Court File and Parties
COURT FILE NO.: CV-19-00622293
MOTION HEARD: 20220729
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sharon Clahar-Herbert, Myrl Clahar, Charmaine Clahar, Dana Herbert and Lee Ann Herbert, Plaintiffs
AND:
Dr. Ratna Dan, Dr. Deep Chatha, Oxford Medical Imaging, Dr. Mohamed Asif Salyani, Medical Eye Consultants and Dr. John Doe, Defendants
BEFORE: Associate Justice B. McAfee
COUNSEL: Louis P. Covens, Counsel, Agent for the Plaintiffs
Jennifer A. Guy and Kiri McDermott-Berryman, Counsel, for CML Healthcare Inc.
HEARD: July 29, 2022
REASONS FOR DECISION
[1] As set out in the amended amended notice of motion, this is a motion brought by the plaintiffs for an order granting leave to amend the statement of claim to correct the title of proceedings and “add” CML Healthcare Inc. (CML) as a defendant to the action on the basis of misnomer. In the alternative, the plaintiffs seek leave to amend the statement of claim to add CML based on discoverability.
[2] CML opposes being added on the basis of misnomer. In the event that misnomer is not found, CML does not oppose being added on the basis of discoverability, without prejudice to pleading a limitation period defence. The defendant Oxford Medical Imaging (OMI) does not oppose. The defendants Dr. Ratna Dan, Dr. Deep Chatha, Dr. Mohamed Asif Salyani and Medical Eye Consultants (MEC) take no position on the motion.
[3] The within action is a medical malpractice claim alleging a delayed diagnosis of a brain tumour.
[4] On January 25, 2013, the plaintiff Sharon Clahar-Herbert (Ms. Clahar-Herbert) underwent a CT scan and MRI at the imaging facility located at 300 Harwood Avenue South in Ajax, Ontario (300 Harwood). The MRI noted a small tumour.
[5] Over the course of the next 4 years, it is alleged that the defendants failed to inform Ms. Clahar-Herbert of the findings noted in the CT scan and MRI.
[6] On December 13 and 19, 2016, after experiencing partial blindness, Ms. Clahar-Herbert consulted ophthalmologist Dr. Cheskes. As a result of this consultation, Ms. Clahar-Herbert was referred to Scarborough Hospital for diagnostic imaging.
[7] On May 14, 2017, a second MRI was conducted. The findings showed a large tumour.
[8] On June 22, 2017, the results of the May 14, 2017, MRI were discussed with Ms. Clahar-Herbert. She was immediately referred to various other physicians. An urgent decompression was recommended.
[9] Over the course of the next 10 days, Ms. Clahar-Herbert underwent a series of medical procedures, including a craniotomy, partial resection of the macroadenoma, and attempted repair of an aneurysm.
[10] Ms. Clahar-Herbert alleges irreparable damage to the brain as a result of the failure to inform her about the existence of a brain tumour for over 4 years.
[11] On October 4, 2017, the plaintiffs retained Rochon Genova LLP.
[12] Plaintiffs’ counsel requested medical records in October 2017. In November 2017, plaintiffs’ counsel received the records from the imaging facility located at 300 Harwood. OMI’s name appeared at the top of the imaging reports conducted on January 25, 2013, with no reference to CML.
[13] On June 20, 2019, the statement of claim was issued naming various doctors and facilities including OMI. OMI was named in the capacity of owner and operator of the imaging facility located at 300 Harwood.
[14] On July 14, 2020, counsel for OMI advised plaintiffs’ counsel that in January 2013 OMI did not exist or own the imaging facility located at 300 Harwood and that the owner and operator in January 2013 was CML. Counsel for OMI also stated that he would provide plaintiff’s counsel with “the relevant portions of the agreement of purchase and sale of CML/Lifelabs assets at 300 Harwood…”.
[15] On September 8, 2020, a redacted copy of the agreement of purchase and sale between OMI and CML/Lifelabs dated February 11, 2015 was provided. It was not clear to plaintiffs’ counsel whether OMI retained any liability.
[16] On December 15, 2020, plaintiffs’ counsel inquired of OMI’s counsel the reason for the January 2013 imaging reports having been printed on OMI’s letterhead instead of CML’s letterhead if CML was the facility owner at that time.
