Court File and Parties

COURT FILE NO.: 1685/16

DATE: 20220121

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ida Petros Kifle, Psegehana Kifle and Petros Kifle, Plaintiffs

AND

Dr. Deborah Anne Penava, Dr. Ramona Urian, Dr. Joanne Naomi Kirby, Dr. Munsif Ali Bhimani, Dr. Niharika Chandra, Dr. Melanie Beth Zimmerman, Dr. Pooitsing Andrea Lum, Dr. Ian Greg Ross, Dr. John/Jane Doe Gynecological Attending, and London Health Sciences Centre, Defendants

BEFORE: Justice S. Nicholson

COUNSEL: John A. Nicholson, for Plaintiffs

Matthew P. Sammon and Kathleen Glowach, for Dr. Renato Natale

HEARD: December 6, 2021

REASONS

NICHOLSON J.:

[1] On July 22, 2014, the plaintiff, Ida Kifle, underwent a scheduled gynecological surgical procedure. She was discharged home later that day. She subsequently returned to the emergency room at London Health Sciences Centre due to excessive bleeding and pain. She received sutures and was discharged.

[2] Two days later, on July 24, 2014, the plaintiff returned to the emergency room via ambulance due to severe abdominal pain, nausea, vomiting and constipation. In the early morning of July 25, 2014, the plaintiff was administered a soap suds enema. Her condition deteriorated and she developed sepsis, necessitating emergency surgery on July 25, 2014. During the surgery it was discovered that her rectum had been perforated.

[3] The plaintiff, and her family, commenced the within action by Statement of Claim issued on July 5, 2016 in respect of the medical treatment that she received over the course of those several days in July 2014. She has named several of the physicians that were involved in her treatment as defendants. As can be seen by the style of cause, she has also named “Dr. John/Jane Doe Gynecological Attending” as one of the defendants.

[4] The plaintiff now seeks to substitute Dr. Renato Natale for “Dr. John/Jane Doe Gynecological Attending”. Dr. Natale opposes the motion. The remaining defendants take no position on the motion.

[5] I note that the plaintiff commenced a separate action against Dr. Natale arising out of the same series of events on April 15, 2020. As part of this motion, the plaintiffs seek an order consolidating the within action with that action. However, the parties agree that this only becomes necessary in the event that I dismiss the within motion. Accordingly, on consent, that part of this motion is adjourned sine die, returnable on 14 days’ notice.

Legal Principles:

[6] Rule 5.04(2) of the Rules of Civil Procedure reads as follows:

5.04(2) 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.

[7] A common practice has emerged of using pseudonyms for unidentified defendants and then later relying upon rule 5.04(2) to replace the pseudonym with the defendant’s actual name. This is an accepted legal practice and is often seen in medical malpractice cases. I note the comments of MacLeod J. (now RSJ) in Loy-English v. The Ottawa Hospital, 149 O.R. (3d) 129, 2019 ONSC 6075, at para. 18, as follows:

[18] Plaintiffs are often faced with a situation in which they cannot ascertain the precise identity of each of the defendants who may have been negligent. This problem is particularly acute in medical malpractice cases because there are a myriad of doctors, nurses and other medical staff involved in the treatment in question and because the plaintiff may not have access to the information necessary to identify those individuals at the point when the limitation period will presumptively expire. Even where, as here, the plaintiff has obtained a copy of the medical records, there may be errors or omissions in the records. Add to this the complexity of medical staffing which involve combinations of employees, independent physicians, residents, students and different types of supervision and responsibility and the dilemma is apparent. While vicarious liability exists for hospitals and hospital employees, the situation is much more difficult in relation to independent physicians. This is the reason that pseudonyms are frequently employed. When properly utilized a pseudonym may be corrected under s. 21 (2) of the Act. (He is referring here to the Limitations Act, 2002, S.O. 2002, c. 24, as amended).

[8] However, as MacLeod J. in Loy-English also notes (at para. 20), the pseudonym must be used appropriately and cannot be a mere placeholder in case a cause of action is subsequently discovered against someone else. The intention to sue the unidentified physician and the basis of the claim against that physician must be apparent from the pleading.

