Beaudoin Estate et al. v. Campbellford Memorial Hospital et al.

[Indexed as: Beaudoin Estate v. Campbellford Memorial Hospital]

Ontario Reports Court of Appeal for Ontario MacPherson, Zarnett and Jamal JJ.A. January 29, 2021 154 O.R. (3d) 587 | 2021 ONCA 57

Case Summary

Civil procedure — Determination before trial of question of law — Plaintiffs commencing medical malpractice action arising from death of relative — Defendants pleading that action statute-barred as not having been brought within two years of date of death — Plaintiffs amending statement of claim to plead fraudulent concealment of tomography imaging — Defendants successfully bringing motion under rule 21.01 to dismiss action — Plaintiffs' appeal allowed — Causal connection between concealed imaging and failure to sue was a factual question and motion judge erred by deciding it as a question of law — Plea of fraudulent concealment neither patently ridiculous nor manifestly incapable of proof — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(a) — Trustee Act, R.S.O. 1990, c. T.23, s. 38(3).

Limitations — Medical malpractice — Discoverability — Trusts and trustees — Fraudulent concealment — Plaintiffs commencing medical malpractice action arising from death of relative — Defendants pleading that action statute-barred as not having been brought within two years of date of death — Plaintiffs amending statement of claim to plead fraudulent concealment of tomography imaging — Defendants successfully bringing motion under rule 21.01 to dismiss action — Plaintiffs' appeal allowed — Causal connection between concealed imaging and failure to sue was a factual question and motion judge erred by deciding it as a question of law — Plea of fraudulent concealment neither patently ridiculous nor manifestly incapable of proof — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(a) — Trustee Act, R.S.O. 1990, c. T.23, s. 38(3).

An individual went to a hospital emergency room complaining of sudden pain in his lower back and abdomen. He was diagnosed with degenerative disc disease and discharged. He returned the next day complaining of acute abdominal pain, nausea and vomiting. The same physician who initially treated him ordered a computerized tomography (CT) scan, which revealed no definite evidence of an acute small bowel obstruction. He returned again the following day with complaints of abdominal pain, bloating and no bowel movement for five days. The following day he was sent for further imaging and the radiologist's report recorded evidence of bowel ischemia, or inadequate blood supply. He was transferred to another hospital for emergency surgery. It was determined during the surgery that almost the entirety of his small bowel was ischemic. He died four days later. His family members ordered and paid for his complete medical records from both hospitals in March 2015. The records were provided in May and June, but the family claimed that the CT imaging was missing and was not provided until May and June of 2017. The family members and the estate issued a statement of claim for medical malpractice in April 2017, about two years and three months after death. The defendants denied negligence and asserted that the action was statute-barred as it had not been commenced within two years of death as required by the Trustee Act. They moved under rule 21.01(1)(a) for an order dismissing the action on that basis. The plaintiffs amended their claim to plead that the defendants' fraudulent concealment of the CT imaging tolled the limitation period. They also amended their claim to allege breach of contract and breach of the Personal Health Information Protection Act, 2004 (PHIPA) against the emergency room hospital arising from the delayed disclosure. The motion judge found no causal connection between the allegedly concealed imaging and the failure to sue within the limitation period, and dismissed the negligence and derivative claims against all defendants. However, the motion judge ruled that the claims against the hospital for breach of contract and breach of the PHIPA could continue. The plaintiffs appealed the dismissal of their claims.

Held, the appeal should be allowed.

The motion judge erred in deciding the question of fraudulent concealment as a question of law under rule 21.01(1)(a). A motion under that rule was not the proper procedural vehicle for weighing evidence or making findings of fact. The rule was limited to determining questions of law raised by a pleading. The pleadings raised a factual dispute concerning causation. The motion judge found that the CT imaging did not add anything of significance to the plaintiffs' knowledge, but the CT imaging was not in evidence.

The plea of fraudulent concealment was neither patently ridiculous nor manifestly incapable of proof. The defendants argued that the motion judge was entitled to make such a finding, but the judge did not purport to apply that standard. Instead, he made a factual finding against the plaintiffs on causation based on the pleadings alone. The essence of the fraudulent concealment allegation was that had the CT imaging been disclosed when it was requested, the plaintiffs would have sued within two years of the death. That allegation was not of such a nature that it could not be proven to be true by the adduction of evidence, nor was it patently ridiculous. On the contrary, it was the sort of factual issue courts adjudicated regularly based on evidence regarding limitation period issues.

Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341, 2005 ONCA 1488; Kaynes v. BP, P.L.C., 2021 ONCA 36; Pioneer Corp. v. Godfrey, 2019 SCC 42, consd

Authorities referred to

Perell, Paul M. & Morden, John W., The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis Canada, 2020)

APPEAL from an order of Chalmers J. dismissing a medical malpractice action as statute-barred, reported at 2019 ONSC 3025.

Counsel: Iain A.C. MacKinnon, Justin S. Linden and Michael Lacy, for appellants. Colin Chant, for respondent, Campbellford Memorial Hospital. Brian Kolenda and Jessica Kras, for respondents, Dr. Jaun Bothma, Dr. Jaun Bothma Medicine Professional Corporation, Dr. Thomas Chalmers Brown, Dr. Norman Richard Bartlett and N. Bartlett Medicine Professional Corporation.

The judgment of the court was delivered by

JAMAL J.A.: —

A. Overview

[1] Section 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 prescribes that certain actions brought on behalf of a deceased person must be brought within two years of the person's death. Case law has recognized that this two-year limitation period may be tolled or suspended when the defendant fraudulently conceals the existence of the plaintiff's cause of action. The issue in this appeal is whether an allegation of fraudulent concealment was appropriately determined as a question of law, based on the pleadings alone, under rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The appeal involves a medical malpractice claim brought by the estate of the late Garry Beaudoin and by his wife, daughter and grandchildren as claimants under the Family Law Act, R.S.O. 1990, c. F.3 ("appellants"), against Campbellford Memorial Hospital, two emergency room doctors, and a diagnostic radiologist ("respondents"). They assert that Mr. Beaudoin was negligently diagnosed and treated at the Hospital on January 3, 4 and 5, 2015, leading to a delay in surgery that could have saved his life. Mr. Beaudoin passed away on January 9, 2015.

[3] The appellants did not issue a statement of claim until April 27, 2017 ("April 2017 claim") -- about two years and three months after Mr. Beaudoin died. The claim has been amended several times since then.

[4] The respondents delivered their statements of defence between July and October 2017. They denied negligence and asserted that the action was statute-barred because it had not been brought within the two-year limitation period under s. 38(3) of the Trustee Act. They then delivered a motion under rule 21.01(1)(a) for an order dismissing the action as statute-barred.

[5] The appellants responded by amending their claim in July 2018 ("July 2018 claim") to plead that the respondents' fraudulent concealment tolled the limitation period. They alleged that in March 2015 they had requested and paid for Mr. Beaudoin's complete medical records from the Hospital. Medical records were given to them in May and June 2015, but did not include computerized tomography ("CT") imaging conducted on January 3, 2015, which showed an obstruction and/or occlusion of Mr. Beaudoin's mesenteric artery, which supplies blood to the intestines. The CT imaging was not disclosed to the appellants until May 2017, more than two years later. The appellants claim that the fraudulent concealment of the CT imaging prevented them from knowing that they had a cause of action against the respondents until May 2017 -- about a month after they had issued the April 2017 claim. They claim that had the CT imaging been disclosed when it was requested, they would have been able to sue before the limitation period expired. The appellants also amended their claim to allege breach of contract and breach of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A ("PHIPA") arising from the delayed disclosure of the CT imaging.

[6] The respondents' rule 21.01(1)(a) motion proceeded on the basis of the July 2018 claim and was granted in part. The motion judge struck out the claims under the Trustee Act as statute-barred, ruling that the appellants could not rely on fraudulent concealment to toll the limitation period because there was no causal connection between the alleged improper concealment of the CT imaging and the appellants' failure to sue within the limitation period. He therefore dismissed the action as against the three doctors. However, he allowed the claims for breach of contract and breach of the PHIPA to continue against the Hospital.

[7] The appellants now appeal the motion judge's decision.

[8] For the reasons that follow, I would allow the appeal. The motion judge erred in deciding a disputed factual question of fraudulent concealment as a question of law under rule 21.01(1)(a) -- whether the respondents' failure to disclose the CT imaging prevented the appellants from reasonably discovering their cause of action before the limitation period expired. Because the facts pleaded in the July 2018 claim must be assumed to be true and are not patently ridiculous or manifestly incapable of proof, it is not plain and obvious that the negligence claims are statute-barred. I would therefore allow the claims pleaded in the July 2018 claim to proceed.

