Giroux, Executor and Trustee for the Estate of James Giroux, deceased, et al. v. Trillium Health Centre et al. [Indexed as: Giroux Estate v. Trillium Health Centre]
74 O.R. (3d) 341
[2005] O.J. No. 226
Docket: C41422
Court of Appeal for Ontario,
Rosenberg, Moldaver and Simmons JJ.A.
January 27, 2005
Limitations -- Estates -- Deceased's estate pleading that doctor was negligent in failing to diagnose and treat malignant tumour -- Action against doctor commenced beyond two-year limitation period in s. 38(3) of Trustee Act -- Estate pleading that doctor told deceased's family that he had diagnosed tumour and that deceased had rejected radiation or radical surgery and that subsequent investigation by College of Physicians and Surgeons revealed that doctor had lied -- Common law doctrine of fraudulent concealment can be used to toll limitation period in s. 38(3) of Trustee Act -- Facts as pleaded capable of supporting finding of fraudulent concealment -- Trustee Act, R.S.O. 1990, c. T.23, s. 38(3).
The deceased's estate brought an action against the defendant doctor alleging that the defendant was negligent in failing to diagnose and appropriately treat a malignant tumour that formed in the deceased's bladder and eventually killed him. The action was commenced three and a half years after the deceased's death. The deceased's family had made inquiries about the defendant's failure to diagnose the tumour and to recommend radical treatment for it, and had been informed that the defendant's position was that he had in fact diagnosed the nature of the deceased's cancer and that the deceased had declined radical surgery or radiation. At this point, the two- year limitation period in s. 38(3) of the Trustee Act had not yet expired. The deceased's family pursued the matter, but it was not until they sought an independent review from the College of Physicians and Surgeons that they appreciated that the defendant had deceived them, that he had never recommended radical treatment, and that he had create d a false set of notes to cover his tracks. The action was commenced within three months of learning of the defendant's misrepresentations. The defendant brought a motion [page342] under rule 21.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order striking out the statement of claim and dismissing the action on the basis that the action was statute-barred as it had not been commenced within two years of the deceased's death. The motion judge dismissed the motion, holding that the common law doctrine of fraudulent concealment could be used to toll the limitation period in s. 38(3) of the Trustee Act and that, on the facts as pleaded, the estate could rely upon the doctrine to resist the defendant's motion. The defendant appealed, arguing that the doctrine of fraudulent concealment has no application to s. 38(3) of the Act, as the limitation period in that section is tied to the date of death, not the date upon which the claim is discovered, and that in any event the facts as pl eaded were not capable of supporting a finding of fraudulent concealment.
Held, the appeal should be dismissed.
Unlike the discoverability rule, the common law doctrine of fraudulent concealment is not a rule of construction. It is an equitable principle aimed at preventing a limitation period from operating as an instrument of injustice. Unlike the discoverability rule, the doctrine of fraudulent concealment is not dependent upon the particular wording of the limitation provision. Fraudulent concealment is concerned with the operation of the provision, not its interpretation. Stated succinctly, it is aimed at preventing unscrupulous defendants who stand in a special relationship with the injured party from using a limitation period as an instrument of fraud. The common law doctrine of fraudulent concealment can be used to toll the two-year limitation period prescribed by s. 38(3) of the Act.
Taking the facts as pleaded at their highest, it would be open for a trier of fact to find that the defendant was in a special relationship with the deceased's family, that he attempted to fraudulently conceal from them his failure to diagnose and properly treat the deceased's illness, that his duplicity was unconscionable in the circumstances and that it led the family to believe, on reasonable grounds, that the estate might well not have a cause of action against him -- a belief that persisted until it was put to rest by the College of Physicians and Surgeons. Combined, those findings added up to fraudulent concealment.
APPEAL from the judgment of Lederman J., reported at (2004), 2004 18056 (ON SC), 69 O.R. (3d) 689, [2004] O.J. No. 557 (S.C.J.), dismissing a motion for an order striking out a statement of claim and dismissing an action.
Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370, [2000] O.J. No. 470, 184 D.L.R. (4th) 281, 32 E.T.R. (2d) 308, 44 C.P.C. (4th) 42 (C.A.), consd Other cases referred to Goldin (Trustee of) v. Bennett & Co. (2003), 2003 4764 (ON CA), 65 O.R. (3d) 691, [2003] O.J. No. 2778, 229 D.L.R. (4th) 736 (C.A.); Guerin v. Canada, 1984 25 (SCC), [1984] 2 S.C.R. 335, 59 B.C.L.R. 301, 13 D.L.R. (4th) 321, 55 N.R. 161, [1984] 6 W.W.R. 481, 20 E.T.R. 6, 36 R.P.R. 1; Kitchen v. Royal Air Force Association, [1958] 2 All E.R. 241, [1958] 1 W.L.R. 563 (C.A.); M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, 96 D.L.R. (4th) 289, 142 N.R. 321, 14 C.C.L.T. (2d) 1; M.F. v. Sutherland, 2000 5761 (ON CA), [2000] O.J. No. 2522, 134 O.A.C. 117; Morton v. Cowan (2003), 2003 52163 (ON CA), 66 O.R. (3d) 321, [2003] O.J. No. 3204, 229 D.L.R. (4th) 193 (C.A.) Statutes referred to Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 15(2), (4), 19(1) Trustee Act, R.S.O. 1990, c. T.23, s. 38(3) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01 [page343]
J. Thomas Curry and Matthew P. Sammon, for appellant, William Harvey. Sandra Barton, for respondents.
The judgment of the court was delivered by
MOLDAVER J.A.: --
Introduction
[1] This appeal has its genesis in a medical malpractice action brought by the estate of the late James Giroux against Dr. William Harvey. In a nutshell, the estate claims that Dr. Harvey was negligent in failing to diagnose and appropriately treat a malignant tumour that formed in Mr. Giroux's bladder and eventually claimed his life.
[2] Although Mr. Giroux passed away on November 28, 1999, his estate did not issue a statement of claim against Dr. Harvey until June 23, 2003, some three and a half years later. (The claim was subsequently amended on September 22, 2003.)
[3] In December 2003, Dr. Harvey moved under rule 21.01(1) of the Rules of Civil Procedure [See Note 1 at the end of the document] for an order striking out the amended claim and dismissing the action. He maintained that the action was statute-barred because it had not been commenced within the two-year limitation period prescribed by s. 38(3) of the Trustee Act [See Note 2 at the end of the document] (the "Act").
[4] Lederman J. heard the motion on January 9, 2004 [See Note 3 at the end of the document] and, in written reasons released on February 12, 2004, he dismissed it. In doing so, he found that the common law doctrine of fraudulent concealment could be used to toll (suspend the running of the limitation clock) the limitation period specified in s. 38(3) of the Act and that on the facts as pleaded, the estate could rely upon the doctrine to resist Dr. Harvey's motion. [page344]
[5] Dr. Harvey appeals from that ruling. He submits that the doctrine of fraudulent concealment has no application to s. 38(3) of the Act and that Lederman J. erred in holding otherwise. Alternatively, he contends that if the doctrine is available, Lederman J. erred in concluding that the facts as pleaded were capable of supporting it.
[6] With respect, I would not give effect to either of those submissions. For reasons that follow, I am satisfied that Lederman J. was correct in dismissing the motion and in allowing the action to proceed. Accordingly, I would uphold his order and dismiss the appeal.
The Pertinent Facts as Pleaded by the Respondents
[7] As already noted, the appellant moved under rule 21.01 to have the amended claim struck out and the action dismissed. On a motion of that nature, the facts as pleaded are assumed to be true.
[8] The pertinent facts as pleaded by the respondents are reviewed in some detail in Lederman J.'s clear and comprehensive reasons. They are contained in the amended statement of claim and two pieces of correspondence incorporated by reference into it, namely: (1) a letter dated July 1, 2001 from Mr. Giroux's son to the Chief Executive Officer of the Trillium Health Centre (the Centre where Dr. Harvey treated Mr. Giroux); and (2) the Centre's letter of response dated August 28, 2001 [See Note 4 at the end of the document]. The summary that follows is derived from those documents.
[9] Dr. Harvey is a specialist in urology. In September 1998, he began treating Mr. James Giroux (the deceased) for complications arising from the removal of a tumour on his bladder. Over the next 14 months, Mr. Giroux consulted with Dr. Harvey about his condition on approximately 23 occasions. In that time frame, although Dr. Harvey performed at least six cystosopies [See Note 5 at the end of the document] on Mr. Giroux, he did not advise Mr. Giroux that his condition was life-threatening and that the disease was likely to spread; nor did he recommend (or even discuss) radical treatment such as radiation or the removal of the bladder. [page345]
[10] In October 1999, while Dr. Harvey was away on vacation and Mr. Giroux was being treated by another doctor, Mr. Giroux was told for the first time that the tumour on his bladder had grown and that he was suffering from high-grade invasive cancer. By then however, it was too late to engage in radical treatment. Nothing could be done to save Mr. Giroux. A month and a half later, on November 28, 1999, he died. He was 76 years old.
