SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 183-2011

DATE: 2013/10/08

RE: Norma Gene Reid

• and –

Crest Support Services (Meadowcrest) Inc.

BEFORE: Justice A. W. Bryant

COUNSEL: Philip Cornish, for the Plaintiff Norma Reid (Responding Party)

Carole Jenkins , for Crest Support Services (Meadowcrest) Inc. (Moving Party)

HEARD: August 29, 2013 and September 18, 2013

ENDORSEMENT

Chronology

[1] Mr. John Virgil Reid died on March 5, 2009 at the Crest Support Services (Meadowcrest) Inc. (Crest Support Services), facility located near Lucan, Ontario. Norma Reid, the deceased’s mother, was informed of her son’s death later that same day. She was also informed that an employee had been fired for not filing a report. Norma Reid met with the administrators of Crest Support Services in Lucan on March 12, 2009. The administrators did not know the cause of Mr. Reid’s death.

[2] Dr. Rick Mann, the regional supervising coroner, wrote a letter dated November 2, 2009 to Mr. Cornish, Norma Reid’s solicitor, in response to Mr. Cornish’s inquiry for copies of reports relating to the death of Mr. Reid. Dr. Mann enclosed copies of the Coroner’s Investigation Statement, a University Hospital autopsy report, and a Center of Forensic Sciences toxicology report. The Coroner’s Investigation Statement advised Mr. Cornish that the medical cause of death was pulmonary edema as a consequence of acute congestive heart failure. It listed the following contributing factors: personality disorder, epilepsy, and developmental delay.

[3] The Coroner’s Investigation Statement reported:

The Crest Center’s director reported that in the evening of March 4, the night staff worker at Crest was giving out medications to the residents. The decedent took another resident’s tablets in addition to his own, by mistake. The incident was witnessed by the staff person, but not reported to poison control nor the director until the next morning. Neither was the decedent brought to the emergency department for evaluation. The medications taken were a large dose of clozapine, and small doses of docusate, benztropine, and oxybutyinin. The decedent’s own medications were metoprolol, quetiapine, warfarin, digoxin, paroxetine, spironolactone, furosemide, gabapentin, fentanyl and oxycocet.

[4] The Coroner’ s Investigation Statement further reported:

Because of the uncertainty as to the cause of death, and the possibility of a drug error causing death, an autopsy was arranged at University Hospital in London. The results of the autopsy showed severe pulmonary edema, and cardiomegaly. Toxicological analysis was arranged and showed therapeutic levels of paroxetine, fentanyl, clozapine, and quetiatlapine. None of the levels were of a toxic nature. The decedent’s mother was informed of the findings of the investigation. Police returned to the home and have conducted further interviews with the staff. The drug administration error, although unfortunate, was not a direct cause of Mr. Reid’s death.

In summary, Mr. John Virgil Reid was a 41 year-old man who died suddenly in his bed in a group home near Lucan, as a result of pulmonary edema due to acute congestive heart failure, by natural means.

[5] Dr. Shkrum, a pathologist, reported that he observed severe pulmonary edema likely due to acute left-sided heart failure. He reported that the chronic pulmonary congestion was indicative of past heart failure related to underlying cardiomegaly of uncertain origin. The drug clozapine was in the therapeutic range. Dr. Shkrum’s report concluded:

Based on the findings to date, and information associated with this case, further examination, including furosemide is not warranted at this time. If additional relevant information becomes available, further analysis may be undertaken upon request.

[6] On January 5, 2011, Dr. Mann wrote a second letter to Mr. Cornish. He advised that the Coroner’s Investigation Statement concerning the death of Mr. Reid had been amended as a result of further investigation and a multi-disciplinary case conference held on December 31, 2010. The author of the Coroner’s Investigation Statement was unable to ascertain what effect, if any, the ingestion of clozapine had on Mr. Reid. The amended report stated:

After review, it could not be ascertained what effect if any, the ingestion of clozapine had on Mr. Reid. Clozapine has a known cardiovascular toxicity, however, Mr. Reid was known to have significant chronic heart problems. It could not be ascertained if his death was due to his natural disease or if clozapine was a contributing factor. The Manner of Death is therefore UNDETERMINED. The case is closed. [Block letters in original]

[7] On November 15, 2011, the Plaintiff, Norma Reid, issued a statement of claim against the Defendant, Crest Support Services, for the loss of care, guidance, and companionship of Mr. Reid pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.23 (“FLA”). The Plaintiff also claims special damages for medical care costs and other expenses.

[8] The statement of claim alleges that the wrongful administration of the drug clozapine by an employee of the Defendant caused or materially contributed to the death of Mr. Reid, and that the acts of the Defendant and its employees were responsible for his death. The Plaintiff further alleges that the death of Mr. Reid was a result of the negligence or intentional acts of the Defendant and its employees and agents as more fully particularized in the statement of claim.

[9] Sub-sections 38(1) and 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 provide:

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.

38(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

Thus, an action under s. 38(1) shall be brought within two years of Mr. Reid’s death: see also s. 19(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[10] The position of counsel for the Plaintiff and counsel for the Defendant is that the preliminary limitation period is two years pursuant to s. 38(3) of the Trustee Act. The Defendant served and filed a statement of defence to the Plaintiff’s FLA claim. It states that the Plaintiff’s claim is statute-barred because the Plaintiff failed to commence an action against the Defendant within two years of the date of the death of Mr. Reid. The Defendant relies upon s. 38(3) of the Trustee Act.

Issue

[11] Counsel for the Plaintiff concedes that the action was initiated more than two years after Mr. Reid died. The Defendant’s summary judgment motion seeks to dismiss the action on the ground that the Plaintiff failed to commence her action within the prescribed two-year limitation period. The Plaintiff submits that the two-year limitation period is tolled on the following grounds: (1) incapacity; and (2) fraudulent concealment.

