COURT FILE NO.: CV-17-574176
MOTION HEARD: 20191002
REASONS RELEASED: 20191118
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
NEIL TSCHIRHART
Plaintiff
- and-
GRAND RIVER HOSPITAL, DOCTOR DOE 1, DOCTOR DOE 2, NURSE DOE 1, NURSE DOE 2, DR. JACOB BORYS, ST. MARY’S GENERAL HOSPITAL, DR. HAHN HOW KIM, DR. MURRAY PEARCE, DR. DOE 3, NURSE DOE 3, NURSE DOE 4
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: T.A. Pagliaroli
Email: tanya@taplaw.ca
-for the Plaintiff
M.J.P. O’Brien
Email: mobrien@mccarthy.ca; rmacisaac@mccarthy.ca
-for the Proposed Defendant, Dr. Larbi Benhabib
REASONS RELEASED: November 18, 2019
Reasons For Endorsement
I. Introduction
[1] This is a motion by the Plaintiff Neil Tschirhart seeking leave, on the basis of misnomer, to correct the name of the Defendant Doctor Doe 1 to the proposed Defendant Dr. Larbi Benhabib and the name of the Defendant Nurse Doe 1 to the proposed Defendant Alfred Van Luven in his Statement of Claim.
[2] The motion is opposed by Dr. Benhabib and unopposed by Mr. Van Luven.
II. The Facts, the Action and the Motion
[3] The Plaintiff attended at Grand River Hospital (“GRH”) in Kitchener on April 30, 2015 complaining of shortness of breath and a cough. He underwent a triage assessment and examination by Dr. Benhabib and Mr. Van Luven and was sent home without further testing. On May 1, 2015, the Plaintiff saw his family physician, the Defendant Dr. Jacob Borys, who referred him to the Defendant St. Mary’s General Hospital (“SMGH”) in Kitchener for further testing.
[4] On May 5, 2015, the Plaintiff attended at SMGH and was diagnosed with late presentation anterior myocardial inarction complicated by congestive heart failure. He was admitted to SMGH that day under the care of the Defendants Dr. Hahn How Kim and Dr. Murray Pearce who performed a cardiac catheterization. The Plaintiff subsequently suffered a lacunar infarct and a left basilar cannula (a stroke) causing him to become hemodynamically unstable.
[5] In his Statement of Claim issued on April 28, 2017, the Plaintiff named GRH, SMH, Dr. Borys, Dr. Kim and Dr. Pearce, claiming $1,000,000 in damages for negligence, breach of contract and breach of fiduciary duty. The Plaintiff submits that he was unable to identify Dr. Benhabib because his name was illegible in the GRH emergency room records from his attendance on April 30, 2015 (the “ER Records”). The Plaintiff relies on the Affidavit of Bryan Rumble, Plaintiff’s counsel sworn December 18, 2018, who states that the names of the attending physician and the triage nurse could not be ascertained from the ER Records, the Plaintiff advised him that he was unable to name Dr. Doe 1 and Nurse Doe 1 and that he verily believes that the Plaintiff would not have known about Dr. Benhabib until the examination for discovery of GRH’s deponent, discussed below. However, on cross-examination, Mr. Rumble admitted that the Plaintiff did not advise him that he could not name Dr. Doe 1 and Nurse Doe 1 (Cross-examination of Bryan Rumble held May 30, 2019, Question 66).
[6] The Plaintiff also filed a Reply Affidavit from Mr. Rumble sworn May 30, 2019 which addresses the service of the Statement of Claim and issues with respect to the CMPA. The parties filed An Agreed Statement of Facts dated June 4, 2019 which states that Dr. Kenneth Melvin, an expert retained by the Plaintiff, advised that he could not identify the attending doctor and nurse from the ER Records.
[7] Therefore, the Statement of Claim named the physician and nurse who performed the triage assessment as Doctor Doe 1 and Nurse Doe 1, respectively. The Plaintiff also named Doctor Doe 2 and Nurse Doe 2 with respect to GRH.
[8] Paragraphs 10 and 14 of the Statement of Claim state:
“10. On or about April 30, 2015, the Plaintiff Neil Tschirhart attended the Defendant Grand River Hospital complaining of shortness of breath and with associated cough. The Plaintiff Neil Tschirhart provided his detailed medical history to the Defendants Nurse Doe 1, Nurse Doe 1 (sic), Doctor Doe 1 and Doctor Doe 2. Neil Tschirhart underwent a triage assessment and examination by the Defendants Nurse Doe 1, Nurse Doe 2, Doctor Doe 1 and Doctor Doe 2, and was sent home without further testing.
The Plaintiffs (sic) state that the Defendants’ failure to conduct all the proper tests and failure to diagnose the Plaintiff Neil Tschirhart’s heart condition, directly contributed to the advancement and his medical condition which would have otherwise been avoided.
The Plaintiff Neil Tschirhart state (sic) that the damages he sustained is (sic) as a result of the joint and several negligence, breach of contract and breach of fiduciary duty of the Defendants, the particulars of which are as follows...”