[9] Thus, in order to rely upon “misnomer”, the moving party must first establish that a person having knowledge of the facts would be aware of the true identity of a misnamed party by reading the Statement of Claim. This so-called “litigation finger” test is aptly described by 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, as follows:

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 ER 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 (ONCA), [1997] O.J. No. 3305).

[10] Even if the “litigation finger” test is met, the motion judge still has the discretion to permit or refuse the correction of a misnomer (Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ONCA), 56 O.R. (3d) 768, [2001] O.J. No. 4567, 207 D.L.R. (4th) 492 (C.A.), Ormerod v. Ferner, 2009 ONCA 697). This involves an analysis of prejudice to the misnamed defendant. However, the court may consider other factors when exercising its discretion, such as significant unexplained delay in moving to amend, the public policy reasons supporting adherence to established limitation periods and the lack of notice to proposed substituted defendants (see: Mohabir v. Mohabir, 2014 ONSC 5484).

[11] The consequences of determining that this is a case of misnomer are significant. Where there is misnomer, so long as the original claim was commenced within the applicable limitation period, then the limitation period offers no defence even if the amendment occurs after its expiry. The Limitations Act, 2002, specifically contemplates correcting a misnomer after the expiration of a limitation period in s.21. On the other hand, if there is no misnomer Dr. Natale may raise the limitation period as a defence given that the Statement of Claim in which he has been properly named was issued approximately 6 years after the alleged malpractice.

Evidence on the Motion:

Moving Party’s Evidence:

[12] Counsel for the plaintiff, Ms. Lee, has provided an affidavit in support of the motion. She was cross-examined on that affidavit.

[13] Ms. Lee deposes that she was retained by the plaintiff to investigate and pursue a medical malpractice claim on her behalf, as well as a claim for long term disability benefits. She was retained on March 4, 2015. She obtained and reviewed the plaintiff’s medical chart from the hospital. She noted that the Adult Assessment/Intervention Flowsheet records the following at 00:35 on July 25, 2014:

“Gyne reassessed pt. Soap Suds enema administered. Initial insertion produced white discharge. Gyne resident shown + aware + instructed to continue with enema”. (the affidavit notes that the underlining was in the original note but on my review it is possible that the line is simply crossing out the remainder of the next line in the chart, a pattern that is seen earlier in the note)

[14] Ms. Lee determined from the electronic Order Detail that the Soap Suds enema was ordered by Dr. Chandra, a resident. Accordingly, Dr. Chandra was named as a defendant in the action.

[15] Ms. Lee, based on her experience prosecuting medical malpractice claims, was aware that a resident likely would have consulted with a fully qualified gynecologist at the hospital under whom she was practicing before ordering the enema. It was also contemplated that Dr. Chandra might have independently made the decision to order the enema without consulting a staff or attending physician. From her review of the medical chart, she could not determine whether Dr. Chandra had consulted with an attending physician. If so, she deposes that she was unable to discern the identity of the attending physician by reviewing the medical records. On her cross-examination, she indicated that she did not ask counsel for the physicians whether anyone else had been involved in that order for the enema prior to the discoveries in June of 2018.

[16] Ms. Lee deposes that as a result of her experience, she drafted the Statement of Claim to plead that “Dr. Chandra was responsible for the soap suds enema order, and/or, that an attending physician identified as “Dr. John/Jane Doe Gynecological Attending” was responsible.

[17] I pause here to comment upon this assertion by Ms. Lee. While she may describe in her affidavit having pleaded that Dr. Doe was responsible, it is not at all clear from a review of the Statement of Claim that she has, in fact, done so.

[18] Examinations for discovery were conducted in the summer of 2018. At her discovery Dr. Chandra admitted that she ordered the soap suds enema. However, she also testified that an attending physician was involved in the decision to order the enema. She identified Dr. Natale as that attending physician.

[19] Following the completion of the discoveries, Ms. Lee retained an expert for an opinion with respect to the standard of care of the physicians involved. The expert provided an opinion that the attending gynecological physician had fallen below the standard of care by failing to actually attend to see and examine the plaintiff prior to directing that an enema be given. The expert report was obtained in January of 2019.

