



COURT OF APPEAL FOR ONTARIO

CITATION: Beaudoin Estate v. Campbellford
    Memorial Hospital, 2021 ONCA 57

DATE: 20210129

DOCKET: C67072

MacPherson,
    Zarnett and Jamal JJ.A.

BETWEEN

The Estate of Garry
    Frederick Beaudoin, by his Estate Trustee Shirley Beaudoin,
Shirley Beaudoin,
    Michele Locke, Rece Locke, by Litigation Guardian
Michele Locke and Peter Gage
    Locke, by Litigation Guardian Michele Locke

Plaintiffs (Appellants)

and

Campbellford Memorial
    Hospital,
Dr. Jaun Bothma, Dr. Jaun
    Bothma Medicine Professional Corporation,
Dr. Thomas Chalmers
    Brown, Dr. Norman Richard Bartlett
and N. Bartlett Medicine
    Professional Corporation

Defendants (Respondents)

Iain A.C. MacKinnon, Justin S. Linden
    and Michael Lacy, for the appellants

Colin Chant, for the respondent,
    Campbellford Memorial Hospital

Brian Kolenda and Jessica Kras, for the
    respondents, Dr. Jaun Bothma, Dr. Jaun Bothma Medicine Professional
    Corporation, Dr. Thomas Chalmers Brown, Dr. Norman Richard Bartlett and N.
    Bartlett Medicine Professional Corporation

Heard: November 27, 2020 by video conference

On appeal from the order of Justice William
    S. Chalmers of the Superior Court of Justice, dated May 16, 2019, with reasons reported
    at 2019 ONSC 3025.

Jamal J.A.:

A.

OVERVIEW

[1]

Section 38(3) of the
Trustee
    Act
, R.S.O. 1990, c. T.23 prescribes that certain actions brought on
    behalf of a deceased person must be brought within two years of the persons
    death. Case law has recognized that this two-year limitation period may be
    tolled or suspended when the defendant fraudulently conceals the existence of
    the plaintiffs cause of action. The issue in this appeal is whether an
    allegation of fraudulent concealment was appropriately determined as a question
    of law, based on the pleadings alone, under r. 21.01(1)(a) of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

The appeal involves a
    medical malpractice claim brought by the estate of the late Garry Beaudoin and by
    his wife, daughter, and grandchildren as claimants under the
Family Law Act
,
    R.S.O. 1990, c. F.3 (appellants), against Campbellford Memorial Hospital, two
    emergency room doctors, and a diagnostic radiologist (respondents). They
    assert that Mr. Beaudoin was negligently diagnosed and treated at the Hospital on
    January 3, 4, and 5, 2015, leading to a delay in surgery that could have saved his
    life. Mr. Beaudoin passed away on January 9, 2015.

[3]

The appellants did not issue
    a statement of claim until April 27, 2017 (April 2017 claim)  about two
    years and three months after Mr. Beaudoin died. The claim has been amended
    several times since then.

[4]

The respondents delivered
    their statements of defence between July and October 2017. They denied negligence
    and asserted that the action was statute-barred because it had not been brought
    within the two-year limitation period under s. 38(3) of the
Trustee Act
.
    They then delivered a motion under r. 21.01(1)(a) for an order dismissing the
    action as statute-barred.

[5]

The appellants responded by
    amending their claim in July 2018 (July 2018 claim) to plead that the
    respondents fraudulent concealment tolled the limitation period. They alleged that
    in March 2015 they had requested and paid for Mr. Beaudoins complete
    medical records from the Hospital. Medical records were given to them in May
    and June 2015, but did not include computerized tomography (CT) imaging conducted
    on January 3, 2015, which showed an obstruction and/or occlusion of Mr.
    Beaudoins mesenteric artery, which supplies blood to the intestines. The CT imaging
    was not disclosed to the appellants until May 2017, more than two years later.
    The appellants claim that the fraudulent concealment of the CT imaging prevented
    them from knowing that they had a cause of action against the respondents until
    May 2017  about a month after they had issued the April 2017 claim. They claim
    that had the CT imaging been disclosed when it was requested, they would have
    been able to sue before the limitation period expired. The appellants also
    amended their claim to allege breach of contract and breach of the
Personal
    Health Information Protection Act, 2004
, S.O. 2004, c. 3, Sched. A (
PHIPA
)
    arising from the delayed disclosure of the CT imaging.