[9] The balance of paragraph 15 sets out the basis for liability against each Defendant, which for Doctor Doe 1 and Doctor Doe 2 includes allegations that they failed to: exercise reasonable care, skill and ability; conduct all proper tests to minimize the Plaintiff’s condition; inform the Plaintiff of the nature and seriousness of his condition; order prompt examinations and diagnostic procedures; and properly observe and monitor the Plaintiff.
[10] Dr. Kim and Dr. Pearce were served with the Statement of Claim on September 15 and 20, 2017, respectively. Dr. Kim, Dr. Pearce and Dr. Benhabib are members of the Canadian Medical Professional Association (the “CMPA”), a mutual defence organization that provides professional liability protection for its members.
[11] SMGH served its Statement of Defence and Crossclaim on December 4, 2017. GRH served its Statement of Defence and Crossclaim on December 18, 2017. Paragraph 5 of GRH’s Statement of Defence states:
“5. GRH states that on April 30, 2015, the plaintiff attended at its emergency department complaining of a cough. He was triaged, and then seen, examined and assessed by Dr. Labri Benhabib, who conlcuded that the patient likely had bronchitis. Dr. Benhabib discharged the plaintiff with instructions on managing his illness, indicating that he return to the emergency department if he experienced shortness of breath.”
[12] On January 3, 2018, GRH’s counsel sent a letter to Dr. Benhabib advising him of the Plaintiff’s claim and that he had treated the Plaintiff on April 30, 2015. Dr. Benhabib admits that he left the letter in his mailbox until sometime February 2018. In February 2018, the CMPA contacted Dr. Benhabib regarding this action and appointed legal counsel.
[13] During examinations for discovery on October 2-3, 2018, GRH’s deponent identified Mr. Van Luven as Nurse Doe 1 and Dr. Benhabib as Doctor Doe 1. As a result, in December 2018, the Plaintiff scheduled this motion with an initial return date of February 28, 2019.
[14] This action was discontinued as against Dr. Borys on September 13, 2017. By consent Order which I signed today, this action was dismissed on a without costs basis as against Dr. Kim, Dr. Pearce, SMGH, Nurse Doe 3 and Nurse Doe 4. Accordingly, if added, Dr. Benhabib would be the only Defendant doctor in this action.
III. The Law and Analysis
[15] The issue on this motion is whether this is a case of misnomer or the addition of a new defendant after the expiry of a limitation period. The Plaintiff submits that this is a case of misnomer while Dr. Benhabib asserts that the Plaintiff is attempting to circumvent the limitation period. There is a substantial body of case law with respect to misnomer, much of it in the context of medical malpractice litigation. The challenge here is to determine where the present case falls on the continuum of relevant cases.
[16] 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.”
[17] Rule 26.01 states:
“On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”
[18] Sections 4 and 21 of the Limitations Act, 2002 (Ontario) state:
“4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.”
[19] This motion also engages Rule 1.04(1) which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits and Rule 1.04(1.1) which requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. The Court of Appeal held in Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CarswellOnt (C.A) at paragraph 23:
“The combined effect of Rules 26.01, 5.04 and 1.04(1) generally is to focus the issue of non-compensable prejudice in the wider context of the requirement that a liberal construction is placed on the Rules to advance the interests of timely and cost-effective justice in civil disputes.”
[20] Glustein J. explained the distinction between Rule 26.02 and Rule 5.04(2) in Loblaw Properties Limited v. Turner Fleischer Architects Inc., 2018 ONSC 1376 at paragraphs 11-12:
“11 Unlike a motion to amend, a party is not seeking to amend a pleading under Rule 26.02 when it asks the court to apply the doctrine of misnomer. Instead, under Rule 5.04(2), the title of a proceeding is corrected. No changes to the pleadings need to be made.
12 To conflate Rule 26.02 and Rule 5.04(2) is contrary to the principles in Mazzuca v. Silvercreek Pharmacy Ltd, 2001 CanLII 8620 (ON CA), 2001 CarswellOnt 4133 (Ont. CA). Cronk J.A. referred to "the difference in language between the two rules [which] suggest that the drafters of the rules intended to preserve for the courts under subrule 5.04(2) a discretion to permit or deny amendments relating to a change of parties" (at para. 26).”
[21] The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA 762 at paragraphs 3-4:
“3 The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the "litigating finger" is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim? If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as "prejudice" where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305).”
[22] Ontario courts have regularly cited the following test from Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672 (Eng. C.A.) at p. 676:
“The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong". Then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.” (Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 at para. 11; Spirito v. Trillium Health Centre, 2008 ONCA 762 at para. 12; Mohabir v. Mohabir, 2014 ONSC 5484 at para. 13; Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534; aff’d 2018 ONCA 601 at para. 19).
[23] In Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226, O’Connell H.K. J. emphasized the importance of assessing the Statement of Claim to determine if there is a “litigating finger” as opposed to “a moving target”, cautioning against vagueness and non-specificity:
“107 It is clear that an assessment of the statement of claim is required to analyze whether the case falls within the misnomer category. This assessment will define whether a litigating finger is in play or if the claim aims itself at a moving target. Where fictitious names are used, such as John or Jane Doe, it is the assessment of whether the proposed defendant knew that he/she was the intended defendant that becomes seminal in the analysis.
