COURT FILE NO.: CV-11-421641

DATE: 20191010

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Lavelle by her Litigation Guardian Donna Lavelle, Donna Lavelle and Robert Lavelle, Plaintiffs

AND:

Dr. James McKenzie Drake, Dr, James Thomas Rutka, D. Peter Benjamin Dirks, Dr. Georges Ralph Azzie, Dr. Benjamin Wai Yue Lo, Dr, Iain Charles Jamieson, Dr. Brian Patrick Walter Kavanagh, Dr. Peter Norman Cox, Dr. John Doe, Nurse Jane Doe, The Hospital for Sick Children, Dr. James Doe, Joan Doe, Dr. Jason Doe, D. Jacob Doe, Joy Doe and Peterborough Regional Health Centre, Defendants

BEFORE: Master P. T. Sugunasiri

COUNSEL: Morris, K., Counsel for the Plaintffs/Moving Parties

Grace, E. and Ronan, S., Counsel for the Proposed Defendants Drs. Caird, Taylor and Vachrajani/Responding Parties

HEARD: July 9, 2019

REASONS FOR DECISION

Overview:

[1] Jennifer Lavelle was born with spina bifida, hydrocephalus and a congenital heart condition. Shortly after birth doctors inserted a ventriculoperitoneal shunt to reduce pressure on her brain. It functioned well until in or around May of 2007 when doctors at the Hospital for Sick Children (“Sick Kids”) performed a VP shunt revision. After developing an infection post revision, she returned to Sick Kids. Doctors in the neurosurgery department removed the shunt and replaced it with a new one.

[2] On June 29, 2007 Jennifer experience abdominal pain around the area where the doctors had performed the shunt surgery. Jennifer’s mother made several calls to the hospital on June 29, July 2nd and July 3rd seeking advice on Jennifer’s ongoing pain. Ultimately on July 3, 2007 Jennifer went for an abdominal ultrasound which revealed that infected fluid had collected around the VP shunt. Donna and Jennifer’s father, Robert, rushed her to Sick Kids where they removed the shunt. Jennifer went into septic shock and suffered a hypoxic brain injury.

[3] Jennifer commenced her action by Notice of Action on March 7, 2011 when she reached the age of 20 and with the assistance of Donna as her litigation guardian (as is permitted by the Limitations Act in Ontario). At the time, Donna states that she did not know the names of the neurosurgery team that advised her when she made the phone calls. Sick Kids disclosed on March 30, 2017 that the neurosurgery staff on duty in that period were Dr. Caird (July 2), and Drs. Taylor and Vachrajani (June 30) (Proposed Defendants). The Plaintiffs wish to either replace them for Dr. James Doe or add them as new defendants to their claim.

[4] For the reasons that follow, I allow the Plaintiffs to substitute Dr. John Caird for Dr. James Doe. A reasonable person in Dr. Caird’s circumstances would know that the Plaintiffs were pointing the litigation finger at him when they alleged that Donna spoke with an on call doctor on the neurosurgery floor on July 2, 2019. Dr. Caird remembers speaking with Donna and was the only resident on call for neuro-service on that date.

[5] I am not satisfied Dr. Taylor and Dr. Vachrajani’s are similarly situated. Even if the Plaintiffs demonstrate that their claim clearly points the litigation finger at them, I am not satisfied that the Plaintiffs have a tenable claim against those doctors. Donna’s own evidence is that she did not call Sick Kids on June 30, 2007. Those were the only dates within the relevant time period that Drs. Taylor and Vachrajani worked.

Issues:

[6] There are two main issues in this motion:

a. Would a reasonable person in the circumstances of the Proposed Defendants know from reading the Statement of Claim (“Claim”) that the allegations of substandard care between June 29 and July 2, 2007 was about them?

b. Is March 30, 2017 the earliest day that Jennifer could have reasonably discovered her claim against the Proposed Defendants?

A. Would a reasonable person in the circumstances of the Proposed Defendants know from reading the Statement of Claim (“Claim”) that the allegations of substandard care between June 29 and July 2, 2007 was about them?

[7] The test for “misnomer” is clear. There is no material dispute about it. The Court of Appeal’s most recent formulation of the test is found in Spirito Estate v Trillium Health Centre, 2009 ONCA 762. Misnomer requires a finding that the Plaintiffs’ litigation fingers are clearly pointed at the intended defendant. Justice Van Rensburg sitting at that time as the motions judge in Spirito, commented that the question is: “would a person having knowledge of the facts be aware of the true identity of the misnamed party by reading the claim?” (Spirito, 2007 CanLII 41901 at para 3).

