COURT FILE NO.: CV-16-00547229-0000

MOTION HEARD: 20210614

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HEATHER MERRITT, AS EXECUTOR OF THE ESTATE OF JOHN RICHARD MERRITT, HEATHER MERRITT, KRISTEN LEWIS, JOHN PAUL MERRITT and CANDACE OLSZEWSKI, Plaintiffs

AND:

LONDON HEALTH SCIENCES CENTRE, BRIAN M. TAYLOR, ROBERTO HERNANDEZ-ALEJANDRO, GREIG MCCREERY, IAN MCCONACHIE, FATIMAH AL-SALAH, WOJCIECH DOBKOWSKI, KYLE FISHER, JEFFREY DOUGLAS CAMPBELL, SCOTT ODORIZZI, MEGAN HUTTON, PAUL GRIFFITHS, KELLY PALMER, NANCY HOPKINS, KELLY GILCHRIST, KELLY DENG, CHRISTOPHER TIBOLLO, LOURDES CLIMACO, SUSAN MCCANN, ROBYN MCKENZIE, ALLISON MCKEEN, MEDPOINT HEALTH CARE INC., SYLVIA MURCHISON, JOHN DOE and JANE DOE, Defendants

BEFORE: MASTER R. FRANK

COUNSEL: Jared B. Schwartz, Counsel for the plaintiffs / moving parties

Teri Liu, Counsel for the responding parties / defendants London Health Sciences Centre, Megan Hutton, Paul Griffiths, Kelly Palmer, Nancy Hopkins, Kelly Gilchrist, Kelly Deng, Christopher Tibollo, Lourdes Climaco, Susan McCann, Robyn McKenzie and Allison McKeen

HEARD: JUNE 14, 2021

REASONS FOR DECISION

I. INTRODUCTION

[1] This claim arises from a medical malpractice matter in which the deceased former plaintiff, Dr. Merritt, alleges negligence in the care and treatment provided to him by a number of physicians and nurses during and after his surgery at London Health Sciences Centre (the "Hospital").

[2] The plaintiffs have brought this motion pursuant to Rule 31.10(1) for leave to examine for discovery two non-parties, Nancy Hilborn and Steve Newman (the "Non-Party Nurses"), both of whom were nurses at the Hospital when Dr. Merritt was treated.

[3] In the notice of motion, the plaintiffs also seek an order pursuant to Rule 30.10 that the Non-Party Nurses deliver all documents in their power, possession, and control relating to the care and treatment provided by each of them to Dr. Merritt. However, the plaintiffs did not make any submissions on this issue in their factum and the relief was not pursued or addressed at the hearing of the motion.

[4] The responding party defendants oppose this motion on the basis that the Rule 31.10 criteria have not been met in the circumstances of this case.

[5] For the reasons that follow, the plaintiffs' motion is dismissed.

II. BACKGROUND

[6] The Statement of Claim was issued on February 23, 2016. Dr. Merritt passed away on June 30, 2016. His estate obtained an Order to continue the litigation on his behalf.

[7] In total, eleven nurses of the Hospital, and eight doctors were named as defendants, along with the Hospital and Medpoint Health Care Inc. Also included as defendants are Jane Doe and John Doe to represent an unascertained number of unidentified persons who were healthcare providers alleged to have been involved in the supervision, care, or treatment of Dr. Merritt. The evidence from the moving parties is that the clinical notes and records indicate that approximately thirty-six nurses in total were involved in Dr. Merritt's care during the relevant Hospital admission.

[8] The proposed non-party witness Mr. Newman remains employed with the defendant Hospital, but he is currently on a leave of absence with no return date. The proposed non-party witness Nancy Hilborn is no longer employed with the Hospital.

[9] The responding defendants served their draft affidavit of documents, along with a CD containing the Schedule "A" productions, by way of correspondence dated November 25, 2016. This affidavit of documents and CD contained the entirety of the Hospital's records pertaining to Dr. Merritt, as well as credentials for the doctors named in this action.

[10] To date, the parties have completed fourteen days of examinations for discovery in this action.

[11] The examination for discovery of the Hospital representative and Operating Room Coordinator, Jennifer Hlembizky, was held in March 2019. The undertakings asked for and given on Ms. Hlembizky's discovery included the following:

Q. 99-101: To make inquiries of the post-op coordinator, to the extent that any of the nurse defendants were involved in post-operative care, of the roles and responsibilities of the nurse defendants in post-op care.