108 When dealing with allegations in a claim as stated in Spirito, vagueness and non specificity weigh heavily if not definitively against a finding that misnomer is present. General assertions are ripe for the 'moving target' argument and are contra the 'litigating finger' test. The Court is likewise entitled to refer to whether medical records would have identified the defendants by name. Delay in seeking to amend the claim by resort to misnomer must be accompanied by a reasonable explanation. All of these factors were considered by Master Abrams in Parody v. Fenwick [2004] O.J. No. 3352.” (Urie at paras. 107-108).
[24] The Court of Appeal has held that the doctrine of misnomer applies notwithstanding the passage of a limitation period and that due diligence is not required:
“1 On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period.
19 If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff’s solicitor’s file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply.” (Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1 and 19).
[25] Master Glustein (as he then was) stated the following in Skribans v. Nowek, 2012 ONSC 532 at paragraphs 41-42:
“41 ….If the doctrine of misnomer applies despite the passage of a limitation period, to require evidence of effort to identify a tortfeasor would appear to conflate the doctrines of misnomer and discoverability, since misnomer applies despite the passage of any limitation period. To impose an "evidence of effort" requirement into the misnomer doctrine would effectively impose a discoverability test into the misnomer doctrine, which is not supported by Lloyd and Ormerod.
42 From a policy perspective, there is a reasonable argument that the doctrine of misnomer applies despite the passage of a limitation period. If a party knows from the outset that it is the intended defendant, the plaintiff intends to name the defendant, and the "litigating finger" points at the intended defendant, it could be unjust to allow the defendant to permit "one party to perhaps escape its possible liability by relying upon a technical Limitations Act defence."
[26] Glustein J. later held in Loblaws at paragraphs 13 and 24:
13 The distinction between Rule 5.04(2) and Rule 26.02 is further demonstrated by the settled law that limitation period defences do not apply to a motion to correct a misnomer. Due diligence of the plaintiff (or a defendant) would be irrelevant. Even if a party knew of the existence of the proper name of the defendant, an incorrect name or a John Doe pleading based on no pleaded knowledge of the defendant can still be cured at any time provided the "litigating finger" test is met and there is no non-compensable prejudice arising from the misnomer (Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1, 17, 19; Skribans v. Nowek, 2012 ONSC 532 at paras 30, 34, 41).
24 Consequently, even if the plaintiff knew the identity of the defendant (e.g. the name of the emergency room as in Ormerod or the proper municipality as in Lloyd v. Clark, 2008 ONCA 343, 2008 O.J. No. 1682 (CA)), the plaintiff (or the defendant, as I discussed above) could still substitute the proper name of the defendant despite the passage of the limitation period. Knowledge of the defendant or discoverability does not impact the analysis on misnomer, subject to the courts' discretion (Skribans v. Nowek, 2012 ONSC 532 (Mast.), at para. 37).”
[27] If the doctrine of misnomer does not apply, then the Limitations Act, 2002 may apply, including: the basic limitation period of 2 years (s. 4); the discoverability provisions (s. 5); and section 21 (Patrick v. Southwest Middlesex (Municipality), 2017 ONSC 17 at paras. 10 and 49).
[28] The parties largely agree on the substantive law of misnomer. However, they disagree on how it applies to the facts of this case and which of the relevant cases the present case most resembles.
[29] The Plaintiff submits that the facts are analogous to Ormerod. In Ormerod, one doctor’s name was mistakenly typed as the “Attending Physician” in the Emergency and Out-Patient Record. The wrong doctor’s name had a single stroke through it and the name of the correct doctor was written beside it in “hard to decipher handwriting”. The motion judge, P.B. Hockin J., held that the case law had expanded the test in Davies to include the doctors’ insurer. He stated at paragraph 15:
“I include Dr. Ferner and his insurer or counsel retained on the defence of this action as "relevant persons" or persons who would be the "recipient of the document" at some point before the physicians' defence was delivered. These are persons who knew whether a mistake had been made; in particular, whether the right or wrong name was taken from the Strathroy hospital record of June 25, 2001. They were the persons who would have known whether there was "another entity" to borrow from Lord Devlin in Davies. The only conclusion that may reasonably be made from Dr. Ferner's Statement of Defence, at para. 11, is that his insurer or his solicitors knew that the "litigating finger" was pointed at the physician who saw the plaintiff at the hospital on this date at the hour set out on the note and that that was not Dr. Ferner. It should have been clear that the naming of Dr. Ferner was a mistake. Indeed, that is the effect of para. 11 of his Statement of Defence. Equally, it must have been the case that Dr. Ferner knew that it was Dr. Graham who saw Mr. Ormerod or that this fact was discoverable easily and quickly. My view, for these reasons, is that the "litigating finger" pointed to Dr. Graham and that she would have known this, Dr. Ferner did know it and likewise, their representatives in this litigation knew it.”
