COURT FILE NO.: CV-21-64-OOTT
DATE: 2022-06-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BARBARA SUGGASHIE, The estate trustee for the ESTATE OF KANINA SUE TURTLE, CLARENCE SUGGASHIE, SHANIA TURTLE, and minor Plaintiffs WINTER SUGGASHIE, ROONIE SUGGASHIE, SAKEE SUGGASHIE, THUNDER SUGGASHIE, and JACKSON SUGGASHIE by their Litigation Guardian Barbara Suggashie
Plaintiffs
- and -
TIKINAGAN CHILD & FAMILY SERVICES, SIOUX LOOKOUT MENO YA WIN HEALTH CENTRE, DR. PETER WILLIAM LOWN
Defendants
SIOUX LOOKOUT MENO YA WIN HEALTH CENTRE, DR. BARBARA LYNN RUSSELL MAHONEY, DR. ERIC CONTACT, DR. PETER WILLIAM LOWN, DR. ANDREW JOHN ROSS, DR. MARY CATHERINE ENGLAND, JANE DOE NURSE #1, JANE DOE NURSE #2,
JANE DOE NURSE #3, SIOUX LOOKOUT FIRST NATIONS HEALTH AUTHORITY,
VIOLET SKY, and JANE DOE COUNSELLOR #2
Third Parties
C. Du Vernet and C. Valiquette, for the Plaintiffs
M. Jones, for Dr. Lown
E. Roy, for Sioux Lookout Meno Ya Win Health Centre
No-one appearing for the other parties
HEARD: February 1, 2022, at Thunder Bay, Ontario via Videoconference.
Mr. Justice W. D. Newton
Decision On Motion
Overview
[1] Dr. Lown and the Sioux Lookout Meno Ya Win Health Centre (“the Hospital”) bring summary judgment motions for orders that the action against them is statute barred by operation of section 38(3) of the Trustee Act.[^1]
[2] A young, teenaged, Indigenous girl, Kanina Sue Turtle, died by suicide on October 29, 2016, while in the care of Tikinagan Child and Family Services (“Tikinagan”), an Indigenous child welfare agency.
[3] Kanina’s estate and her family sued Tikinagan for damages in excess of $5 million, claiming damages for loss of guidance, care and companionship and punitive and exemplary damages, and allege that Tikinagan was negligent in caring for Kanina. That action was commenced on September 27, 2018.
[4] Tikinagan issued a Third Party Claim against a number of physicians and healthcare entities, including Dr. Lown and the Hospital, on April 18, 2019.
[5] Dr. Lown and the Hospital were added as parties to the Kanina’s estate’s and family’s claim on January 4, 2021, by motion in writing that was not formally opposed.
[6] Dr. Lown and the Hospital argue that, as the action was not commenced against them within two years of the date of death, the action is barred by the two-year limitation period under the Trustee Act.
[7] While not disputing the two-year limitation period applies generally, the plaintiffs argue that “special circumstances” exist such that the court should allow the action to proceed notwithstanding the expiry of the limitation period. In addition, and alternatively, the plaintiffs argue that Dr. Lown and the Hospital have “fraudulently concealed” key documents, and, as such, should be precluded from relying upon the limitation period.
[8] For the reasons that follow, I conclude that there has not been any fraudulent concealment of documents by Dr. Lown or the Hospital. Further, I also conclude that the circumstances of this case do not justify the extension of the absolute limitation period under the Trustee Act. Therefore, the plaintiffs’ action is dismissed against Dr. Lown and the Hospital.
The Facts
[9] The “special circumstances” and “fraudulent concealment” arguments are based on the plaintiffs’ only becoming aware of a clinical note of Dr. Lown from October 27, 2016, on July 12, 2019, eight months after the expiry of the limitation period. The plaintiffs refer to this note as the “concealed” note.
The “Concealed” Note
[10] To assess the relevance and importance of this note, some details of the Kanina’s last week are required.