[17] On January 27, 2021, OMI’s counsel responded advising that OMI will usually use an OMI template to create records, regardless of when the procedure took place. On March 15, 2021, OMI’s counsel confirmed that the OMI’s name appeared on the January 2013 reports because the records were printed after OMI bought the assets of CML.
[18] On March 16, 2021, and June 8, 2021, plaintiffs’ counsel wrote to CML advising of the within action and seeking confirmation that CML was the owner of the imaging facility on January 25, 2013. Plaintiffs’ counsel requested that the letters be provided by CML to their insurer.
[19] On June 11, 2021, Lifelabs confirmed that on January 25, 2013, CML owned and operated the imaging facility located at 300 Harwood. It was further confirmed that the sale closed on September 30, 2015.
[20] Notice of the within motion was served on or about October 25, 2021. CML filed no evidence in response to the motion.
[21] The applicable Rules of Civil Procedure are as follows:
Rule 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
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 by an adjournment.
26.01 On a 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.
[22] As stated by Justice O’Connell in Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226 (Ont. S.C.J.) at para. 99:
[99] Misnomer refers to misnaming. It is a recognition that in some cases pleadings can be amended to reflect that the person who is referred to in the statement of claim is actually another, or that a person identified in the generic, such as John or Jane Doe is actually a specific person.
[23] The applicable test is as follows:
Is there a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant; and
Are there circumstances that would make such an order unjust.
(See Lloyd v. Clark, 2008 ONCA 343, para. 4; Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697, paras. 21, 28-29; Loy-English v. Ottawa Hospital, 2019 ONSC 6075 (Ont. S.C.J.) at para. 2; Stekel v. Toyota Canada Inc., 2011 ONSC 6507 (Ont. S.C.J.), para 35; Patrick v. The Corporation of the Municipality of Southwest Middlesex, 2017 ONSC 17 (Ont. S.C.J.) at paras. 17-31; Loblaw Properties Limited v. Turner Fleischer Architects Inc., 2017 ONSC 6127 at paras. 29-35)
[24] In Loy-English Justice MacLeod states as follows at para. 21:
[21] …(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.
[25] In StekelJustice K.L. Campbell states as follows at para. 35:
[35] … The proper application of the “misnomer” test cannot be reduced to a simple exercise of counting the number of parties in an effort to ensure that there is the same number of defendants before and after the proposed amendment to the Statement of Claim. Instead, as the authorities suggest, the governing legal analysis requires more nuance, and is focused upon whether there exists a coincidence between the plaintiff’s intention to name the defendant the defendant’s knowledge that it was the intended defendant. If, as a result of that “misnomer” analysis and the making of the proposed amendment, the number of defendants actually increases, then that is a legal result contemplated by s. 21(2) of the Limitations Act, 2002. …
[26] Section 21(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B provides as follows:
Adding party
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.
Misdescription
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.
[27] In considering whether to exercise its residual discretion to refuse to correct a misnomer, factors to be considered include: whether there is non-compensable prejudice, although the absence of prejudice does not guarantee an amendment; whether the defendant was misled; any inordinate delay in seeking leave to amend; when notice of the claim was given and the passage of the presumptive limitation period; whether the proceedings are at an early or advanced stage; and the extent of the misnomer’s departure from a mere irregularity (Loblaw Properties at paras. 34 and 35; Omerod at paras. 28-32).
[28] Due diligence is not a relevant consideration on a motion for misnomer. As stated by the Court of Appeal in Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1 and 19:
[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 that he was the intended defendant a plaintiff need not establish due diligence in identifying the true defendant within the limitation period Kitcher v. Queensway General Hospital (1997) 1997 CanLII 1931 (ON CA), 44 O.R. 3d 589 (C.A.) at paras 1 and 4; Lloyd v. Clark [2008] O.J. No. 1682, 2008 ONCA 343, 44 M.P.L.R. 4th 159 at para 4.
[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.
[29] I am satisfied that there is a coincidence between the plaintiffs’ intention to name CML and CML’s knowledge that it was the intended defendant.
[30] Paragraphs 13, 19, 20, 23 and 27 of the statement of claim plead as follows:
[13] The Defendant Oxford Medical Imaging (Defendant “OMI”) is a corporation that owns and operates private medical imaging throughout the Province of Ontario, including one located at 300 Harwood Avenue South in the City of Ajax, in the Province of Ontario (“OMI Ajax”).