B. The Facts as Pleaded

[9] The facts as pleaded in the July 2018 claim -- which on a motion under rule 21.01(1)(a) must be assumed to be true, unless they are patently ridiculous or manifestly incapable of proof -- are as follows:

-- On January 2, 2015, at 2:38 a.m., Mr. Beaudoin went to the Emergency Department of the Campbellford Memorial Hospital, complaining of sudden pain in his lower back and abdomen. The respondent Dr. Jaun Bothma examined him and diagnosed degenerative disc disease, even though no radiographic evidence supported this finding. Mr. Beaudoin was discharged at 4:50 a.m.

-- On January 3, 2015, in the early afternoon, Mr. Beaudoin returned to the Hospital. He now complained of acute abdominal pain, nausea, vomiting, no bowel movement for three days and being unable to keep food down. Dr. Bothma examined Mr. Beaudoin again and this time ordered a CT scan. The radiologist report of the respondent Dr. Thomas Brown recorded that "some slightly dilated fluid-filled small bowel loops are shown in the distal small bowel", but noted that "no definite evidence of an acute small bowel obstruction is seen at the present time".

-- On January 4, 2015, at 8:26 p.m., Mr. Beaudoin went to the Hospital a third time. He complained of abdominal pain, bloating and no bowel movement for five days. Dr. Brown, who reviewed X-ray images, noted in his report "multiple slightly dilated small bowel loops in the mid-abdomen (small bowel obstruction)", and concluded that "while the changes in the small bowel may be due to an ileus the possibility of a developing low small bowel obstruction is not excluded".

-- On January 5, 2015, Mr. Beaudoin was sent for further imaging. The radiologist's report recorded "evidence of bowel ischemia[1] with new portal venous gas identified in the small bowel mesentery and with the liver. Small bowel obstruction secondary to superior mesenteric artery occlusion with diffusely dilated, fluid and air filled small bowel loops". Mr. Beaudoin was transferred to the Peterborough Regional Health Centre ("PRHC") for emergency surgery. During the surgery, it was determined that "almost the entirety of his small bowel was ischemic, and was showing signs of non-viability", and that he would not survive.

-- Four days later, on January 9, 2015, Mr. Beaudoin died.

-- In early March 2015, the appellants paid for Mr. Beaudoin's complete medical records from the Hospital and the PRHC. Medical records were provided in May and June 2015, but were not complete: they excluded the imaging from the diagnostic tests performed, including, but not limited to, the CT imaging from January 3, 2015. The CT imaging was not provided until May and June 2017, after the appellants had retained a lawyer who wrote to the Hospital and the PRHC. The CT imaging from January 3, 2015 revealed an occlusion and/or obstruction of the superior mesenteric artery.

-- Mr. Beaudoin died because of the respondents' failure to identify an occlusion and/or obstruction of his mesenteric artery on the CT imaging from January 3, 2015. Had the occlusion and/or obstruction of the mesenteric artery not been ignored, Mr. Beaudoin would have received treatment that would have saved his life.

-- The doctrine of fraudulent concealment tolled the limitation period under the Trustee Act. The appellants were unaware, and could not have been aware, of Dr. Brown's negligent failure to identify the mesenteric artery obstruction until they received the actual CT imaging from the Hospital in May 2017.

-- Lastly, the appellants contracted with the Hospital to provide Mr. Beaudoin's complete medical records, including the CT imaging, when they ordered and paid for those records. The Hospital breached its contract with the appellants and its statutory duties under the PHIPA by failing to provide the CT imaging in May or June 2015. If the appellants' claims are statute-barred under the Trustee Act, the appellants are entitled to the same damages they would have been entitled to had the claim been brought within the limitation period. But for the Hospital's misconduct and breach of contract, the respondents would have discovered the respondents' negligence within two years of Mr. Beaudoin's death and would not face a limitation period issue.

C. The Motion Judge's Decision

[10] The motion judge granted the respondents' motion under rule 21.01(1)(a) to dismiss the appellants' claims in negligence and their derivative claims under the Family Law Act as statute-barred under s. 38(3) of the Trustee Act. He held that the appellants' plea of fraudulent concealment did not suspend the limitation period in s. 38(3), because there was no causal connection between the allegedly concealed CT imaging from January 3, 2015 and the appellants' failure to sue within the limitation period. He concluded that the appellants knew about their cause of action even before the CT imaging was disclosed in May 2017, because they had sued the respondents in the April 2017 claim. He therefore dismissed the negligence and derivative claims against all the respondents and dismissed the action against the three doctors.

