g 2015 ONSC 6595.

[64] For all of the above reasons, I conclude that the summary judgment process is appropriate and advisable in the context of this litigation as a whole.

[65] I will deal first with Dr. van Gulik’s request for summary judgment based on his limitations defence.

IS THE ACTION AGAINST DR. VAN GULIK STATUTE-BARRED?

Applicable Legislation and Jurisprudence

[66] The Plaintiffs’ action against Dr. van Gulik is governed by the limitation period set out in s. 4 of the Limitations Act, 2002, which states that a proceeding cannot be commenced more than two years after the day on which the claim was discovered. The issue in dispute is whether the Plaintiffs’ claim against Dr. van Gulik was discovered more than two years prior to December 21, 2015, the date on which the Statement of Claim was issued in the Toronto action.

[67] Discovery of a claim occurs on the earlier of two dates, one of which is determined by the actual subjective knowledge of the plaintiff and the other by an objective assessment of what a reasonable person in the plaintiff’s circumstances and with the plaintiff’s abilities would have known: Babjak, at para. 40; Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, at para. 33; Loy-English, at para. 20.

[68] The doctrine of discoverability is codified in s. 5 of the Limitations Act, 2002:

(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).

[69] The criteria in ss. 5(1)(a)(i) to (iv) are conjunctive. A plaintiff must know (or ought to have known) all four of the criteria in order for a claim to be discovered: Cornacchia, at para. 22.

[70] Determining whether a person has discovered a claim is a fact-based analysis.

[71] With respect to the subjective part of the analysis under s. 5(1)(a), the date of discovery is the date when the plaintiff “had all of the material facts necessary to determine that she had prima facie grounds for inferring that the [defendant] had been negligent”: Lawless, at para. 30; Brown (ONCA), at para. 7.

[72] The plaintiff is not required to have gathered the necessary evidence to prove her claim: Tremain at al. v. Muir et al., 2014 ONSC 185, at para. 34. Moreover, discovery of a claim does not depend upon the plaintiff knowing that her claim is likely to succeed: Liu (ONSC), at para. 24. The later discovery of additional facts that change a borderline claim into a viable one does not postpone the date of discovery: Brown (ONSC), at para. 18.

[73] For a claim to be discovered, it is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible. The identity and potentially culpable acts of the tortfeasor must be known: Brown (ONSC), at para. 18; Higgins v. Barrie (City), 2011 ONSC 2233, at para. 66. However, it is enough if the plaintiff has prima facie grounds to infer that the defendant caused her harm: Brown (ONCA), at para. 7. Certainty that a defendant’s act or omission caused the plaintiff’s injury, loss or damage is not required: Galota v. Festival Hall, 2016 ONCA 585, at para. 15; Brown (ONCA), at para. 15; Babjak, at para. 46. Moreover, discovery does not depend upon awareness of the totality of the defendant’s wrongdoing: Kowal v. Shyiak, 2012 ONCA 512, at para. 18; Brown (ONSC), at para. 18. However, it is not enough for a plaintiff to know that medical procedures or care have had a bad outcome or to be unhappy with the result. Dissatisfaction with the outcome will not trigger the running of the limitation period: Loy-English, at para. 47; Cornacchia, at para. 28; Lawless (ONCA), at paras. 25-26.

[74] The Court of Appeal for Ontario has framed the question to be posed as follows: Does the prospective plaintiff know enough facts on which to base an allegation of negligence against the defendant? If so, then the claim has been discovered under s. 5(1)(a): Lawless (ONCA), at para. 23; Brown (ONCA), at para. 8.

[75] Under s. 5(2) of the Limitations Act, 2002, a plaintiff is “presumed to have known 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.” Consequently, if a plaintiff wants to assert a different date of discovery, she has the onus to refute the presumption created by s. 5(2) and establish that the claim was not discovered until a later date: Brown (ONSC), at para. 17, aff’d at paras. 10 and 12 (ONCA). The presumption must be rebutted with evidence: Liu (ONSC), at paras. 22 and 25.

[76] In determining whether a plaintiff knew or ought to have known the facts giving rise to the cause of action, knowledge of her solicitor is imputed to the plaintiff: Colin v. Tan, 2016 ONSC 1187, at para. 67; Soper v. Southcott, (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (Ont. C.A.), at para. 21.

[77] A plaintiff (and their lawyer) must act with reasonable diligence in discovering the material facts upon which to ground an action: Lawless (ONSC), at para. 23; Soper, at para. 21; Slack, at para. 43. “A limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a)”: Fennell v. Deol, 2016 ONCA 249, at para. 23. Even if the plaintiff has no actual knowledge of the underlying material facts of her claim, the two-year limitation period will begin to run under s. 5(1)(b) of the Limitations Act if she would have discovered those facts by the exercise of reasonable diligence: Brown (ONSC), at para. 15, aff’d at para. 10 (ONCA). This principle applies equally to the discoverability of facts underlying the claim in ss. 5(1)(a)(i) and (ii), the discoverability of the tortfeasor’s identity in s. 5(1)(a)(iii), and the discoverability of the propriety of litigation as a remedial recourse in s. 5(1)(a)(iv).

[78] Although due diligence is a factor that informs the analysis under s. 5(1)(b) of when a claim ought reasonably to have been discovered, lack of due diligence is not an independent reason or stand-along ground upon which to find that a claim is statute-barred: Galota v. Festival Hall, 2016 ONCA 585, at para. 23; Morrison v. Barzo, 2018 ONCA 979, at paras. 4 and 29. As Justice van Rensburg explained in Fennell, at para. 24:

Due diligence is part of the evaluation of s. 5(1)(b). In deciding when a person in the plaintiff’s circumstances and with his abilities ought reasonably to have discovered the elements of the claim, it is relevant to consider what reasonable steps the plaintiff ought to have taken. Again, whether a party acts with due diligence is a relevant consideration, but it is not a separate basis for determining whether a limitation period has expired.

[79] Justice van Rensburg recently elaborated on this point in Morrison, at para. 59,

[W]hile due diligence is relevant to when a reasonable person ought to have discovered a claim – demonstrating due diligence as well as no actual knowledge of all elements of the claim can certainly provide strong evidence that a reasonable person could not have discovered the claim sooner – the absence of due diligence does not necessarily establish that a two-year period has run out.

[80] Before applying the test set out in s. 5 of the Limitations Act, 2002 to the facts in this case, I will summarize the relevant evidence and my findings of fact pertaining to the limitations issue.

Chronology of Relevant Facts

[81] I have made my findings on a balance of probabilities, based on evidence given by the Plaintiffs’ own witnesses (in their affidavits or during cross-examinations) or on inferences drawn from that evidence and from information contained in documentary evidence (i.e. correspondence, hospital records, meeting notes, etc.). Some of the facts set out above in my Reasons for Judgment in the Plaintiffs’ misnomer motion are relevant to the limitations issue, but I will not repeat them here. My findings regarding the remaining relevant facts are summarized below.

[82] Ms. McNeil was aware, on the date of her first surgery (December 21, 2012), that Dr. Pachapakesan was the physician who would be performing the surgery.