[11] Following Mr. Giroux's death, his family harboured concerns about the treatment he had received from Dr. Harvey. In particular, they wanted to know why Dr. Harvey had not diagnosed the nature of the cancer and why he had not recommended radical treatment for it. To that end, on July 1, 2001 (19 months after Mr. Giroux's death but five months before the expiry of the two-year limitation period under s. 38(3) of the Act), Gary Giroux, the deceased's son, wrote to the Chief Executive Officer at Trillium Health Centre seeking answers to these questions. Two months later, he received a response that shocked and confused the family, particularly his mother. In a letter dated August 28, 2001, under the signature of Dr. N. S. Hill, acting Chief of Staff at Trillium, Dr. Hill reported that he had spoken to Dr. Harvey about the questions raised in Mr. Giroux's letter and that Dr. Harvey had responded as follows:
-- That by the end of September 1998, he (Dr. Harvey) had in fact diagnosed the nature of Mr. Giroux's cancer and the risks associated with it.
-- That he had discussed his diagnosis with Mr. and Mrs. Giroux at that time.
-- That Mr. Giroux had declined radical surgery or radiation.
-- That on several occasions throughout the course of Mr. Giroux's treatment and as late as June 1999, he had again discussed with Mr. Giroux the nature of the cancer and the risk that it would spread and in each instance, Mr. Giroux had refused to consider more radical surgery or radiation.
-- That in pursuing the course of treatment he adopted, he was merely following Mr. Giroux's wishes.
-- That with Mr. Giroux's passing, he did not know whether Mrs. Giroux would or would not be able to confirm that Mr. Giroux had declined radiation and radical surgery early on in the course of his illness.
[12] As indicated, Dr. Harvey's response (transmitted through Dr. Hill) shocked and confused Mrs. Giroux. She had accompanied [page346] her husband on every visit to Dr. Harvey and Dr. Harvey had never discussed the possibility of, or need for radical treatment. In view of that, the family requested a meeting with Dr. Hill to discuss the matter further. By now, the two-year limitation period under s. 38(3) of the Act was set to expire in three months.
[13] The meeting with Dr. Hill took place on December 7, 2001 (about a week after the expiry of the two-year limitation period). It proved valueless because Dr. Hill could not answer the Girouxs' questions. Accordingly, Dr. Hill suggested that the family speak directly to Dr. Harvey. To that end, a meeting was arranged at the end of January 2002.
[14] At the January meeting, Dr. Harvey stated that he had left Mr. Giroux's medical file at his private office. Accordingly, another meeting was scheduled for February 4, 2002.
[15] At the February 4th meeting, Dr. Harvey reiterated the position that he had taken with Dr. Hill in August 2001. Specifically, he advised the family that he had informed Mr. Giroux about the nature of his illness and that he had recommended radical intervention (albeit to no avail) in September and November 1998 and in May 1999. He further stated that he had notes to that effect in Mr. Giroux's medical file which he kept at his office. Despite the family's request that he produce the notes, he refused to do so.
[16] In the face of Dr. Harvey's answers and his refusal to produce the notes, the family felt that they still did not have a proper understanding of the nature of Mr. Giroux's illness and the treatment he had received. Accordingly, on April 19, 2002, they wrote to the College of Physicians and Surgeons seeking an independent review and assessment of the treatment provided by Dr. Harvey to Mr. Giroux.
[17] In March 2003, the family received the College's response. It was then, for the first time, that they appreciated that Dr. Harvey had deceived them and that his representations to them had been false. Specifically, they learned that he had never recommended radical treatment and that he had created a false set of notes to cover his tracks.
[18] Within three months of learning of Dr. Harvey's misrepresentations (the first of which occurred in Dr. Hill's letter of August 28, 2001, when three months remained on the limitation clock), the family issued a statement of claim against him alleging medical malpractice.