[19] On January 25, 2013, the Plaintiff Sharon attended at OMI Ajax and a Computed Tomography (“CT”) of her head was performed. The Defendant Dr. Dan reviewed the findings of the CT performed and noted a large mass arising out of the Plaintiff Sharon’s sella into her suprasellar space. As a chiasmal lesion was suspected from her review, the Defendant Dr. Dan referred the Plaintiff Sharon to undergo a Magnetic Resonance Image (“MRI”) on her head later that day at OMI Ajax.
[20] Later on January 25, 2013, an MRI of the Plaintiff Sharon’s head was performed (“First MRI”). …
[23] At no time over the course of the following four years following her January 25, 2013 visit to OMI Ajax was the Plaintiff Sharon informed by the Defendant Dr. Dan, the Defendant Dr. Chatna, the Defendant OMI, the Defendant Dr. Salyani, or the Defendant MEC of the findings noted in her CT or First MRI, the significance or implications of these findings, and/or any referrals/recommendations/treatment options to address these findings.
[27] The Plaintiffs state that the Plaintiff Sharon’s damages (particularized below) were caused or materially contributed to by the negligence of the Defendants, either alone or in combination. The particulars of such negligence are:
(B) AS AGAINST THE DEFENDANTS OMI AND MEC:
(a) They granted privileges to the Defendants Dr. Dan, Dr. Chatha, and Dr. Salyani when they knew or ought to have known that they were incompetent and lacked reasonable skill and judgment;
(b) They permitted the Defendants Dr. Dan, Dr. Chatha, and Dr. Salyani to perform/interpret Sharon’s CT/MRI, when they knew or ought to have known that they were incompetent to do so;
(c) They failed to adequately or appropriately monitor Dr. Dan, Dr. Chatha, and Dr. Salyani;
(d) They failed to employ competent employees, servants and agents;
(e) They failed to employ proper protocols or procedures for informing patients about diagnostic imaging results and/or any diagnosis, recommendations, or referrals flowing therefrom;
(f) They took no steps to inform the Plaintiff Sharon of her CT/MRI findings and their significance/implications;
(g) They took no steps to refer Sharon to another medical specialist more capable of making a proper diagnosis or recommendations for treatment; and
(h) Such further and other particulars as are provided prior to trial.
Further particulars regarding these Defendants’ negligence are within the knowledge of these Defendants and other Defendants.
[31] The specific address of the imaging facility is pleaded at paragraph 13 of the statement of claim. The facility where the imaging at issue took place is pleaded at paragraph 19. Paragraphs 19 and 20 plead the date of the imaging. Paragraphs 19 and 20 plead the imaging at issue being the CT and MRI. The time period at issue is pleaded at paragraph 23. CML was the owner of the facility at the time of the imaging and for next approximately 2 1/2 years at issue. Paragraph 27 clearly sets out the allegations of negligence including the failure to take steps to inform the Ms. Clahar-Herbert of the findings of the CT and MRI and their significance/implications.
[32] On an objective and generous reading the statement of claim, I am satisfied that CML would be able to recognize that CML was the intended defendant. I am satisfied that the “litigation finger” is pointing at CML.
[33] I am also satisfied that there are no circumstances that would make the granting of the order unjust.
[34] I am satisfied that there is no prejudice to CML in granting leave. There is evidence before me confirming the availability of medical records. There is no evidence of non-compensable prejudice. This 2019 action is at an early stage. There is no evidence from CML with respect to when they first received notice of the claim and from whom they first received notice. The plaintiffs provided notice of the claim to CML on or about March 16, 2021. Once the plaintiffs learned of CML, there was no inordinate delay in bringing this motion. Although the misnomer is not a simple typographical error, the consideration of relevant factors satisfies me that granting leave would not be unjust.
[35] For these reasons, leave is granted to amend the statement of claim on the basis of misnomer. The time to serve the amended statement of claim is extended to 60 days from today’s date.
[36] The plaintiffs were successful on the motion and obtained the contested primary relief sought. The plaintiffs are entitled to costs sought in the all-inclusive amount of $3,000.00, a fair and reasonable amount that CML could expect to pay.
[37] Order to go as follows:
Leave is granted to amend the statement of claim on the basis of misnomer.
The time to serve the amended statement of claim is extended to 60 days from today’s date.
Costs of the motion are fixed in the all-inclusive amount of $3,000.00 payable by CML to the plaintiffs within 30 days.
[38] I have signed the order, as amended.
Associate Justice B. McAfee
Date: October 11, 2022