[30] In upholding the motion judge’s decision, the Court of Appeal stated at paragraphs 23-25:
“23 The appellants sought to distinguish Spirito on the facts. They argued that the medical treatment of the patient in Spirito was highly unusual. The doctors would therefore have remembered the unusual treatment and known from the details in the statement of claim that they were the intended defendants. In this case, the appellants argued that Mr. Ormerod's attendance at the emergency department was of the utmost routine and Dr. Graham could not know from reviewing the claim that she was the intended defendant.
24 This is a factual argument and must be rejected according to the findings of the motion judge. The motion judge found that Dr. Graham would have known the litigating finger pointed at her. He reached this conclusion after pointing out that in applying the Davies test the court is not limited to considering what the litigant would know, but may, in addition, consider the knowledge of the intended litigant's representatives when they received the statement of claim. Here the motion judge relied on the fact that Dr. Graham had the same insurer as Dr. Ferner. Upon receiving the claim, the insurer would have had no doubt that the plaintiffs intended to claim against the emergency physician who treated Mr. Omerod on June 25, 2001. The insurer would have known or could easily have ascertained that the intended defendant was Dr. Graham. In the motion judge's analysis, Dr. Graham's representative, upon receiving and reading the claim as a whole would have said "of course it must mean Dr. Graham, but they have got her name wrong". Consequently, he found that Dr. Graham's representatives and Dr. Graham herself would have known that the "litigating finger" pointed to her. As the court in Spirito observed, the finding of what the intended defendant would have known is primarily a finding of fact. This finding of fact led to the motion judge's conclusion that the inclusion of Dr. Ferner's name in the claim as the emergency physician instead of Dr. Graham was a misnomer.
25 It seems to me that the appellants are attempting to forestall a development in the law that has already taken place. This court has already applied the misnomer approach, in three cases, in equivalent circumstances where the intended defendants, though not personally served with the originating process, were found to have had knowledge of the claim when it was issued. There is no basis to interfere with the motion judge's finding that this was a case of misnomer.”
[31] Hockin J. further held that in their important aspects Ormerod is indistinguishable from Spirito, also relied on by the Plaintiff. In Spirito, the plaintiffs sought to substitute two doctors for Doctor AB and Doctor CD named in the Statement of Claim. The plaintiffs did not bring their motion for approximately 2 years, waiting until the identity of the doctors was confirmed during the discovery process even though plaintiffs’ counsel was in possession of clinical notes and records containing references to both doctors before the action was commenced. K.M. van Rensburg J. held at paragraphs 17-18:
“17 The clinical notes and records that were in the possession of counsel for the plaintiffs before the Claim was issued, and were provided to defence counsel at his request, contain references to both Dr. Tin and Dr. Mohammed. Defence counsel asserts that the plaintiffs should have been able to identify these doctors well before the examinations for discovery in 2006. The plaintiffs' counsel however points to the fact that the Statement of Defence and Crossclaim of the hospital refers specifically to the surgical consult and the involvement of the surgeon on call. From this it is argued that a reasonable person with knowledge of the circumstances, including defence counsel for the defendant physicians, would have been aware that the conduct of these physicians was at issue.
18 In my view, this is a case where the "litigating finger" pointed to Drs. Mohammed and Tin in the Statement of Claim. Dr. Mohammed was the author of the surgery consult note which is quoted in paragraph 15 of the Statement of Claim. Dr. Tin was the surgeon on call, and the involvement of a person in that position is pleaded in both Statements of Defence. Dr. Tin and Dr. Mohammed are the physicians who were allegedly involved in the administration of four pints of blood to the deceased and are the physicians who are alleged to have failed to diagnose and treat the deceased's internal hemorrhage. These allegations are not vague and non-specific (as in Dukoff v. Toronto General Hospital, 1986 CanLII 2648 (ON SC), [1986] O.J. No. 188 where there was no pleading of particulars of what "John Doe" and "Jane Doe" were alleged to have done or not done) or misleading (as in McArthur v. Kaal, supra, where the Statement of Claim pleaded that "unknown" defendants who assisted a named defendant in a colonoscopy were negligent in the diagnosis and post-operative treatment of the plaintiff, when the proposed defendant had in fact performed a surgical repair of an alleged mistake by another named defendant.) In my view, a person having knowledge of the facts, including defence counsel with access to the clinical notes and records, would have known that the conduct of Drs. Tin and Mohammed was at issue in these proceedings, and accordingly could have identified them as Drs. AB and CD.”
[32] Dr. Benhabib argues that Ormerod and Spirito are distinguishable and that the facts of the present case are closer to Urie such that the Statement of Claim reveals a “wavering hand” and not a “litigating finger”. In Urie, O’Connell J. held that misnomer did not apply due to, among other things, the large pool of 15 John Does and the lack of specificity and incorrect facts pleaded with respect to two proposed substituted doctors:
“114 Starting with a review of the statement of claim, issued on June 20, 2005 which is the same date as the anniversary of the two year limitation expiration under subsection 38(3) of the Trustee Act, the claim can best be described as a shotgun approach to identifying the relevant persons who are said to have been negligent in the care of Mr. Urie. It is far from a document that points the litigating finger. The claim is poorly drafted and devoid of specificity as it relates to the torts alleged. Essentially it was originally an attempt to capture a pool of medical professionals within the nomenclature of a total of 15 John Does. There appears to be no justification for picking 15 such persons as distinct from the now proposed seven or for that matter any other arbitrary number. Given the date of issuance of the claim, which just made it under the wire of the limitation period, it is fair to assume that the claim was meant to be a prophylactic attempt to place the plaintiffs under the umbrella of the limitations period, without regard to any attempt to actually name those that are suggested to have been negligent in the care or Mr. Urie.