[11] On October 20, 2016, Kanina presented to the Emergency department at the Hospital with evidence of self-harm. She was cutting herself. The discharge plan included follow-up at the Northern Appointment Clinic[^2] (“NAC”) and a referral to Nodin Child and Family Intervention Services (“Nodin”) for intensive counselling.
[12] On October 21, 2016, Kanina attended NAC and was assessed by Dr. Lown. Dr. Lown recorded that she was agreeable to counselling and referred her to the Hospital’s Mental Health and Addictions Program (“MHAP”).
[13] Late on October 24, 2016, Kanina was brought to the Emergency department of the Hospital by police due to self-harm through cutting. She was assessed by another doctor who ordered wound care, follow-up with a doctor the next morning, and continued counselling.
[14] About three hours later, early in the morning of October 25, 2016, police brought Kanina back to the Emergency Department because she was cutting herself again. She was hospitalized overnight and seen in the morning by another doctor and a mental health counsellor. She was discharged under the supervision of her Tikinagan Guardian with planned follow-up at NAC and counselling.
[15] On October 27, 2016, Kanina attended her appointment at NAC and was seen by Dr. Lown. Dr. Lown’s clinic note at NAC records:
Saw MHAP and discharged into NODIN. Seen today.
Again very hard to get anything out of her but worker tells me she is doing okay. No self-harm etc.
Will be going into foster care soon.
[16] This is the “concealed” note. This note, according to the plaintiffs, “forms the basis for the Plaintiffs’ amended claim.”[^3]
[17] Tikinagan required the physician to complete a report back to Tikinagan. On that report, Dr. Lown noted that Kanina was to follow-up with counselling at Nodin.
[18] The Tikinagan caseworker who accompanied Kanina to this appointment also noted, in a case note:
went to her appointment Dr. Lown asked how she is doing Kanina said good, she was laughing. Dr. Lown said for Kanina to continue counselling with Nodin.
[19] Two days later, on October 29, 2016, Kanina committed suicide while in her room at a group home in Sioux Lookout operated by Tikinagan.
The History of the Litigation to Date
[20] The plaintiffs are First Nations individuals whose first language is Ojibway.
[21] The plaintiffs retained counsel on August 2, 2018. No explanation is given for the delay in retaining counsel in the prior 20 months.
[22] Upon being retained, counsel for the plaintiffs ordered records from the Coroner, the Sioux Lookout First Nations Health Authority, the Hospital, and OHIP. The records from the Health Authority were received within a week, but only contained the Nodin records. The Hospital records were not received until February 20, 2019. The Hospital did not offer any explanation for the delay in providing the records, but I note that counsel for the plaintiffs did not deliver the Certificate appointing Estate Trustee until December 10, 2018. The OHIP summary was not received until July 29, 2019.
[23] As the deceased died on October 28, 2016, the “hard’ limitation period expired on October 29, 2018.
[24] A Coroner’s investigation and report was published in September 2018. It was known that the deceased was assessed by a physician on October 25, 2016. The Coroner did not have the records of the October 27, 2016, consultation with Dr. Lown at NAC.
[25] In the Statement of Claim, issued September 26, 2018, the plaintiffs state that the deceased had been to a hospital at least twice in the two weeks prior to her death and had been receiving some limited counselling in the period leading up to her death. Allegations of negligence include that Tikinagan failed to have a comprehensive health assessment of the deceased upon her admission to the group home or at any time thereafter.
[26] In its Statement of Defence, delivered December 13, 2018, Tikinagan pleaded that the deceased attended the Sioux Lookout E.R. for a scheduled follow up appointment on October 27, 2016, and that “the examining physician recommended that Kanina continue counselling and made no other recommendations”.
[27] In its Third Party Claim against Dr. Lown and the Hospital, delivered April 18, 2019, and, therefore beyond the limitation period, Tikinagan pleaded that the deceased had been seen by Dr. Lown on October 21 and October 27, 2016. The Third Party Claim also named four other doctors, various Jane Doe nurses and counsellors, and the Sioux Lookout First Nation Health Authority.