[83] On the day of her surgery, while she was waiting in a hospital bed, a woman came into the room and identified herself to Ms. McNeil as the anaesthesiologist who would be assisting Dr. Pachapakesan with the surgery. Ms. McNeil could not recall whether this doctor identified herself by name. If she did, Ms. McNeil did not retain the name.

[84] Ms. McNeil recalls that Dr. Panchapakesan came to see her in the PACU after her surgery. She deposed that she was “in very great pain” during that visit.

[85] Ms. McNeil’s pain worsened, despite being on a morphine pump. She recalls complaining to nurses about pain. She cannot remember whether the female anaesthesiologist came to see her in the PACU after her surgery on December 21, 2012. Her memory of that time period is blighted by the pain and medication that she was taking.

[86] Hospital records establish that a female anaesthesiologist (Dr. Habibi) did, in fact, see Ms. McNeil in the PACU on December 21, 2012.

[87] Ms. McNeil was admitted to hospital overnight. The next morning, December 22, 2012, she received a nerve block from a physician to dull the pain. She recalls that the nerve block was administered by a male doctor. She testified that she knew, at that time, that the doctor who performed the nerve block was “definitely not” the same (female) anaesthesiologist who had assisted with the surgery. She deposed that he “did the nerve block and I was sent home.” She added, “I do not recall ever seeing [that] doctor again.”

[88] It is undisputed that the female anaesthesiologist was Dr. Habibi and the male anaesthesiologist was Dr. van Gulik, but Ms. McNeil either did not know their names at that time or did not retain their names, possibly because of her discomfort and the medication that she was taking. Ms. McNeil deposed that she “saw so many doctors and nurses that I never knew most of their names with the exception of the surgeons, Dr. Panchapakesan who did the first surgery and Dr. Kim who did the surgery for the compartment syndrome.”

[89] The male anaesthesiologist was the last physician who saw Ms. McNeil before she was discharged from hospital. Ms. McNeil testified that she has no recollection of seeing another doctor after she received the nerve block. She could not recall whether the male doctor said anything to her after the nerve block was done.

[90] Ms. McNeil continued to experience pain despite the nerve block. Consequently, she testified that at the time of her discharge, she did not think she should have been discharged.

[91] Ms. McNeil’s pain increased in severity after she went home. Her left arm swelled and became discoloured. She returned to the hospital the next day, on December 23, 2012, because her pain was unbearable. She was diagnosed by Dr. Kim as having compartment syndrome and underwent emergency surgery.

[92] Ms. McNeil had follow-up appointments with Dr. Panchapakesan on January 2, January 29, March 5, April 2 and May 7, 2013. Dr. van Gulik’s name did not come up during any of these appointments.

[93] Ms. McNeil made a complaint to the hospital’s Patient Relations Office regarding the treatment and care that she received. She met with a manager named Brandon Makin on April 4, 2013. She testified that one of her concerns at that time was that she felt her compartment syndrome was avoidable. She also felt that her second surgery was avoidable. According to Mr. Makin’s notes of their meeting, she told him that she was experiencing complications with pain, strength, mobility, sensation and return to normal activities as a result of her treatment in December 2012. She also said she was likely to have “permanent effects”.

[94] Ms. McNeil communicated with Mr. Makin thereafter through emails, telephone calls and meetings from time to time. Mr. Makin documented their communications. During her cross-examination, it was apparent that Ms. McNeil had limited recall of the details of some of their discussions, but she testified that she had no reason to doubt the accuracy of Mr. Makin’s notes.

[95] On June 7, 2013, Mr. Makin emailed Ms. McNeil to advise her that he had spoken to Dr. Kim, the surgeon who performed Ms. McNeil’s second surgery. He relayed to Ms. McNeil that Dr. Kim said compartment syndrome was “very likely the result of post-operative inflammation, a rare but potential risk from your type of surgery.”

[96] After some time, Ms. McNeil became upset that her concerns appeared not to be taken seriously by the hospital. On August 28, 2013, she emailed Mr. Makin, complaining about the passage of time since she last heard from him. She wrote, “Is there a reason that this process is taking so long? I have been to countless doctor and specialist appointments and still don’t have any answers as to why or how this happened.”

[97] Mr. Makin spoke to Ms. McNeil on August 30, 2013. She advised him that she stopped seeing Dr. Panchapakesan because her appointments with him were rushed and he offered no insights into her condition. She said he was unprepared and did not review her test results before her visits. She felt that the professionalism of her current doctor was better and that she was getting results and answers.

[98] Mr. Makin advised Dr. Panchapakesan of Ms. McNeil’s concerns. Dr. Panchapakesan offered to meet with her. Ms. McNeil declined the invitation, stating to Mr. Makin that Dr. Panchapakesan “had all kinds of opportunities to answer her questions” and that she was “too upset at him” to meet with him.

[99] On September 11, 2013, she sent another email to Mr. Makin. She advised him that she had been referred to a doctor at Sunnybrook Hospital for “yet another surgery”. She added, “I’m not completely satisfied with your findings as I have also done a lot of research on compartment syndrome and I believe that it had already started immediately following the surgery that dr. P did. I was still sent home after saying over and over that my hand was going to explode.” When questioned about this email during her cross-examination, Ms. McNeil confirmed that she believed the pain she experienced on December 21 and 22, 2013 was due to her (undiagnosed) compartment syndrome. She explained that she was concerned that the doctors and nurses who treated her had sent her home instead of investigating and treating the cause of her pain.

[100] In her email dated September 11, 2013, she asked Mr. Makin whether he could obtain “the file from the day of the surgery and the following day” because she was “interested to see what was written in it. If anyone noted that I was being discharged with significant pain and no help really.” Finally, she wrote, “I would appreciate if you as an advocate for the patients of the hospital can look further into this or if you have already, let me know exactly whose decision it was to send me home that day.”

[101] The next day, Mr. Makin had a telephone discussion with Ms. McNeil. He referred her to “HIM/FOI” for her records, explaining that he “can’t act as PI and pull her records.” He updated her with information he had received from Dr. Panchapakesan. He relayed that Dr. Panchapakesan was on vacation when the Acute Pain Service doctor had assessed her and determined that she would benefit from a nerve block. He told her that Dr. Panchapakesan said he was advised that her pain had subsided. He also told her that Dr. Panchapakesan stated he gave verbal orders for her discharge home because he was told her pain had improved and that was not an outcome to expect with compartment syndrome.

[102] Ms. McNeil told Mr. Makin (during their telephone conversation on September 12, 2013) that she could not understand why anyone would have communicated to Dr. Panchapakesan that she was stable or pain free because she was complaining that her arm “felt like it was going to explode”. Mr. Makin then invited Ms. McNeil to meet with Dr. Panchapakesan and the anaesthesiologist who gave her the nerve block so that she could get more information about the decision to discharge her. Ms. McNeil told Mr. Makin she would speak with her father and follow up, but she never took Mr. Makin up on this offer.