[6]

The respondents r.
    21.01(1)(a) motion proceeded on the basis of the July 2018 claim and was
    granted in part. The motion judge struck out the claims under the
Trustee
    Act
as statute-barred, ruling that the appellants could not rely on
    fraudulent concealment to toll the limitation period because there was no
    causal connection between the alleged improper concealment of the CT imaging and
    the appellants failure to sue within the limitation period. He therefore
    dismissed the action as against the three doctors. However, he allowed the
    claims for breach of contract and breach of the
PHIPA
to continue
    against the Hospital.

[7]

The appellants now appeal
    the motion judges decision.

[8]

For the reasons that follow,
    I would allow the appeal. The motion judge erred in deciding a disputed factual
    question of fraudulent concealment as a question of law under r. 21.01(1)(a) 
    whether the respondents failure to disclose the CT imaging prevented the
    appellants from reasonably discovering their cause of action before the
    limitation period expired. Because the facts pleaded in the July 2018 claim must
    be assumed to be true and are not patently ridiculous or manifestly incapable
    of proof, it is not plain and obvious that the negligence claims are
    statute-barred. I would therefore allow the claims pleaded in the July 2018
    claim to proceed.

B.

The facts as pleaded

[9]

The facts as pleaded in the July
    2018 claim  which on a motion under r. 21.01(1)(a) must be assumed to be
    true, unless they are patently ridiculous or manifestly incapable of proof  are
    as follows:

·

On January 2, 2015, at 2:38 a.m., Mr. Beaudoin
    went to the Emergency Department of the Campbellford Memorial Hospital,
    complaining of sudden pain in his lower back and abdomen. The respondent Dr. Jaun
    Bothma examined
him and
    diagnosed degenerative disc disease, even though no radiographic evidence
    supported this finding. Mr. Beaudoin was discharged at 4:50 a.m.

·

On January 3, 2015, in
    the early afternoon, Mr. Beaudoin returned to the Hospital. He now complained of
    acute abdominal pain, nausea, vomiting, no bowel movement for three days, and being
    unable to keep food down. Dr. Bothma examined Mr. Beaudoin again and this
    time ordered a CT scan. The radiologist report of the respondent Dr. Thomas Brown
    recorded that some slightly dilated fluid-filled small bowel loops are shown
    in the distal small bowel, but noted that no definite evidence of an acute
    small bowel obstruction is seen at the present time.

·

On January 4, 2015, at
    8:26 p.m., Mr. Beaudoin went to the Hospital a third time. He complained of abdominal
    pain, bloating, and no bowel movement for five days. Dr. Brown, who reviewed X-ray
    images, noted in his report multiple slightly dilated small bowel loops in the
    mid-abdomen (small bowel obstruction), and concluded that while the changes
    in the small bowel may be due to an ileus the possibility of a developing low
    small bowel obstruction is not excluded.

·

On
    January 5, 2015, Mr. Beaudoin was sent for further imaging. The radiologists report
    recorded evidence of bowel ischemia
[
[1]
]
with new portal venous gas
    identified in the small bowel mesentery and with the liver. Small bowel
    obstruction secondary to superior mesenteric artery occlusion with diffusely
    dilated, fluid and air filled small bowel loops. Mr. Beaudoin was transferred
    to the Peterborough Regional Health Centre (PRHC) for emergency surgery.
    During the surgery, it was determined that almost the entirety of his small
    bowel was ischemic
,
and was showing
    signs of non-viability, and that he would not survive
.

·

Four days
    later, on January 9, 2015, Mr. Beaudoin died.

·

In early
    March 2015, the appellants paid for Mr. Beaudoins complete medical records
    from the Hospital and the PRHC. Medical records were provided in May and June 2015,
    but were not complete: they excluded the imaging from the diagnostic tests
    performed, including, but not limited to, the CT imaging from January 3, 2015.
    The CT imaging was not provided until May and June 2017, after the appellants had
    retained a lawyer who wrote to the Hospital and the PRHC. The CT imaging from January
    3, 2015 revealed an occlusion and/or obstruction of the superior mesenteric
    artery.