[28] It is not known when the plaintiff requested the Tikinagan records which contained Dr. Lown’s note of October 27, 2016, to Tikinagan, and a Tikinagan case note of the appointment with Dr. Lown. However, Tikinagan did not have the clinic record made by Dr. Lown at the NAC until at least April 2019.
[29] Dr. Lown retired on June 1, 2019.
[30] The plaintiffs, through their counsel, had the “concealed” record by July 12, 2019.
[31] The motion to add Dr. Lown and the Hospital was not brought until December 9, 2020, 19 months after they had notice of Dr. Lown’s involvement through the Third Party Claim and 16 months after they had the “concealed” record.
[32] The plaintiffs did not seek to add the other doctors, Jane Doe nurses and counsellors, or the Sioux Lookout First Nation Health Authority, all of whom had been named in the Third Party Claim.
[33] The motion to add Dr. Lown and the Hospital was made in writing and counsel for the Plaintiffs was aware that Dr. Lown and the Hospital were contesting their addition as parties on the basis that “special circumstances” did not exist. Through inadvertence or misunderstanding, the motion was not formally contested and the order allowing the amendment was granted. Nevertheless, it was clearly communicated that the limitation period argument would be advanced.
Positions of the Parties
Dr. Lown
[34] Dr. Lown argues that he will suffer prejudice if the claim against him proceeds as he had no notice of the claim prior to the expiry of the two-year limitation period. The addition of him as a party exposes him to a claim for damages and punitive and exemplary damages exceeding millions of dollars. Dr. Lown argues that the plaintiffs have not rebutted the presumption of prejudice.
[35] He argues, based on such cases as Swain Estate v. Lake of the Woods Hospital,[^4] Tantawy v. Verde,[^5] Kakinoki et al. v. Islam et al.,[^6] and Wisniewski v. Wismer and Wohlgemut,[^7] that the circumstances in this case do not rise to the level that a limitation period should be extended.
[36] Finally, he argues that no evidence has been led establishing active concealment or unconscionable conduct of Dr. Lown.
The Hospital
[37] The Hospital argues that the plaintiffs were aware that Kanina had been treated at the Hospital in the weeks prior to her death and that no special circumstances exist to add it after the limitation period.
[38] The “missing” note was of the NAC, an independent health service, and not the Hospital. Any negligence arising from treatment at NAC does not disclose a cause of action against the Hospital. The hospital pleads that it is not vicariously liable for the actions or omissions of Dr. Lown.
The Plaintiffs
[39] With respect to special circumstances, the plaintiffs argue that the issue of prejudice has been addressed through the granting of the motion and that, in any event, Dr. Lown and the Hospital would have known within the limitation period about this highly publicized suicide in Sioux Lookout and the Coroner’s investigation.
[40] The plaintiffs argued that they acted diligently with respect to obtaining records and the failure to produce the “concealed” record is a special circumstance. They rely upon some of the same cases relied upon by the proposed defendants and others, including Estate of John Edward Graham v. Southlake Regional Health Centre,[^8] Omerod v. Strathroy Middlesex General Hospital,[^9] and Ioannou v. Evans.[^10]
[41] With respect to the fraudulent concealment, the plaintiffs argue that the Hospital and the Health Authority concealed records. They note that the Hospital took more than six months to produce its records knowing that they were required by the family in order to file a timely claim. Although they requested records from the Health Authority and received those records, those records did not include the October 27, 2016, note of Dr. Lown. This conduct is especially unconscionable giving the failure of the responsible institutions to ensure that the Coroner’s investigation had access to all records.
The Law
The Limitation Period
[42] In Beaudoin Estate v. Campbellford Memorial Hospital et al[^11] the Ontario Court of Appeal stated:
[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:
(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:
(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: [Citations omitted.]
