ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-435274
DATE: 20130621
BETWEEN:
ANTONIO CERQUEIRA BY HIS ESTATE TRUSTEE, DELFINA CERQUEIRA, DELFINA CERQUEIRA and HELEN CERQUEIRA
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO
Defendant A
– and –
UNIVERSITY HEALTH NETWORK
Defendant B
– and –
DR. RODRIGO BRANDAO CAVALCANTI, DR. BOHDAN JULIUS LALUCK JUNIOR, DR. DMITRY ROZENBERG, DR. COURTNEY ANN THOMPSON
Defendants C
– and –
JANE DOE(S) AND JOHN DOE(S)
Helen Cerqueira, Self-Represented Plaintiff
Mélanie E. de Wit, for the Defendant, University Health Network
Ryan Stewart Breedon and Rory Gillis, for the Defendants, Dr. Rodrigo Brandao Cavalcanti, Dr. Bohdan Julius Laluck Junior, Dr. Dmitry Rozenberg and Dr. Courtney Ann Thompson
Ellen Macdonald J.
REASONS FOR DECISION
Introduction and Background
[1] This motion is for dismissal of the plaintiffs’ action.
[2] On September 19, 2011, the plaintiffs issued this action for damages for medical negligence in relation to Antonio Cerqueira, now deceased.
[3] On June 27, 2009, Antonio Cerqueira was taken to the Toronto Western Hospital (the defendant University Health Network) and admitted for care and treatment. He died there on August 31, 2009.
[4] In the statement of claim, the plaintiffs’ allege that:
• Mr. Cerqueira was admitted to the Toronto Western Hospital on June 28, 2009 for treatment of gallstones and bowel inflammation;
• During Mr. Cerqueira’s hospitalization, Mr. Cerqueira was provided medical care by the defendants, Drs. Rodrigo Brandao Cavalcanti, Dr. Bohdan Julius Laluck Junior, Dr. Dmitry Rozenberg, and Dr. Courtney Ann Thompson (the “Defendant Physicians”);
• During Mr. Cerqueira’s hospitalization, he experienced a number of health problems, including heart problems, blood clots, pressure sores, and a C. Difficile infection;
• Mr. Cerqueira died in hospital on August 31, 2009;
• The Defendant Physicians were negligent in their treatment of Mr. Cerqueira.
[5] There is no dispute that the Statement of Claim was issued on September 19, 2011 more than two years after Mr. Cerqueira’s death.
[6] The plaintiffs allege that it was not until September 17, 2009 that they discovered that the deceased’s INR result was 13- a level that indicated a danger of bleeding and related events.
Statement of Issues
[7] This motion is brought under Rule 21.01(1)(a) of the Rules of Civil Procedure. The court may determine a question of law before trial where the determination is “plain and obvious” and disposes of all or part of the action. The facts pleaded must be taken as true.
[8] The moving parties rely on Section 38(3) of the Trustee Act, R.S.O. 1990, s.38 which provides that all actions by or against an estate must be brought within two years of the deceased’s death.
[9] Sections 38(1) and (3) provide in relevant part:
- (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;
Limitations of actions
(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.
[10] The action was brought in excess of two years following the death of the deceased.
[11] In response to the motion the plaintiffs raise two issues. They rely on Rule 1(1) of the Public Hospitals Act, R.R.O. 1990, Regulation 965-Schedule B wherein a “critical incident” is defined as “any unintended event that occurs when a patient receives treatment in the hospital,
(a) That results in death, or serious disability, injury or harm to the patient, and
(b) Does not result primarily from the patient’s underlying medical condition or from a known risk inherent in providing the treatment”.
[12] The plaintiffs rely also on Rule 2(4)(c) and 2(5) of the said Regulation which require the hospital to disclose every critical incident as soon as is practicable after the critical incident occurs to the patient’s estate trustee or to a person lawfully authorized to make treatment decisions on behalf of the patient.
[13] The plaintiffs raise the doctrine of fraudulent concealment. They refer to a decision in Charette v. Trinity Capital Corporation, 2012 ONSC 2824, (“Charette”) where Strathy J. noted that:
A limitation period may be extended, or possibly interrupted, by fraudulent concealment.
[14] This principle was articulated in Giroux Estate v. Trillium Health Centre (2005), 2005 1488 (ON CA), 74 O.R. (3d) 341, 2005 O.J. No. 225 (C.A.) at para [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 (C.A.) per Lord Evershed M.R. at p. 249, cited with approval in M.(K.) v. M.(H), 1992 31 (SCC), [1992] 3 S.C.R. 6 at para. 63. See also, Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335).
[15] The plaintiffs say that they discovered a cause of action only on September 17, 2009. The two year limitation period fell on a Saturday so the action was issued on the following business day, Monday, September 19, 2011. It is on this basis that the plaintiffs say that their action is not statute-barred.
[16] I do not agree that the limitation period as expressed in s. 38(3) of the Trustee Act is extended to such time as the plaintiffs can reasonably discover a cause of action.
[17] There is no discoverability exception to s. 38(3). An action brought for or against an estate over two years after the deceased’s death is statute-barred, even if the claim was not discovered within the two-year limitation period. See Waschkowski v. Hopkinson Estate, 2000 5646 (ON CA), [2000] O.J. No. 470 at para. 16, 47 O.R. (3d) 370 (Ont. C.A.):
[B]ased on the language of the limitation provision, the discoverability principle does not apply to s. 38(3) of the Trustee Act. The effect of s. 38(3) is, in my view, that the state of actual or attributed knowledge of an injured person in a tort claim is not germane when a death has occurred. The only applicable limitation period is the two-year period found in s. 38(3) of the Trustee Act.
[18] It is clear based on s. 38(3) of the Trustee Act, that the plaintiffs’ claim is statute-barred. Because the Estate’s action is statute-barred, the derivative Family Law Act claims are also statute-barred.
[19] This claim is therefore dismissed.
Ellen Macdonald J.
Released: June 21, 2013
COURT FILE NO.: CV-11-435274
DATE: 20130621
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTONIO CERQUEIRA BY HIS ESTATE TRUSTEE, DELFINA CERQUEIRA, DELFINA CERQUEIRA and HELEN CERQUEIRA
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO
Defendant A
– and –
UNIVERSITY HEALTH NETWORK
Defendant B
– and –
DR. RODRIGO BRANDAO CAVALCANTI, DR. BOHDAN JULIUS LALUCK JUNIOR, DR. DMITRY ROZENBERG, DR. COURTNEY ANN THOMPSON
Defendants C
– and –
JANE DOE(S) AND JOHN DOE(S)
Defendants D
REASONS FOR DECISION
Ellen Macdonald J.