[103] Mr. Makin did not use Dr. van Gulik’s name when referring to the “Acute Pain Service doctor” or to the “doctor who administered the nerve block”. Ms. McNeil did not ask for the doctor’s name.

[104] Ms. McNeil met with Mr. Makin on September 30, 2013. Mr. Makin’s notes state that they “explored her chart w/ the aid of registration supervisor.” Ms. McNeil recalls that Mr. Makin was looking at an electronic copy of her hospital records on his laptop computer while he was speaking to her during the meeting. He did not have a physical hard copy of her file. She did not look at his computer screen and did not see what he was looking at.

[105] Ms. McNeil does not recall discussing with Mr. Makin the entries made by the doctor who gave her the nerve block, but she testified that she has no reason to doubt the accuracy of Mr. Makin’s notes. His notes reflect that during their meeting on September 30, 2013, he advised her that the doctor who gave her the nerve block did not chart that she was stable or comfortable, but rather that she was clear for discharge if she was not sedated or disoriented. As discussed below, the hospital records confirm that this information was noted by Dr. van Gulik in Ms. McNeil’s chart. However, Mr. Makin did not mention Dr. van Gulik by name in discussing this entry with Ms. McNeil during their meeting.

[106] Mr. Makin advised Ms. McNeil, during that same meeting, that a registered nurse wrote on her chart that she was not complaining of pain and was “ok for discharge”.

[107] During her cross-examination, Ms. McNeil agreed that by the end of this meeting on September 30, 2013, she understood that at least three people were involved in the decision to discharge her: Dr. Panchapakesan, the male doctor who gave her the nerve block, and a nurse.

[108] Ms. McNeil made a complaint about Dr. Panchapakesan to the College of Physicians and Surgeons of Ontario in October 2013. She testified that she only complained about Dr. Panchapakesan because she did not know the names of the other doctors involved in her care, other than Dr. Kim (who performed the second surgery).

[109] Later that fall, she requested a copy of her clinical file from the hospital and received 247 pages of hospital records. The date on which she received the records is not established in the evidence, but it must have been after the “run date” of December 21, 2013 printed on the records. For reasons explained below, it must also have been prior to mid-March 2014. During her cross-examination, Ms. McNeil testified that she did not recall receiving more than 25 pages of records, but she conceded that it was possible she received 247. Based on the totality of the evidence, including documents in the Plaintiffs’ solicitors’ file, I find that Ms. McNeil did, indeed, receive 247 pages of hospital records at some point between December 21, 2013 and mid-March 2014.

[110] According to Ms. McNeil’s Affidavit, the College of Physicians and Surgeons released its decision on February 14, 2014. She deposed that the decision referred only to Drs. Panchapakesan, Kim, Czak and Pirouzmand. Dr. van Gulik was not mentioned.

[111] Ms. McNeil consulted with a lawyer, Neil Sacks, on February 28, 2014, about a possible retainer. At some point shortly thereafter, she provided Mr. Sacks with the 247 pages of hospital records to review. These pages included two entries written by Dr. van Gulik.

[112] The two entries relate to Dr. van Gulik’s involvement in Ms. McNeil’s care. The first entry appears on a form entitled “Progress Notes”. No time is recorded in the “Date / Time” column of the form, but the date “22 Dec” is clearly handwritten in the margin. It is apparent from preceding entries that the date refers to December 22, 2012.

[113] Dr. van Gulik’s notations are handwritten in a separate column beside the date. The signature (presumably his) that appears at the bottom of the notes is illegible. However, his last name is handwritten relatively clearly on a line by itself directly above his notes. His professional capacity is not noted (i.e. it does not say “Dr.” van Gulik and does not indicate whether the individual in question is a physician, nurse, or other health care professional).

[114] Some of the words in the notations are difficult to read but they are not all indecipherable. In particular, the words “nerve block” are legible, especially to a reader who is aware that the Progress Notes relate to a patient who underwent a nerve block on that date. The notations document Ms. McNeil’s presentation (with pain), as well as the steps taken to address her pain and the fact that her discharge was authorized on condition that she was not sedated. Based on my reading, the notes state the following:

Continuing pain unable to control / cope

Discussed nerve block

→ U/S guided block median, radial

& lateral cutaneous nerves

Total 14 mL 0.5% [indecipherable]

P / Discharge if no sedation from opioids

(30 minute observation)

[115] Dr. van Gulik’s second entry in Ms. McNeil’s hospital chart consists of the following handwritten notations on a page entitled “ORDERS”:

Stop pain

Nerve block √

Monitor [indecipherable] 30 min post nerve block

if no sedation / disorientation then discharge

f/u as per Dr. Panchapakesan

[116] No time appears in the “Date / Time” column on the ORDERS page, but the date “22 Dec 2012” is written in the left margin. Once again, Dr. van Gulik’s last name is handwritten directly above his notations, but the last three letters are not easily legible. The words written could not, however, reasonably be interpreted as “Habibi”. Two separate short words are clearly visible, the first starting with a lower case “v” and the second starting with an upper case “G”.

[117] The writing in the notations is difficult to decipher but the words “Nerve block √” are legible, particularly to a reader who is aware that the notes relate to a patient who received a nerve block that day. A signature (presumably that of Dr. van Gulik) appears at the bottom of the notations, but it is illegible.

[118] On March 14, 2014, Mr. Sacks had a telephone conversation with Ms. McNeil. His notes to file regarding this conversation read as follows:

case declined

aware of 2 yr LTN from discovery (Dec/14)

referred to [other lawyers’ names]

[119] There is no evidence in the record from Mr. Sacks regarding the meaning of these notes. I infer that the reference to “2 yr LTN from discovery” refers to Mr. Sacks ensuring that Ms. McNeil was aware of the presumptive two-year limitation period ending in December 2014.

[120] A post-it note on Mr. Sacks’s memo to file states, “please return records to her somehow”. This note refers to the hospital records, which were subsequently returned to Ms. McNeil.

[121] Ms. McNeil later retained Mr. Sacks and his law firm to represent her in this matter. She met with them for the first time on July 2, 2014. At that time, she returned to them the 247 pages of clinical records and gave them documents relating to her complaint to the College of Physicians and Surgeons. Ms. McNeil deposed that she gave them only about 25 pages of hospital records, but the evidence establishes that, in fact, she gave them 247 pages. Included in those documents was a copy of Dr. Panchapakesan’s response to the College complaint. According to Mr. Syrtash’s evidence, the response “refers to an anaesthesiologist but does not name that physician.” Mr. Syrtash explained, “As a result, we [Plaintiffs’ counsel] believed that it was Dr. Habibi who was the plaintiff’s anaesthesiologist at the first admission.”

[122] The law firm’s File Opening Request & Requisition form lists the expiry of the limitation period for the Plaintiffs’ action as December 20, 2014 (i.e. two years less a day after Ms. McNeil’s surgery on December 21, 2012). I do not interpret this to be an admission by the Plaintiffs’ counsel that Ms. McNeil’s claim was discovered on December 21, 2012, but rather a notation of the presumptive limitation date.

[123] Plaintiffs’ counsel wrote to the hospital to request a copy of Ms. McNeil’s complete hospital file on October 1, 2014.