Q. 138: To provide a list of nurses who were involved in Dr. Merritt's care from the post-op period until he was discharged.

[12] At the time this motion was brought, the undertakings from Ms. Hlembizky's examination had not yet been answered. At the hearing of the motion, counsel for the respondents advised that the undertakings, including the two noted above, have since been answered. Counsel for the plaintiffs does not dispute that answers to the undertakings have now been provided, and the plaintiffs do not take the position that the defendants were in breach of any timetable in answering the undertakings. None of the undertaking answers are in evidence on this motion.

[13] The remaining discoveries of nine defendant nurses, ten defendant doctors, and four plaintiffs, were held over the course of one year on January 15, 16, 2020, March 26, 27 and 29,2020, November 6, 11, 12, 13, and 23, 2020, and January 15, 2021. The discovery of the nurse, Susan McCann, remains outstanding.

[14] One of the named defendants to the action is Nancy Hopkins. Ms. Hopkins is a nurse and was at the relevant time an employee of the Hospital. The clinical notes and records produced by the Hospital show nursing chart entries initialed "NH" from Dr. Merritt's time in the ICU after his surgeries. The evidence filed on this motion indicates that, at the time this action was commenced, it was the plaintiffs' belief that Ms. Hopkins provided care to Dr. Merritt during the relevant time in the ICU.

[15] In the process of scheduling the examinations for discovery of Ms. Hopkins, Ms. Hopkins's counsel (who also acts for the Hospital and other nurse defendants) advised plaintiffs' counsel that Ms. Hopkins was not involved in Dr. Merritt's care and was therefore not a proper party or witness. The evidence indicates that the plaintiffs investigated the matter and determined that there is a different nurse employed by the Hospital named "Nancy Hilborn" who may have provided care to Dr. Merritt during the relevant time in the ICU after his surgery and initialed certain clinical notes and records as "NH".

[16] Beginning in November 2019, counsel for the plaintiffs and counsel for Ms. Hopkins had discussions and exchanged correspondence about the identity of the nurse "NH". The plaintiffs ultimately proposed scheduling a videoconference examination for discovery of Nancy Hilborn as a non-party witness, as well as nurse Steve Newman, who the plaintiffs believe provided care to Dr. Merritt in the ICU.

[17] In May 2020, counsel for the responding defendants wrote to plaintiffs' counsel and advised that they would not agree to the examination of Ms. Hilborn or Mr. Newman as non-parties, taking the position that the plaintiffs did not satisfy the requirements of Rule 31.10(2)(a). Plaintiffs' counsel responded, disputing the Hospital's position in relation to examination of Ms. Hilborn and Mr. Newman and advising that the plaintiffs were seeking information related to any observations of these individuals (other than what was charted) when they attended on Dr. Merritt in the ICU.

III. POSITION OF THE PARTIES

[18] The plaintiffs submit that they meet the cumulative Rule 31.10 criteria and that the Court should grant leave for them to examine the Non-Party Nurses for the following reasons:

(i) the Non-Party Nurses have relevant evidence that is material to the issues in the action. It follows that it would be unfair to require the plaintiffs to proceed to trial without having the opportunity to examine these non-parties for discovery. This satisfies the criteria under subrules 31.10(1) and 31.10(2)(b). It also satisfies the general purpose of Rule 31.10.

(ii) the moving parties are unable to obtain the information from other parties, or from the non-parties. By refusing and/or failing to discuss the issues relating to relevant material information held by the Non-Party Nurses, the Hospital has refused or constructively refused to provide the relevant information. This satisfies the criteria under subrule 31.10(2)(a).

(iii) videoconference examinations of the Non-Party Nurses will not unduly delay the commencement of the trial of the action, entail unreasonable expense for other parties, or result in unfairness to the persons the moving party seeks to examine. This satisfies the criteria under subrule 31.10(2)(c).

[19] The plaintiffs also submit that granting leave to examine the Non-Party Nurses by videoconference would be a reasonable, just, speedy, and inexpensive result in the circumstances, and that doing so is consistent with the principles of Rule 1.04 and a liberal construction of the Rules as a whole.

[20] The responding defendants oppose this motion on the basis that the Rule 31.10 criteria have not been met in the circumstances of this case. They submit that the plaintiffs have failed to establish that they are unable to obtain the desired information from a discovery witness, as set out in Rule 31.10(2)(a). They also submit that the plaintiffs have had the opportunity to examine the representative of the Hospital and to ask questions of that witness with respect to the hospital records, including those authored by the Non-Party Nurses. They note that there were no questions asked at the discovery pertaining to either of the two Non-Party Nurses proposed to be examined.