[11] However, the motion judge ruled that the appellants' claims against the Hospital for breach of contract and breach of the PHIPA could not be resolved on the motion under rule 21.01(1)(a) and therefore allowed those claims to continue.

D. Discussion

[12] The issue on this appeal is whether the motion judge correctly decided, as a question of law under rule 21.01(1)(a), that the facts pleaded in the July 2018 claim could not support a finding of fraudulent concealment to suspend the limitation period in s. 38(3) of the Trustee Act. Before turning to that question, I will first summarize the applicable legal principles.

(a) The applicable legal principles

(i) The test under rule 21.01(1)(a)

[13] Rule 21.01(1)(a) allows a party to move for a determination, before trial, of "a question of law raised by a pleading in an action", where such determination may dispose of all or part of the action, substantially shorten the trial, or result in a substantial saving of costs. No evidence is admissible on a motion under rule 21.01(1)(a), except with leave of a judge or on consent of the parties: rule. 21.01(2)(a).

[14] The main principles applicable to a motion to determine a question of law under rule 21.01(1)(a) are well known:

(1) The test under rule 21.01(1)(a) is whether the determination of the issue of law is "plain and obvious", which is the same test that applies under rule 21.01(1)(b) for whether the pleading should be struck because it discloses no reasonable cause of action or defence: Transamerica Life Canada Inc. v. ING Canada Inc., 2003 ONCA 9923, at para. 37; Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis Canada, 2020), at para. 6.168.

(2) The facts pleaded in the statement of claim are assumed to be true, unless they are patently ridiculous or manifestly incapable of proof: Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, at para. 12.

(3) The statement of claim should be read as generously as possible to accommodate any drafting inadequacies in the pleading. If the claim has some chance of success, it should be permitted to proceed: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at paras. 17-22.

(ii) The standard of review

[15] The standard of review of a motion judge's determination under rule 21.01(1)(a) is correctness, because under this rule the court is asked to determine a question of law: Das v. George Weston Ltd., 2018 ONCA 1053, at para. 65, leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 69.

(iii) The two-year limitation period in s. 38(3) of the Trustee Act

[16] The respondents rely on the limitation period in s. 38 of the Trustee Act. Section 38(1) of the Trustee Act provides that, except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action "for all torts or injuries to the person or to the property of the deceased". Section 38(3) provides that no action under s. 38 shall be brought "after the expiration of two years from the death of the deceased".

[17] There is no dispute that the following legal principles apply regarding s. 38(3) of the Trustee Act:

(1) Claims brought by the deceased's dependents under s. 61 of the Family Law Act are governed by the same limitation period in s. 38(3) of the Trustee Act: Camarata v. Morgan, 2009 ONCA 38, at para. 9; Smith Estate v. College of Physicians and Surgeons of Ontario, 1998 ONCA 1523, at p. 488 O.R., leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 635.

(2) Section 38(3) of the Trustee Act prescribes a "hard" or absolute limitation period triggered by a fixed and known event -- when the deceased dies -- and expires two years later: Levesque v. Crampton Estate, 2017 ONCA 455, at para. 51; Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196, at para. 25.

(3) The discoverability principles under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B do not apply to toll the limitation period under s. 38(3) of the Trustee Act: Giroux Estate v. Trillium Health Centre, 2005 ONCA 1488, at para. 33; Bikur Cholim, at para. 26; and Levesque, at para. 47. Although this can sometimes be harsh, since a claim under the Trustee Act can be time-barred even before it is discovered, this can be mitigated by common law rules, such as the doctrine of fraudulent concealment: Levesque, at para. 56; Bikur Cholim, at para. 25.

[18] Here, Mr. Beaudoin died on January 9, 2015, but the action was not brought until April 27, 2017 -- just over two years and three months after his death. The claims under the Trustee Act and the derivative family law claims would therefore be statute-barred, unless the appellants can invoke a common law rule to suspend the limitation period, such as the doctrine of fraudulent concealment.

