SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-532060

DATE: 20151110

RE: ANTONIO CERQUEIRA, by his Estate Trustee DELFINA CERQUEIRA, and HELEN CERQUEIRA, Plaintiffs (Responding Party)

AND:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, UNIVERSITY HEALTH NETWORK and DR. RODRIGO BRANDAO CAVALCANTI, DR. BOHDAN JULIUS LALUCK JUNIOR, DR. DIMITRY ROZENBERG and DR. COURTNEY ANN THOMPSON, Defendants (Moving Party)

BEFORE: J. Wilson J.

COUNSEL:
Helen Cerqueira, in person for the Plaintiffs, (Responding Party)

Daniel Girlando, for the Defendant, University Health Network

Rory Gillis, for the Defendant doctors

Ms. Nadia Laeeque, for the Defendant, Her Majesty the Queen

HEARD: November 9, 2015

ENDORSEMENT

[1] The defendants bring this motion for summary judgment to strike the claim without leave to amend, as this action is res judicata, an abuse of process which is statute barred pursuant to section 38(3) of the Trustee Act.

[2] Antonio Cerqueira at the age of 86 died while he was in hospital on August 31, 2009. On September 19, 2011 the plaintiffs in this proceeding brought essentially identical proceedings against the defendants in action number CV-11-435274 (the 2011 Action).

[3] The defendants brought a motion to strike the 2011 Action as it was commenced more than two years after the date of death.

[4] Justice E. MacDonald granted the defendants’ motion. She concluded that the action was statute barred by section 38(3) of the Trustee Act. Although not formally pleaded, the plaintiffs argued that the doctrine of fraudulent concealment precluded the limitation period from running. She considered the issue and concluded on the facts of the case, that fraudulent concealment and the principles confirmed in Giroux Estate v. Trillium Health Centre (2005), 2005 1488 (ON CA), 74 O.R. (3rd) 341 (C.A.) did not apply.

[5] The decision was appealed to the Divisional Court. The issue of fraudulent concealment was specifically considered by Lederman, J. The Divisional Court unanimously upheld the decision of MacDonald, J. including the conclusions as to fraudulent concealment. The plaintiffs’ appeal to the Court of Appeal was dismissed, and in turn their application for leave to appeal to the Supreme Court of Canada was dismissed on December 4, 2014.

[6] The plaintiffs initiated this action between the same parties, the same underlying facts on July 9, 2015. The same claims are made in this action as were advanced in the 2011 Action. In addition, the allegation of fraudulent concealment is specifically pleaded in paras 35 to 40 of the Statement of Claim.

[7] The plaintiff in her oral submissions reiterated the arguments that were made in the 2011 Action, that the hospital and the doctors failed to get the patient’s informed consent to the procedures that took place, and that they were negligent in the treatment that was offered and, furthermore, that they fraudulently concealed the plaintiff’s medical condition and the cause of death.

[8] I conclude that there are no facts that would support a finding or raise a triable issue of fraudulent concealment. All of these allegations were canvassed in the prior proceeding and are consequently res judicata. It would be an abuse of process to allow this action to proceed. As well, the provisions of section 38(3) of the Trustee Act apply.

[9] For these reasons this action is dismissed against all defendants.

[10] It was clear from the plaintiff’s submissions that she carries a heavy burden of grief and guilt associated with her father’s death. The facts confirm that she did everything a diligent loving daughter could do. All counsel and this Court express sympathy for the plaintiffs’ loss.

[11] The defendants seek costs.

[12] I fix costs payable by the plaintiffs, (if demanded) by the defendants in the amount of $500.00 in favour of the doctors, $500.00 in favour of the University Health Network, and $300.00 in favour of Her Majesty the Queen.

J. Wilson J.

Date: November 10, 2015