115 It is highly salient that the medical records were in the hands of the plaintiffs in 2005. For whatever reason they simply failed to extract from those records, those persons whose names are manifest. I find on the fact pattern of this case that misnomer is simply not remotely in play. The plaintiffs must fit within the realm of misnomer to avoid the expiration of the limitation period. They simply cannot. In addition I do not find that any of the conduct of the plaintiffs can be described as inadvertence. There is a quantum difference between a lapse in attention as distinct from a wholesale ignoring of the need to pursue a misnomer claim. That is especially so when 15 John Does are named.” (Urie at paras. 114-115).
[33] Dr. Benhabib also relies on Bertolli which appears to be the Court of Appeal’s most recent consideration of misnomer. In that case, Lederer J. allowed an appeal of an order permitting the substitution of the Regional Municipality of York for the City of Toronto and Brennan Paving and Construction Ltd. (“Brennan”) for John Doe Maintenance Company. The Statement of Claim incorrectly identified Toronto as the location of a pothole which caused a motor vehicle accident. It was later determined that the accident occurred on a portion of the road located in the City of Markham, not Toronto. Plaintiffs’ counsel sent a notice letter to Markham who identified York as the responsible municipal authority. York forwarded the letter to Brennan, the road maintenance contractor responsible for the accident location. Brennan was not responsible for road maintenance on the portion of the road located in Toronto.
[34] Lederer J. held that misnomer did not apply because the wrong city was identified in the Statement of Claim and finding that York and Brennan would have known that the litigating finger was pointing at them depended on the assumption that they had read and remembered the notice letters written nearly two years earlier (Bertolli at paras. 14, 36-37). The Court of Appeal concurred finding that the letters were extraneous to the accident and in the absence of a reference to the pothole in the letters and particulars of the precise location in the Statement of Claim, the reasonable reader could not know, without further inquiry, that the documents referred to the same accident (Bertolli at para. 5).
[35] For the reasons set out below, I conclude that the present case is a case of misnomer.
[36] In my view, the reasonable person reviewing the Statement of Claim and having knowledge of the facts would know that the “litigating finger” was pointed at Dr. Benhabib. Assessing the Statement of Claim, I am satisfied that the allegations as against Dr. Benhabib are pleaded with sufficient particularity such that Dr. Benhabib’s insurer and representative, the CMPA, would have known that the litigating finger was pointed at him. Namely, the Statement of Claim sets out the Plaintiff’s name, the name of the hospital he attended (GRH), the date he attended GRH, the symptoms he presented and the fact that he underwent a triage assessment, was examined and sent home without further testing (para. 10). The Statement of Claim also sufficiently sets out the causes of action and basis for liability (paras.14-15).
[37] The CMPA, Dr. Benhabib’s insurer, a “relevant person” with access to the relevant notes and records, received the Statement of Claim when the named doctors were served and would have known by reading it that the litigating finger was pointed at the emergency room physician who saw the Plaintiff on April 30, 2015 at GRH and could have easily and quickly ascertained from the ER Records and/or further inquiries of GRH that it was Dr. Benhabib. I also conclude that had he received the Statement of Claim, Dr. Benhabib, who also had access to the relevant notes and records including the ER Records, could have easily and quickly determined that he was the intended emergency physician. As he admitted on cross-examination, although he did not initially remember the Plaintiff, he was able to consult the ER Records to determine that he had in fact seen the Plaintiff on April 30, 2015 at GRH (Cross-examination of Dr. Benhabib held June 3, 2019, Questions 30-43). This conclusion is supported by the fact that, although not a representative of Dr. Benhabib, GRH was able to identify Dr. Benhabib as the emergency room physician who saw the Plaintiff, pleaded this in its Statement of Defence, advised him accordingly and confirmed his identity on examination for discovery.
[38] In my view, the facts of this case are analogous to Ormerod. In particular, Dr. Benhabib’s name was illegible in the ER Records, however, he could be identified easily and quickly by his insurer and representative, the CMPA, by reviewing the ER Records and/or making inquiries of GRH. I do not accept Dr. Benhabib’s submissions that misnomer does not apply because he and his insurer had to make additional inquiries. Consistent with Ormerod and Spirito, the fact that his insurer could have easily identified him from the ER Records or other inquiries as the physician who saw the Plaintiff as pleaded is sufficient to establish that it would have known that the litigating finger was pointed at him.