[19] Against that backdrop, I turn to the two issues raised on appeal. [page347]
Issue One: Can the Common Law Doctrine of Fraudulent Concealment be used to Toll the Limitation Period Prescribed by S. 38(3) of the Act
[20] Section 38 of the Trustee Act reads as follows:
38(1) 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 in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.
(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person's property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.
(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.
(Emphasis added)
[21] Notably, under s. 38(3), the limitation period is tied to the date of death, not the date upon which the claim is discovered. Dr. Harvey relies heavily on that feature of the provision. More will be said about it shortly.
[22] Fraudulent concealment has been defined to include "conduct, which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for one to do towards the other". (Kitchen v. Royal Air Force Association, [1958] 2 All E.R. 241, [1958] 1 W.L.R. 563 (C.A.), per Lord Evershed M.R. at p. 249 All E.R., cited with approval in M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, at para. 63. See also Guerin v. Canada, 1984 25 (SCC), [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321).
[23] Applying that definition to this case, Dr. Harvey does not (for appeal purposes) contest the "special" nature of his relationship with the Giroux family; nor does he deny that his duplicitous conduct would, if proved, constitute an unconscionable thing for him to do towards the family. His challenge is more fundamental. He contends that the doctrine of fraudulent concealment has no application because the two-year limitation period under s. 38(3) is immutably tied to the date of death. Accordingly, it is immune to any and all common law doctrines that might otherwise be used to extend or toll it.
[24] In support of his position, Dr. Harvey relies primarily on this court's decision in [page348] Waschkowski v. Hopkinson Estate (2000) 2000 5646 (ON CA), 47 O.R. (3d) 370, [2000] O.J. No. 470 (C.A.), in which Abella J.A., for the court, held that the common law "discoverability" rule does not apply to s. 38(3) of the Act. In so concluding, Abella J.A. was careful to point out that the discoverability rule is nothing more than a rule of construction and that its applicability depends on the wording of the limitation provision. Accordingly, as she observed, the rule does not apply when, based on the wording of the provision"the limiting time runs from a fixed event unrelated to the injured party's knowledge or the basis of the cause of action" (para. 7, citations omitted). Applying those principles to s. 38(3) of the Act, Abella J.A. concluded at para. 8 as follows:
In s. 38(3) of the Trustee Act, the limitation period runs from a death. Unlike cases where the wording of the limitation period permits the time to run, for example, from "when the damage was sustained" (Peixeiro) [Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549] or when the cause of action arose (Kamloops) [Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2], there is no temporal elasticity possible when the pivotal event is the date of a death. Regardless of when the injuries occurred or matured into an actionable wrong, s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged.
[25] Abella J.A. then considered whether that interpretation of s. 38(3) accorded with the policy considerations underlying the implementation of s. 38 of the Act. In concluding that it did, she stated at para. 9:
The underlying policy considerations of this clear time limit are not difficult to understand. The draconian legal impact of the common law was that death terminated any possible redress for negligent conduct. On the other hand, there was a benefit to disposing of estate matters with finality. The legislative compromise in s. 38 of the Trustee Act was to open a two-year window, making access to a remedy available for a limited time without creating indefinite fiscal vulnerability for an estate.
[26] As indicated, Dr. Harvey relies heavily on the Waschkowski decision. He submits that Abella J.A.'s analysis applies with equal force to the common law doctrine of fraudulent concealment and that absent a statutory exemption, all claims brought under s. 38 of the Act must be instituted within two years of the death of the wrongdoer or the person wronged.
[27] With respect, I disagree. In my view, Abella J.A.'s analysis does not assist Dr. Harvey. On the contrary, it underscores a significant flaw in his argument.
[28] Unlike the discoverability rule, with which Abella J.A. was concerned, the common law doctrine of fraudulent concealment is not a rule of construction. It is an equitable principle aimed at preventing a limitation period from operating "as an instrument [page349] of injustice" (see M. (K.), supra, at para. 66). When applicable, it will "take a case out of the effect of statute of limitation" and suspend the running of the limitation clock until such time as the injured party can reasonably discover the cause of action [See Note 6 at the end of the document] (see M. (K.), supra, at paras. 65 and 66). Its underlying rationale is grounded in the well-established principle, reiterated in Goldin (Trustee of) v. Bennett and Co. (2003), 2003 4764 (ON CA), 65 O.R. (3d) 691, [2003] O.J. No. 2778 (C.A.), at para. 35, that equity will not permit a statute to be used as an instrument of fraud.
