CITATION: Ramzanali et al v. Sunnybrook, 2026 ONSC 4198

COURT FILE NO.: CV-23-00699032-0000

DATE: 20260720

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zakyr Zulfikar Ramzanali and Yasmin Zulfikar Ramzanali as litigation administrators/guardians for the estate of Zulfikar Ramzanali, and Zakyr Zulfikar Ramzanali and Yasmin Zulfikar Ramzanali personally

Plaintiffs

AND:

Sunnybrook Health Sciences Centre Hospital (and its affiliate subsidiary/partner hospitals, Sunnybrook St. John's Rehabilitation Hospital, Sunnybrook Holland Orthopaedic (orthopedic) and Arthritic Centre Hospital), Giuseppe Papia, Damon Scales, Ashlie Nadler, David Burns, Bernard Ma, Patrick Sutak, Ahmed Kayssi, Daryl Kucey, Doctor John Doe 1, Doctor John Doe 2, Doctor John Doe 3, Doctor John Doe 4, Doctor John Doe 5, Doctor John Doe 6, Doctor John Doe 7, Doctor John Doe 8, Doctor John Doe 9, Doctor John Doe 10, Doctor John Doe 11, Doctor John Doe 12, Doctor John Doe 13, Doctor John Doe 14, Doctor John Doe 15, Doctor John Doe 16, Doctor John Doe 17, Doctor John Doe 18, Doctor John Doe 19, Doctor John Doe 20, Doctor John Doe 21, Doctor John Doe 22, Doctor John Doe 23, Doctor John Doe 24, Doctor John Doe 25, Doctor John Doe 26, Doctor John Doe 27, Doctor John Doe 28, Doctor John Doe 29, Doctor John Doe 30, Doctor John Doe 31, Doctor John Doe 32, Doctor John Doe 33, Doctor John Doe 34, Doctor John Doe 35, Doctor John Doe 36, Doctor John Doe 37, Doctor John Doe 38, Doctor John Doe 39, Doctor John Doe 40, John Doe 41, John Doe 42, John Doe 43, John Doe 44, John Doe 45, John Doe 46 John Doe 47, John Doe 48, John Doe 49, John Doe 50, John Doe 51, John Doe 52, John Doe 53, John Doe 54, John Doe 55, John Doe 56, John Doe 57, John Doe 58, John Doe 59, John Doe 60, Jane Doe 61, Jane Doe 62, Jane Doe 63, Jane Doe 64, Jane Doe 65, Jane Doe 66, Jane Doe 67, Jane Doe 68, Jane Doe 69, Jane Doe 70, Jane Doe 71, Jane Doe 72, Jane Doe 73, Jane Doe 74, Jane Doe 75, Jane Doe 76, Jane Doe 77, Jane Doe 78, Jane Doe 79, Jane Doe 80.

Defendants

BEFORE: Merritt J.

COUNSEL: Rafid Uddin, for the Plaintiffs

Anna Marrison, Ashley Maciuk, for the Defendants Sunnybrook Health Sciences Centre Hospital (identified in the title of proceedings as “Sunnybrook Health Sciences Centre Hospital (and its affiliate subsidiary/partner hospitals, Sunnybrook St. John's Rehabilitation Hospital, Sunnybrook Holland Orthopaedic (Orthopedic) and Arthritic Centre Hospital”)

Aya Schechner, Melissa Liauw, for the Defendants Giuseppe Papia, Patrick Sutak, Damon Scales, Ashlie Nadler, Ahmed Kayssi, Daryl Kucey, Bernard Ma, David Burns and the Proposed Defendants, Natasha Bollegala, Diane Nam, and Nadia Griller

HEARD: May 28, 2026

ENDORSEMENT

OVERVIEW

[1] This is a medical malpractice case arising from the care and treatment provided to the late Mr. Zulfikar Ramzanali at Sunnybrook Health Sciences Centre between June 2019 and his passing on May 4, 2021. The Statement of Claim was issued on May 4, 2023 as against eight physicians, a hospital, and 80 John Doe/Jane Doe defendants.

