



COURT OF APPEAL FOR ONTARIO

CITATION: Galanis v. Kingston General Hospital, 2018 ONCA 786

DATE: 20180927

DOCKET: C65113

Simmons, Miller and Fairburn JJ.A.

BETWEEN

Konstantina Connie Galanis
    and Michael Galanis

Plaintiffs (Respondents)

and

Kingston General Hospital, Dr. Greg Davies, Dr.
    Michael McGrath, Dr. John Doe Anasthesiologist and Nurse Jane Doe

Defendants (Appellants)

Anne Tardif, for the appellants

Ronald P. Bohm, for the respondents

Heard and released orally: September 24, 2018

On appeal from the
    order of Justice Hurley of the Superior Court of Justice, dated February 16,
    2018.

REASONS FOR DECISION

[1]

Relying on misnomer, the motion judge granted the respondents leave to
    amend their statement of claim to substitute the names of three doctors for Dr.
    John Doe Anesthesiologist in the respondents statement of claim.  One of the
    doctors, Dr. Pattee, an anaesthesiologist, did not oppose the request.

[2]

Even assuming the motion judge erred in taking account of the
    allegations in the statement of claim, which the appellants emphasize was
    served after the limitation period expired, we are not persuaded the motion
    judge erred in relying on misnomer to permit the substitution or that he
    misapplied the doctrine.  The motion judge articulated the litigating finger
    test in making his decision.  Although the motion judge relied on allegations
    in the statement of claim, he made an alternative finding based upon the notice
    of action which was served within the limitation period.  The motion judge
    concluded that the two appellant doctors would have known the litigating finger
    pointed at them based upon the allegations against Dr. John Doe
    Anesthesiologist in the notice of action, the medical records, and their status
    as anaesthesiologists at the relevant time (or, in Dr. Dodges case, as a
    resident anaesthesiologist).  This was a finding of mixed fact and law entitled
    to deference from this court absent error in principle or palpable and
    overriding error.  We find no such error in the alternative finding.

[3]

The appellants do not contend that the motion judge erred in failing to
    exercise his residual discretion to refuse to substitute the appellants.

[4]

The appeal is dismissed. Costs of the appeal will be to the respondents
    on a partial indemnity scale, fixed in the amount of $12,000, inclusive of
    taxes and disbursements.

Janet Simmons J.A.

B.W. Miller J.A.

Fairburn J.A.