·

Mr. Beaudoin died because of the respondents
    failure to identify an occlusion and/or obstruction of his mesenteric artery on
    the CT imaging from January 3, 2015. Had the occlusion and/or obstruction of
    the mesenteric artery not been ignored, Mr. Beaudoin would have received
    treatment that would have saved his life.

·

The doctrine of fraudulent concealment
tolled
the limitation period under the
Trustee Act
. The appellants were
    unaware, and could not have been aware, of Dr. Brown's negligent failure to
    identify the mesenteric artery obstruction until they received the actual CT imaging
    from the Hospital in May 2017.

·

Lastly, the
    appellants contracted with the Hospital to provide Mr. Beaudoins complete
    medical records, including the CT imaging, when they ordered and paid for those
    records. The Hospital breached its contract with the appellants and its
    statutory duties under the
PHIPA
by failing to provide the CT
    imaging in May or June 2015. If the appellants claims are statute-barred under
    the
Trustee Act
, the appellants are entitled to the
    same damages they would have been entitled to had the claim been brought within
    the limitation period. But for the Hospitals misconduct and breach of contract,
    the respondents would have discovered the respondents negligence within two
    years of Mr. Beaudoins death and would not face a limitation period
    issue.

C.

The Motion Judges Decision

[10]

The motion judge granted the
    respondents motion under r. 21.01(1)(a) to dismiss the appellants claims in
    negligence and their derivative claims under the
Family Law Act
as
    statute-barred under s. 38(3) of the
Trustee Act
. He held that the
    appellants plea of fraudulent concealment did not suspend the limitation
    period in s. 38(3), because there was no causal connection between the allegedly
    concealed CT imaging from January 3, 2015 and the appellants failure to sue within
    the limitation period. He concluded that the appellants knew about their cause
    of action even before the CT imaging was disclosed in May 2017, because they
    had sued the respondents in the April 2017 claim. He therefore dismissed the
    negligence and derivative claims against all the respondents and dismissed the
    action against the three doctors.

[11]

However, the motion judge
    ruled that the appellants claims against the Hospital for breach of contract
    and breach of the
PHIPA
could not be resolved on the motion under r.
    21.01(1)(a) and therefore allowed those claims to continue.

D.

DISCUSSION

[12]

The issue on this appeal is
    whether the motion judge correctly decided, as a question of law under r.
    21.01(1)(a), that the facts pleaded in the July 2018 claim could not support a
    finding of fraudulent concealment to suspend the limitation period in s. 38(3)
    of the
Trustee Act
. Before turning to that question, I will first
    summarize the applicable legal principles.

(a)

The Applicable Legal Principles

(i)

The test under r. 21.01(1)(a)

[13]

Rule 21.01(1)(a) allows a
    party to move for a determination, before trial, of a question of law raised
    by a pleading in an action, where such determination may dispose of all or part
    of the action, substantially shorten the trial, or result in a substantial
    saving of costs. No evidence is admissible on a motion under r. 21.01(1)(a),
    except with leave of a judge or on consent of the parties: r. 21.01(2)(a).

[14]

The main principles applicable
    to a motion to determine a question of law under r. 21.01(1)(a) are well known:

1.

The test under r. 21.01(1)(a) is whether the
    determination of the issue of law is plain and obvious, which
is the same test that
applies under r. 21.01(1)(b)
    for whether the pleading should be struck because it discloses no reasonable
    cause of action or defence:
Transamerica Life Canada Inc. v. ING Canada
    Inc.
(2003),
68 O.R. (3d) 457 (C.A.), at para. 37
;
Paul M. Perell
    & John W. Morden,
The Law of Civil Procedure in
    Ontario
,

4th ed. (Toronto: LexisNexis Canada, 2020), at para.
    6.168
.

2.