[124] The Statement of Claim in the Brampton action was issued on November 20, 2014, approximately one month prior to the expiry of the presumptive two-year limitation period. It did not name Dr. van Gulik as a Defendant. As discussed above, the pleadings mis-identified Dr. Habibi as the anaesthesiologist who administered the nerve block on December 22, 2012. The pleadings did not, however, include any specific allegations of negligence relating to the nerve block.

[125] The next day, November 21, 2014, Plaintiffs’ counsel received a copy of Ms. McNeil’s complete clinical records directly from the hospital. The records consist of 409 pages and include the two above-mentioned entries made by Dr. van Gulik on December 22, 2012. Dr. van Gulik’s name does not otherwise appear anywhere in the records, including in the PACU medication record and the Active Pain Service Department’s anaesthesia records. The “List Patient Notes” in the records indicate that, at 11:11 a.m. on December 22, 2012, an “APS on call” was notified and attended to Ms. McNeil and administered a nerve block. The “APS on call” is not identified by name. Another entry in the “List Patient Notes” states that, “Patient was seen by Pain Control and nerve block was given.” Dr. van Gulik’s name is not mentioned.

[126] Mr. Syrtash deposed,

Dr. van Gulik’s name appears only twice in the over four-hundred pages of records…. We did review those records but Dr. van Gulik’s name is so inconspicuous we were not able to ascertain his identity. We did know that Dr. Habibi was the anaesthesiologist who was first involved in [Ms. McNeil’s] care starting on December 21, 2012.

[127] On November 25, 2014, Plaintiffs’ counsel obtained a copy of Ms. McNeil’s OHIP billing summary, which lists Dr. van Gulik as the only physician who provided care to her on December 22, 2012.

[128] On May 19, 2015, the physician Defendants in the Brampton action filed their Statement of Defence. Their pleadings did not identify Dr. van Gulik, but did mention that Acute Pain Service had suggested a nerve block, which was carried out.

[129] On October 26, 2015, the hospital served its Statement of Defence in the Brampton action. The pleadings identified Dr. van Gulik as the anaesthesiologist who administered the nerve block on December 22, 2012.

[130] Mr. Syrtash testified during his cross-examination that it was not until after the hospital delivered its Statement of Defence in the Brampton action that his firm realized that Dr. van Gulik had administered the nerve block.

[131] On or about December 21, 2015, Mr. Sacks spoke to the hospital’s lawyer, Patrick Hawkins, who confirmed that Dr. van Gulik was the physician who administered the nerve block.

[132] The Plaintiffs issued their Statement of Claim against Dr. van Gulik on December 21, 2015.

Analysis

[133] The criteria set out in ss. 5(1)(a)(i) and (ii) of the Limitations Act, 2002 are not seriously in dispute in this case. There is no question that long before December 20, 2013 (two years less a day prior to the commencement of her claim against Dr. van Gulik), Ms. McNeil knew that she had suffered an injury, loss or damage and that she had grounds to believe that the actions or omissions of health care professionals at the hospital had contributed to or caused her harm.

[134] Ms. McNeil was more than simply dissatisfied with the outcome of her surgery. The evidence establishes that:

(i) When Ms. McNeil returned to the hospital on December 23, 2012, she was experiencing severe pain, swelling and discolouration. She was in tremendous discomfort, but she was not unconscious, sedated or otherwise unable to understand or recall what was happening. She was diagnosed with compartment syndrome and underwent emergency surgery, which left her with a twelve-inch scar. While she may not have known the full extent of her injury, she knew, on December 23, 2012, that she had suffered an injury, loss or damage.

(ii) By April 4, 2013, Ms. McNeil felt that her compartment syndrome and second surgery had been avoidable. She also believed that she would have permanent negative effects. By June 7, 2013, she was aware of Dr. Kim’s opinion that her compartment syndrome was likely the result of post-operative inflammation, a rare but potential risk from her type of surgery. By September 11, 2013, she had done “a lot of research” and believed that her compartment syndrome had started immediately following her first surgery. She believed that her pain after the surgery was due to this condition. She was concerned that the doctors and nurses who provided post-operative care had discharged her despite her pain and had sent her home instead of investigating and treating the cause of her pain. By September 30, 2013, she knew that the male anaesthesiologist who administered the nerve block had cleared her for discharge provided that she was not sedated or disoriented. While not all of the material facts were known to her, by September 30, 2013 she knew enough facts to meaningfully call into question the actions and omissions of the male anaesthesiologist. She had prima facie grounds for inferring that he had been negligent.

[135] Consequently, by no later than September 30, 2013, Ms. McNeil had the requisite knowledge under ss. 5(1)(a)(i) and (ii) of the Limitations Act, 2002. The more contentious issues in this motion relate to the criteria in ss. 5(1)(a)(iii) and (iv) of the Act, namely whether Ms. McNeil knew, or ought to have known, prior to December 20, 2013, that Dr. van Gulik was the male anaesthesiologist who contributed to or caused her harm (s. 5(1)(a)(iii)) and that a legal proceeding against him would be an appropriate means to seek to remedy it (s. 5(1)(a)(iv)) .

Discoverability of Dr. van Gulik’s Identity

[136] The Plaintiffs tendered Affidavits sworn by Ms. McNeil and Mr. Syrtash, the lawyer who joined the Plaintiffs’ law firm in September 2017. Mr. Syrtash has no direct personal knowledge of matters relating to this file prior to that date. He gave much of his evidence based on information and belief, mostly from reviewing the firm’s electronic file. It was later discovered that he only reviewed 25 pages of Ms. McNeil’s hospital records, which had been scanned into the firm’s computer. He was not aware, at the time that he swore his Affidavit, that there was a physical file that contained a copy of 247 pages of hospital records.

[137] In their Affidavits sworn in support of the Plaintiffs’ discoverability argument, both Ms. McNeil and Mr. Syrtash deposed that Plaintiffs’ counsel did not have hospital records containing Dr. van Gulik’s notations until November 21, 2014, the day after the Statement of Claim was filed in the Brampton action. This assertion was later proven to be false. During Mr. Syrtash’s cross-examination, he conceded that the pleadings in the Brampton action quoted directly from Dr. van Gulik’s entry in Ms. McNeil’s Progress Notes (but incorrectly attributed his notations to Dr. Habibi).

[138] Although Mr. Syrtash stressed in his evidence that Dr. van Gulik’s handwritten name was indecipherable, it is clear that Plaintiffs’ counsel was able to decipher at least the excerpts from the Progress Notes that they quoted in the Brampton pleadings. Dr. van Gulik’s handwriting was clearly not entirely illegible to them.

[139] Notwithstanding significant deficiencies in the Plaintiffs’ witnesses’ reliability, I accept as credible Ms. McNeil’s testimony that she did not know the name of the male anaesthesiologist who administered the nerve block on December 22, 2012. She was seen by numerous doctors while in the hospital and she only met Dr. van Gulik once. She was in severe pain and discomfort when she met him and was taking opioids. Even if she was told his name at the time, she could not reasonably be expected to retain it in these circumstances.