[29] In other words, unlike the discoverability rule, the doctrine of fraudulent concealment is not dependent upon the particular wording of the limitation provision. When applied, there is no risk that the limitation provision will be construed in a manner not intended by the legislature. Fraudulent concealment is concerned with the operation of the provision, not its interpretation. Stated succinctly, it is aimed at preventing unscrupulous defendants who stand in a special relationship with the injured party from using a limitation provision as an instrument of fraud.
[30] Once the doctrine's true purpose and underlying rationale are understood, Dr. Harvey's reliance on Waschkowski as "determinative" holds little sway. Applying the doctrine of fraudulent concealment to s. 38(3) of the Act will have no impact on the provision's meaning, nor will it detract from the policy considerations giving rise to the implementation of s. 38 (unless the legislature contemplated the use of s. 38(3) as an instrument of fraud).
[31] Dr. Harvey makes a secondary argument based upon Ontario's new Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Specifically, he points out that s. 4 of that Act creates a basic two-year limitation period (to which the discoverability rule applies) and that s. 15(2) creates an absolute limitation period of 15 years (regardless of discoverability but subject to suspension where, among other things, there has been wilful concealment of material facts outlined in s. 15(4)(c)(i)). Finally, he refers to s. 19(1) which specifically exempts s. 38(3) of the Trustee Act from the provisions of the new Act. [page350]
[32] Considering the new Act as a whole and particularly s. 15(4)(c) that addresses matters akin to fraudulent concealment, Dr. Harvey submits that by exempting s. 38(3) from the new Act, the legislature intended to immunize it not only from the wilful concealment provisions of the new Act but also from the common law doctrine of fraudulent concealment.
[33] I would not give effect to that argument. In my view, s. 38(3) was exempted from the new Act so that its common law status would be preserved and it would remain immune from the discoverability rule. In other words, the legislature intended that s. 38(3) should continue to be governed by common law principles. The doctrine of fraudulent concealment is one such principle. Accordingly, I do not accept that the new Limitations Act assists Dr. Harvey.
[34] In conclusion, I am satisfied that the common law doctrine of fraudulent concealment can be used to toll the two- year limitation period prescribed by s. 38(3) of the Act. The remaining question is whether the facts as pleaded are capable of supporting it. That leads to the second issue on appeal.
Issue Two: Can the Facts as Pleaded Support a Finding of Fraudulent Concealment
[35] Dr. Harvey forcefully argues that the facts as pleaded are incapable of supporting a finding of fraudulent concealment. Specifically, he submits that he cannot be said to have concealed a fact of which the Giroux family (and particularly Mrs. Giroux) was already aware when the limitation date expired on September 28, 2001, two years after Mr. Giroux's death. Prior to that date, Dr. Hill's letter of August 28, 2001, (in which he relayed Dr. Harvey's response to Gary Giroux's queries) was the only possible source upon which a finding of fraudulent concealment could be made. Accepting that in that letter Dr. Harvey falsely represented that he had spoken to Mr. Giroux about the nature of his illness and the need for radical treatment, on the facts as pleaded, Mrs. Giroux was not deceived by those misrepresentations. On the contrary, as indicated in para. 23 of the amended statement of claim (reproduced below), by her own admission, she knew them to be false:
- The Giroux family and Mrs. Giroux in particular, were shocked and confused by Dr. Harvey's representations. Mrs. Giroux had accompanied Mr. Giroux on every consultation and treatment: at no time did Dr. Harvey ever discuss the possibility or need for radical treatment. As a result, upon receiving Dr. Hill's letter, the plaintiffs requested that Dr. Hill meet with them to discuss the matter further.
(Emphasis added) [page351]
[36] In view of Mrs. Giroux's admission, Dr. Harvey contends that Mr. Giroux's estate cannot now maintain that the false representations in the August 28, 2001 letter were responsible for concealing the existence of a cause of action against him. He points to Gary Giroux's letter to Dr. Hill and submits that as early as July 2001, the estate knew that it had a cause of action against him. He further submits that his false response did not deceive the estate into thinking otherwise because at worst, it amounted to a denial of negligence based on information which the family knew to be false. Thereafter, the steps taken by the estate were not taken because the estate believed, on reasonable grounds, that it may well not have a cause of action against him. Rather, the estate proceeded as it did in order to ensure that it had an airtight case against him before commencing its action. In such circumstances, even if the discoverability rule applied (which it does not), it would not assist the estate (see Morton v. Cowan (2003), 2003 52163 (ON CA), 66 O.R. (3d) 321, [2003] O.J. No. 3204 (C.A.), at para. 23.