The facts pleaded in the statement of claim are
    assumed to be true, unless they are patently ridiculous or manifestly incapable
    of proof:
Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview
    Casino Resort and OLG Casino Brantford)
, 2016 ONCA 458, 131 O.R. (3d) 273,
    at para. 12.

3.

The statement of claim should be read
as
generously
as possible
to
    accommodate any drafting inadequacies in the pleading. If the claim has some
    chance of success, it should be permitted to proceed:
R. v. Imperial
    Tobacco Canada Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-22.

(ii)

The standard of review

[15]

The standard of review of a
    motion judges determination under r. 21.01(1)(a) is correctness, because
    under this rule the court is asked to determine a question of law:
Das v.
    George Weston Limited
, 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 65,
    leave to appeal refused, [2019] S.C.C.A. No. 69.

(iii)

The two-year limitation period in s. 38(3)
    of the

Trustee Act

[16]

The respondents rely on the
    limitation period in s. 38 of the
Trustee Act
. Section 38(1) of the
Trustee
    Act
provides that, 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 person. Section 38(3)
    provides that no action under s. 38 shall be brought after the expiration of
    two years from the death of the deceased.

[17]

There is no dispute that the
    following legal principles apply regarding s. 38(3) of the
Trustee Act
:

1.

Claims brought by the deceaseds dependents under s. 61 of the
Family
    Law Act
are governed by the same limitation period in s. 38(3) of the
Trustee
    Act: Camarata v. Morgan
, 2009 ONCA 38, 94 O.R. (3d) 496, at para. 9;
Smith
    Estate v. College of Physicians and Surgeons of Ontario
(1998), 41 O.R.
    (3d) 481 (C.A.), at p. 488, leave to appeal refused, [1998] S.C.C.A. No. 635.

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:
Levesque v. Crampton Estate
,
    2017 ONCA 455, 136 O.R. (3d) 161, at para. 51;
Bikur Cholim Jewish
    Volunteer Services v. Penna Estate
, 2009 ONCA 196, 94 O.R. (3d) 401, at
    para. 25.

3.

The discoverability principles under the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B do not apply to toll the limitation period under s.
    38(3) of the
Trustee Act: Giroux Estate v. Trillium Health Centre
(2005), 74 O.R. (3d) 341 (C.A.), at para. 33;
Bikur Cholim
, at para.
    26; and
Levesque
, at para. 47. Although this can sometimes be harsh, since
    a claim under the
Trustee Act
can be time-barred even before it is
    discovered, this can be mitigated by common law rules, such as the doctrine of
    fraudulent concealment:
Levesque
, at para. 56;
Bikur Cholim
,
    at para. 25.

[18]

Here, Mr. Beaudoin died on
    January 9, 2015, but the action was not brought until April 27, 2017  just
    over two years and three months after his death. The claims under the
Trustee
    Act
and the derivative family law claims would therefore be statute-barred,
    unless the appellants can invoke a common law rule to suspend the limitation
    period, such as the doctrine of fraudulent concealment.

(iv)

The doctrine of fraudulent concealment

[19]

The Supreme Court of Canada
    recently addressed the doctrine of fraudulent concealment in
Pioneer Corp.
    v. Godfrey
, 2019 SCC 42, 437 D.L.R. (4th) 383. Brown J. for the majority described
    fraudulent concealment as an equitable doctrine that prevents limitation
    periods from being used as an instrument of injustice: at para. 52, citing
M.
    (K.) v. M. (H)
, [1992] 3 S.C.R. 6
, at pp. 58-59.
    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: at para. 52. See also
M. (K.)
,
    at p. 56;
Giroux Estate
, at para. 28.

[20]

Pioneer
was released a few months after the motion
    judges decision here. The motion judge had cited
Colin v. Tan
, 2016
    ONSC 1187, 81 C.P.C. (7th) 130, at para. 45, to suggest that fraudulent
    concealment has three constitutive element[s]:

(1) the defendant and plaintiff have a special
    relationship with one another; (2) given the special or confidential nature of
    the relationship, the defendants conduct is unconscionable; and (3) the
    defendant conceals the plaintiffs right of action either actively or the right
    of action is concealed by the manner of the wrongdoing
.

[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).