[2] The Plaintiffs seek leave to amend the Statement of Claim and to substitute three previously unidentified physicians Dr. Nadia Griller (gastroenterologist), Dr. Natasha Bollegala (gastroenterologist), and Dr. Diane Nam (orthopedic surgeon) (the “Proposed Defendants”) as named defendants in place of three of the Jane Doe defendants. The Plaintiffs say that this is a case of misnomer.

[3] Alternatively, the Plaintiffs submit that, if the doctrine of misnomer does not apply, they may instead add the Proposed Defendants because the doctrine of special circumstances permits the addition of the Proposed Defendants after the expiry of the limitation period.

[4] The Defendants submit that this is not a case of misnomer because it is clear that the Plaintiffs never intended to name the Proposed Defendants. The claim is vague and could apply to almost any medical or other staff member that Mr. Ramzanali encountered at Sunnybrook. They say that the claim does not “point the litigating finger” at the Proposed Defendants. Reading the claim, the Proposed Defendants would not know it was aimed at them. Alternatively, the Defendants submit that the court should exercise its discretion not to add the Proposed Defendants.

[5] The Defendants say that if this is not a case of misnomer, they oppose the amendments on the basis that the two-year limitation period imposed by the Trustee Act, R.S.O. 1990, c T.23, has expired, and there are no “special circumstances” warranting circumventing the statutory limitation period in this case.

[6] The Defendants do not oppose the Plaintiffs’ other proposed amendments to the claim.

THE ISSUES

[7] There are two issue as follows:

1. Does the doctrine of misnomer apply?

2. Does the doctrine of special circumstances apply?

DECISION

[8] This is not a case of misnomer and the Plaintiffs may not substitute the Proposed Defendants for three of the Jane Doe defendants.

[9] The Plaintiffs may add the Proposed Defendants as defendants and the defendants may plead that the limitation period has expired at trial.

ANALYSIS

Issue 1: Does the doctrine of misnomer apply?

[10] The parties agree on the law with respect to the doctrine of misnomer.

[11] The doctrine of misnomer recognizes that a pleading may be amended to reflect that a person identified in a generic manner as John Doe or similar is actually a specific person. Misnomer does not add a party to an action; rather, it inserts a new name into an action as a substitute for another named party: Reimer v. Toronto (City), 2020 ONSC 1661, at paras. 9 and 10 citing Urie v. Peterborough Regional Health Centre, 2010 ONSC 4226, at paras. 99 and 101 and Loy-English v. Ottawa Hospital, 2019 ONSC 6075, 149 O.R. (3d) 129, at para. 21.

[12] The correction of a misnomer does not involve the substitution of one defendant for another. It is a means of correcting the misnaming or misdescription of a party already named: Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697, 97 O.R. (3d) 321, at para. 27.

[13] In Ormerod, at para. 11 the court cited the English Court of Appeal’s articulation of the test for misnomer from Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672, [1961] 1 W.L.R. 170 (C.A.), at p. 676 All E.R:

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 me a misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they meet 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.

[14] In Loy-English v. Ottawa Hospital, the court summarized the applicable principles of the law of misnomer in cases of unidentified defendants at para. 21 as follows:

a. When a plaintiff does not know precisely who to name as defendants it is permissible to name unidentified defendants by way of a pseudonym. It would be better to bring transparency to this practice by naming them as “certain unidentified physicians collectively referred to as “Dr. Doe” but the use of “Dr. Doe” or “Dr. X” is a practice that the courts have accepted as appropriate shorthand.

b. It is not necessary to name multiple Dr. Doe’s and to precisely guess how many defendants to implicate. Providing the claim is drafted in a manner to identify what allegations are made against individuals filling specific roles, the “litigation finger is divisible” and may point at more than one unknown defendant.

c. Unlike a claim relying on discoverability to postpone the running of the limitation period, use of a pseudonym and subsequent correction of a misnomer is not subject to a due diligence requirement and will not be defeated by mere delay.

d. Use of a pseudonym does not give carte blanche to get around the limitation period. Although the Act does not narrow the common law understanding of misnomer and preserves the power of the court to correct it, it does prohibit addition of parties if the limitation period has expired. The distinction is critical. It is the difference between correcting the claim to properly name a party already included in the action and adding a new party.