[21] The responding defendants also oppose this motion as they say it is neither feasible nor practical for either nurse to be examined because Mr. Newman is on a leave of absence and Ms. Hilborn is no longer employed by the Hospital.

IV. LAW AND ANALYSIS

[22] Rule 31.10 provides, in part, as follows:

31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

Test for Granting Leave

(2) An order under subrule (1) shall not be made unless the court is satisfied that,

(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine.

[23] The principles to be considered in determining whether to grant leave to examine a non-party are summarized as follows:

(iv) the requirements of Rule 31.10 are cumulative and a party seeking such relief must satisfy both Rule 31.10(1) as well as each of the requirements in Rule 31.10(2);

(v) there must be good reason to believe that the non-party has information relevant to a material issue;

(vi) before being entitled to an examination of non-parties, the moving party must establish that he or she has been unable to obtain the information sought from the other parties to the action as well as from the non-parties they wish to examine;

(vii) there must be a refusal, actual or constructive, to obtain the information from the other parties to the action, and the non-parties, before the moving party will be able to meet the onus under Rule 31.10(2)(a); and,

(viii) if that onus is met the court may then look to Rule 1.04 to decide whether the court's discretion, as set out in Rule 31.10(1), should be exercised on the facts of each particular case.

(See: Din v. Melady, 2010 CarswellOnt 6852, 2010 ONSC 4865 (Ont. S.C.J.) at para. 14; Famous Players Development Corp. v. Central Capital Corp, 1991 CanLII 7202 (ON SC), 1991 CarswellOnt 405, [1991] O.J. No. 2127 (Div. Ct.) at paras. 26-35, 40, 41; and Rothwell v. Raes, 1986 CarswellOnt 985, [1986] O.J. No. 2495 (Div. Ct.) at paras. 5, 8, Hopkins v. Green Equipment, 2018 CarswellOnt 1902, 2018 ONSC 998, (Ont. SCJ.) at para. 6)

Is there good reason to believe the non-party has information relevant to a material issue?

[24] With respect to the first part of the test, it is clear from the pleadings that the central issue in this case is the care Dr. Merritt received and whether his care met the applicable standards. As I am satisfied that the Non-Party Nurses have information relevant to the care and treatment of Dr. Merritt, a material issue in this action, the requirements of Rule 31.10(1) have been established by the plaintiffs.

[25] The responding defendants argue that, given the passage of time, it is reasonable to believe that it is likely that the Non-Party Nurses have little or no recollection of the events in question. I do not accept this submission. I adopt the reasoning of Master Muir in Din v. Melady at para. 17, where he considered the position taken by Osler, the hospital defendant in that case, and found as follows:

"Osler argues that it is reasonable to believe that it is likely that the Proposed Witnesses have little or no recollection of the events, given the passage of time and the extent of their involvement in Niza's care. I do not accept this submission. There is evidence that at least some of the Proposed Witnesses have provided privileged statements to Osler's adjusters and counsel. Presumably those witnesses would be in a position to refresh their memories by reference to those statements. Osler has not indicated that it will not be calling the Proposed Witnesses as trial witnesses. It seems logical to conclude that the only reason to call them as witnesses at trial is if they have information relevant to a material issue in the action. Moreover, Osler has not put forward any evidence on this motion from the Proposed Witnesses directly. The assertion that they are likely to have little or no recollection of the events in question is pure speculation on the part of Osler's lawyers. Finally, this argument places a gloss on Rule 31.10(1) that is not present and cannot be inferred from its wording. The Rule requires a proposed witness to have information relevant to a material issue in the action. There is nothing in that language to suggest that such information need be complete or that a proposed witness needs to have a substantial recollection of the events in question. All that is required is that a proposed witness has relevant information, however imperfect that may be." [Emphasis added]

Will the examinations create undue delay, unreasonable expense or result in unfairness to the persons to be examined?

[26] The plaintiffs submit that examination of the Non-Party Nurses will not unduly delay the commencement of the trial of the action, entail unreasonable expense for other parties, or resulting unfairness to the person the Non-Party Nurses. I agree and find that the requirements of Rule 31.10(2)(c) have been established by the plaintiffs.