[22]

With this background, I now
    turn to consider the facts pleaded in the July 2018 claim and the parties arguments.

(b)

Application to This Case

(i)

The motion judges reasons on
    fraudulent concealment

[23]

The motion judge accepted
    that the July 2018 claim pleaded a special relationship between the parties: a
    patient-hospital relationship and a patient-doctor relationship, both involving
    Mr. Beaudoin. The respondents do not contest this, and I see no basis to disturb
    this conclusion. In any event, based on
Pioneer
, a special
    relationship was not required to establish fraudulent concealment.

[24]

The motion judge also ruled
    that the July 2018 claim pleaded that the respondents engaged in unconscionable
    conduct by actively concealing and withholding from the appellants the CT imaging
    taken on January 3, 2015 and their errors until that imaging was disclosed in May
    2017. The respondents also do not contest this conclusion. I see no error in it
    either.

[25]

This takes me to the key
    point of contention on this appeal: whether, on the facts pleaded, the motion
    judge erred in finding that the respondents alleged wrongdoing in concealing
    the CT imaging prevented the appellants from reasonably discovering their cause
    of action before the limitation period expired.

[26]

The motion judge ruled that
    the CT imaging did not add anything of significance to the [appellants]
    knowledge. He found no differences of consequence between the facts pleaded
    in the April 2017 claim, before the CT imaging was disclosed, and the July 2018
    claim, after it was disclosed. He concluded that although the CT imaging was
    potentially important evidence, the appellants knew about their cause of action
    against the respondents even before the imaging was disclosed:

I am of the view that there are no differences
    of consequence between the allegations made in the [April 2017 claim] and the
    amended claims prepared after the [appellants] received the actual CT images. In
    both, it is alleged that as a result of failures related to the CT scan, the
    [respondents] did not properly diagnose Mr. Beaudoin.

The information allegedly concealed consisted
    of the actual CT imaging. The actual CT images
did
    not add anything
of significance to the [appellants] knowledge.
    Although the actual images may be important evidence, the images were not
, in this case
, necessary for the [appellants] to
be aware of
a cause of action as against the
    [respondents].

Based on the allegations in the [April 2017
    claim], the [appellants] had sufficient material facts to know
that
there was a claim in negligence against the
    [respondents]
for the manner in which
Mr. Beaudoin
    was treated. The facts
necessary
to base a
    cause of action against the [respondents] were known to the [appellants] before
    the actual CT scans were received.

I therefore find
that
there is no causal connection between the information
that was
allegedly concealed and the [appellants]
    failure to
bring the action
within the
    limitation period. Based on the allegations set out in the [April 2017 claim],
    the [appellants]
were aware of
the cause of
    action even
in the absence of
the allegedly
    concealed material. Therefore the third element of the doctrine of Fraudulent
    Concealment is not satisfied.

[27]

In essence, the appellants
    contend that the motion judge erred in two respects: (1) his ruling that the
    conditions for fraudulent concealment were not met involves a question of fact,
    not law, and thus should not have been determined on a motion under r.
    21.01(1)(a); (2) the facts pleaded in the July 2018 claim relating to causation
    were not patently ridiculous or manifestly incapable of proof.

[28]

I will address each point in
    turn.

(1)

Did the motion judge err in deciding the question
    of fraudulent concealment as a question of law under r. 21.01(1)(a)?

[29]

As I will explain, the motion
    judge erred in deciding the question of fraudulent concealment as a question of
    law under r. 21.01(1)(a).

[30]

This court has underscored
    that a motion under r. 21.01(1)(a) is not the proper procedural vehicle for
    weighing evidence or making findings of fact: see e.g.,
McIlvenna v.
    1887401 Ontario Ltd.
, 2015 ONCA 830, 344 O.A.C. 5, at paras. 19-20;
Andersen
    Consulting v. Canada (Attorney General)
(2001), 150 O.A.C. 177 (C.A.), at
    para. 35.