[8] The allegations against Dr. James Doe are found at paragraphs 13, 29 and 30 of the Claim. Paragraph 29 is a critical paragraph:

On or around June 30, 2007, Jennifer continued to feel right-sided abdominal pain, right shoulder pain, and feelings of pain and/or pressure at the top of her shunt. Jennifer also vomited, was bloated, and was lethargic. Between June 30, 2007 and July 2, 2007 Donna called all of Dr. Jamieson, Dr. James Doe, and HSC repeatedly, including Nurse Jane Doe, and Joan Doe, at various times. She was advised that Jennifer’s situation was not urgent and that she would wait without assistance or treatment if she were to attend at HSC, as it was a holiday weekend. She was further advised that Jennifer’s pain was likely the result of not having a bowel movement. At various times an enema was recommended.

[9] The Proposed Defendants are differently situated in the misnomer analysis.

Dr. Caird

[10] The reasonable person in the misnomer scenario is presumed to know the facts that Dr. Caird would know. In this instance, he and counsel would look at this paragraph and the Claim generally knowing that he was the only resident working on July 2, 2007 in the neuro services department. He also remembers speaking to Donna. In my view, he could easily conclude that he is Dr. James Doe. Even if he denies giving any of the advice alleged, that is a matter for trial. It is not unusual for a defendant to know that the claim speaks of him but to deny the allegations made. Further, the failure to keep proper phone records which may form part of the negligence claim cannot be used as a shield against the litigation finger.

[11] The fact that paragraph 30 of the Claim also alleges a possible conversation with Dr. James Doe on July 3, 2007 does not cause the litigation finger to waiver as against him. That paragraph, unlike paragraph 29, alleges a conversation with all or one of Dr. James Doe, Jane Doe and Joan Doe. Knowing that he did not work on July 3, 2007, this paragraph would not confuse him such that he would have to make further inquiries. He would reasonably conclude that this alleged conversation was with Jane or Joan Doe. This case, in my view, is not an instance where the Plaintiffs are attempting to use the doctrine of misnomer to avoid the application of a limitation period as my learned colleague noted in Mohabir v Mohabir, 2014 ONSC 5484 at para. 24.

[12] Having found that the litigation finger was pointing at Dr. Caird, I can still exercise my discretion to deny the Plaintiffs’ request to substitute him for Dr. James Doe. This residual discretion is embedded in the wording of r.5.04 of the Rules of Civil Procedure which allows the court to add or substitute a party.

Is there non-compensable prejudice?

[13] If the proposed substitution of Dr. Caird for Dr. James Doe causes non-compensable prejudice or if the justice of the case demands it, I can deny the Plaintiffs’ request notwithstanding that they have properly pointed their litigation fingers at Dr. Caird. In the circumstances of this case, I do not exercise my residual discretion to deny the Plaintiffs’ the substitution.

[14] I agree with Dr.Caird’s submissions that non-compensable prejudice is not only a matter of lost documents and faded memories. The delay in substituting Dr. Caird after over 12 years since Jennifer suffered brain trauma and 8 years after the Plaintiffs issued their Claim can lead to procedural unfairness as Master Muir found in Mohabir v Mohabir, 2014 ONSC 5484 at paras 20-23.

[15] I accept that Dr. Caird did not have notice of this claim until November 24, 2018 and that his memory has no doubt faded. The record also shows that this case is quite advanced and that Dr. Caird is represented by different counsel than the other doctor defendants. He has not had a chance to investigate the allegation of negligence against him. However, in the unique circumstances of this case, I allow the Plaintiffs to add Dr. Caird. I do not find non-compensable prejudice that would deny the Plaintiffs the substitution, nor do I find that the justice of the case demands letting Dr. Caird out of the action.

[16] First, even though he has not had an opportunity to investigate the allegations as they relate to him, it is relevant that the CMPA has been involved the entire time, as has Sick Kids. At the very least, the parties have preserved the relevant documentation and have investigated the chain of events of which Dr. Caird is one link. Dr. Caird’s involvement will not, in other words, lead to a new path of uninvestigated inquiry.

[17] Second, I am not persuaded that had Dr. Caird received prior notice, he would have been in a significantly better position to defend himself or enough of a better position that forcing him to defend himself now is prejudicial. It appears that despite disclosure of voluminous documents as early as March of 2012, no one seemed to know of Dr. Caird’s involvement at the material time until March of 2017. There appear to be no phone records from Sick Kids despite Donna’s evidence that she did call the neurosurgery floor on June 29, July 2 and 3, 2007. Unlike in Mohabir, it is not clear to me that Dr. Caird would have been in a better position to investigate on an earlier date.

[18] Third, it is not in my view onerous for the proceeding nor for Dr. Caird to be parachuted into an action that is quite advanced. As noted earlier, his involvement is in the middle of a chain of events that have already been thoroughly explored. He was involved only in one call in a series. The extent of his liability, if any, for that one call, is a triable issue. His defence is discreet, and from his evidence, will be that he remembers the call but denies the advice. This new piece in the litigation will not throw the action into disarray.