[140] I also accept as credible Ms. McNeil’s testimony that neither Mr. Makin, Dr. Panchapakesan nor Dr. Kim ever told her that Dr. van Gulik was the anaesthesiologist who administered the nerve block.

[141] Ms. McNeil was aware, by September 30, 2013, that the male anaesthesiologist who administered the nerve block was one of three people involved in the decision to discharge her. I accept her testimony that she did not, at that time, know his name.

[142] I accept her testimony that she did not personally review Dr. van Gulik’s entries in her hospital chart when she met with Mr. Makin on September 30, 2013. I find that she did not obtain a copy of Dr. van Gulik’s notations until December 21, 2013 at the earliest (i.e. the run date on the hospital records in her solicitors’ file).

[143] I also find as fact that up until October 26, 2015, Plaintiffs’ counsel incorrectly believed that Dr. Habibi had administered the nerve block.

[144] Mr. Syrtash testified that it was only when the hospital delivered its Statement of Defence that his firm realized Dr. van Gulik had performed that procedure. I do not find Mr. Syrtash to be a reliable witness in this proceeding. He was not even working at the Plaintiffs’ firm, let alone on the Plaintiffs’ file, prior to September 2017. He has no personal knowledge of the facts to which he deposed and the record demonstrates that his review of the file was insufficient to provide him with adequate knowledge of the matter. For example, during his first cross-examination, he was unaware that Mr. Sacks had made notes of the telephone conversations he had with Ms. McNeil prior to the firm’s retainer in July 2014. Those notes were later disclosed pursuant to a production order obtained by Dr. van Gulik. As discussed above, Mr. Syrtash also made several incorrect statements in his Affidavit which had to be retracted during subsequent cross-examinations.

[145] Despite my reservations about the reliability of Mr. Syrtash’s evidence, I accept his testimony regarding when and how the identity of Dr. van Gulik (as the anaesthesiologist who performed the nerve block) came to be discovered by Plaintiffs’ counsel. There is other credible evidence that corroborates Mr. Syrtash’s testimony on this point. First, the Plaintiffs’ pleadings in the Brampton action explicitly misidentify Dr. Habibi as the physician who administered the nerve block, which corroborates the fact that Plaintiffs’ counsel were under that incorrect impression in November 2014. Second, evidence in the record establishes that Mr. Sacks spoke to the hospital’s lawyer in mid-December 2015 to confirm that Dr. van Gulik was, in fact, the physician in question. The timing of this call coincides with recent delivery of the hospital’s Statement of Defence. The Plaintiffs commenced the Toronto proceeding against Dr. van Gulik immediately thereafter.

[146] I am satisfied by the evidence in the motion record that neither Ms. McNeil nor her counsel knew, before October 26, 2016, that Dr. van Gulik was the physician who administered the nerve block prior to her discharge from hospital. The Plaintiffs have therefore rebutted the presumption in s. 5(2) of the Limitations Act, 2002 by establishing that they (and their counsel) did not have actual knowledge of Dr. van Gulik’s identity prior to December 20, 2013. The criterion for discovery of the claim in s. 5(1)(a)(iii) was therefore not satisfied by December 20, 2013.

[147] However, for reasons set out below, I find that a reasonable person in the Plaintiff’s position would have discovered Dr. van Gulik’s identity by no later than September 30, 2013.

[148] There is little evidence in the record about why Plaintiffs’ counsel believed that Dr. Habibi had administered the nerve block. Mr. Syrtash deposed that they knew Dr. Habibi was the anaesthesiologist who was first involved in Ms. McNeil’s care starting on December 21, 2012. He also stated,

When we were retained … Ms. McNeil also provided us with a copy of Dr. Panchapaksan’s response [to the College of Physicians and Surgeons complaint]. That response refers to an anesthesiologist but does not name that physician. As a result, we believed that it was Dr. Habibi who was the plaintiff’s anaesthesiologist at the first admission.

[149] In other words, Plaintiffs’ counsel made an unfounded and erroneous assumption that could easily have been corrected simply by talking to their own client. Ms. McNeil did not know either Dr. Habibi’s name or Dr. van Gulik’s name, but she knew that they were not the same person. She knew that a male anaesthesiologist had administered the nerve block whereas the anaesthesiologist she met on the day of her surgery was female. Mr. Syrtash is therefore incorrect when he states in his Affidavit that as of July 2, 2014, when Plaintiffs’ counsel was retained, they had “absolutely nothing to indicate that the anesthesiologist was other than Dr. Habibi”.

[150] During his cross-examination, Mr. Syrtash confirmed that to his knowledge, Plaintiffs’ counsel took no steps to verify their assumption that Dr. Habibi performed the nerve block. No one from their office contacted the hospital or made any other inquiries.

[151] Plaintiffs’ counsel continued to operate under this erroneous assumption despite having documents in their possession (as early as March 2014) that showed Dr. van Gulik performed the nerve block (namely the two entries by Dr. van Gulik in Ms. McNeil’s hospital chart). Mr. Syrtash testified that Dr. van Gulik’s name was illegible in those notes. In my view, lack of legibility of critical notations in Ms. McNeil’s chart is not a reasonable explanation for absence of knowledge of a tortfeasor’s identity: O’Halloran v. Trillium Health Centre, 2014 ONSC 4995, at paras. 78-79. Mr. Syrtash conceded during his cross-examination that if his law firm had any questions about the identity of the doctor who wrote the notes regarding Ms. McNeil’s nerve block, or needed any help deciphering the handwriting, they could have contacted the hospital to find out. He testified that they could have made inquiries “if we had a doubt as to who it was. But as I said, we thought it was Dr. Habibi.”

[152] Mr. Syrtash was also asked whether he agreed that, at any point after November 25, 2014, had someone in his office wanted to identify the doctor who provided the nerve block, they could have looked at the OHIP summary that showed Dr. van Gulik’s name. He answered, “If we had reason to believe otherwise – if we had a reason to look at it and believe that Dr. Habibi was not the correct one, yes, I would agree.”

[153] The problem with this evidence is that Plaintiffs’ counsel did have reason to doubt the correctness of their assumption that Dr. Habibi administered the nerve block, namely because their client knew that a different anaesthesiologist had performed the procedure. In their Factum, the Plaintiffs submit that “Ms. McNeil believed that Dr. Panchapakesan and Dr. Habibi (exclusively) had treated her. They were the only physicians involved in her treatment for the first surgery, who she had prima facie grounds to believe had caused her harm, at least prior to receiving the hospital records.” This submission is contradicted by the evidence. Ms. McNeil was aware, as of December 22, 2012, that at least one other male physician had treated her. Moreover, the focus of her negligence pleadings is not the manner in which the first surgery was performed, but rather the propriety of the post-operative care that she received.

[154] This case does not involve circumstances of a defendant whose existence was unknown to the plaintiff, which sometimes arise in medical malpractice cases. Ms. McNeil was clearly aware of the male anaesthesiologist’s existence and of his involvement in her treatment just prior to her discharge. She did not need to know his name to know that she had a potential cause of action against him. She had an obligation to exercise reasonable diligence to ascertain his identity. Moreover, she had the ability and means to find out his name and failed to take reasonable steps to do so.