[43] This “hard” or “absolute limitation period” can be mitigated by common law rules such special circumstances and “fraudulent concealment”.[^12]
Special Circumstances
[44] In Canadian Imperial Bank of Commerce v. Green,[^13] the Supreme Court of Canada traced the development of the doctrine of special circumstances noting:
[112] Although pinpointing the origin of an equitable doctrine is generally an exercise fraught with peril, it can be said with a limited degree of certainty that the doctrine of special circumstances originated in Lord Esher M.R.’s ruling in Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.). In that case, Lord Esher stated that an amendment adding a cause of action to a statement of claim after the expiry of the limitation period for that cause of action will generally be unfair and prejudice a defendant. He therefore held that a court should allow such an amendment only in “very peculiar circumstances”: p. 395. It is this narrow exception which has evolved into what is now known as the doctrine of special circumstances.
[113] In essence, the doctrine allows a court to temper the potentially harsh and unfair effects of limitation periods by allowing a plaintiff to add a cause of action or a party to the statement of claim after the expiry of the relevant limitation period. I hasten to add that, as the Court recognized in Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, and as the word “special” — or “peculiar” — suggests, the circumstances warranting such an amendment will not often occur.
[114] As an offspring of equity, the doctrine of special circumstances is naturally concerned with fairness to the parties. Indeed, this concern was at the forefront of Lord Esher’s mind in Weldon. Unsurprisingly, no exhaustive list of the circumstances that qualify as “special” has been proposed by the courts, and I believe it would be risky and unwise to do so. I note however that, concerned with not prejudicing a defendant, this Court has paid particular attention to whether the facts relevant to the extinguished action were pleaded in the original statement of claim and whether the defendant was aware of them during discovery: Basarsky; see also Dugal, at paras. 60-68. The factors enumerated by the Ontario Court of Appeal in Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 88 O.R. (3d) 401, at para. 23, which were reiterated by van Rensburg J. in IMAX, are also helpful guides:
As such, “special circumstances” include factors such as: the relationship between the proposed claim and the existing action; the true nature of all of the claims; the progress of the action; and the knowledge of the parties . . . . [IMAX, at para. 71] [Emphasis added.]
[45] As Perell J. noted in Ioannou, the case law about special circumstances “reveals that the court may consider the totality of the factual background to the proceedings. The conduct and circumstances of the parties are relevant considerations.”[^14]
[46] As set out in Omerod,[^15]
a. First, the phrase “special circumstances” has not been defined and an exhaustive list of factors does not exist;
b. Second, the person seeking to proceed notwithstanding the expiry of a limitation period bears the onus of:
i. Rebutting the presumption of prejudice to the person otherwise entitled to rely upon it: and
ii. Satisfying the court that special circumstances exist.
c. Third, while the application of the doctrine seems to be a discretionary one, the exercise of discretion is subject to an underlying and guiding principle: limitation periods were not created to be ignored. Consequently, the jurisdiction to invoke the doctrine of special circumstances will be exercised sparingly.[^16]
[47] The expiry of a limitation period leads to a rebuttable presumption of prejudice. The presumption may be rebutted by evidence that the party received notice of the claim within the limitation period.[^17]
Discussion: Special Circumstances
The Cases
[48] In Swain,[^18] the Ontario Court of Appeal allowed doctors to be added to a claim after the limitation period where third party claims had been issued against them. Originally, the doctors had not been included on the basis of the existing law as to the limitation of actions against doctors, which changed before the motion was heard. The Court called this a significant circumstance which led to the decision not to sue the doctors earlier. The Court also noted that the existence of the third party claim provided the doctors with enough notice to remove any significant prejudice.