(iv) The doctrine of fraudulent concealment

[19] The Supreme Court of Canada recently addressed the doctrine of fraudulent concealment in Pioneer Corp. v. Godfrey, 2019 SCC 42. Justice Brown for the majority described fraudulent concealment as "an equitable doctrine that prevents limitation periods from being used 'as an instrument of injustice'": at para. 52, citing M. (K.) v. M. (H.), 1992 SCC 31, at pp. 58-59 S.C.R. He stated that "[w]here the defendant fraudulently conceals the existence of a cause of action, the limitation period is suspended until the plaintiff discovers the fraud or ought reasonably to have discovered the fraud", and noted that it is "a form of 'equitable fraud' . . . which is not confined to the parameters of the common law action for fraud": at para. 52. See also M. (K.), at p. 56 S.C.R.; Giroux Estate, at para. 28.

[20] Pioneer was released a few months after the motion judge's decision here. The motion judge had cited Colin v. Tan, 2016 ONSC 1187, at para. 45, to suggest that fraudulent concealment has three "constitutive element[s]":

(1) the defendant and plaintiff have a special relationship with one another; (2) given the special or confidential nature of the relationship, the defendant's conduct is unconscionable; and (3) the defendant conceals the plaintiff's right of action either actively or the right of action is concealed by the manner of the wrongdoing.

[21] In Pioneer, however, Brown J. explained that although fraudulent concealment can apply when there is a special relationship between the parties, a special relationship is not required: at para. 54. Instead, fraudulent concealment can apply whenever "it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action" (emphasis in original).

[22] With this background, I now turn to consider the facts pleaded in the July 2018 claim and the parties' arguments.

(b) Application to this case

(i) The motion judge's reasons on fraudulent concealment

[23] The motion judge accepted that the July 2018 claim pleaded a special relationship between the parties: a patient-hospital relationship and a patient-doctor relationship, both involving Mr. Beaudoin. The respondents do not contest this, and I see no basis to disturb this conclusion. In any event, based on Pioneer, a special relationship was not required to establish fraudulent concealment.

[24] The motion judge also ruled that the July 2018 claim pleaded that the respondents engaged in unconscionable conduct by actively concealing and withholding from the appellants the CT imaging taken on January 3, 2015 and their errors until that imaging was disclosed in May 2017. The respondents also do not contest this conclusion. I see no error in it either.

[25] This takes me to the key point of contention on this appeal: whether, on the facts pleaded, the motion judge erred in finding that the respondents' alleged wrongdoing in concealing the CT imaging prevented the appellants from reasonably discovering their cause of action before the limitation period expired.

[26] The motion judge ruled that the CT imaging "did not add anything of significance to the [appellants'] knowledge". He found "no differences of consequence" between the facts pleaded in the April 2017 claim, before the CT imaging was disclosed, and the July 2018 claim, after it was disclosed. He concluded that although the CT imaging was potentially important evidence, the appellants knew about their cause of action against the respondents even before the imaging was disclosed:

I am of the view that there are no differences of consequence between the allegations made in the [April 2017 claim] and the amended claims prepared after the [appellants] received the actual CT images. In both, it is alleged that as a result of failures related to the CT scan, the [respondents] did not properly diagnose Mr. Beaudoin.

The information allegedly concealed consisted of the actual CT imaging. The actual CT images did not add anything of significance to the [appellants'] knowledge. Although the actual images may be important evidence, the images were not, in this case, necessary for the [appellants] to be aware of a cause of action as against the [respondents].

Based on the allegations in the [April 2017 claim], the [appellants] had sufficient material facts to know that there was a claim in negligence against the [respondents] for the manner in which Mr. Beaudoin was treated. The facts necessary to base a cause of action against the [respondents] were known to the [appellants] before the actual CT scans were received.

I therefore find that there is no causal connection between the information that was allegedly concealed and the [appellants'] failure to bring the action within the limitation period. Based on the allegations set out in the [April 2017 claim], the [appellants] were aware of the cause of action even in the absence of the allegedly concealed material. Therefore the third element of the doctrine of Fraudulent Concealment is not satisfied.

[27] In essence, the appellants contend that the motion judge erred in two respects: (1) his ruling that the conditions for fraudulent concealment were not met involves a question of fact, not law, and thus should not have been determined on a motion under rule 21.01(1)(a); (2) the facts pleaded in the July 2018 claim relating to causation were not patently ridiculous or manifestly incapable of proof.

[28] I will address each point in turn.

(1) Did the motion judge err in deciding the question of fraudulent concealment as a question of law under rule 21.01(1)(a)?

[29] As I will explain, the motion judge erred in deciding the question of fraudulent concealment as a question of law under rule 21.01(1)(a).