[20] Accordingly, Ms. Lee obtained instructions to bring a motion to correct the misnomer. On cross-examination, she could not be specific as to when she actually sought those instructions. However, she states that “other issues” in both the medical malpractice claim, and the companion LTD claim she was handling for the plaintiff, were “being addressed”. This resulted in the voluntary dismissal without costs as against a number of the defendants in the medical malpractice action and the settlement of the LTD claim. Ms. Lee, frankly, is vague in her affidavit as to the timing of all of this.

[21] As she was “intending to bring the motion to correct the misnomer” the COVID-19 pandemic arose. Early in the pandemic, she was unsure how to bring the motion due to an inability to attend the courthouse. Thus, she commenced a separate action against Dr. Natale, in April of 2020. The claim was served upon Dr. Natale and counsel was appointed on his behalf (Mr. Sammon). Mr. Sammon requested time to investigate the matter before delivering a Statement of Defence.

[22] On April 26, 2021, Ms. Lee’s colleague, Mr. Nicholson, wrote to Mr. Sammon advising of the plaintiff’s intention to bring a motion to consolidate the action and to correct the misnomer.

[23] This motion record is dated June 14, 2021.

[24] I note that Dr. Natale’s name does appear in the medical chart that Ms. Lee would have reviewed. There are handwritten clinical progress records. The entry at 18:43 states “Gyne senior here consulting consultant—(this is then continued several pages later)—cont’d Dr. Natale. Pt. given morphine.”

Responding Party’s Evidence:

[25] Dr. Natale provided an affidavit in response to this motion. He too was cross-examined.

[26] He retired from medicine in December of 2017. Prior to that retirement, he was an obstetrician gynecologist. The focus of his practice was complex obstetrics. He practices maternal fetal medicine (“MFM”) at London Health Sciences Centre, Victoria hospital, in London. He specialized in managing higher-risk pregnancies. He did not maintain an active practice in gynecology.

[27] Dr. Natale deposes that the Statement of Claim does not specifically identify him. That, however, is a determination for the court to make.

[28] Dr. Natale has no recollection of seeing Ms. Kifle. His only evidence of his involvement is based upon his review of her hospital chart, and his usual practice. However, he can confirm from reviewing the chart that he was the on-call OBGYN at the hospital on July 24-25, 2014. His shift would have commenced at 7 am on July 24 and finished at 8 am on July 25.

[29] The usual practice at the hospital was for two OBGYN specialists to be on call for the 24-hour period. There are two teams, a red team and a blue team. He was on the blue team. Of the two OBGYNs on call at the hospital every day, one would provide obstetrical services exclusively. The other OBGYN would provide gynecology services exclusively during the day shift from 7 am to 5 pm. During the night shift, from 5 pm to 8 am, the OBGYN on call would provide both gynecological and obstetrical services.

[30] Furthermore, if both OBGYNs scheduled to be on call were MFM sub-specialists, the OBGYN department would arrange for a gynecology specialist to be on second call, to handle complex gynecology cases beyond the expertise of the MFM specialists. Thus, if a problem arose beyond the expertise or scope of practice of the MFM specialist, the patient would be transferred to the care of the second gynecologist on call.

[31] Dr. Natale deposes that it was his practice at the relevant time to refer complex gynecology problems to the gynecologist specialist on call, and/or to the most responsible physician gynecologist or their coverage. This would be the OBGYN who had performed the underlying surgery.

[32] From his review of the hospital chart, Dr. Natale agrees that he was providing gynecology call services on July 24, 2014. From the chart, he also indicates that his only involvement with Ms. Kifle’s care was attending upon her at 6:43 pm together with a senior resident on call. He did not make his own note of the encounter. Accordingly, he believes that the visit was likely part of his doing rounds as part of his call duties that day. He had no further charted involvement with Ms. Kifle. He indicates that due to the complexity of the gynecology case, it would have been his practice to refer the case to the gynecology specialist on call, or to the most responsible physician gynecologist.

[33] Despite Dr. Chandra’s evidence, Dr. Natale has no recollection of consulting with Dr. Chandra about her plan to order a soap suds enema and agreeing to that plan. It would not have been his practice to provide this direction to a resident. His practice would have been to refer Dr. Chandra to the gynecologist on call.