[27] The defendants submit that the plaintiffs have not met their onus of establishing that the examination will not entail unreasonable expense for the other parties or that it will not result in unfairness to the individuals sought to be examined. They also submit that, to date, enormous expense, unnecessarily increased costs, and unnecessary delay have been incurred as a direct result of the shotgun approach taken by the plaintiffs in this litigation. They point to the significant number of parties examined to date (which they say is twenty-four) "with no theory of liability established against the Hospital and defendant nurses". The defendants further submit that the plaintiffs have failed to provide any expert reports, or opinions, findings, and conclusions relating to the relevant issues in this litigation or implicating the Hospital and nurses. I do not accept these submissions.

[28] The plaintiffs have named certain parties and have the right to examine those parties. To the extent that any of the parties take the position that they should not have been named or that the examinations are or have been conducted inappropriately, those parties have the remedies provided for under the Rules. I am not prepared to infer that examination of the Non-Party Nurses would entail an unreasonable expense for the other parties merely because of the examinations of the existing parties that have taken place to date. Nor do I accept the respondents' submission based on what they say is a failure by the plaintiffs to provide any expert reports, opinions or findings. To the extent the respondents take the position that the plaintiffs have failed to provide such information, the Rules provide appropriate remedies.

[29] The respondents also submit that it is neither feasible nor practical for either of the Non-Party Nurses to be examined. They argue that (i) Mr. Steve Newman is currently on a leave of absence with no return date, and cannot be produced for a discovery, and (ii) Ms. Nancy Hilborn is no longer employed with the Hospital and cannot be produced for a discovery. I do not accept these as reasons showing that it would be unfair or unreasonable for the Non-Party Nurses to be examined. To the extent that the test for their examination as non-parties is otherwise met, the ordinary factors for scheduling of examinations would come into play. The fact that Mr. Newman is on leave is not per se a barrier to his examination.[^1]

Are the moving parties unable to obtain the information sought from other parties to the action or from the non-parties?

[30] I am not satisfied on the evidence before me that the plaintiffs are unable to obtain the information they require from the Hospital or other parties to the action. Therefore, I have concluded that the plaintiffs have failed to meet the requirements of Rule 31.10(2)(a).

[31] The plaintiffs submit that their examination of Ms. Hlembizky was unsatisfactory due to her lack of knowledge, including with respect to the post-operative care received by Dr. Merritt. They also submit that they only learned Ms. Hlembizky was an inadequate representative for the Hospital at the discovery. I do not accept this as a valid basis for demonstrating that the plaintiffs were unable to obtain the information they seek to obtain from the Non-Party Nurses. Even if I were to assume that answers to relevant questions by way of undertaking from Ms. Hlembizky would not be appropriate or sufficient (which I am not assuming is the case), the ordinary remedy would have been to seek examination of another representative of the Hospital rather than examination of a non-party. As Master Muir held Din v. Melady at para. 20:

"If the plaintiffs were of the view that their examination of [the Hospital's] representative was unsatisfactory, due to her lack of knowledge or for other appropriate reasons, they could have exercised their rights to seek an examination of a second representative but no such steps appear to have been taken."

[32] Further, I accept the respondents' submission that the plaintiffs made limited effort to obtain the information they now seek from the Non-Party Nurses through the usual discovery process. Counsel for the Plaintiffs could have asked the Hospital's representative and discovery witness, Ms. Hlembizky, about the responsibilities of all of the nurses associated with Dr. Merritt's care as well as other questions about any of the hospital records that have been produced, including those authored by Mr. Newman and Ms. Hilborn. Further, discovery could have included requests for specific inquiries of any non-parties, including the Non-Party Nurses, to address the plaintiffs' areas of concern and in order to obtain their evidence. There were no specific requests to ask the Non-Party Nurses for the information the plaintiffs are now seeking. In particular, the plaintiffs failed to ask for Mr. Newman's and Ms. Hilborn's knowledge, information, and belief about the matters at issue in this action, or for any relevant documentation they may have. As these questions were not asked, there has been no refusal, actual or constructive, to answer such questions, to ask the Non-Party Nurses for such information, or to provide such information. (See Hopkins v. Robert Green Equipment Sales Ltd. at para. 10; Din v. Melady at paras. 19, 21)

[33] The undertakings requested by the plaintiffs and agreed to at Ms. Hlembizky's examination included a request for a list of nurses who were involved in Dr. Merritt's care from the post-operative period until he was discharged. Another undertaking related to the roles and responsibilities of any defendant nurses in the post-operative care of Dr. Merritt. It is evident that the plaintiffs asked questions about the post-operative nurses and obtained undertakings to identify them. As already noted, the plaintiffs also had in their possession all of the hospital records and could have asked Ms. Hlembizky relevant questions about those records, and to make inquiries of any of the authors of those records about their knowledge, information and belief regarding the records and the relevant events. The plaintiffs did not request any further undertakings to confirm the initials of care providers in the medical records, for their last known contact information, or for any individual's information, knowledge, or belief relating to matters at issue in this litigation.