[37] With respect, while I view the case as a close one, I am not persuaded that Dr. Harvey's argument should prevail at this stage. In rejecting it, I do not suggest that the inferences which he seeks to draw from the pleadings are not feasible. At the end of the day, they may be borne out. But we are not there yet. This matter is at the pleading stage. The motion brought by Dr. Harvey under rule 21.01(1) requires that reasonable inferences of fact be resolved in favour of the estate. Viewed that way, it is not plain and obvious to me that the limitation defence raised by Dr. Harvey will inevitably succeed.
[38] Taking the facts as pleaded at their highest, I believe that it would be open for a trier of fact to find that as of August 28, 2001, Dr. Harvey was in a special relationship with the Giroux family, that he attempted to fraudulently conceal from them his failure to diagnose and properly treat Mr. Giroux's illness [See Note at the end of the document], that his duplicity was unconscionable in the circumstances and that it led the family to believe, on reasonable grounds, that the estate might well not have a cause of action against him -- a belief that persisted until March 2003 when the College of Physicians and Surgeons put it to rest.
[39] Combined, those findings add to up to fraudulent concealment. In so concluding, I have not ignored Mrs. Giroux's assertion in para. 23 of the amended claim that she attended with her [page352] husband on every visit to Dr. Harvey and that at no time did Dr. Harvey prescribe radical treatment. While that assertion is troubling, I am nonetheless of the view that on the facts as pleaded, it would be open for a trier of fact to find that as a direct result of Dr. Harvey's duplicity in August 2001, the estate went from thinking that it likely had a cause of action against him to thinking that it might well not. In that regard, Dr. Harvey's ploy was simple but potentially very effective. It was designed to throw the estate off track by pitting his credibility and reliability as a doctor and specialist in urology against that of an elderly, distraught, grieving widow who had recently undergone a very stressful period in her life.
[40] Viewed that way, Dr. Harvey's position that "the estate knew all along that he was lying" loses much of its force and in my view, it leaves the door open to a finding of fraudulent concealment. Accordingly, I would not give effect to Dr. Harvey's second ground of appeal.
Conclusion
[41] Lederman J. was correct in holding that the common law doctrine of fraudulent concealment can be used to toll the limitation period prescribed by s. 38(3) of the Act. He was also correct in holding that the facts as pleaded are capable of supporting a finding of fraudulent concealment. Accordingly, I would dismiss the appeal.
Costs
[42] The respondents are entitled to their costs of the appeal. If the parties cannot agree, they may submit brief submissions to the court (not to exceed three pages double- spaced) within ten days of the date of release of these reasons.
Appeal dismissed.
Notes
Note 1: R.R.O. 1990, Reg. 194.
Note 2: R.S.O. 190, c. T. 23.
Note 3: The motion raised additional matters that were adjourned to a date to be fixed by the scheduling court.
Note 4: Over the objection of Dr. Harvey, Lederman J. did not consider the contents of two letters of complaint written by Mr. Giroux's wife and his son to the College of Physicians and Surgeons on April 19, 2002. Although raised as a ground of appeal, the appellant did not pursue the issue in oral argument. Without deciding the matter, Lederman J.'s approach would appear to be sound (see M.F. v. Sutherland, 2000 5761 (ON CA), [2000] O.J. No. 2522, 234 O.A.C. 117).
Note 5: The amended statement of claim describes cystosopy as a "procedure ... that enables a urologist to directly view the inside of the bladder and urethra ..."
Note 6: On the facts of the case, it is unnecessary to finally decide when, in cases of fraudulent concealment, the limitation clock starts to run or, having started to run, when it stops and when it starts up again. That said, I reject Dr. Harvey's submission that fraudulent concealment cannot stop the clock from running once it has started. As pointed out in M. (K.) supra, at para. 64 fraudulent concealment may involve active concealment of a right of action after the action has arisen or, it may arise from the manner in which the Act that gives rise to the right of action is performed (emphasis added).
Note 7: Dr. Harvey's conduct after August 28 can be used to show that the misrepresentations in Dr. Hill's letter of August 28, were known by him to be false and were deliberately designed to mislead the family and to conceal his inappropriate treatment.