[49] In Wisniewki, Edwards J. dismissed a motion to add two radiologists who reported on x-rays in December 2011 and September 2012. A CT scan in November 2012 noted a cystic mass and the deceased died in December 2013. An action was commenced against two other doctors in November 2014, a year before the expiry of the limitation period and the motion was brought several years later. Edwards J. noted that the onus is on the plaintiffs to rebut the presumption of prejudice and the plaintiff must demonstrate that the potential party to be added “ought not to be surprised by their late addition to the action.”[^19] He found that there was no evidence that the proposed defendants ought to have knowledge of the existence of the litigation prior to the motion. All records were available and would not compromise fairness of the trial for the proposed defendants. However, Edward J. found that the plaintiffs were in possession of the x-ray records almost five (5) months prior to the expiry of the limitation period and there were, therefore, no special circumstances. He noted:
Surely the plaintiffs by their and their counsel’s inaction cannot create a situation in which they can protest that they were handicapped by incomplete information prior to the expiry of the limitation period, and therefore asked the Court to exercise its discretion to effectively extend the limitation period.[^20]
[50] In Estate of John Edward Graham, DiTomaso J. allowed a claim to proceed against a radiologist who had no notice of the claim until six years following the expiry of the limitation period, eight years following the death of the patient, and over nine years after the alleged negligence. A previously undisclosed x-ray and x-ray report was forwarded by the hospital to the plaintiffs five years after the claim was issued.
[51] Although DiTomaso J. found an inference of prejudice warranted because the radiologist had no notice of the litigation prior to the expiration of the limitation period, he “did not agree that the presumption of prejudice is unassailable solely due to the passage of time”.[^21] Since the necessary records existed, all defendants continued to practice, expert reports were available that indicated the radiologist was negligent, and trial dates were not set, DiTomaso J. concluded that the plaintiffs had rebutted the presumption of prejudice. As he found that the plaintiffs had no knowledge of this x-ray prior to the limitation period, unlike in Wisniewski, special circumstances existed due to the “late, critical and unexplained disclosure.”[^22]
[52] In Tantawy, Master Brott noted that the power to add a party after a limitation period should be used “sparingly”.[^23] The plaintiff had adduced no evidence to rebut the presumption of prejudice and, unlike another proposed party, the doctor had not been added as a third party.
[53] Kakinoki did not involve an attempt to add a doctor to an existing action after the expiry of a limitation period, but a municipality. In that case, there was some suggestion that a light on a “curve ahead” sign was not functioning at the time of a car accident that resulted in the death of one of the passengers. In ruling that the municipality could not be added, Dunphy J. noted that the municipality had no notice of the proceedings, that there was no explanation for the delay in suing the municipality and that “it is by no means a necessary or even probable conclusion that the plaintiffs will be found to have a had a cause of action…. which they failed to pursue without reasonable cause.”[^24]
Prejudice
[54] I disagree with the submission of counsel for the plaintiffs that the order adding the parties on an uncontested motion is determinative of the issue of prejudice. No other evidence was offered on the issue of prejudice other than the assertion that both the Hospital and Dr. Lown would have had actual notice of this death and the Coroner’s investigation.
[55] However, I note that, as in Wisniewki, all records appear to be available and that Dr. Lown and the Hospital had actual notice of a claim against them as Third Parties about five-and-one-half-months after expiry of the limitation period. I also note that the motion to add Dr. Lown and the Hospital was not brought until 19 months after the Third Party Claim and 16 months after the plaintiffs had the “concealed” record. Unlike Estate of John Edward Graham in which all doctors continued to practice, Dr. Lown had retired.
Special Circumstances
[56] In determining whether there are special circumstances I have considered the totality of the factual background, including the conduct and circumstances of the parties. Those facts include:
a. It was obvious that a potential claim existed against Tikinagan immediately after Kanina committed suicide in their care.
b. It was not known when the plaintiffs requested or received Tikinagan’s records which record the October 27, 2016, consultation with Dr. Lown. There is also no indication that the Coroner did not have the Tikinagan records.
c. The Coroner’s investigation published in September 2018, acknowledged that Kanina had been assessed by a physician at the hospital on October 25, 2016.
d. The action was not commenced until September 27, 2018, one month before the expiry of the limitation period. It was pleaded as a fact in the claim that Kanina had been to a hospital “at least twice in the two week period leading up to her death.”
e. The Statement of Defence delivered two and one half months after the claim was issued refers to the October 27, 2016 follow-up visit.
f. The Third Party claim against Dr. Lown and the Hospital was issued seven months after the claim was issued.
g. The plaintiffs were aware of the “concealed” note about 10 months after the claim was issued.
h. The OHIP summary was received 10 months after the claim was issued.
i. The motion to add Dr. Lown and the Hospital was not brought until 19 months after the Third Party Claim and 16 months after they had the “concealed” record. No explanation is offered for this delay.