Analysis and Decision

[12] I have a full appreciation of the evidence and issues that are required to make dispositive findings for the determination of the motion. The Plaintiff’s FLA claim is derivative in nature and does not stand alone. The limitation period governing the principal action is the two-year limitation period set out in s. 38(3) of the Trustee Act. Since the principal cause of action is statute-barred, the FLA claim is also barred: see Smith Estate v. College of Physicians and Surgeons of Ontario (1998), 1998 1523 (ON CA), 41 O.R. (3d) 481 (C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 635.

(a) Incapacity

[13] It is common ground that the statement of claim was issued after the expiration of the limitation period. In the Plaintiff’s initial affidavit, sworn August 6, 2013, she states that she believed her son died of natural causes, namely a heart attack. She states that Mr. Cornish received a letter on or about January 5, 2011 from the coroner indicating that the manner of her son’s death was undetermined. She further states that prior to the receipt of the January 5, 2011 letter, “she would not have known that any cause of action existed relating to her son’s death on or before March 6, 2011”.

[14] In the Plaintiff’s supplementary affidavit, sworn August 14, 2013, she states that she was “emotionally devastated” by her son’s death and was substantially “incapacitated physically”.

[15] Section 7 of the Limitation Act, 2002 provides:

7(1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and …

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.

[16] In Deck International Inc. v. Manufacturers Life Insurance Co., 2012 ONCA 309, at paras. 4 and 6, the Court of Appeal held:

Section 7 prevents the limitation period from running during any time in which the person with the claim is incapable of commencing or proceeding in respect of the claim because of his or her physical, mental or psychological condition.

There was no medical evidence to the effect that Mr. Donaldson lacked the capacity to commence the action within the meaning of s. 7. There was evidence from family members as to his disability, but that is not the same thing as medical evidence going to the issue of capacity to commence an action.

[17] I accept the Plaintiff’s evidence that she suffers from the medical problems as set out in her affidavit. The Plaintiff, however, was able to instruct counsel, swear affidavits, and travel to Ohio to visit her sister after Mr. Reid’s passing. There was no medical report from a physician indicating that the Plaintiff lacked capacity prior to the expiration of the limitation period. I find there is no persuasive medical evidence indicating that she lacked the capacity to bring this claim within the two-year limitation period: see Klimek v. Klos, [2013] O.J. No. 3740 (S.C.), at para. 25.

(b) Fraudulent Concealment

[18] In Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370, the Court of Appeal held that s. 38 of the Trustee Act established a limitation period that is not subject to the discoverability exception. Thus, the two-year limitation period cannot be extended on the ground that knowledge of the cause of death occurred after the expiration of the limitation period. The harshness of the inapplicability of the discoverability exception to cases governed by s. 38(3) is mitigated somewhat by the equitable principle of fraudulent concealment: see Giroux Estate v. Trillium Health Centre (2005), 2005 1488 (ON CA), 74 O.R. (3d) 341 (C.A.), at paras. 28-34.

[19] Mr. Cornish, the Plaintiff’s solicitor, communicated with the coroner’s office in relation to the medical cause of death of Mr. Reid. The initial Coroner’s Investigation Statement was sent to Mr. Cornish on or about November 9, 2009. The amended Coroner’s Investigation Statement was sent to Mr. Cornish on or about January 5, 2011. The record before the court contains no fresh medical evidence from any source subsequent to January 5, 2011 concerning the cause of death of Mr. Reid.

[20] The doctrine of fraudulent concealment 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. Fraudulent It will suspend the running of the limitation clock until the injured party can reasonably discover the cause of action. Thus, the common law doctrine of fraudulent concealment can be used to toll the limitation period prescribed by s. 38(3) of the Trustee Act (Giroux Estate, supra, at paras. 28, 29, 41).

[21] In Giroux Estate, supra, at para. 22, Moldaver J.A. (as he then was), stated that fraudulent concealment includes “conduct, which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for one to do towards the other.” Thus, the Plaintiff must prove that the Defendant, its employees, or its agents, fraudulently concealed a material fact in order to toll the limitation period.

[22] The initial Coroner’s Statement stated that the cause of death was “pulmonary edema due to acute congestive heart failure, by natural causes.” The amended Coroner’s Investigation Statement dated January 5, 2011 stated:

… the drug clozapine has known cardiovascular toxicity, however, Mr. Reid was known to have significant chronic heart problems. It could not be ascertained if his death was due to his natural disease or if clozapine was a contributing factor. The Manner of Death is therefore UNDETERMINED. The case is closed.

[23] The cause of death was changed from natural to undetermined two months before the expiration of the limitation period. The coroner, the pathologist, and the toxicologist who investigated the cause of death, were not associated with or retained by the Defendant. Their reports were forwarded to counsel for the Plaintiff.

[24] There is no evidence that the Defendant, its administrators, or its employees, engaged in deceptive conduct or deceived the Plaintiff, Norma Reid, by providing false information to her concerning the cause of death of Mr. Reid. There is no evidence indicating that the Defendant concealed a material fact.

[25] Accordingly, the court grants the motion for summary judgment and dismisses the action because it was commenced after the expiration of the limitation period.

[26] Counsel made submissions on costs. The relevant materials should have been in one book rather than scattered in various books. Counsel exceeded the time scheduled for argument which required the court to schedule a second day to complete submissions. The factums were not well written. The Plaintiff shall pay costs of $1,500 all in, payable within 60 days.

“Justice A.W.Bryant”

Justice A. W. Bryant

Date: October 8, 2013