Ontario: misnomer and the John Doe doctor

The decision in Tschirhart v. Grand River Hospital is a good example of a misnomer analysis in regards if a John Doe doctor .  It’s worth noting that the court rejected the doctor’s argument that the Statement of Claim couldn’t satisfy the litigation finger test because it didn’t plead that the plaintiff was seen in the emergency department where the doctor worked:

[36]           In my view, the reasonable person reviewing the Statement of Claim and having knowledge of the facts would know that the “litigating finger” was pointed at Dr.  Benhabib. Assessing the Statement of Claim, I am satisfied that the allegations as against Dr. Benhabib are pleaded with sufficient particularity such that Dr. Benhabib’s insurer and representative, the CMPA, would have known that the litigating finger was pointed at him. Namely, the Statement of Claim sets out the Plaintiff’s name, the name of the hospital he attended (GRH), the date he attended GRH, the symptoms he presented and the fact that he underwent a triage assessment, was examined and sent home without further testing (para. 10).  The Statement of Claim also sufficiently sets out the causes of action and basis for liability (paras.14-15).

[37]           The CMPA, Dr. Benhabib’s insurer, a “relevant person” with access to the relevant notes and records, received the Statement of Claim when the named doctors were served and would have known by reading it that the litigating finger was pointed at the emergency room physician who saw the Plaintiff on April 30, 2015 at GRH and could have easily and quickly ascertained from the ER Records and/or further inquiries of GRH that it was Dr. Benhabib. I also conclude that had he received the Statement of Claim, Dr. Benhabib, who also had access to the relevant notes and records including the ER Records, could have easily and quickly determined that he was the intended emergency physician. As he admitted on cross-examination, although he did not initially remember the Plaintiff, he was able to consult the ER Records to determine that he had in fact seen the Plaintiff on April 30, 2015 at GRH (Cross-examination of Dr. Benhabib held June 3, 2019, Questions 30-43). This conclusion is supported by the fact that, although not a representative of Dr. Benhabib, GRH was able to identify Dr. Benhabib as the emergency room physician who saw the Plaintiff, pleaded this in its Statement of Defence, advised him accordingly and confirmed his identity on examination for discovery.
[38]           In my view, the facts of this case are analogous to Ormerod. In particular, Dr. Benhabib’s name was illegible in the ER Records, however, he could be identified easily and quickly by his insurer and representative, the CMPA, by reviewing the ER Records and/or making inquiries of GRH. I do not accept Dr. Benhabib’s submissions that misnomer does not apply because he and his insurer had to make additional inquiries. Consistent with Ormerod and Spirito, the fact that his insurer could have easily identified him from the ER Records or other inquiries as the physician who saw the Plaintiff as pleaded is sufficient to establish that it would have known that the litigating finger was pointed at him.
[39]           I also reject Dr. Benhabib’s submission that the Statement of Claim is vague and non-specific because it does not explicitly state that the Plaintiff was seen in the emergency department at GRH. The fact that the Statement of Claim states that the Plaintiff “underwent a triage assessment and examination” and “was sent home without further testing” is sufficiently specific. This finding is supported by Dr. Benhabib’s evidence on cross-examination:

It also provides a comprehensive summary of misnomer principles at paras. 15-27.

 

Ontario: the Court of Appeal on failing the litigation finger test

The Court of Appeal’s decision Bertolli v. Toronto (City) is an example of a plaintiff failing to satisfy the litigation finger test in a misnomer matter.  The court found that the correct defendant would not have known on reading the statement of claim that it was defendant the plaintiff intended to name.

[5]         The appeal is dismissed. The delivery and content of the Notice of Claim were facts extraneous to the original accident, and not a record made by a participant or observer at the time of the accident who was in some way connected to the substituted defendants. Moreover, even when read in combination, the Notice of Claim and Statement of Claim were not capable of supporting an inference that the substituted defendants were the intended defendants. Absent reference to the pothole in the Notice of Claim and absent particulars of the precise location of the accident alleged in the Statement of Claim, the reasonable reader could not know, without further inquiry, that the documents referred to the same accident. Put simply, the Master’s inference that the substituted defendants would know they were the intended defendants was not available on any reasonable view of the evidence. The Master’s order was properly set aside.

I also note the court’s use of the language “substitute”.  This, as the court held in Ormerod that a misnomer does not involve a substitution:

[27] In this case, after finding that Dr. Ferner was a misnomer for Dr. Graham, the motion judge applied [at para. 18] the standard that despite the inordinate delay, he should allow the correction of the misnomer 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”. The motion judge’s reference to “the defendant to be substituted” is unfortunate because in the case of a misnomer, the amendment is made under rule 5.04(2) “to correct the name of a party incorrectly named”. The correction of a misnomer does not involve the substitution of one defendant for another. However, his reasons, read as a whole, make clear that he viewed the remedy as the correction of the misnaming or the misdescription of the emergency doctor rather than the substitution of Dr. Graham as a defendant for Dr. Ferner. The appeal was argued on that basis.

I confess that this always seemed an especially pedantic point, even for me (and also, apparently, for the court itself, which ignored it in Bertolli), but the point is nevertheless valid.