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.

f. Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.

g. Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

h. Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.

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.

[15] The claim must point a litigation finger at a specific individual and not a moving target. The “litigation finger” requirement is not met where there is a “wavering hand” and the pleadings take a shotgun approach to identifying the defendant with vague and non-specific allegations of wrongdoing: Urie, at paras. 114 to 116.

[16] It is not sufficient if the litigation finger is “quivering over a pool of possible individuals” Urie, at para. 117.

[17] As set out above, in the claim the Plaintiffs name 80 John Doe/Jane Doe defendants and now seek to amend the claim, to substitute the Proposed Defendants in place of three of the Jane Doe defendants under the doctrine of misnomer.

[18] The Statement of Claim sets out a detailed chronology of Mr. Ramzanali’s care from June 25, 2019 to his passing on May 4, 2021. At paras. 5, 6 and 7 the claim describes Mr. Ramzanali’s bypass surgery on June 26, 2019 and the subsequent alleged complications of the implanted graft including an infection, massive swelling and an emergency bleed out as a direct result of the implanted graft.

[19] The Plaintiffs submit that the claim contains adequate particulars pointing to the three Proposed Defendants. In the claim the Plaintiffs reference an amputation. They submit that doing so was sufficient to identify the orthopedic surgeon who performed the amputation as a defendant. In the claim the Plaintiffs reference procedures that they say are consistent with those performed by the two gastroenterologists whom the Plaintiffs also seek to substitute as defendants.

[20] In para. 10 of the claim the Plaintiffs set out the dates of Mr. Ramzanali’s stays at Sunnybrook and plead that “repeatedly there was incompetence and malpractice.” They plead that:

Mr Zulfikar Ramzanali had further stays from about April 2020 to the beginning of June 2020 at the Sunnybrook network of hospitals, as well as another admission from about the beginning of July 2020 to August 2020. Mr. Zulfikar Ramzanali was back admitted from about the end of November 2020 through to on or about Tuesday, February 2, 2021. He was again at Sunnybrook Hospital from on or about Tuesday, February 9, 2021 onwards.

[21] In para. 9 of the claim the Plaintiffs refer to certain areas of medicine including gastrointestinal medicine as follows:

There were constant wide ranging failures in assessing and monitoring and addressing and diagnosing for Mr. Zulfikar Ramzanali what are best practices and decades long well researched (cardiovascular, gastrointestinal, internal, endocrinal) medicine. (Emphasis added.)

[22] The Plaintiffs say that in paras. 25 a) to f) and m) the claim refers to gastroenterological procedures consistent with scopes performed by the two proposed gastroenterologist defendants and that paras. 25 a) b) and d) refer to the orthopedic surgeon. Para. 25 provides as follows:

25. As to the Defendants, Doctors John Doe 1 to 20 (inclusive) and Doctors Jane Doe 21 to 40 (inclusive), Giuseppe Papia, Damon Scales, Ashlie Nadler, David Burns, Bernard Ma, Patrick Sutak, Ahmed Kayssi, Daryl Kucey, for whose negligence, gross negligence, breach of contract, and medical malpractice, the Defendants, Sunnybrook Hospital (and all affiliates, including, but not limited to, St. John's Rehab Hospital, Holland Centre Hospital, and/or agents or engaged medical entities on their behalf), and Doctors John Doe 1 to 20 (inclusive) and Doctors Jane Doe 21 to 40 (inclusive), Giuseppe Papia, Damon Scales, Ashlie Nadler, David Burns, Bernard Ma, Patrick Sutak, Ahmed Kayssi, Daryl Kucey, is/are in law responsible:

a) They carried out the surgeries, treatments, amputations, incisions, wound care, medical interjections and/or omissions, scopes, scans, pre and post observation and care surrounding medical actions and/or medical omissions, intubations, medications and dressings, and any and all other medical procedures, tests, healthcare, treatments, and medical interpretations and/or omissions in such a manner that Zulfikar Ramzanali's physical and emotional health was detrimentally impacted, his condition worsened to levels of immense and catastrophic pain and inhumane harm, brutalization of his being and in his overall healthcare, and his cause of death.