[57] A conclusion supported by the timeline of disclosure is that, had an action been commenced earlier, the plaintiffs would have been aware of Dr. Lown’s involvement on October 27, 2016, within, at least, 10 months. The limitation is a “hard” two years. One view of this case is that the court is being asked to extend a limitation period because the plaintiffs have waited until the last month to issue a claim. Another view of this case is that the background of the individual plaintiffs entitles them to a relaxing of the limitation period. Another argument is that they were entitled to rely upon the Coroner’s investigation to do the “groundwork” for them.
[58] Unlike Swain Estate, there was no change in the law resulting in special circumstances.
[59] Unlike Estate of John Edward Graham, there is no expert report indicating that Dr. Lown or the Hospital was negligent.
[60] It is not disputed that the one record of Dr. Lown of October 27, 2016, was not initially produced to counsel for the plaintiffs by the Health Authority who was the custodian of the NAC records. Indeed, it was counsel for Tikinagan who pointed out the possibility of a missing record to counsel for the plaintiff.
[61] As the plaintiffs state, it is this record that forms the basis for the plaintiff’s amended claim. That was a note of Dr. Lown at NAC and not at the Hospital. In their amended Statement of Claim, the plaintiffs’ allegations against the hospital do not arise from that note but arise from Kanina’s treatment at the Hospital, treatment they were aware of from multiple sources. There is no nexus between the discovery of this note and the inability to commence an action against the Hospital before the expiry of the limitation period. Added to that is the plaintiffs’ failure to seek to add the Hospital promptly after the Third Party Claim or after actual notice of the document. Delay is relevant to both prejudice and to the conduct of the party seeking to invoke special circumstances. Accordingly, I conclude that the circumstances do not justify the rare power to add the Hospital as a party after the expiry of the limitation period.
[62] The circumstances surrounding whether to add Dr. Lown are similar, but different. The plaintiffs did not know that Dr. Lown was the last physician to see Kanina. Had they commenced their action earlier, requested Tikinagan records earlier or requested the OHIP summary earlier, the plaintiffs could have known of this attendance before the expiry of the limitation period. They were entitled to assume that the records they did request and receive were the complete records. Records received after the limitation period included other notes of Dr. Lown’s interactions with Kanina, but not the October 27, 2016, note. The fact that this record did not make it to the Coroner is also significant and further evidence that the due diligence efforts of the plaintiffs, although at the last minute, were not deficient, just late. Although there is no expert report asserting that Dr. Lown was negligent, there are grounds for asserting that his care may have been negligent as the last physician to see Kanina. Whether he was negligent is another matter. This late discovery of this record may justify the addition of a party after the expiry of the limitation period. However, conversely, the plaintiffs failed to seek to add Dr. Lown promptly after the Third Party Claim in April of 2019 or actual notice of the document in July of 2019. This delay in seeking to add Dr. Lown is significant, 19 months after the Third Party Claim and 16 months after the record was disclosed and unexplained.
[63] The “guiding principle”[^25] is that limitation periods were not created to be ignored. Accordingly, given the failure to pursue the action diligently before the expiry of the limitation period, the absence of any evidence of actual knowledge of Dr. Lown prior to the expiry of the limitation period, and the failure to act diligently once the Third Party Claim was issued and the document discovered, I conclude that the circumstances do not justify the adding of Dr. Lown after the expiry of the limitation period.
Fraudulent Concealment
[64] In Beaudoin, The Ontario Court of Appeal addressed fraudulent concealment following the Supreme Court of Canada decision of Pioneer Corp. v. Godfery,[^26] noting that in Pioneer Corp.:
[19]…Justice Brown for the majority described fraudulent concealment as "an equitable doctrine that prevents limitation periods from being used 'as an instrument of injustice'":. 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": [Citations omitted.]