[39] I also reject Dr. Benhabib’s submission that the Statement of Claim is vague and non-specific because it does not explicitly state that the Plaintiff was seen in the emergency department at GRH. The fact that the Statement of Claim states that the Plaintiff “underwent a triage assessment and examination” and “was sent home without further testing” is sufficiently specific. This finding is supported by Dr. Benhabib’s evidence on cross-examination:
“44 Q. Okay. So in April of 2015 at Grand River when patients arrive at the hospital where are they triaged initially?
A. Where are they triaged?
45 Q. Yes.
A. I mean –
46 Q. In what department?
A. -- there’s a triage area next to the waiting room.
47 Q. And the triage area is in what department? Is it in the ER?
A. I don’t know how you would answer that question. Are you asking if it’s physically in the emergency department?
48 Q. Not physically. Is it considered to be part of the emergency department?
A. I would think so, but I mean I think you would have to speak with hospital administration. I believe they are part of the same department.”
[40] As persons “having knowledge of the facts”, the CMPA and Dr. Benhabib would have known that the reference in the Statement of Claim to the Plaintiff being examined, triaged and sent home meant that the litigating finger was pointed at the emergency physician at GRH. Further support for this conclusion is found at paragraph 5 of GRH’s Statement of Defence which states that the Plaintiff attended at GRH’s emergency department, was triaged, examined and assessed by Dr. Benhabib with instructions to return to the emergency department if he experienced shortness of breath.
[41] I also do not accept that misnomer does not apply because Mr. Rumble’s cross-examination revealed that there is no direct evidence from the Plaintiff regarding his inability to identify Dr. Benhabib. Unlike Martin v. Doe, 2017 ONSC 6955, cited by Dr. Benhabib, there is jointly filed expert evidence before me from Dr. Melvin that he could not identify Dr. Benhabib from the ER Records. Further, in Martin, the absence of direct evidence from the Plaintiff was considered by Master Muir in analyzing potential prejudice when considering whether to exercise the Court’s residual discretion, not whether misnomer applied in the first place.
[42] I also reject Dr. Benhabib’s argument that misnomer does not apply because the Plaintiff’s attendance was too routine, typical and uneventful to remember. Dr. Benhabib states that when the CMPA first notified him of the Plaintiff’s claim in February 2018, he had no recollection of the Plaintiff as he treats “upwards of dozens of ER patients each shift, and thousands of patients each year”, that this was a routine, typical encounter and he would not have remembered the Plaintiff even 3 months after treating him without it being brought to his attention and reviewing the ER Records, as he did when given notice of this claim (Affdiavit of Dr. Benhabib sworn May 27, 2019 at paras. 4-5; Cross-examination, Questions 30-43). This argument was rejected in Ormerod on the basis that, as here, even where the Plaintiff’s attendance was routine and uneventful, the CMPA as insurer could have easily identified the correct doctor. Similarly, I adopt the Court of Appeal’s finding in Ormerod that Spirito is not distinguishable on the basis that it involved a more memorable hospital attendance.
[43] Dr. Benhabib further submits that Ormerod is distinguishable because the doctor in that case was substituted for an incorrectly named doctor working at the same hospital. In the present case, the 2 named doctors, Dr. Kim and Dr. Pearce saw the Plaintiff at SMGH, Dr. Benhabib saw him at GRH and no doctor at GRH was named. In my view, this distinction does not change the application of Ormerod to the present case. Ormerod is premised on the finding that the CMPA as the doctors’ common insurer was a relevant person receiving the Statement of Claim who would have known that the litigating finger was pointed at the unnamed doctor. The present case is no different. Although Dr. Kim and Dr. Pearce saw the Plaintiff at a different hospital than Dr. Benhabib, the CMPA is the common insurer for all 3 doctors which I have concluded could have easily ascertained that the litigating finger was pointed at Dr. Benhabib. The fact that Dr. Kim and Dr. Pearce saw the Plaintiff at a different hospital than Dr. Benhabib does not change this analysis.
[44] I further conclude that the present case is distinguishable from Urie. In that case, the plaintiffs named 15 John Does and sought to substitute 2 doctors including an emergency physician who did not examine the plaintiff and who was misdescribed as having various specialities. Here, the Plaintiff named 3 Doctor Does (2 at GRH) and 4 Nurse Does and Dr. Benhabib did in fact see, triage and examine the Plaintiff as pleaded. This does not lead me to conclude that there is a “moving target” or “wavering hand” as in Urie.
[45] This case is also distinguishable from Bertolli where the Statement of Claim identified the wrong city and the plaintiffs relied on a two-year old notice letter unrelated to the Statement of Claim and the assumption that the proposed defendants had read it. In the present case, the Statement of Claim identifies the correct hospital where Dr. Benhabib saw the Plaintiff and there is no extraneous evidence. Unlike Bertolli, the Plaintiff in the present case is not seeking to extend misnomer beyond its current, long-established boundaries (Bertolli at paras. 14 and 28).
