CITATION: Cerqueira et al. v. University Health Network et al., 2014 ONSC 282
DIVISIONAL COURT FILE NO.: 321/13
DATE: 20140212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Whalen, Lederman and Sachs JJ.
BETWEEN:
ANTONIO CERQUEIRA, by his Estate Trustee Delfina Cerqueira, DELFINA CERQUEIRA and HELEN CERQUEIRA
Appellants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, UNIVERSITY HEALTH NETWORK, DR. RODRIGO BRANDAO CAVALCANTI, DR. BOHDAN JULIUS LALUCK JUNIOR, DR. DMITRY ROZENBERG, DR. COURTNEY ANN THOMPSON, JANE DOE(S) and JOHN DOE(S)
Respondents
Helen Cerqueira, in person
Ryan Breedon and Rory Gillis, for the Respondents Dr. Rodrigo Brandao Cavalcanti, Dr. Bohdan Julius Laluck Junior, Dr. Dmitry Rozenberg and Dr. Courtney Ann Thompson
Daniel Girlando, for the Respondent, University Health Network
HEARD: January 9, 2014
LEDERMAN J.
[1] The Appellants (plaintiffs in the main action) appeal a decision of Justice Ellen Macdonald which dismissed their negligence action against all of the Respondents on a rule 21.01(1)(a) motion. Macdonald J. found that the Appellants’ claim was statute-barred by s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23, which provides that all actions by or against an estate must be brought within two years of the deceased’s death. Antonio Cerqueira died on August 31, 2009. The Appellants issued the negligence action related to Mr. Cerqueira’s death on September 19, 2011, outside the two year limitation period.
[2] The Appellants allege in their Statement of Claim that Mr. Cerqueira was admitted to the Hospital for gallstones and bowel inflammation. The Respondent doctors provided Mr. Cerqueira with medical care. During his hospitalization, he experienced health problems including blood clots, pressure sores, and a C. Difficile infection. The Appellants also allege in the Statement of Claim that on September 17, 2009 Helen Cerqueira discovered that the deceased’s INR result was 13, which indicated a significant danger of bleeding.
[3] The Appellants argued on the motion that the limitation period was tolled to September 17, 2009 because the Respondents engaged in fraudulent concealment. The Appellants filed an affidavit by Helen Cerqueira alleging that the Hospital was aware that Mr. Cerqueira’s INR result was 13 the day before he died, but informed her and her mother that Mr. Cerqueira’s cause of death was unknown. On September 17, 2009, the Appellants’ family physician phoned to express her condolences and stated that Mr. Cerqueira’s INR result was 13. Helen Cerqueira’s research showed her that an INR value of 13 represented “a significant factor that something went seriously wrong causing harm and death.” According to the Appellants, since the cause of action was discovered on September 17, 2009 and the two-year limitation period expired on a Saturday, the action that was issued on the following business day, September 19, 2011, was not statute-barred.
[4] The Motions Judge held that, based on s. 38(3) of the Trustee Act, the plaintiffs’ claim was statute barred. She reasoned that the limitation period expressed in s. 38(3) is not extended to the time when the plaintiffs can reasonably discover a cause of action.
[5] The Motions Judge acknowledged the plaintiffs’ argument of fraudulent concealment, but did not address whether the Respondents committed fraudulent concealment. Rather, the Motions Judge found that the claim was statute-barred on the basis that the discoverability principle is not part of s. 38(3) of the Act.
[6] The Appellants submit that the Motions Judge erred in not invoking the doctrine of fraudulent concealment in this case to toll the limitation period.
[7] The doctrine of fraudulent concealment applies when:
(a) The defendant and the plaintiff are engaged in a special relationship with one another;
(b) Given the special or confidential nature of the relationship, the defendant’s conduct amounts to an unconscionable thing for the one to do towards the other; and
(c) The defendant conceals the right of action.