[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).
[65] For a finding of fraudulent concealment to be made, “the defendant must hide, secret, cloak, camouflage, disguise, or cover-up the conduct or identity or the wrongdoing.”[^27] The word fraudulent is used in its equitable sense to denote conduct by the defendant such that it would be unconscionable for her to avail herself of a lapse of time. If the plaintiffs were unaware of their cause of action because of the wrong of the defendant, then the court will refuse to allow a limitation defence.[^28]
As the court said in Pioneer:
equitable fraud may also be established by pointing to other forms of unconscionable behaviour, such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” (M. (K.), at p. 57, citing Halsbury’s Laws of England (4th ed. 1979), vol. 28, at para. 919). In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself.[^29] [Emphasis added.]
Discussion: Fraudulent Concealment
[66] In Graham, DiTomaso J. found no evidence of fraudulent concealment.
[67] Similarly, in Wisniewki, Edward J. found no evidence of concealment and noted that, once the records were requested, they were provided.
[68] There is nothing in evidence before me to suggest that the record was “concealed” by Dr Lown or the Hospital. There is no evidence of any deliberate conduct which could be labelled unconscionable. There is no evidence of any “cover-up”. Dr. Lown’s involvement was well documented in the Tikinagan file. Fraudulent concealment has not been proven.
Conclusion
[69] The action against Dr. Lown and the Hospital is dismissed.
[70] If Dr. Lown and the Hospital seek their costs of the action, then their costs submissions should be submitted within 21 days. The submissions are limited to five pages plus cost outline. The plaintiffs will have 21 days thereafter to respond with the same limitations on submissions.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: June 8, 2022
COURT FILE NO.: CV-21-64-OOTT
DATE: 2022-06-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUGGASHIE et al.
Plaintiff
- and -
TIKINAGAN CHILD & FAMILY SERVICES et al.
Defendant
SIOUX LOOKOUT MENO YA WIN HEALTH CENTRE at el.
Third Parties
DECISION ON MOTION
Newton J.
Released: June 8, 2022
/cjj
[^1]: RSO 1990, c T. 23. [^2]: NAC is an individual health service provided by the Sioux Lookout Health Authority. [^3]: See Factum of the Plaintiffs/Responding Party at para. 52. [^4]: 1992 7601 (ON CA) (1992), 9 O.R. (3d.) 74 (C. A.) application for leave to appeal to Supreme Court of Canada dismissed S.C.C. Bulletin, 1993 [Swain]. [^5]: 2006 1201 (ON SC) [Tantawy]. [^6]: 2015 ONSC 5141 [Kakinoki]. [^7]: (ONSC) oral reasons given by Edwards J. on February 1, 2018, CV-14-00050299 [Wisniewski]. [^8]: 2019 ONSC 392 [Estate of John Edward Graham]. [^9]: 2013 ONSC 992 [Omerod]. [^10]: 2008 117 (On SC) [Ioannou]. [^11]: 2021 ONCA 57 [Beaudoin]. [^12]: Beaudoin, at para. 17. [^13]: 2015 SCC 60 [CIBC]. [^14]: Ioannou, at para. 37. [^15]: See also Estate of John Edward Graham, at para. 58. [^16]: Omerod, at para. 41. [^17]: See for example Tantawy, at para. 19. [^18]: Swain, at p. 1848. [^19]: Wisniewski, at page 3. [^20]: Wisniewski, at page 8. [^21]: Estate of John Edward Graham, at para. 64. [^22]: Estate of John Edward Graham, at para. 81. [^23]: Tantawy, at para. 14. [^24]: 2015 ONSC 5141 at para 37. [^25]: Omerod, at para. 41. [^26]: 2019 SCC 42 [Pioneer Corp]. [^27]: Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47 at para. 62. [^28]: Hall v. Lou, 2021 ONSC 922 at para. 24. [^29]: 2019 SCC 42 at para. 54. See also Zachariadis Estate v. Giannopoulos Estate, 2021 ONCA 158 at para. 36.