[34] With respect to prejudice, Dr. Natale has no memory of seeing Ms. Kifle. His first notice of the case was in late August 2020 when he was provided with the Statement of Claim issued in April of 2020. He asserts that had he been served with the initial claim in a timely fashion, it is entirely possible that he would have had some memory of the case. He now has no prospect of remembering what transpired.

[35] On cross-examination, Dr. Natale noted that there were approximately twenty OBGYNs that could be providing coverage in the emergency department for a gynecological or obstetrical patient.

[36] Dr. Natale also described that he would be the on-call emergency room OBGYN approximately three to four times per month. During those 24-hour shifts, he would have dozens of conversations with residents of varying memorability, both in person or over the phone. He agreed that after one year had passed, he would not be able to remember all of those conversations.

[37] On re-examination, Dr. Natale was shown a handwritten note of a Dr. Urian, identified as the Chief Resident that was involved in Ms. Kifle’s case. The note was made “post hoc”, July 25th in the evening. Dr. Urian’s note reads as follows:

“I had called Dr. Penava and expressed the concern that she looks like having a surgical abdomen and possible bowel injury despite findings negative on CT. Dr. Penava was outside of hospital {illegible}, she asked me to call Dr. Natale who was on call as she would need surgery arranged.

Dr. Natale is a MFM consultant, he wasn’t involved in her surgery so he suggested we talk to Dr. Penava again. Dr. Penava had asked me to speak with a gyne staff to assess the patient right away. I paged Dr. Kirby at approx. 8:35 and Dr. Kirby assess the patient at 9:10 with myself.”

[38] I note that it is not apparent from the document whether the attendance with Dr. Urian and Dr. Kirby was in the pm or am. The note subsequently mentions surgery at 10:42. There is no surgery mentioned in the nurses notes for the night of July 24, 2014 and there was surgery on July 25th, so I conclude that all of this likely occurred the next morning, after the administration of the soap suds enema.

[39] I also note that in the Statement of Defence filed on behalf of all the identified doctors, it is not pleaded that Dr. Chandra consulted with any other physician. To the contrary, the Statement of Defence pleads as follows:

12. Late in the evening on July 24, 2014, Dr. Chandra received a verbal report on Ms. Kifle’s abdominal CT scan. She was advised a bowel perforation had been ruled out, but that there was considerable stool in the bowel. As a result, Dr. Chandra ordered a soap suds enema to be administered to Ms. Kifle to empty her bowels. She also ordered painkillers for Ms. Kifle.

[40] Thus, the first time that the plaintiffs were alerted to the allegation that Dr. Chandra was acting on the order of another doctor was at her examination for discovery.

The Statement of Claim:

[41] In the style of cause, the defendant is described as “Dr. John/Jane Doe Gynecological Attending”. However, throughout the body of the Statement of Claim, Dr. John/Jane Doe is described as “Physician”, “Doctor” and “Attending”. I do not think anything turns upon this oversight. This was not raised in argument.

[42] The Statement of Claim in this matter identifies each of the defendant doctors. In respect of “Dr. John/Jane Doe Gynecological Physician”, the descriptions in paragraphs 11 and 13 of the Statement of Claim read as follows:

“11. The Defendant, Dr. John/Jane Doe Gynecological Physician, at all material times, practiced medicine in the City of London, County of Middlesex, with a specialty in gynaecology and obstetrics, and was, at all material times, the physician involved in the care of the Plaintiff, Ida Kifle, to whom he or she owed a duty of care.

13. At all material times, the Defendants, Drs. Penava, Urian, Kirby, Bhimani, Zimmerman, Chandra, and/or John/Jane Doe Gynecological Doctor, were employees of and/or practiced medicine at the LHSC.”

[43] The Statement of Claim makes it clear that the plaintiff returned to the Emergency Room at London Health Sciences Centre, Victoria Campus Hospital on July 24, 2014. The allegations of the unidentified doctor’s role in Ms. Kifle’s treatment is described in paragraph 17, as follows:

“17. On or about July 25, 2014 at approximately 12:13 am, Dr. Niharika Chandra, Dr. Zimmerman and/or Dr. John/Jane Doe Gynecological Physician ordered a soap suds enema which was administered to the Plaintiff, Ida Petros Kifle.”