b) In carrying out the surgeries, treatments, amputations, incisions, wound care, medical interjections and/or omissions, scopes, scans, pre and post observation and care surrounding medical actions and/or medical omissions, intubations, medications and dressings, and any and all other medical procedures, tests, healthcare, treatments, and medical interpretations and/or omissions, they failed to take reasonable care.

c) They failed to employ proper, prudent, and adequate surgical techniques in the circumstances.

d) They negligently performed surgeries, treatments, wrongful amputations, incisions, wound care, medical interjections and/or omissions, scopes, scans, pre and post observation and care surrounding medical actions and/or omissions, intubations, medications and dressings, and any and all other medical procedures, tests, healthcare, treatments, and medical interpretations and/or omissions, which amounted to repeated malpractice.

e) They negligently failed to address malpractice in their surgical procedures, to order the proper tests and/or to interpret them properly, to treat the inserted graft properly or at all, and to not yield from causing severe medical adversity and harm, battery and assault, and death.

f) The abundant improper/bad actions and/or omissions amounted to repeated malpractice.

m) They failed to follow proper procedures in carrying out and/or omitting surgical interjections, medical treatments, incisions, wound care, scopes, scans, intubations, medications and dressings, tests, full disclosure to Plaintiffs and medical chart sourcing (emphasis added).

[23] Simply naming John Doe and making vague allegations is not sufficient to involve the entire medical staff of a hospital. Pseudonyms must be used appropriately and cannot simply be a placeholder in case a cause of action is subsequently discovered against another person. The intention to sue the unidentified physician and the basis of the claim against them must be apparent from the pleading: Loy-English, at para. 20.

[24] Here, the Statement of Claim does not plead any specific material facts related to allegedly negligent amputation or allegedly negligent gastroenterological care. In order to advance these allegations, the Plaintiffs propose extensive amendments to the claim.

[25] This is not a case of misnomer. The allegations in the claim are vague and could apply to almost all of the medical professionals and staff members from whom Mr. Ramzanali received care or treatment.

[26] The Plaintiffs concede that the litigation finger is pointing at every person from whom Mr. Ramzanali received care or treatment. They submit that by doing so, they have necessarily included the Proposed Defendants and that is sufficient. They submit that they can plead against a broad group and then choose which ones they actually want to sue. I do not agree. Misnomer is for cases where the Platiniff identifies a particular individual but does not know their name. Misnomer is not for cases where the Plaintiff does not know who to sue and sues everyone they encountered.

[27] Even if mentioning scopes, gastrointestinal medicine and amputations were sufficient, which I find was not sufficient, it is unlikely the Proposed Defendants could identify themselves as intended defendants. Dr. Griller and Dr. Bollegala were not the only gastroenterologists who saw Mr. Ramzanali and he had more than one amputation. At best the litigation finger was quivering over a pool of possible individuals including four gastroenterologists and this is not sufficient: Urie, at para. 117.

Issue 2: Does the doctrine of special circumstances apply?

[28] Rule 5.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:

(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.

[29] This provision is discretionary and permits the court to deny the addition of a party in certain circumstances including where a limitation period has expired. But if discoverability is a live issue, and it is not clear that prejudice would result that cannot be compensated for by costs or an adjournment, then the court may exercise its discretion to add the party: TSCC No. 2411 v. 25 Merton Inc., 2026 ONSC 2967, at para. 9. The same reasoning applies to cases where the expiry of the limitation period is a live issue.

[30] Section 38 of the Trustee Act, R.S.O. 1990, c. T.23 provides:

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

[31] Mr. Ramzanali died on May 4, 2021. The Statement of Claim was issued on May 4, 2023 being the last day of the two year limitation period under the Trustee Act.