[30] This court has underscored that a motion under rule 21.01(1)(a) is not the proper procedural vehicle for weighing evidence or making findings of fact: see, e.g., McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, at paras. 19-20; Andersen Consulting v. Canada (Attorney General), 2001 ONCA 8587, at para. 35.

[31] This court has applied this general principle in a long line of cases in which it has discouraged using rule 21.01(1)(a) to determine limitation period issues except in very narrow circumstances where pleadings are closed and the facts relevant to the limitation period are undisputed: Kaynes v. BP, P.L.C., 2021 ONCA 36, at para. 74; Beardsley v. Ontario, 2001 ONCA 8621, at para. 21; Tran v. University of Western Ontario, 2016 ONCA 978, at paras. 18-21; and Golden Oaks Enterprises Inc. (Trustee of) v. Lalonde, 2017 ONCA 515, at paras. 42-45.

[32] The rationale for this position was recently explained by Feldman J.A. in Kaynes, at para. 81. She noted that discoverability issues are factual and it is unfair to the plaintiff for a motion judge to make such factual findings on a motion to determine a question of law under rule 21.01(1)(a), because that rule prohibits evidence on the motion except with leave of the court or on consent:

In establishing the main rule that a claim should not normally be struck out as statute-barred using r. 21.01(1)(a), the courts have noted that discoverability issues are factual and that the rule is intended for legal issues only where the facts are undisputed. It would therefore be unfair to a plaintiff where the facts are not admitted, to use this rule, which does not allow evidence to be filed except with leave or on consent. But where a plaintiff's pleadings establish when the plaintiff discovered the claim, so that the issue is undisputed, then the courts have allowed r. 21.01(1)(a) to be used as an efficient method of striking out claims that have no chance of success, in accordance with the principle approved in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 19.

[33] Thus, a factual dispute about the discovery date of a cause of action precludes the use of rule 21.01(1)(a) to determine whether a limitation period subject to discoverability has expired, because this rule is limited to determining questions of law raised by a pleading. If the parties have joined issue on disputed facts on the limitations issue, the preferable procedure might be a motion for summary judgment under Rule 20, which provides the court with certain fact-finding powers: Kaynes, at para. 80; Brozmanova v. Tarshis, 2018 ONCA 523, at paras. 21, 23 and 35; and rule 20.04(2.1).

[34] These principles about the limited scope for using rule 21.01(1)(a) to address discoverability under the Limitations Act, 2002 also apply to fraudulent concealment. Just as factual issues should not be decided in relation to discoverability on a motion under rule 21.01(1)(a), they should also not be decided in relation to fraudulent concealment. To do so would be unfair to a plaintiff when no evidence is admissible on such a motion except with leave of the court or on consent.

[35] This approach is supported by this court's decision in Giroux Estate. That case involved an appeal from a decision on a rule 21.01(1) motion refusing to strike as statute-barred a claim against a urologist brought by the deceased patient's estate. The estate alleged that the urologist had fraudulently concealed his failure to properly treat a malignant tumour in the bladder of the deceased, who died as a result. The urologist submitted that he could not be said to have concealed a fact of which the estate was already aware when the limitation date expired. This court agreed that the facts as pleaded were capable of supporting a finding of fraudulent concealment, and so the action should not be struck as statute-barred. Although Moldaver J.A. (as he then was) for this court acknowledged that the inferences the urologist urged the court to draw from the pleadings as to why the claim was statute-barred "may be borne out" at the end of the day, he highlighted that the case was just at the pleadings stage: at paras. 37, 41.

[36] The operative question is thus whether the pleadings here raise a factual dispute about the application of the doctrine of fraudulent concealment. I conclude that they do. The factual dispute concerns causation: whether there is a causal connection between the allegedly concealed CT imaging and the appellants' failure to sue within the limitation period. The appellants assert such a causal connection; the respondents deny it. The motion judge found no causal connection, concluding that the CT images "did not add anything of significance to the [appellants'] knowledge", and that the "facts necessary to base a cause of action against the [respondents] were known to the [appellants] before the actual CT scans were received".

[37] But causation involves a factual inquiry: Clements v. Clements, 2012 SCC 32, at para. 13; Ediger v. Johnston, 2013 SCC 18, at para. 29; and Campbell v. Bruce (County), 2016 ONCA 371, at para. 55, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 325. Such a factual issue should generally not be determined on a motion to determine a question of law under rule 21.01(1)(a).