[44] The allegations of specific negligence are contained within paragraph 24 of the Statement of Claim. There are specific allegations levied against each of the defendant doctors. In relation to “Dr. John/Jane Doe Gynecological Attending”, the allegations are in subparagraph 24(C), as follows:

“24. C. As against the Defendants, Dr. Bhimani, Dr. Zimmerman, Dr. Chandra, and Dr. John/Jane Doe Gynecological Attending in respect of follow-up care and treatment on July 24, and 25, 2014:

(a) They failed to complete a thorough investigation of Ida Kifle’s presenting complaints;

(b) They failed to review the CT, x-ray and/or MRI results in a timely manner and disclosing the perforation;

(c) They failed to take an appropriate history from Ida Kifle to identify risks for a perforation or arrange for other tests that may have detected the perforation;

(d) They failed to properly read or interpret Ida Kifle’s symptoms or test results when Ida Kifle was assessed and/or treated by them;

(e) They failed to have any or appropriate follow-up procedures to ensure that tests were arranged, carried out and reported back to the medical providers in a timely fashion;

(f) They failed to order the requisite investigations expected of a gynecologist and/or emergency room physician with their experience to determine whether there was a perforation;

(g) At all material times they were incompetent physicians whose medical treatment of Ida Kifle fell below an acceptable standard of care to which the Plaintiff was entitled;

(h) They entrusted the care of Ida Kifle to untrained, inexperienced doctors;

(i) They failed to recognize that Ida Kifle was suffering from abdominal pain and/or sepsis but if they did, they failed to treat it appropriately or at all;

(j) They failed to conduct the appropriate medical procedure(s) or testing to determine the proper diagnosis and course for treatment;

(k) They knew or ought to have known that Ida Kifle was at increased risk for a perforation given her recent laparoscopic procedure and health status;

(l) They permitted the sepsis to progress to a point where further more invasive and aggressive treatments were necessary;

(m) They fell below a reasonable standard of care in both following up on various test results of Ida Kifle and for not providing prompt and timely treatment for the perforation;

(n) They failed to refer Ida Kifle to a specialist for treatment in a timely manner;

(o) They failed to utilize all equipment and techniques or to ensure that all equipment and techniques reasonably required to reduce the risk of harm to Ida Kifle would be available and utilized;

(p) They failed to carry out their duties as physicians in accordance with the recognized standards of a reasonably competent doctor at that time and place;

(q) They negligently opined that the air bubbles and large volume of free air in Ida Kifle’s abdomen was due to recent surgery rather than a perforation;

(r) They administered a soap suds enema to Ida Kifle when they knew or ought to have known that such a procedure would worsen her condition;

(s) They failed to consult with other trained professionals or seek the advice of other qualified doctors when they knew or ought to have known that they did not have the expertise or qualifications;

(t) They failed to consult and/or adhere to the comments of nurses who questioned the use of a soap suds enema; and

(u) Their medical assessments failed to meet a standard of care required of a competent gynaecologist and/or emergency room physician working in a major centre.”

Analysis:

The “Litigation Finger” Test:

[45] As noted above, the analysis begins with the “litigation finger” test. On a review of the Statement of Claim, would it be apparent to Dr. Natale that the litigating finger was pointed at him? Would a person having knowledge of the facts be aware of the true identity of the misnamed defendant?

[46] The cases make it clear that the issue is not simply whether Dr. Natale would be able to identify himself from his subsequent review of the Statement of Claim. The test is broad enough to include the CMPA, the mutual defence association which acts like an insurer on behalf of physicians, and who has responded, on the evidence, on behalf of both Dr. Chandra and Dr. Natale (see, for example, Ormerod, supra, and Tschirhart v. Grand River Hospital, 2019 ONSC 6650, at para. 36).

[47] As MacLeod J., states in Loy-English, at paras. 21(e) and (i):

[21] As with most discretionary remedies, results are fact driven and case specific. Despite this, a number of principles may be derived from the jurisprudence. It is useful to summarize these as follows:

(e) To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the “litigation finger” is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.