[32] The doctrine of discoverability does not apply to claims under the Trustee Act which imposes an absolute limitation period: Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, at para. 31.

[33] Despite section 38(3) of the Trustee Act, the doctrine of special circumstances, allows a party to commence a claim after the expiry of the limitation period: Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801, at paras. 112-114; see Estate of John Edward Graham v. Southlake Regional Health Centre, 2019 ONSC 392.

[34] To rely on the doctrine of special circumstances, the onus is on the plaintiff to both:

a. rebut the presumption of prejudice; and,

b. demonstrate that there are special circumstances which justify the addition of the parties.

Estate of John Edward Graham v. Southlake Regional Health Centre, at para. 58.

[35] The loss of a limitation defence immediately gives rise to a presumption of prejudice in favour of the proposed defendant. In Estate of John Edward Graham, at para. 64, the plaintiff rebutted the presumption in a medical malpractice case by showing that, among other factors:

a. The same medical evidence to be relied on by the Plaintiffs to prove their claims remained in the possession of the defendants to defend the action. The proposed defendants were compellable witnesses to attend for trial;

b. All defendants continued to practice health care in Ontario;

c. The proposed defendants would have the benefit of the work and investigation done by their co-defendants and they were represented by the same law firm;

d. The action against the proposed defendants was tenable in law; and

e. There would be no procedural unfairness to the proposed defendants if they were added as a party, as no trial date had been set and they would have sufficient time to prepare a defence.

[36] In this case, the Plaintiffs say that some of the same factors apply. Some of these factors are apparent on the face of the record such as the fact that Proposed Defendants will have the benefit of the work and investigation done by their co-defendants, they are represented by the same law firm as the other physicians (McCarthy Tetrault LLP), and the fact that no trial date has been set. I am mindful that the onus is on the Plaintiff to rebut the presumption, but the Proposed Defendants do not say that the claims against them are untenable or that they do not continue to practice health care in Ontario.

[37] In considering the application of the doctrine of special circumstances the court in Estate of John Edward Graham said:

77This disclosure by Southlake came “out of the blue”. No explanation was provided to this court by anyone, especially by the defendants for such late production. This disclosure was critical as it enabled Scott Graham to see the radiograph for the first time and connect what he viewed with what he was subsequently told about the Clinical Consultation Report during his conversation with Southlake's counsel on July 20, 2015. All of this concerned the possible involvement of Dr. Law.

78Contrary to the findings in Wisniewski, in our case it cannot be said that the plaintiffs had been "handicapped" by their own "inaction". In our case, the plaintiffs not only requisitioned a case [sic] conference to identify the parties responsible for the critical choking incident, but also they quickly sought to obtain and assess all relevant medical records through submitting a timely records request at the outset and well within the limitation period.

[38] The Plaintiffs say that they were aware of the treatment at issue and the relevant time periods including an amputation performed by an orthopedic surgeon, and gastrointestinal procedures consistent with those performed by gastroenterologists. However, the identities of the physicians involved, as well as the particulars of their treatment or lack thereof, were not known at the time. The Plaintiffs say they only learned the identities of the orthopedic surgeon and two gastroenterologists and the extent of their involvement in December 2024.

[39] In this case, the Zakyr Ramzanali’s evidence is that he sought access to the relevant medical records immediately following Mr. Ramzanali’s death but did not obtain the records until receiving Sunnybrook’s Affidavit of Documents in December 2024.

[40] After Mr. Ramzanali died the Plaintiff Zakyr Zulfikar Ramzanali (“Zakyr”) sought access to his medical records. Beginning in May 2021, Zakyr made enquires of Dr. Scales regarding the medical records, and on his advice, spoke to Patient Experience Advisor Ms. Merie Jem Lizardo at Sunnybrook about obtaining the hospital records. Ms. Lizardo told Zakyr that he could obtain the records through the online platform MyChart, from Mr. Ramzanali’s family doctor or by submitting a formal request to Sunnybrook for a fee.

