Ormerod v. Strathroy Middlesex General Hospital, 2008 CanLII 68176 (ON SC)
COURT FILE NO.: 39608
SUPERIOR COURT OF JUSTICE
|B E T W E E N:||)|
|MELODY LYN ORMEROD, JOHNATHAN ORMEROD and JASMINE VAN GEFFEN, minors by their Litigation Guardian, Melody Lyn Ormerod, Stacy Rombouts as Litigation Administrator for THE ESTATE OF DEITER ROMBOUTS, STACY ROMBOUTS, CHRISTY VAN GEFFEN, JOHN M. ORMEROD and LILLIAN ORMEROD||)
|Barbara L. Legate for the Plaintiffs|
|- and -||)|
|STRATHROY MIDDLESEX GENERAL HOSPITAL, P. FERNER, T. TIGCHELAAR, J. MAXTED, JOHN DOE, IAN K. FERGUSON, LONDON HEALTH SCIENCES CENTRE, ST. JOSEPH’S HEALTH CARE LONDON, D. GRAY, JOHN BENNETT AND JANE DOE||)
|John Nicholson for the Defendants|
|)||HEARD: September 19, 2008|
 This is a medical malpractice action. The motion is a motion to correct the name of a party incorrectly named. The motion is the plaintiffs’ motion and is brought under Rule 5.04(2).
 Rule 5.04(2) reads as follows:
At any stage of the proceeding, the court may by order add, delete or substitute or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would request that could not be compensated for by costs or an adjournment.
 The material facts are the following.
 On July 9, 2001, John Ormerod died after a course of medical treatment which began about June 20, 2001 with a visit to his family physician, Dr. Ian Ferguson. On June 25, 2001, Mr. Ormerod was examined and interviewed at the Emergency Department at the Strathroy General Hospital. The Hospital’s medical record for that attendance indicates that the physician who was involved with Mr. Ormerod was the defendant, Dr. P. Ferner. Dr. Ferner’s name is set out on the Emergency and Out-Patient Record as the “Attending Physician”. This note was the reason Dr. Ferner was named as a defendant when the Statement of Claim was issued, in time, June 27, 2002. The subject matter of the action is an allegation of negligence in the diagnosis, treatment and medical management of Mr. Ormerod by his physicians from June 20, 2001 until his death July 9, 2001. Mr. Ormerod’s attending physician June 25, 2001 at the Strathroy General Hospital was such a person.
 The Statement of Defence of the physicians was delivered June 4, 2003. Paragraph 11 of the defence begins, as follows:
On Monday, June 25, 2001 at 11:38 hours, John Ormerod attended the Emergency Department of Strathroy Middlesex General Hospital where he was examined by an emergency room physician, and not Dr. Ferner, as alleged.
 Dr. Ferner was examined for discovery on December 16, 2004. Under oath, he confirmed the allegation of his non-involvement in Mr. Ormerod’s treatment and named Dr. Sharon Graham as the physician who examined Mr. Ormerod June 25, 2001.
 On July 15, 2008, counsel for Dr. Ferner moved under Rule 20 to dismiss the action against him on the basis of the evidence of Dr. Ferner, on his discovery, that he did not see Mr. Ormerod on June 25, 2001.
 On July 23, 2008, counsel for the Ormerod family moved under Rule 5.04(2) to substitute for Dr. Ferner, Dr. Sharon Graham. By affidavit dated September 18, 2008, particulars of the negligence of Dr. Graham at para. 4 were set out. They rest on the opinion of a Dr. Seeley, as set out in a report, to the solicitors for the plaintiffs, dated September 17, 2008.
 The defence resists the plaintiffs’ motion. Their position is set out at paras. 17 and 18 of their Factum as follows:
17. The two year limitation period under the Trustee Act expired on July 9, 2003. At that time, the Plaintiff had notice in the Statement of Defence and Crossclaim that they had named Dr. Ferner in error, and that another physician had treated Mr. Ormerod. The Plaintiffs then permitted the limitation period to elapse. After examinations for discovery, when they had Dr. Ferner’s evidence that Dr. Graham, and not Dr. Ferner, had treated Mr. Ormerod, they took no steps whatsoever for over 3 ½ years to add Dr. Graham to the action.
18. The Plaintiffs’ attempt to now characterize their motion as the correction of a misnomer, is an abuse of process – the Plaintiffs’ are attempting to retroactively use Dr. Ferner as a place holder in the litigation, when they had previously consciously decided not to pursue an action against Dr. Graham. This is not a case of misnomer. A ‘misnomer’ means that there has been a mistake in the name of the person to be substituted. Since December 14, 2004 at the latest, the Plaintiffs have not been mistaken about the identity of the appropriate physician.
 In sum, the defence argues this is really a motion to add Dr. Graham which is out of time on any view of the case. If the order is made at this point, six years have passed since the issuance of the Statement of Claim and almost four years since Dr. Ferner’s sworn declaration on his discovery that he was not involved. In the alternative, if this is a case of misnomer, the plaintiffs were not diligent in moving to correct the misnomer and so the substitution of Dr. Graham for Dr. Ferner should not be permitted.