[155] The legibility of Dr. van Gulik’s notes is a “red herring” in this case. It distracts from the real issues. Even if I accepted that Ms. McNeil and Plaintiffs’ counsel were unable to decipher Dr. van Gulik’s notes or read his name, this is not a case in which medical records were required in order for the Plaintiffs to become apprised of the facts necessary to discover their claim: Lawless (ONCA), at para. 28. By the end of September 2013 – months before Ms. McNeil obtained the 247 pages of hospital records – she knew enough facts to ground a claim against the male anaesthesiologist who administered the nerve block. She knew that the physician in question had assessed her at a time when she believed she was already presenting with symptoms of compartment syndrome. She knew that the physician in question had participated in her discharge shortly after administering a nerve block. She believed that the discharge was premature. Despite being possessed of all of this information, Ms. McNeil took no steps to determine the identity of the doctor who gave her the nerve block.

[156] Ms. McNeil deposed that in her follow up meetings with Dr. Panchapakesan in 2013, he never identified Dr. van Gulik as the anaesthesiologist who performed the nerve block. There is no evidence that she asked Dr. Panchapakesan for that physician’s name.

[157] On September 12, 2013, Mr. Makin offered Ms. McNeil the opportunity to meet with Dr. Panchapakesan and the male anaesthesiologist who gave her the nerve block so that she could obtain more information about the decision to discharge her from hospital. She did not follow up on this offer. Dr. van Gulik’s identity would have been revealed to her had she attended the proposed meeting. A reasonable person in her circumstances would have seized that opportunity: O’Halloran, at paras. 75-77.

[158] Moreover, Dr. van Gulik’s identity could easily have been obtained simply by asking Mr. Makin for his name, without attending any meetings with the physicians involved in her care.

[159] Ms. McNeil is an apparently intelligent and resourceful person who is clearly able to advocate for herself. She had many opportunities, between April 4, 2013 and September 30, 2013, to ask Mr. Makin for the male anaesthesiologist’s name. She provided no explanation as to why she did not request this information, even after Mr. Makin informed her that the anaesthesiologist in question had participated in the decision to discharge her. Her discharge without prior diagnosis and treatment for compartment syndrome was one of her main concerns, yet she took no steps to identify the last physician who examined her prior to her discharge. In my view, a reasonable person in her position would have asked Mr. Makin for the doctor’s name.

[160] For all of these reasons, I conclude that a reasonable person with Ms. McNeil’s abilities and in Ms. McNeil’s circumstances would have known Dr. van Gulik’s identity by no later than September 30, 2013.

Was a Legal Proceeding an Appropriate Recourse?

[161] The only question that remains is whether the criterion in s. 5(1)(a)(iv) of the Limitations Act, 2002 was satisfied prior to December 20, 2013, thereby triggering discovery of Ms. McNeil’s claim more than two years prior to the commencement of her action against Dr. van Gulik.

[162] Knowledge that a cause of action against a tortfeasor has arisen is not sufficient to trigger the commencement of a limitation period. Knowledge that a legal proceeding is an appropriate avenue for relief is a component of discoverability under the Limitations Act, 2002: Loy-English, at para. 42. Pursuant to s. 5(1)(a)(iv) of the Act, a claim is not discovered until the date when the plaintiff knows, or the date when the plaintiff ought to know, that “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”.

[163] There is no doubt that Ms. McNeil knew litigation was available to her as a remedial option. The question is when she knew, or when she ought to have known, that it would be an appropriate means to seek a remedy for the harm she believes she sustained as a result of Dr. van Gulik’s acts or omissions.

[164] The Plaintiffs take the position that it would have been premature for Ms. McNeil to commence a legal proceeding prior to July 5, 2014. In their Statement of Claim, the Plaintiffs plead that Ms. McNeil underwent a further surgery on that date in an attempt to lessen her pain and improve function. The Plaintiffs argue that she could not have known that commencing an action against Dr. van Gulik was an appropriate remedial recourse until she exhausted other attempts to correct the injuries and damages she sustained.

[165] In their factum, the Plaintiffs set out their argument as follows:

101. After her surgery with Dr. Kim, [Ms. McNeil] continued to see Dr. Panchapakesan at the Hospital Fracture Clinic until January 29, 2013, attempting to correct the damage to Ms. McNeil’s hand. Thereafter, she continued to see Dr. Monica Barber, until October 6, 2014 and Dr. Anna Czok on May 7, 2013 in an attempt to repair her hand. She saw Dr. Joseph Baum, a plastic surgeon, on July 5, 2014, for surgery to repair her hand. All of these attempts ultimately were not successful.

102. Ms. McNeil remained a patient of the hospital and various doctors for almost two years after her initial surgery. During that time, efforts were made to remedy her condition. …

106 … Ms. McNeil’s doctors investigated her condition and ultimately performed further surgery in 2014. This procedure was aimed at remedying the adverse consequences of her initial hospitalization. Repeated efforts were made and were completely unsuccessful. … Ms. McNeil could not determine until after that failed surgery in 2014 that a proceeding was appropriate.

[166] The Plaintiffs cite Ms. McNeil’s OHIP billing summary as evidence to support the facts asserted in paragraph 101 of their factum. They cite no evidence to support the facts asserted in paragraph 106. Ms. McNeil did not personally provide detailed evidence of the follow-up care she received. In her Affidavit, she simply deposed: “I saw so many doctors and nurses since my first surgery, I could not remember them all.” She provides no information about the names of the doctors that she consulted, the dates of her visits to their offices, or the purpose of those visits.

[167] The OHIP billing summary does not corroborate all the facts asserted by the Plaintiffs in their factum. Indeed, it directly contradicts some of the statements of fact. The OHIP summary shows the following:

(i) Ms. McNeil did not stop seeing Dr. Panchapakesan on January 29, 2013. After her surgeries, she saw Dr. Panchapakesan on January 2, January 29, March 5, April 2 and May 7, 2013.

(ii) Ms. McNeil did not see Dr. Czok on May 7, 2013. She saw Dr. Czok on July 22 and August 29, 2013.

(iii) Ms. McNeil did not see a physician named Monica Barker. She did, however, see a physician named Dr. Monica Borkar-Aggarwal. Her appointments with that doctor date back to January 2010 (pre-surgery) and include post-surgical appointments on April 30, May 14, and September 13, 2013, and January 30, May 22, June 11, August 1, September 27, and October 6, 2014. (The OHIP summary ends on October 14, 2014.)

(iv) Ms. McNeil saw Dr. Joseph Baum on July 5, 2014.

[168] The OHIP summary includes columns entitled “FSC Description” and “Diagnostic Code Description”, which provide some information regarding the purpose of each doctor’s visit and the service provided. For example, on October 11, 2012, the day that Ms. McNeil first attended the hospital’s Fracture Clinic, the FSC Description reads, “Partial-Asses.–Ortho.Surg” and the Diagnostic Code Description reads, “Fracture and Fracture Dislocations—all other factures”.