[41] Zakyr says that he explored the options offered but MyChart was not complete, and he could not get the records from the family doctor who was retiring. Zakyr asked Ms. Lizardo if anyone at Sunnybrook would provide the records at no cost and she told him that they would not do so.

[42] The evidence from Sunnybrook’s deponent is that Zakyr never completed the registration for a MyChart account.

[43] Zakyr has not produced any evidence to support his assertion that he could not get hospital records from the family doctor.

[44] Zakyr says he tried to call several specialists and physicians who had previously treated Mr. Ramzanali at Scarborough General Hospital but experienced difficulty reaching them due to the COVID 19 pandemic and related circumstances.

[45] Zakyr says he enquired about a formal request to Sunnybrook for a digital copy of the records and was advised that only paper copies would be provided for a fee. Zakyr asked about the cost, but Sunnybrook did not provide pricing information despite the fact that the Privacy Commissioner later told him that Sunnybrook was obligated to provide pricing information.

[46] Zakyr says that in September or October 2021 he completed and submitted a Request for Information form to Sunnybrook and that the hospital did not respond to his Request for Information or his attempts to follow up by telephone. Zakyr has not produced a copy of the form despite undertaking to make best efforts to do so.

[47] None of Sunnybrook’s Hospital's Health Records Department, Privacy Office or Office of Patient Experience have any record of receiving a formal request for Mr. Ramzanali's medical chart after July 2021, including a Freedom of Information request or any other “Request for Information.” None of the Departments have any record of receiving a phone call or voicemail from Zakyr after July 2021.

[48] Zakyr says that his records were stolen but that he has electronic documentary proof on his computer but is unable to access the hard drive without assistance from an expert and he does not want to risk destroying the hard drive.

[49] Sunnybrook produced Mr. Ramzanali’s medical records in its Affidavit of Documents in December 2024 following a court ordered timetable.

[50] After receiving the hospital’s Affidavit of Documents, Zakyr identified the orthopedic surgeon who performed the amputation and the two gastroenterologists who performed the procedures referenced in the Statement of Claim, and assessed and determined potential liability among the various doctors who treated Mr. Ramzanali over a three-year period at the hospital.

[51] In Suggashie v. Tildnagan Child & Family Services, 2022 ONSC 3440, at para. 63, the court found that there were no special circumstances, stating the following:

The “guiding principle” is that limitation periods were not created to be ignored. Accordingly, given the failure to pursue the action diligently before the expiry of the limitation period, the absence of any evidence of actual knowledge of Dr. Lown prior to the expiry of the limitation period, and the failure to act diligently once the Third Party Claim was issued and the document discovered, I conclude that the circumstances do not justify the adding of Dr. Lown after the expiry of the limitation period.

[52] In the present case, there is no evidence that the Proposed Defendants had knowledge of the claim prior to the expiry of the limitation period. The Statement of Claim was issued on the last day prior to the expiration of the limitation period and even the named defendants had minimal notice of the claim prior to the expiry of the limitation period.

[53] In this case the determination of the application of the doctrine of special circumstances on the interlocutory motion is not appropriate.. The appropriate and most expeditious procedure is to permit the amendments, allow the proposed defendant to plead a limitation defence and leave the final determination to the trial judge.

[54] In this case, there is conflicting evidence regarding the efforts that the Plaintiffs made to pursue the action diligently before the expiry of the limitation period. There are also gaps in the evidence regarding the steps taken by the Plaintiffs after the action was commenced. The determination of whether the doctrine of special circumstances applies is best left to the trial judge.

[55] The Plaintiffs are granted leave to add the Proposed Defendants as parties to the claim and the Proposed Defendants may plead that the limitation period has expired.

COSTS

[56] In advance of the hearing the parties agreed on costs. They agreed that costs would be fixed at $4,000 payable to the successful party.

[57] The Plaintiffs obtained leave to amend the claim to add the Proposed Defendants are the successful parties.

[58] The Defendants shall pay costs fixed at $4,000 to the Plaintiffs.

Merritt J.