[46] Although I have concluded that this is a case of misnomer, I must also consider whether to exercise the court’s residual discretion to refuse to permit the correction of the misnomer (Ormerod at paras. 26-33). The most important factors are whether the proposed defendant was misled or would be unduly prejudiced (Ormerod at para. 32). However, the absence of prejudice does not guarantee an amendment (Mazzuca at para. 42; Ormerod at paras. 26-30 and 32; Skribans at para. 47). As the Court of Appeal stated in Muzzuca at paragraph 62:
“Where the evidence establishes that the party to be affected by the amendment has not been misled, and will not suffer non-compensable prejudice other than that occasioned by the inability to rely on the limitation defence, amendments to pleadings have been permitted following the expiry of limitation periods, including amendments designed to add, delete or substitute plaintiffs or defendants.”
[47] In determining whether to exercise its residual discretion, the court may also consider any unexplained inordinate delay in seeking leave to correct the misnomer; lack of notice including how long notice of the claim was given to the proposed substituted defendant after the cause of action and the passage of the presumptive limitation period; the stage of the proceedings and the lack of participation by the proposed substituted defendant; the lack of specificity of negligence; and public policy supporting adherence to limitation periods (Ormerod at paras. 28-32; Skribans at paras. 47-52; Mohabir v. Mohabir, 2014 ONSC 5484 at para. 15; Urie at paras. 108 and 144; Patrick at paras. 28-31). Further, as the scope of what the courts consider a misnomer broadens beyond a “classic” misnomer in which the claim contains a minor spelling error of the defendant’s name and is personally served upon the intended but misnamed defendant, it is appropriate to take a correspondingly wider view of the court’s discretion to refuse to correct the misnomer, in particular, the extent of its departure from a mere irregularity in all circumstances of the case (Ormerod at para. 31).
[48] I cannot conclude that Dr. Benhabib would suffer any non-compensable prejudice if he is substituted as a Defendant. The ER Records are available, there is no evidence that any other documents including hospital records have not been preserved, most of which should be in the possession of GRH, an active Defendant, and the Plaintiff is available for discovery and to testify at trial. I also do not accept Dr. Benhabib’s assertion that the passage of time gives rise to the presumption of prejudice due to fading memories, namely his own. As he stated on cross-examination, any difficulty he encountered in remembering the Plaintiff’s attendance at GRH was not as a result of the passage of time but due to the large number of patients he sees and his routine encounter with the Plaintiff. Further, Dr. Benhabib has the benefit of the ER Records and other hospital records to refresh his memory and, during cross-examination was able to recall the standard cardiac work he did in 2015 (Questions 75-87). Given the availability of documents and records including those from oral and documentary discovery already completed, I also disagree with Dr. Benhabib’s submission that his lack of participation to date is a factor. Further, given that Dr. Benhabib did in fact see, triage and examine the Plaintiff as pleaded, he has not been misled and as concluded above, negligence has been specifically pleaded.
[49] Further, the Statement of Claim was issued within the limitation period and the CMPA received it when Dr. Kim and Dr. Pearce were served in September 2017, within the 6-month period for service under the Rules. Similar to the insurer in Fredericka Mitchell v. John Doe, 2018 ONSC 6735, relied on by the Plaintiff, this provided the CMPA with sufficient time and opportunity to investigate the claim including determining that Dr. Benhabib was the physician in question. Accordingly, Dr. Benhabib has not been deprived of an opportunity to conduct investigations, discover information or make inquiries relevant to his defence. Additionally, GRH advised Dr. Benhabib of this claim on January 3, 2018 and he received notice from the CMPA in February 2018, approximately 3 months after the 6-month deadline for service of the Statement of Claim and 10 months after the passage of the presumptive limitation period which in my view are not significant in the circumstances. As a result, I am satisfied that Dr. Benhabib received ample notice of this claim and there are no public policy considerations with respect to adherence to limitation periods at issue.
[50] I also find that there was no inordinate delay in bringing this motion. The Plaintiff brought this motion in December 2018 with an initial return date of February 28, 2019 after GRH’s deponent confirmed on examinations for discovery on October 2-3, 2018 that Dr. Benhabib was the physician who saw the Plaintiff. I am satisfied that this is a reasonable timeframe and explanation, particularly given my conclusions that the CMPA and Dr. Benhabib received ample notice and that Dr. Benhabib will not be unduly prejudiced in preparing a defence to this action (Ormerod at paras. 15-16). It is noteworthy that the motion was brought approximately 3 years and 8 months after the commencement of this action whereas in Ormerod the motion was brought 6 years later. I also refuse to draw the negative inference requested by Dr. Benhabib that the Plaintiff only seeks to add him now that this action has been dismissed or discontinued against the 3 named doctors.
[51] This is less of a “classic” case of misnomer and more than the proposed correction of a mere irregularity. However, given my conclusions above, in particular that the Plaintiff always intended to name the physician who saw him on April 30, 2015 and this is not a belated attempt to evade the application of a limitations period, even taking a wider view, and based on my consideration of the relevant factors above, I decline to exercise the court’s residual discretion to deny misnomer.
