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There may be times during the administration of an estate that a lawsuit is filed on behalf of the deceased. In most cases, the Trustee Act dictates that certain actions brought on behalf of a deceased person must be brought within two years of the person’s death. However, courts have ruled that this limitation period may be suspended if the defendant fraudulently conceals the existence of fraud, meaning that the estate wouldn’t know they had something to bring an action over. This is a fairly nuanced aspect of the law that was recently addressed in a decision from the Court of Appeal for Ontario.

Family alleges medical malpractice

The appeal arose after the estate of the deceased alleged medical malpractice against a hospital as well as some doctors and staff. The estate claimed the deceased was negligently diagnosed and treated at the hospital, which lead to a delay in surgery that they claimed could have saved his life.

The problem the estate faced was that they did not file the claim until two years and three months after the deceased passed away, putting them past the limitation period. The defendants asked for the claim to be dismissed via summary judgment because of the limitation period.

Was there fraudulent concealment?

Upon learning about the request for summary judgment, the estate amended their claim, adding that the defendants’ fraudulent concealment suspended the limitation period. The estate stated that when the deceased’s medical records were provided to them in May and June 2015, certain testing imaging was not included. The estate did not receive these images until more than two years later. The estate’s amended claim said that had they been in possession of the images earlier, they would have had the information they needed to file a claim.

However, the estate was unsuccessful before the motions judge, who dismissed the claim because there was no causal connection between the alleged improper concealment of the imaging and the estate’s failure to sue within the limitation period.

Estate appeals that there was fraudulent concealment

The estate appealed on the grounds that the motions judge incorrectly determined there was no fraudulent concealment that led to the suspension of the limitation period.

At appeal, the court stated that the Trustee Act prescribes a “hard” or “absolute” limitation period starting when the deceased dies. In this case, the limitation period had definitely expired by the time the action was brought. But the question remains as to whether it was suspended.

To answer this question, the court had to determine whether the motion judge was correct in determining the imaging “did not add anything of significance to the (estate’s) knowledge.”

After reviewing case law, the court presented examples of when false or withheld information led to plaintiffs missing the limitation period. That was exactly what the estate was arguing here, that had the imaging been disclosed rather than fraudulently concealed when requested, they would have sued the defendants within the two-year limitation period.

The judge sided with the estate and dismissed the summary judgment. However, that doesn’t mean the estate was successful in its lawsuit. The matter will still have to be heard before the courts. We will keep our eyes on the matter as it progresses through the courts.

If you have been appointed an executor, the estates lawyers at Derfel Estate Law can advise and guide you on all aspects of estate administration, including determining whether or not probate is required, or assisting you if it is. Call us at 416-847-3580 or contact us online to schedule a consultation.


For professional service and knowledgeable advice on Estate Law matters contact Derfel Estate Law

Contact Derfel Estate Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.


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Toronto, Ontario,
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