[34] Counsel for the plaintiffs submitted that, at discovery, the plaintiffs asked appropriate questions about who was involved in Dr. Merritt's care and asked for and received certain undertakings, but that the plaintiffs now seek additional information that is relevant to their case. In my view, this is not a justification for the requested relief. As stated by Master Muir in Din v. Melady, "it is not appropriate to resort to Rule 31.10 to address the inadequacies of an earlier examination for discovery" and it is not the purpose of Rule 31.10 to allow examining counsel a "make up" examination. (See Din v. Melady at paras 21; and Fraser v. E.S. Gallagher Sales Ltd. 1987 CarswellOnt 509, [1987] O.J. No. 867 (S.C.) at para. 7)

[35] With respect to the undertakings that were given at Ms. Hlembizky's examination, plaintiffs' counsel says that the undertakings were not yet answered when the plaintiffs brought this motion. However, this does not demonstrate that the plaintiffs were or are unable to obtain relevant information such that examination of a non-party is necessary. If counsel believes the answers are insufficient or incomplete, then there are remedies available pursuant to the Rules, including asking written follow-up questions arising from the discoveries, bringing a motion requesting proper answers, or bringing a motion for the re-attendance of a discovery witness. (See Din v. Melady at para. 19). The remedy is not examination of a non-party.

[36] The plaintiffs also submit that by refusing and/or failing to discuss the issues relating to relevant material information from the Non-Party Nurses, the Hospital has refused or constructively refused to provide the relevant information. I disagree. The respondents' position is not a refusal to provide relevant information. Rather it is a denial of the plaintiffs' assertion that there should be non-party examinations with respect to such information. The plaintiffs conflate the respondents' opposition to the non-party examinations with constructive refusal to provide information. As Master Muir noted in Din v. Melady at para. 19: "simple opposition to a Rule 31.10 motion cannot constitute a constructive refusal to provide information. To hold otherwise would render Rule 31.10(2)(a) meaningless."

[37] I find that the plaintiffs have failed to meet the onus of demonstrating that there has been a refusal, actual or constructive, to obtain information from the Non-Party Nurses. There is no evidence of a request by the plaintiffs, let alone a refusal, for specific information from the Non-Party Nurses, or for a summary of the information or evidence those non-parties may have. There is no indication that such information was sought from the Hospital when its representative, Ms. Hlembizky, was examined for discovery, or at any time thereafter. (See Din v. Melady , at para. 19). As Master Muir held in Hopkins v Robert Green at para. 10: "The decision of the Divisional Court in Famous Players is clear. There must be a refusal, actual or constructive, to obtain the information before the moving party will be able to meet his onus under rule 31.10(2)(a). That decision is binding on this court."

[38] The plaintiffs also submit that their ability to obtain information from the Hospital's representative should be considered in light of the thousands of pages of hospital records produced, and that those records were not produced in an organized fashion. I do not accept this as a basis for finding that the plaintiffs were unable to obtain the information they seek or as a justification for ordering the examination of the Non-Party Nurses. There is no evidence that the production, which was made in 2016, was deficient or that the plaintiffs made any complaint about the format of the hospital records that were produced, or that those records should have been organized in a different fashion. In any event, even if there had been an issue with the manner of production, the remedy would not be an order allowing examination of the Non-Party Nurses.

[39] Finally, the plaintiffs submit that although examination of the existing parties is one means of obtaining the information they seek regarding the Non-Party Nurses, other means can be permitted. Specifically, they submit that the plaintiffs should be allowed to examine the Non-Party Nurses directly rather than asking a discovery witness to make inquiries of them. I do not agree. The test is whether the moving party is unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine. The manner of eliciting the information is not at the plaintiffs' option. In this regard, I agree with the Master Clark's reasoning in Fraser v. Gallagher at paras. 8-10, where he held as follows:

8 In the affidavit in support of the motion, the examining counsel swears as follows:

11. I verily believe that any information in respect of those two January meetings can be best obtained from Mr. Elliot who can advise as to what agreements if any, were reached between Mr. Fraser and Mr. Elliot as representatives of the corporate defendant as to Mr. Fraser's retirement.

