Colin Chant

The plaintiffs commenced a medical malpractice action after a relative's death, which the defendants argued was statute-barred under the Trustee Act.

The plaintiffs pleaded fraudulent concealment of CT imaging to toll the limitation period.

The motion judge dismissed the negligence claims, finding no causal connection between the concealed imaging and the failure to sue within the limitation period, but allowed breach of contract and PHIPA claims against the hospital to continue.

The Court of Appeal allowed the plaintiffs' appeal, holding that the motion judge erred by deciding the factual question of fraudulent concealment as a question of law under Rule 21.01(1)(a).

The Court found the plea of fraudulent concealment was neither patently ridiculous nor manifestly incapable of proof, and that factual disputes regarding causation should not be determined on such a motion.

The plaintiffs moved for leave to amend their Amended Statement of Claim to increase damages and add a claim for punitive damages, and also sought leave to file a jury notice after pleadings had closed and the matter had been set down for trial.

The court granted leave to amend but refused the request to file a jury notice.

Applying principles from prior authorities, the court held that amendments reopening pleadings do not automatically revive the right to serve a jury notice where the amendments serve only a limited purpose and the proceeding is already trial-ready.

The request was brought on the eve of trial and the plaintiffs provided no cogent explanation for the delay.

The plaintiffs failed to rebut the presumption of prejudice to the defendants, who had prepared the case as a non‑jury matter.