(i) It is not useful for misnomer motions to be decided based on technicalities or vagaries of pleading. The object of pleading analysis should not be one of looking for traps, tricks or loopholes. We should not be engaged in the legal equivalent of “whack a mole” or “gotcha”. Rather, the question in every case should be whether it is reasonable and just to allow the pleading amendment and whether it is permitted by the governing legislation.

[48] The Statement of Claim in this matter is imperfect. As I have noted, it interchangeably uses “Physician”, “Doctor” and “Attending”, for example. It also does not, despite Ms. Lee’s description, describe that Dr. John/Jane Doe was “responsible” for the resident. It describes in paragraph 11 that the doctor was “involved in the care of the plaintiff” and in paragraph 13, was an employee of or practices medicine at the LHSC. In paragraph 17, Dr. John/Jane Doe is alleged to have been the physician who ordered the soap suds enema. Nowhere does the Statement of Claim specifically describe that Dr. John/Jane Doe was the attending physician responsible for the resident, Dr. Chandra.

[49] However, the Statement of Claim does identify the plaintiff (obviously), the date of her return to the emergency room at LHSC, Victoria Campus (July 24th, 2014) and the time that the soap suds enema was administered.

[50] Notwithstanding Dr. Natale’s bald assertion that he could not identify himself from the Statement of Claim, he was clearly able to do so with minimal effort. There was only one or two Attending OBGYNs on call at LHSC Victoria Campus from 5 pm to 8 am overnight during the dates specifically referenced in the Statement of Claim. The key word used in the Statement of Claim, albeit not throughout, is “Attending”. If Dr. Natale, or the CMPA, had received this Statement of Claim, it would have been a simple matter to determine if he was the “attending” OBGYN that night. He was.

[51] In my view, the litigation finger test is met.

[52] This motion is not the proper forum to determine whether Dr. Natale is liable. That is what a trial is for. His explanation that he would have advised the resident to contact a different OBGYN may prove exculpatory at trial. The note of Dr. Urian may prove exculpatory at trial. However, on the evidence before me and on a generous reading of an imperfectly drafted Statement of Claim, it is clear that the plaintiffs must have meant to name Dr. Natale. In my view, this is a proper case of misnomer.

[53] The defences raised by Dr. Natale are not analogous to the situation in Lavelle v. The Hospital for Sick Children et al, 2019 ONSC 5855 where Master Sugunasiri declined to insert the names of the on-call neurosurgeon and resident as defendants. Those doctors were able to establish that they were not working on the days in question and thus could not be responsible. In contrast, Dr. Natale admits that he was the attending OBGYN during the shift in question.

The Court’s Discretion:

[54] Having concluded that the Litigation Finger test points at Dr. Natale, I must now determine whether to exercise my discretion to refuse to permit the proposed amendment to replace “Dr. John/Jane Doe” with Dr. Natale. The most important factors are whether Dr. Natale was misled or would be unduly prejudiced (see: Ormerod, supra, at para.32).

[55] In my view, this is the more troubling part of the exercise in this case.

[56] I am greatly concerned about the passage of time in this case. Any chance that Dr. Natale may have had to recall his brief telephone conversation (alleged) with Dr. Chandra is certainly lost in the time between July 2014 and August 2020 when he was served with the Statement of Claim.

[57] However, the cross-examination of Dr. Natale resolves this issue. The Limitations Act, 2002, permits lawsuits to be commenced within two years, and with discoverability perhaps longer, following the date a cause of action arises. There is then a further 6 month period of time to serve the Statement of Claim. This is a policy decision to balance the rights of aggrieved parties to bring forth claims, and the rights of alleged wrongdoers to have repose from actions after a certain period of time.

[58] Dr. Natale deposed to the frequency of time that he is the on-call OBGYN—three or four times per month. He agreed that he has dozens of conversations, both in person and by telephone, with his residents about patients. I am satisfied that he was unlikely to recall this conversation in any event, had he been correctly named in the Statement of Claim. In my view, Dr. Natale is in the same position as Dr. Caird was in in the Lavelle case. He would not likely have been in a better position to defend himself had he been named properly within the limitation period.

[59] Furthermore, the CMPA has been involved in this case since the physicians were served. I recognize at this stage that Dr. Natale has separate legal representation, but he will likely be able to rely upon much of the labour that has been expended on behalf of those defendants in terms of defending the claim.