9 I am not sure what the deponent meant in saying that the information he seeks "can be best obtained from Mr. Elliot", but I am sure the r. 31.10(2) is not intended to deal with "convenience".

10 Rule 31.10(2) quite clearly applies only when "the moving party has been unable to obtain the information". (Emphasis added)

Would it be unfair to require the plaintiffs to proceed to trial without examining the proposed non-party witnesses?

[40] In addition, I am not satisfied that the plaintiffs have met their onus of establishing, as required under Rule 31.10(2)(b), that it would be unfair to require them to proceed to trial without having the opportunity of conducting examinations for discovery the Non-Party Nurses. I agree with the reasoning in Din v. Melady at para. 21 and Hopkins v Robert Green at para. 11, in which Master Muir outlined the following principles, which I adopt for the circumstances of this motion:

(i) To the extent that the respondents have had, and continue to have, access to the Non-Party Nurses and their evidence and the plaintiffs do not, this fact does not, by itself, constitute unfairness. It is a common occurrence in litigation.

(ii) As noted above, the plaintiffs could have asked the Hospital's discovery witness to make specific inquiries of the Non-Party Nurses to address the plaintiffs' areas of concern and in order to obtain their evidence. It is not appropriate to resort to Rule 31.10 to address the inadequacies of an earlier examination for discovery.

(iii) This court's rules of procedure limit discovery to only the parties, in most cases.

(iv) A judge presiding over a pre-trial has the power under Rule 50.07(1)(c) to order, among other things, that the parties deliver, in advance of the trial, written summaries of the anticipated evidence of the party's witnesses. A request for an order of this nature could be made by the plaintiffs at a pre-trial in the event that the respondents refuse to voluntarily provide such summaries.

(v) Witnesses are generally not examined under oath in advance of trial.

Should the Court's discretion, as set out in Rule 31.10(1), be exercised in this case?

[41] The plaintiffs submit that granting leave to the plaintiffs to examine the Non-Party Nurses by videoconference represents a reasonable, just, speedy, and inexpensive result in the circumstances, which is consistent with the principles of Rule 1.04 and of a liberal construction of the Rules as a whole.

[42] In addition, with respect to Ms. Hilborn, the plaintiffs submit that they would be entitled to substitute her as a party in place of the inaccurately named defendant Nancy Hopkins, in accordance with the doctrine of misnomer, and that doing so would entitle them to examine her for discovery. They submit that their request on this motion for leave to discover Ms. Hilborn by videoconference as a non-party is more expeditious and less expensive relief, which is consistent with the principles of Rule 1.04, including Rule 1.04(1.1) and 1.04(2).

[43] The respondents submit that the plaintiffs have failed to establish that the Court's discretion should be exercised on the facts of this case. They rely on Din v. Melady at para. 23, where the court cautioned that "any temptation on the part of the court to order discovery of non-parties on the basis of a general discretion outside of the parameters of Rule 31.10 must be tempered by the clear policy objectives of the January 1, 2010 amendments to the Rules."

[44] I agree with the respondents' submission and do not accept that Rule 1.04 assists the plaintiffs on this motion. The plaintiffs' submission presumes that they would succeed on a motion to replace Ms. Hopkins with Ms. Hilborn on the basis of misnomer. However, there is no misnomer motion before this court. The respondents have not had an opportunity to respond to such a motion and the test that would be applied on such a motion is different than the test under Rule 31.10. In such circumstances, and in any event, I am of the view that Rule 1.04 cannot be applied in a manner that simply overrides the requirements of Rule 31.10 and the plaintiffs' failures to satisfy those requirements.

V. CONCLUSION

[45] For these reasons, I have determined that the plaintiffs have failed to meet the test under Rule 31.10. It would not be appropriate, on the evidence before me on this motion, to exercise my discretion to order an examination for discovery of the Non-Party Nurses.

[46] The plaintiffs' motion is therefore dismissed. If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing (not to exceed 3 pages) and their costs outlines by June 30, 2021.

Master Robert Frank

DATE: JUNE 16, 2021

[^1]: Although there is currently no evidence before the court with respect to the reason for Mr. Newman's leave of absence that would support a finding that it would be unfair to require him to attend an examination, it is possible that such evidence could be presented in the future.