[19] Finally, I do not believe that the delay in bringing this motion causes non-compensable prejudice or is a reason to deny the Plaintiffs’ the substitution. The Plaintiffs found out Dr. Caird’s name on March 30, 2017 and put him on notice in December of that year that the Plaintiffs would seek substitution. They then scheduled a motion for October 2018. I agree with Dr. Caird that there is little or no explanation of the delay. However, I do not find this to be fatal for the reasons explained above. Earlier action would not have significantly improved Dr. Caird’s ability to defend.

[20] Overall, I find that the Plaintiffs’ pleading in paragraph 29 combined with paragraphs 13 and 30 are sufficiently specific to allow Dr. Caird, with hospital notes and records in hand, to know that the Plaintiffs’ were pointing the litigation finger at him, even if he denies the allegations of substandard advice.

Drs. Taylor and Vachrajani

[21] The same paragraphs of the Claim apply to Drs. Taylor and Vachrajani. The Plaintiffs allege that Donna spoke to Dr. James Doe and others on June 30, 2007 when Drs. Taylor and Vachrajani were the on-call neurosurgeon and resident. They are, however, situated differently than Dr. Caird.

[22] Even if I accept the Plaintiffs’ position that their litigation fingers clearly point to these doctors, Donna’s own evidence is that she only called the neurosurgery floor on June 29, July 2 and 3, 2007. Drs. Taylor and Vachrajani were not working on these days. As the Plaintiffs state in their factum, these calls are the only parts of the Claim that are alleged against Dr. James Doe. There is no utility in allowing a substitution under the doctrine of misnomer for a claim that can then immediately be ended by summary judgment or a motion to strike. That is inefficient, costly for all parties, and contrary to Rule 1.04. I exercise my residual discretion under r. 5.04 to deny the substitution of Drs. Taylor and Vachrajani for Dr. James Doe.

B. Is March 30, 2017 the earliest day that Jennifer could have reasonably discovered her claim against the Proposed Defendants?

Dr. Caird

[23] If I am incorrect in my misnomer analysis with respect to Dr Caird, I would allow the Plaintiffs to add him as a new defendant on the basis that they did not discover his involvement until March 30, 2017. There is no dispute that the Plaintiffs must bring their claim the day on which a reasonable person with their abilities and in their circumstances ought to have known that they suffered an injury allegedly caused by the actions of the Proposed Defendants (Limitations Act, subsection 5(1), and (2))

[24] Dr. Caird argues that the Plaintiffs have failed to explain the due diligence steps that they took to ascertain his name between July of 2007, when Jennifer suffered her brain injury, and March 7, 2011 when the Plaintiffs issued a Notice of Action. I agree that there is no explanation for this time period. There is ample evidence of due diligence after the Plaintiffs’ issued the Claim.

[25] In my view, the lack of pre-2011 due diligence evidence is not fatal. I am not persuaded that had any inquiries been made, the Plaintiffs would have obtained the requisite information. As noted earlier, no one seemed to know who was on call in the material period until March of 2017. If the existing defendants themselves did not know, it is hard to imagine how the Plaintiffs would be able to obtain the information. In any event, at the very least, discoverability is a triable issue. The proper approach in that circumstance is to allow the Plaintiffs’ to add Dr. Caird without prejudice to him raising limitations in their defence (see Wakelin v Gourley, 2005 CanLII 23123 at paras.14-15 and Morrison v Barzo, 2018 ONCA 979 at paras 30-32 and 61).

Drs. Taylor and Vachrajani

[26] While the same analysis applies to these proposed defendants, they are differently situated even under discoverability principles. In my view, there is no utility to adding these doctors. Donna did not call Sick Kids on June 30, 2007. This was the only day in the material time period that Drs. Taylor and Vachrajani worked. As noted by the Court of Appeal in Marks v Ottawa (City), 2011 ONCA 248 at para. 19, the court can refuse to allow an amendment to a claim if the proposed amendment is not an issue worthy of trial or if allowed would be struck. While the Court of Appeal’s comments were in the context of a plaintiff seeking amendments pursuant to Rule 26.01, they apply equally to motions to add parties pursuant to r. 5.04.

Disposition

[27] For the foregoing reasons, I allow the Plaintiffs to substitute Dr. Caird for Dr. James Doe pursuant to r. 5.04. I dismiss the balance of the motion.

Costs:

[28] If the parties cannot agree on costs, the Plaintiffs may deliver costs submissions of no more than three-pages double spaced plus their costs outline by October 25, 2019. They can file a hard copy of the submissions at the Masters’ Administration on the 6th floor of 393 University Avenue. The Proposed Defendants may deliver responding costs submissions by November 8, 2019 with the same parameters. The Plaintiffs may deliver a one-page Reply by November 15, 2019.

Original signed

Master Sugunasiri

Date: October 10, 2019