[38] The motion judge's finding that the CT imaging "did not add anything of significance to the [appellants'] knowledge" is also problematic. The CT imaging was not in evidence, either on the motion or this appeal.

[39] However, the respondent doctors assert in their factum that the April 2017 claim "provides definitive evidence that the appellants had knowledge of their cause of action as of April 27, 2017". They note that courts have considered prior pleadings in motions under rule 21.01(1)(a), citing Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850, at paras. 111-113 and Torgerson v. Nijem, 2019 ONSC 3320. But neither of those cases purports to authorize a court to make a factual finding on a disputed point on a motion under rule 21.01(1)(a). The appellants assert that issuing a statement of claim is not necessarily determinative of their "knowledge" of a cause of action, and that the April 2017 claim simply reflected their "suspicion" that a cause of action may have existed. The case law requires knowledge of the cause of action, not mere suspicion. For example, in Pioneer, at para. 53, Brown J. cited approvingly P. (T.) v. P. (A.), 1988 ABCA 352, though on a different point, in which the Alberta Court of Appeal discussed fraudulent concealment and stated that "[s]uspicion is not knowledge": at para. 15. See also Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, at para. 41, leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 91; Lawless v. Anderson, 2011 ONCA 102, at paras. 21-28; and Kaynes, at para. 56. Because this is a fact-based analysis and both parties' positions depend on evidence, this factual dispute cannot be decided on a motion under rule 21.01(1)(a).

[40] The respondents contest this conclusion with their second argument. They say that the motion judge was entitled to find no causation between the non-disclosure of the CT imaging and the failure to sue within the limitation period because the July 2018 claim pleads facts about causation that are patently ridiculous or manifestly incapable of proof. I will address this argument next.

(2) Was it open to the motion judge to find that the facts as pleaded in the July 2018 claim relating to causation were patently ridiculous or manifestly incapable of proof?

[41] There are two problems with the respondents' argument that the motion judge was entitled to find that the facts pleaded in the July 2018 claim relating to causation are patently ridiculous or manifestly incapable of proof.

[42] The first problem is that the motion judge did not purport to apply the standard of "patently ridiculous or manifestly incapable of proof". He instead made a factual finding against the appellants on causation based on the pleadings alone. As I have already explained, this was an error. A motion under rule 21.01(1)(a) is not the proper procedural vehicle for weighing evidence or making findings of fact.

[43] The second problem is that, assuming the facts pleaded in the July 2018 are taken as true, the plea of fraudulent concealment is not patently ridiculous or manifestly incapable of proof.

[44] The Supreme Court of Canada's decision in Operation Dismantle v. Canada, 1985 SCC 74 remains the leading case on the type of allegation that is "manifestly incapable of proof". At issue was whether to strike out, as disclosing no reasonable cause of action, a statement of claim. The key allegation was that the decision of the federal cabinet to permit the United States to test cruise missiles in Canada would threaten the lives and security of Canadians by increasing the risk of nuclear conflict, and would thus violate s. 7 of the Canadian Charter of Rights and Freedoms. The claim pleaded such a causal link through a series of reactions by various foreign powers, including arms agreements becoming unenforceable, Canada becoming the target of a nuclear attack, an increased likelihood of a pre-emptive strike or accidental firing, and escalation of the nuclear arms race. Justice Dickson (as he then was) for the majority of the Supreme Court ruled, at p. 455 S.C.R., that he did not need to assume that the plaintiffs' allegations were true because they were by their very nature incapable of proof:

We are not, in my opinion, required . . . to take as true the appellants' allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven.

(Emphasis added)

[45] Pleaded facts are incapable of proof when "proof is inherently impossible": Paquette v. Desrochers, 2001 ONCA 8617, at para. 4, leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 81. Pleaded facts that are merely difficult to prove are not incapable of proof: Spar Roofing and Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, at para. 44.

[46] Here, the essence of the appellants' fraudulent concealment allegation is that had the CT imaging been disclosed rather than fraudulently concealed when it was requested in May and June 2015, then, as pleaded in the July 2018 claim, the appellants would have sued "within two years of [Mr. Beaudoin's] death and would not be faced with the limitation defence advanced by the [respondents]".