 The plaintiffs argue that the “litigating finger” on any fair reading of the June 25, 2001 Strathroy Hospital Record pointed at Dr. Graham. Delay is not a bar to the substitution requested because the defence does not point to prejudice now to Dr. Graham if the amendment is permitted.
 Is this a case of the plaintiffs’ misnaming a party to the alleged negligence which requires substitution?
 The often quoted test is this language of Devlin J. in Davies v. Elsby Brothers Ltd.,  All E.R. 672 at p. 676 as follows:
The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”, then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries”, then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer. [Emphasis my own.]
 The “reasonable person receiving the document”, or the “recipient of the document”, in this case, is not restricted to Dr. Graham. The cases have expanded the test to include the“relevant” person who reviews the document. See Bell v. Chana(2005), 2006 ABQB 139 (CanLII), 403 A.R. 115 at para. 18 per Moen, J. (Alta. Q.B.)
 An illustration of this is the case of Ladouceur v. Howarth,1972 CanLII 167 (SCC),  S.C.R. 111 (S.C.C.) per Spence J. Ladouceur is a case of the misnaming of a plaintiff. The solicitor who issued the writ of summons acted for Paul Ladouceur who sustained injury in a motor vehicle accident. Mistakenly, the writ named Paul Ladouceur’s father whose only connection to the accident was that he was the owner of the vehicle in which the boy was travelling. There were settlement discussions with the defendant’s insurer before the writ was issued. The insurer moved against an ex parte order amending the writ to correct the mistake. The importance of the case is the importance the Supreme Court of Canada placed on the “relevant”reader of the document. There is this language from the reasons of Spence J. which applies to this case:
With respect, I am of the opinion that this is simply a case of a misnaming of the person who was claiming and is a typical example of being a misnomer. The solicitor who issued the writ knew he was claiming for personal injuries and he knew that the son and the son alone sustained such personal injuries. He knew that he did not act for the father. It is, in my view, most significant that not only did the solicitor for Paul Ladouceur have this knowledge but the insurance company with whom that solicitor had been dealing had the same knowledge and that such insurance company continued to negotiate with the said solicitor for the settlement of compensation for Paul Ladouceur’s personal injuries right up to the time when the writ was served showing, of course, the amendment, and showing that the amendment was made after the date the Statute of Limitations had lapsed. I view as much more important than any knowledge of the defendant Howarth the knowledge of his insurer and I ask what would the mind of the insurance company representative be when he received this writ. Surely, he would say, answering Devlin J.’s test, “this plaintiff in the writ is so named by mistake. I had no dealings with him”. At any rate, he would say, “I had no dealings with him as to personal injuries and I had no dealings with him through the solicitor who acted not for Conrad Joseph Ladouceur but for the son Paul Ladouceur.
 I include Dr. Ferner and his insurer or counsel retained on the defence of this action as “relevant persons”or persons who would be the “recipient of the document” at some point before the physicians’ defence was delivered. These are persons who knew whether a mistake had been made; in particular, whether the right or wrong name was taken from the Strathroy hospital record of June 25, 2001. They were the persons who would have known whether there was “another entity” to borrow from Lord Devlin in Davies. The only conclusion that may reasonably be made from Dr. Ferner’s Statement of Defence, at para. 11, is that his insurer or his solicitors knew that the “litigating finger” was pointed at the physician who saw the plaintiff at the hospital on this date at the hour set out on the note and that that was not Dr. Ferner. It should have been clear that the naming of Dr. Ferner was a mistake. Indeed, that is the effect of para. 11 of his Statement of Defence. Equally, it must have been the case that Dr. Ferner knew that it was Dr. Graham who saw Mr. Ormerod or that this fact was discoverable easily and quickly. My view, for these reasons, is that the “litigating finger” pointed to Dr. Graham and that she would have known this, Dr. Ferner did know it and likewise, their representatives in this litigation knew it.
 I am instructed on this conclusion by Spirito v. The Trillium Health Centre 2008 ONCA 762 (CanLII), 2008, ONCA 762, (O.C.A) per Rosenberg J. A. affirming the order of Justice K. van Rensberg of October 3, 2007. In their important aspects, this case and Spirito are indistinguishable.
 There has been the passage of a great deal of time but inordinate delay is not a reason for refusing to substitute unless the defendant to be substituted did not have timely notice of the claim and will be unduly prejudiced in preparing a defence to the claim. See Nagy v. Phillips, reflex,  8 W.W.R. 601 (Alta. C.A.) at para. 32. See also the reasons of Madam Justice van Rensberg at paras. 19 to 22, reflex,  O.J. No. 3832.
 In this case, there is no prejudice alleged, other than the passage of time.
 For these reasons, an order will go granting leave to the plaintiffs to amend the Statement of Claim in accordance with the Fresh as Amended Statement of Claim attached as Schedule“A” to the Affidavit of Brian Murphy of July 23, 2008.
 If there is no agreement on costs, I will receive brief written submissions from Ms. Legate’s office within 20 days and from Mr. Nicholson’s office 10 days thereafter.
“Justice P. B. Hockin”
Justice P. B. Hockin
Released: December 30, 2008.
Provided by CanLII and retrieved on October 14, 2014.