[8] The Appellants argue that hospitals are required by law to disclose every “critical incident” as soon as practicable after the incident occurs to the patient’s estate trustee or person lawfully authorized to make treatment decisions on behalf of the patient: see rules 1(1), 2(4)(c), 2(5) of the Public Hospitals Act, R.R.O. 1990, Reg. 965 – Hospital Management.
[9] They submit that in this case, all three conditions of fraudulent concealment are met. First, a special relationship between the Appellants and the Respondents existed. The Respondent doctors were in a fiduciary relationship with the Appellants. The Appellants relied on the Respondents to act in Mr. Cerqueira’s best interests and the Respondents relied on the surviving Appellants to make treatment decisions on Mr. Cerqueira’s behalf. Second, given the special relationship, the Respondents’ conduct towards the Appellants was unconscionable. The Respondents had knowledge of the INR result on August 30, 2009, but failed to disclose the critical incident to the Appellants. Moreover, the Appellants were informed by various health care providers when asked that the cause of death was not known and yet the death certificate, which the Appellants obtained later, indicated a number of causes of death. The Appellants submit that the Respondents lied to them by concealing information necessary to make informed treatment decisions and establish a cause of action against the Respondents. Third, the Respondents’ concealment prevented the surviving Appellants from discovering a right of action.
[10] When fraudulent concealment is raised by a party to toll the s. 38(3) limitation period, the question is whether the facts as pleaded support a finding of fraudulent concealment and reasonable inferences of fact should be resolved in favour of the estate: see Giroux Estate v. Trillium Health Centre, 2005 1488 (ON CA), [2005] O.J. No. 226 (C.A.) at paras. 34-37.
[11] We find that neither the Appellants’ Statement of Claim nor the Appellants’ affidavit evidence pleads any facts constituting fraudulent concealment. The affidavit only says that the “health care professionals” at the University Health Network did not disclose Mr. Cerqueira’s INR result at the time of death; this does not amount to an allegation that the Respondents were using the Trustee Act as an “instrument of fraud” or have engaged in unconscionable behaviour or were withholding this information for the purpose of avoiding or insulating themselves from a law suit.
[12] This case is not similar to the facts in Giroux Estate, supra, in which the defendant physician made misrepresentations to the patient’s family and falsified medical records.
[13] Although the Motions Judge did not analyze in her reasons whether the doctrine of fraudulent concealment was constituted in this case, it can be reasonably inferred that she found the facts as pleaded were insufficient to make out the doctrine. In effect, the Appellants are trying to assert discoverability under the guise of fraudulent concealment. We do not think the Motions Judge made a palpable and overriding error in finding that the doctrine was not satisfied on the basis of the affidavit evidence and Statement of Claim before her. She did not err in concluding that the action was statute-barred.
[14] On a motion of this nature, evidence is not generally admissible. The Appellants did file an affidavit without objection by the Respondents and the Motions Judge received it. As the affidavit no further improves the Appellants’ position, granting leave to amend would not have cured the Statement of Claim’s deficiency.
[15] For these reasons, the appeal is dismissed.
[16] The respondent physicians will have their costs of the appeal fixed at $1,500 all inclusive, and the respondent Hospital, its costs fixed at $1,000 all inclusive, payable by the Appellants.
Lederman J.
Whalen J.
Sachs J.
Released: February , 2014
CITATION: Cerqueira et al. v. University Health Network et al., 2014 ONSC 282
DIVISIONAL COURT FILE NO.: 321/13
DATE: 20140212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Whalen, Lederman and Sachs JJ.
BETWEEN:
ANTONIO CERQUEIRA, by his Estate Trustee Delfina Cerqueira, DELFINA CERQUEIRA and HELEN CERQUEIRA
Appellants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, UNIVERSITY HEALTH NETWORK, DR. RODRIGO BRANDAO CAVALCANTI, DR. BOHDAN JULIUS LALUCK JUNIOR, DR. DMITRY ROZENBERG, DR. COURTNEY ANN THOMPSON, JANE DOE(S) and JOHN DOE(S)
Respondents
REASONS FOR JUDGMENT
Lederman J.
Released: February 12, 2014