[52] In his Factum, Dr. Benhabib submits that even if the other elements of misnomer are established, this Court should deny the Plaintiff’s motion on the basis that there is no evidence of any efforts to identify Dr. Benhabib. Counsel appears to raise this issue under both the misnomer and residual discretion analyses. While Dr. Benhabib’s counsel largely conceded during oral submissions that the law of misnomer does not impose any due diligence requirements on the Plaintiff, I consider this issue below.
[53] Dr. Benhabib argues in his Factum that the Plaintiff should have obtained an OHIP summary sooner than November 15, 2017 in order to identify Dr. Benhabib within the limitation period. He also submits that the Plaintiff should have searched the “Find a Doctor” tool on the website of the College of Physicians and Surgeons of Ontario using the “Be” in Dr. Benhabib’s name which was legible in the ER Records. He also asserts that the Plaintiff should have asked GRH for the name of the attending physician. As summarized above, the case law is settled that as long as the “litigating finger” test is met, and there is no non-compensable prejudice arising from the misnomer, then even if a party knew the precise identity of the defendant, it can still substitute the proper name of the defendant despite the passage of a limitation period as knowledge of the defendant or discoverability does not impact the misnomer analysis, subject to the court’s residual discretion (Stechyshyn at paras. 1 and 19; Loblaw at paras. 1, 24 and 33; Skribans at paras. 41-42). For example, in Spirito, plaintiff’s counsel had possession of hospital records identifying the intended physicians prior to commencing the action and over 2 years before bringing the misnomer motion (Spirito at paras. 17 and 19).
[54] Accordingly, to require the Plaintiff to search and make inquiries to identify Dr. Benhabib would, contrary to the case law, introduce due diligence and discoverability into the misnomer analysis. Given my findings that misnomer applies and there is no non-compensable prejudice arising from the misnomer, due diligence does not apply. With respect to imposing a due diligence requirement under the residual discretion analysis, I adopt the reasoning of Master Pope in Dekermendjian Estate v. York Central Hospital, 2016 ONSC 4756 that to do so would be contrary to Ormerod, Mazzucca and Skribans (Dekermendjian Estate at paras. 46-49).
[55] In my view, Bertolli does not add a due diligence requirement to the misnomer analysis. The Plaintiff cites Lederer J.’s comments that “it was incumbent on the plaintiffs to do something to figure out who or what John Doe Maintenance Company actually was” such as making inquiries with Toronto, York or Markham (Bertolli at para. 32). However, in the following paragraph, Lederer J. comments that “I will return to this idea later in these reasons” then finds that it is not the correction, misnaming or misdescription of party under s. 21(2) of the Limitations Act (Bertolli at para. 33). Lederer J. (citing Spirito and Ormerod) goes on to hold that misnomer does not apply on the basis that the plaintiffs pleaded the wrong location and relied on the notice letters and the assumption that they had been read and remembered (Bertolli at paras. 35-37). The Court of Appeal reached the same conclusions for similar reasons. The fact that the plaintiffs made no efforts to identify the proper defendant was not a factor in the finding that misnomer did not apply.
[56] The additional cases cited by Dr. Benhabib also do not impose a due diligence requirement. In Wirring v. The Buffalo Group Developments Ltd., 2012 ONCA 810, the Court of Appeal concluded that misnomer did not apply separate from its conclusion that the plaintiff failed to rebut the presumption of discoverability under s. 5(2) of the Limitations Act. In Holder v. Wiazowski, [2011] O.J. No. 4152 (S.C.J.), Master Haberman (as she then was) held that the misnomer was not clear, the delay in bringing the motion was unaccounted for, there was no evidence that the proposed defendant was aware that the litigating finger was pointed at her before the motion materials were served and the plaintiff only sought to substitute the proposed defendant as alternative relief to setting the action down for trial (Holder at paras. 12-19). Further, Pepper v. Zellers Inc., 2006 CanLII 42355 (ON CA), 2006 CarswellOnt 7985 (C.A.) was decided by the Court of Appeal prior to its guidance in Ormerod, Spirito and Stechyshyn.
[57] To deny the Plaintiff’s motion would also be inconsistent with a liberal reading of the Rules to secure the just, most expeditious and least expensive determination of this action on its merits as required by Rule 1.04(1). As Master Short held in Khoury v. Scottish and York Insurance, 2018 ONSC 3881 at paragraph 20, substituting Dr. Benhabib will also ensure that the true lis of this matter is decided without the possibility that Dr. Benhabib may perhaps escape liability on a technical limitations defence. The Court of Appeal’s comments in Ormerod are also applicable such that to deny the Plaintiff’s motion would ignore the long-settled and accepted expansion of the law of misnomer.
[58] Having considered all of the relevant factors and circumstances, I conclude that the Plaintiff should be granted leave to amend his Statement of Claim to correct Doctor Doe 1 to name Dr. Benhabib and Nurse Doe 1 to name Mr. Van Luven.
III. Disposition
[59] Order to go granting the Plaintiff leave to amend his Statement of Claim in the form attached as Tab 1A to the Plaintiff’s Motion Record.
[60] Counsel advised that the parties have agreed on the costs of this motion.
Released: November 18, 2019
Master M.P. McGraw