[169] The information contained in the OHIP summary contradicts the Plaintiffs’ assertion that Ms. McNeil’s visits to Dr. Barker (assuming they mean Dr. Borkar-Aggarwal) were “in an attempt to repair her hand”. The FSC Descriptions and Diagnostic Code Descriptions for those visits refer to “assessment” and “counselling” for “Fibrositis, Myositis, Muscular Rheumatism” (on April 30 and May 14, 2013), “ind. Psychotherapy” and “individual care” for “anxiety, neurosis, hysteria, neurasthenia, obsessive compulsive, neurosis” (on September 13, 2013 and August 1, 2014), assessment and pap smears for “disorders of menstruation” (on January 30 and May 22, 2014), “”Intermed.Asses.” and “D/T Proc – Venipuncture-Adol/Adult” for “lumbar strain, lumbago, coccydynia, sciatica” (on June 11, 2014), and assessments for “sprains, strains and other trauma – neck, low back, coccyx” (on September 27 and October 6, 2014). There is no information in the OHIP summary that suggests Ms. McNeil was seeing this physician for reasons related to her left hand, wrist or arm.

[170] For her appointments with Dr. Czok on July 22 and August 29, 2013, the FSC and Diagnostic Code Descriptions read, “Consult – Phys.Med & Rehab” and “Physical Medicine – Partial Assessment” for “Idiopathic Peripheral Neuritis”. These appointments were likely related to Ms. McNeil’s left hand/wrist/arm. It is unclear, however, whether they were for the purpose of “attempting to correct the damage to Ms. McNeil’s hand”, as asserted by the Plaintiffs, or for some other purpose.

[171] There are multiple entries in the OHIP summary regarding Ms. McNeil’s visit to Dr. Baum on July 5, 2014. The first FSC and Diagnostic Code Descriptions read, “Partial Asses.–Plastic Surg.” for “Lacerations, Open Wounds – Except Limbs”. Thereafter, the OHIP summary shows Dr. Baum as the referring physician for services provided by another physician, described as: “Partial Asses.–Anaes.” and “Intravenous Local Anaesthetic Infusion for Neuropathic Pain” for “Idiopathetic Peripheral Neuritis”, “Nervous Syst-Intravenous Drug Test for Pain” relating to “Osteoporosis, Spontaneous Fracture, Other Disorders of bone and Cartil”, “Anaes/Assiss” and “Nervous Syst-Intravenous Drug Test for Pain” relating to “lumbar strain, lumbago, coccydynia, sciatica. This evidence does not support the Plaintiffs’ assertion that Ms. McNeil saw Dr. Baum for the purpose of undergoing surgery to correct the adverse consequences of her hospitalization in December 2012. Some of the descriptions in the OHIP summary refer to lower body issues (e.g. lumbar strain, coccydynia, sciatica), some refer to non-traumatic injuries (e.g. osteoporosis), and some refer to neuropathic pain. The latter may relate to her left hand/wrist/arm, but may also relate to lower back pain for which she saw Dr. Borkar-Aggarwal on June 11, September 27 and October 6, 2014.

[172] The Court of Appeal for Ontario has ruled that whether an action is an “appropriate” means of remedying an injury depends on the specific factual or statutory setting of each individual case: Brown v. Baum, 2016 ONCA 325, at para. 21; 407 ETR Concession Co. Ltd. v. Day, 2016 ONCA 709, at paras. 34; Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, at para. 23. When s. 5(1)(b) is in play, the specific facts of a case will include the abilities and circumstances of the person with the claim: 407 ETR, at paras. 44-46; Winmill, at para. 24; Presidential MSH Corp. v. Marr Foster & Co. LLP, 2017 ONCA 325, at para. 18. The Court of Appeal for Ontario has therefore cautioned that the case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because every case turns on its own unique facts: 407 ETR, at para. 34; Presidential MSH, at para. 18.

[173] Nevertheless, some helpful guidance may be gleaned from decisions of the Court of Appeal for Ontario that interpret and apply s. 5(1)(a)(iv). In Brown, at paras. 18-20, the Court of Appeal held that a reasonable person in the plaintiff’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage. The Court of Appeal noted, however, that “it is not simply an ongoing treatment relationship that will prevent the discovery of a claim [under s.5(1)(a)(iv)]. In this case, it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery. This could have avoided the need to sue.” Brown, at para. 24.

[174] The Court of Appeal for Ontario applied similar reasoning in Chelli-Greco v. Rizk, 2016 ONCA 489, a case involving a professional negligence lawsuit against a dentist. The plaintiff commenced her action within two years of her last appointment with the dentist. The defendant moved for summary judgment, arguing that the claim was discovered more than two years before it was commenced, when the patient first complained about the dental work performed by the dentist and demanded reimbursement. The Court of Appeal upheld the motion judge’s decision to deny summary judgment, finding that the plaintiff’s action was not discovered until after the patient-dentist relationship ended and the dentist completed his endeavours to repair his deficient work.

[175] In the Liu decision, the Court of Appeal for Ontario distinguished its earlier ruling in Brown. In Liu, the plaintiff was assessed by a different doctor than the defendant at the behest of his lawyer. The assessment was not for the purpose of treatment but rather to gather evidence to support his tort claim. The doctor in question delivered an assessment concluding that the plaintiff’s injury was permanent and could not return to normal. The Court of Appeal held that the decision in Brown did not assist Mr. Liu because the Brown case “featured continuing treatment by the defendant physician in circumstances where the plaintiff could not have known that it was legally appropriate to sue her doctor until efforts to correct the problem had ended”: para. 11.

[176] Presidential MSH was a case involving different facts. A corporation sued accountants for negligence. No issues of medical malpractice were involved, but the case is relevant because the interpretation of s. 5(1)(a)(iv) of the Limitations Act, 2002 was at issue. The Court of Appeal for Ontario made the following comments about its prior decisions:

[20] First, the cases suggest that a legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional's alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

[26] Resort to legal action may be "inappropriate" in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship. Conversely, the mere existence of such a relationship may not be enough to render legal proceedings inappropriate, particularly where the defendant, to the knowledge of the plaintiff, is not engaged in good faith efforts to right the wrong it caused. The defendant's ameliorative efforts and the plaintiff's reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature.

[177] In Kram v. Oestreicher, 2018 ONSC 3813, this Court applied the rulings of the Court of Appeal for Ontario in Brown and Presidential MSH, finding that it would have been premature for the plaintiff to commence a professional negligence proceeding against her physician while the physician was involved in good faith efforts to correct the negative effects of a surgery he had performed. The defendant physician performed three subsequent surgeries over a period of 14 months, all aimed at remedying any damage caused by the initial surgery. The motion judge held that it was clear the plaintiff was relying on the defendant’s superior knowledge and expertise throughout this time period. He held that it would have been premature for the plaintiff to commence proceedings while these remedial steps were being undertaken by the defendant.