[60] I cannot conclude that Dr. Natale was misled. He was unaware that he was even on the plaintiffs’ radar. The CMPA cannot be said to have been misled, given that the claim mentions the attending OBGYN specifically and Dr. Chandra knew who that was.

[61] The absence of prejudice does not guarantee an amendment (Mazzuca supra, at para. 42). I turn now to the issue of the plaintiffs’ diligence. While not relevant to the issue of the Litigation Finger test, diligence ought to be considered in the exercise of the court’s discretion.

[62] It is noteworthy from the plaintiffs’ perspective that the Statement of Defence of the other physicians did not alert them to the fact that Dr. Chandra had sought and obtained, allegedly, advice from another doctor before she ordered the soap suds enema. This certainly may have contributed to the plaintiffs’ failure to know whether another doctor actually had a role in the ordering of the soap suds enema.

[63] I accept that some criticism can be thrown towards Ms. Lee in the circumstances. Dr. Natale’s name does appear in the records, likely more than once given Dr. Urian’s note. His identity was ascertainable, even if his precise role was not clearly described.

[64] Furthermore, it appears to me that Ms. Lee believed, perhaps correctly, that she could rely upon discoverability to commence a new claim against Dr. Natale. This explains why her “tickler system” reminded her in early 2020 to address this situation. However, her explanation for not bringing this motion to correct the misnomer is not entirely satisfactory. I accept that COVID-19 caused difficulties. It is the delay between June 2018 and April 2020 that is poorly accounted for in the affidavit material. Nevertheless, as I have already noted, on a balance of probabilities it does not appear that this delay has prejudiced Dr. Natale in defending the claim.

[65] I have reviewed the cases of Mohabir, supra and Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 with respect to the exercise of my discretion.

[66] In Mohabir, neither the proposed substituted defendant nor his insurer had been aware of the claim. This deprived the defendant of the ability to conduct an early investigation, including surveillance and a medical examination of the plaintiff. The litigation was at an advanced stage and it would be unfair to drop the proposed substituted defendants into the litigation with a fixed trial date looming. In the within case, the ongoing involvement by the CMPA adequately mitigates those difficulties.

[67] In Urie, the failure of plaintiffs’ counsel to even communicate with defence counsel for the proposed substituted defendant is described, at times, as “astonishing”. Although I have concerns about Ms. Lee’s inaction between June 2018 and the spring of 2020, it is not comparable to what transpired, or more accurately, failed to transpire, in Urie. There was also a failure to comply with court imposed deadlines in that case.

[68] In my view, Dr. Natale’s strongest argument is public policy for limitation periods and his entitlement to repose so long after the alleged actions or inactions on his part. This is coupled with the notion that plaintiffs ought not to rest on their laurels in identifying the proper name of parties. I am mindful of Dr. Natale’s retirement in this regard.

[69] On balance, however, I have determined that once again the CMPA’s involvement mitigates substantially any repose arguments. The plaintiffs were in some ways lulled by the pleading of Dr. Chandra and the other physicians and discoverability would be in play in any event with respect to the Statement of Claim that has been issued against Dr. Natale.

[70] Considering all of the relevant factors, I have determined that I should not exercise my residual discretion to refuse to permit the replacement of Dr. John/Jane Doe Gynecological Attending with Dr. Natale.

Disposition:

[71] The plaintiffs are granted leave to amend the Statement of Claim to correct the misnomer and replace “Dr. John/Jane Doe Gynecological Attending” with “Dr. Renato Natale”.

[72] This likely obviates the need for the motion to consolidate the actions.

[73] I strongly encourage the parties to agree on costs, and suggest to the plaintiffs that while they may be prima facie entitled to costs, the quantum of any award that I am asked to make will be tempered by the delay in bringing this motion. Some costs, however, are likely deserved.

[74] However, if the parties are unable to agree on the issue of costs, the plaintiffs shall provide written submissions, no longer than two pages double spaced, plus a Bill of Costs (should it differ considerably to the Costs Outline provided), no later than February 11, 2022. The respondent shall provide his submissions, within the same parameters, no later than February 22, 2022.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: January 21, 2022