[47] This allegation is not of such a nature that "it cannot be proven to be true by the adduction of evidence", nor is it patently ridiculous. On the contrary, it is the sort of factual issue that courts adjudicate regularly based on evidence when limitation period issues arise. Undoubtedly, that the appellants issued the April 2017 claim before receiving the CT imaging will be among the facts considered by the court deciding the fraudulent concealment issue. The allegation that the appellants would have sued before the limitation period expired had the CT imaging been disclosed when it was requested may be hard to prove or it may be easy to prove, but it is provable, depending on the evidence. This court should not speculate on what a trier of fact would decide based on evidence it has not seen.

[48] This court applied the doctrine of fraudulent concealment where a defendant's conduct was alleged to have been responsible for a plaintiff's delay in filing a claim in Halloran v. Sargeant, 2002 ONCA 45029. Mr. Halloran, who was terminated from his employment because of a corporate reorganization, took an unreduced early pension instead of a special severance package based on false information provided by his employer that the pension option exceeded his statutory entitlement. In 1994, a group of employees who had also chosen the pension option succeeded in a claim for severance pay in addition to a pension, a claim that the Divisional Court upheld in 1995. In 1995, Mr. Halloran learned about the court's decision in a newspaper article, and in 1996, he sued for severance and termination pay. The referee dismissed the claim as statute-barred under s. 82 of the Employment Standards Act, R.S.O. 1990, c. E.14, which imposed a two-year limitation period. Mr. Halloran's application for judicial review was granted, and the employer's appeal to this court was dismissed.

[49] Justice Armstrong held that the referee erred in refusing to apply the doctrine of fraudulent concealment to toll the limitation period. He found that because the company made a misrepresentation that caused the employee to act to his detriment, it was unconscionable for it to invoke the limitation period when it was responsible for the delay in filing the claim. At para. 34, Armstrong J.A. concluded:

In my view, the limitation period in s. 82(2) should not have commenced until Mr. Halloran became aware that severance money under the Act was due to him which was either December 2, 1995 [when he read a newspaper account about the court's decision in favour of the employees] or perhaps earlier, on March 23, 1994 [when he read a newspaper account about the employees' claim and learned that a pending decision was expected to go in favour of the employees]. Either of the aforementioned dates bring him within the time prescribed in s. 82(2).

[50] Justice Armstrong added, at para. 36, that "[t]he same conduct of the company that amounted to fraudulent concealment resulted in Mr. Halloran doing nothing. He had no apparent reason to consult a lawyer based upon what he was told by the company."

[51] Here, the appellants similarly allege that the respondents' fraudulent concealment was responsible for their delay in filing a claim. Based on a long line of authorities, they should have a chance to support this allegation with evidence.

[52] If, based on the evidence, the court finds fraudulent concealment for some or all of the period between when the CT imaging was requested and when it was disclosed, the court will then have to decide when "the limitation clock starts to run or, having started to run, when it stops and when it starts up again": Giroux Estate, at para. 28, n. 6. These determinations would all factor into the assessment of whether the appellants' negligence and derivative family law claims are statute-barred.

[53] As a result, I conclude that the appellants' plea of fraudulent concealment is neither patently ridiculous nor manifestly incapable of proof. It therefore should not have been rejected on a motion under rule 21.01(1)(a).

E. Disposition

[54] I would allow the appeal, set aside the order of the motion judge and award the appellants costs of the appeal in the claimed amount of $15,000 all inclusive.

Appeal allowed.

Notes

1 "Ischemia" is an inadequate blood supply to part of the body.

End of Document

Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57

Case Summary

Beaudoin Estate et al. v. Campbellford Memorial Hospital et al.

Case Summary

Other cases referred to

Statutes referred to

Rules and regulations referred to

Authorities referred to

A. Overview

B. The Facts as Pleaded

C. The Motion Judge's Decision

D. Discussion

(a) The applicable legal principles

(i) The test under rule 21.01(1)(a)

(ii) The standard of review

(iii) The two-year limitation period in s. 38(3) of the Trustee Act

(iv) The doctrine of fraudulent concealment

(b) Application to this case

(i) The motion judge's reasons on fraudulent concealment

(1) Did the motion judge err in deciding the question of fraudulent concealment as a question of law under rule 21.01(1)(a)?

(2) Was it open to the motion judge to find that the facts as pleaded in the July 2018 claim relating to causation were patently ridiculous or manifestly incapable of proof?

E. Disposition

Notes

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Judges

Counsel

Parties

Areas of Law

Legislation 7