[178] In this case, the Plaintiffs argue that it should make no difference to the analysis whether the remedial efforts were being undertaken by the Defendant or by someone else. They argue that Ms. McNeil saw several doctors who investigated her condition and she ultimately underwent a further surgery in July 2014 aimed at remedying the adverse consequences of her prior surgeries in December 2012. The Plaintiffs submit that until those measures were completed, they were not in a position to discover whether a legal proceeding against Dr. van Gulik would be an appropriate means to seek to remedy the harm Ms. McNeil suffered as a result of the care she received during her hospitalization in December 2012.

[179] I disagree with this submission for two reasons. First, the Plaintiffs have not established on the evidence that Ms. McNeil was seeing any doctors relating to her left hand/wrist/arm beyond August 29, 2013, when she had her last appointment with Dr. Czok. They have not proven that she underwent surgery in July 2014 for the purpose of correcting the damage to her left hand/wrist/arm. Second, even if I accepted that Ms. McNeil was treated by Dr. Baum in an effort to remedy the damage caused by her hospitalization in December 2012, there is a difference between circumstances where the Defendant is making efforts to remedy the negative effects of his own prior acts or omissions and circumstances where the Plaintiff is attempting to mitigate her damages by seeking the assistance of other professionals.

[180] The case law on s. 5(1)(a)(iv) does not postpone the discovery of medical malpractice claims in the latter circumstances: Brown (ONSC), at paras. 25, 33 and 35. As this Court noted in Tremain, at para. 63:

There is no question that there were many ongoing procedures and medical interventions with respect to the physical difficulties experienced by the plaintiff…. However, that really does not create any additional limitation space unless it can be said that these medical interventions prevented in some way the plaintiff or his representatives from proceeding with a law suit…

[181] There are multiple policy rationales underlying the provisions of the Limitations Act, 2002. As McLachlin, J. (as she then was) stated in Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, at para. 66, contemporary limitations statutes “seek to balance conventional rationales oriented towards the protection of the defendant — certainty, evidentiary, and diligence — with the need to treat plaintiffs fairly, having regard to their specific circumstances.”

[182] In M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at pp. 29-30, the Supreme Court of Canada noted:

Statutes of limitations have long been said to be statutes of repose.... The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations....

The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim....

Finally, plaintiffs are expected to act diligently and not "sleep on their rights"; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion.

[183] These rationales generally reflect the interests of the potential defendant. As the Supreme Court of Canada stated in Novak, “They rest on the view that a potential defendant should not have to defend a stale claim brought by a plaintiff who has chosen not to assert his or her rights diligently”: para. 64.

[184] In contrast, the principle of discoverability codified in s. 5 of the Limitations Act, 2002 protects the interests of the prospective plaintiff. It avoids the injustice of depriving a plaintiff of the opportunity to have her claim heard on its merits before the plaintiff knows, or ought to know, that she has a cause of action: Babjak, at para. 45. It also affords fairness to the plaintiff by taking account of her personal abilities and circumstances.

[185] The fourth criterion in s. 5(1)(a)(iv) of the Limitations Act, 2002 did not exist in Ontario’s prior limitations statute. Its underlying rationale is to ensure the efficient use of court resources. It was added as a disincentive to unnecessary litigation. Rushing to commence litigation is not an “appropriate” remedial recourse for a plaintiff in circumstances where the defendant is making good faith efforts to correct the damage caused (especially if the plaintiff is relying on the defendant’s specialized knowledge and expertise). However, allowing a plaintiff to delay the commencement of proceedings beyond two years from the date when her claim fully ripened in circumstances where the plaintiff is receiving remedial help from someone other than the defendant would, in my view, inject an unacceptable element of uncertainty into the law of limitations. It would thwart the very purpose for which limitation periods exist.

[186] Had Dr. van Gulik been involved in efforts to remediate Ms. McNeil’s condition, he would have had knowledge of his own ongoing efforts. He would not have been blindsided by an action commenced after his remedial efforts were completed unsuccessfully. Those circumstances are materially different from the facts of this case, where Ms. McNeil may have been seeking treatment from other physicians to remedy her condition, without Dr. van Gulik’s knowledge. It is not an uncommon scenario in medical malpractice cases for patients with unsatisfactory results to seek and obtain assistance from different health service providers in an effort to mitigate their injuries and damages. It would be unfair to defendants to postpone the commencement of the running of a limitation period, potentially indefinitely, while the plaintiff seeks treatment from other professionals without the defendant’s knowledge, let alone involvement. At some point, persons in Dr. van Gulik’s position are entitled to assume that they are no longer at risk from a stale claim: Soper (ONSC), at para. 15.

[187] For all of the above reasons, I conclude that:

(i) Ms. McNeil knew the material facts required by s. 5(1)(a)(i) of the Limitations Act, 2002 on December 23, 2012;

(ii) Ms. McNeil knew the material facts required by s. 5(1)(a)(ii) of the Limitations Act, 2002 by September 30, 2013; and

(iii) A reasonable person with Ms. McNeil’s abilities and in her circumstances would have known the material facts required by ss. 5(1)(a)(iii) and (iv) of the Limitations Act, 2002 by no later than September 30, 2013.

[188] The Plaintiffs’ claim was therefore discovered, at the latest, on September 30, 2013. The Plaintiffs’ action against Dr. van Gulik was commenced more than two years later, on December 21, 2015. Therefore, the Plaintiffs’ action against Dr. van Gulik is statute-barred.

[189] There is no genuine issue requiring a trial. Dr. van Gulik’s motion for summary judgment to dismiss the Plaintiffs’ action must be granted.

[190] It is unnecessary for me to determine whether the Toronto action constituted an abuse of process.

ORDERS AND COSTS

[191] I hereby dismiss the Plaintiffs’ misnomer motion, which sought to amend their pleadings in the Brampton action to substitute Dr. van Gulik’s name for Dr. Habibi’s name.

[192] I hereby grant Dr. van Gulik’s summary judgment motion in the Plaintiffs’ Toronto action. The Plaintiffs’ action against Dr. van Gulik is dismissed.

[193] The parties are encouraged to attempt to reach an agreement on costs. If they are unable to do so, I direct as follows:

(i) Dr. van Gulik shall deliver a Bill of Costs, accompanied by brief written submissions, to the Plaintiffs within 20 days of the release of this decision;

(ii) The Plaintiffs shall deliver their responding costs submissions to Dr. van Gulik within 15 days of receiving his submissions;

(iii) Dr. van Gulik may deliver reply submissions within 7 days thereafter;

(iv) Initial submissions by both parties shall be limited to three double-spaced pages in length, exclusive of any Offers to Settle and Bills of Costs. Dr. van Gulik’s reply submissions, if any, shall not exceed one page; and

(v) Counsel for Dr. van Gulik shall then assemble all of the costs submissions and deliver them in a package to the Brampton Courthouse, to my attention.

Petersen J.

Released: October 8, 2019

[^1]: This was confirmed by correspondence from Patrick Hawkins, counsel for the Defendant hospital in the Brampton action.

[^2]: The lawyer’s name is misspelled “Srytosh” in Mr. Murtha’s affidavit.

[^3]: The only treatment administered to Ms. McNeil by Dr. van Gulik was the nerve block.