





CITATION:
O'Sullivan v. Hamilton
          Health Sciences Corporation
(Hamilton General Hospital Division), 2011 ONCA
          507




DATE: 20110711



DOCKET: C53119



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Cronk and Rouleau JJ.A.



BETWEEN



Lois
          OSullivan, Tara OSullivan and Michael
          OSullivan




Plaintiffs (Appellants)



and



Hamilton
          Health Sciences Corporation (Hamilton General Hospital Division),
John Doe
          Detachable Balloon Manufacturer
, Dr. John Doe #1, Dr. John Doe
          #2, Dr. Jane Doe #1, Dr. Jane Doe #2, John Doe Nurse #1, John Doe Nurse
          #2, John Doe Nurse #3, John Doe Nurse #4, Jane Doe Nurse #1, Jane Doe Nurse
          #2, Jane Doe Nurse #3 and Jane Doe Nurse #4




Defendants (Respondent)



Paul R. Sweeny, for the appellants



Emily McKernan, for the respondent



Heard and released orally: July 6, 2011



On appeal from the order of Justice
          Wendy L. MacPherson of the Superior Court of Justice, dated December 15,
          2010.



ENDORSEMENT



[1]

We see no basis on which to interfere with the
    motion judges discretionary decision to refuse the pleadings amendment
    requested by the appellants.

[2]

The motion judge directed herself to the
    applicable test for the determination of a motion to amend a pleading to
    correct an alleged misnomer in the naming of a defendant, as set out in
Ormerod v. Strathroy Middlesex General
    Hospital
, 2009 ONCA 697.  Although
    the appellants argue that the motion judge erred by failing to expressly
    consider the question of prejudice to the respondent arising from the proposed pleadings
    amendment, the motion judge indicated that she had undertaken a balancing of
    the interests of the parties engaged on the motion.  Further, she expressly stated that her
    decision was based on her review of the evidence before her and the
    circumstances of the case, both of which specifically included allegations of
    actual prejudice to the respondent and the appellants submissions as to the
    absence of non-compensable prejudice to the respondent.  There is no reason to conclude that the
    motion judge did not proceed precisely in the fashion that she described.

[3]

In these circumstances, the motion judge did not
    err by taking into account the appellants essentially unexplained significant
    delay in moving to amend their pleading after learning of the correct name of
    the defendant and the public policy reasons supporting adherence to established
    limitation periods.  She also noted,
    properly in our view, that the respondent had no notice of the appellants
    potential claim against it for about five years after the date of the incident.

[4]

On the facts before the motion judge, these
    circumstances established that the alleged mistake in naming the defendant
    involved far more than a mere irregularity.  It was therefore open to the motion judge, in the exercise of her
    residual discretion under rule 5.04(2), to refuse the requested pleadings amendment.  As this court noted in
Ormerod
, at para. 33, this discretion was that of the motion judge,
    not that of this court, to exercise.

[5]

The appeal is dismissed.  The respondent is entitled to its costs of
    the appeal, fixed in the amount of $4,279.00, inclusive of disbursements and
    all applicable taxes.

D. OConnor A.C.J.O.

E.A. Cronk J.A.

Paul Rouleau J.A.