[31]

This court has applied this general
    principle in a long line of cases in which it has discouraged using r.
    21.01(1)(a) to determine limitation period issues except in very narrow circumstances
    where pleadings are closed and the facts relevant to the limitation period are
    undisputed:
Kaynes v. BP p.l.c.
, 2021 ONCA 36, at para. 74;
Beardsley
    v. Ontario
(2001), 57 O.R. (3d) 1 (C.A.), at para. 21;
Tran v.
    University of Western Ontario
, 2016 ONCA 978, 410 D.L.R. (4th) 527, at
    paras. 18-21; and
Salewski v. Lalonde
, 2017 ONCA 515, 137 O.R. (3d)
    762, at paras. 42-45.

[32]

The rationale for this position
    was recently explained by Feldman J.A. in
Kaynes
, at para. 81. She
    noted that discoverability issues are factual and it is unfair to the plaintiff
    for a motion judge to make such factual findings on a motion to determine a
    question of law under r. 21.01(1)(a), because that rule prohibits evidence on
    the motion except with leave of the court or on consent:

In establishing the main rule that a claim
    should not normally be struck out as statute-barred using r. 21.01(1)(a), the
    courts have noted that discoverability issues are factual and that the rule is
    intended for legal issues only where the facts are undisputed. It would
    therefore be unfair to a plaintiff where the facts are not admitted, to use
    this rule, which does not allow evidence to be filed except with leave or on
    consent. But where a plaintiffs pleadings establish when the plaintiff
    discovered the claim, so
that
the issue is
    undisputed, then the courts have allowed r. 21.01(1)(a) to be
used as
an efficient method of striking out claims
    that have no chance of success,
in accordance with
the
    principle approved in
Knight v. Imperial Tobacco Canada Ltd.
, 2011 SCC
    42, [2011] 3 S.C.R. 45, at para. 19.

[33]

Thus, a factual dispute
    about the discovery date of a cause of action precludes the use of r.
    21.01(1)(a) to determine whether a limitation period subject to discoverability
    has expired, because this rule is limited to determining questions of law
    raised by a pleading. If the parties have joined issue on disputed facts on the
    limitations issue, the preferable procedure might be a motion for summary
    judgment under r. 20, which provides the court with certain fact-finding powers:
Kaynes
, at para. 80;
Brozmanova v. Tarshis
, 2018 ONCA 523, 81
    C.C.L.I. (5th) 1, at paras. 21, 23, and 35; and r. 20.04(2.1).

[34]

These principles about the
    limited scope for using r. 21.01(1)(a) to address discoverability under the
Limitations
    Act, 2002
also apply to fraudulent concealment. Just as factual issues should
    not be decided in relation to discoverability on a motion under r. 21.01(1)(a),
    they should also not be decided in relation to fraudulent concealment. To do so
    would be unfair to a plaintiff when no evidence is admissible on such a motion
    except with leave of the court or on consent.

[35]

This approach is supported
    by this courts decision in
Giroux Estate.
That case involved an
    appeal from a decision on a r. 21.01(1) motion refusing to strike as
    statute-barred a claim against a urologist brought by the deceased patients
    estate. The estate alleged that the urologist had fraudulently concealed his
    failure to properly treat a malignant tumour in the bladder of the deceased,
    who died as a result. The urologist submitted that
he could not be said to have concealed a fact of which the estate
    was already aware when the limitation date expired.
This court agreed that the facts as pleaded were capable of
    supporting a finding of fraudulent concealment, and so the action should not be
    struck as statute-barred. Although Moldaver J.A. (as he then was) for this
    court acknowledged that the inferences the urologist urged the court to draw from
    the pleadings as to why the claim was statute-barred may be borne out at the
    end of the day, he highlighted that the case was just at the pleadings stage: at
    paras. 37, 41.

[36]

The operative question is
    thus whether the pleadings here raise a factual dispute about the application
    of the doctrine of fraudulent concealment. I conclude that they do. The factual
    dispute concerns causation: whether there is a causal connection between the
    allegedly concealed CT imaging and the appellants failure to sue within the
    limitation period. The appellants assert such a causal connection; the
    respondents deny it. The motion judge found no causal connection, concluding
    that the CT images did not add anything of significance to the [appellants]
    knowledge, and that the facts necessary to base a cause of action against the
    [respondents] were known to the [appellants] before the actual CT scans were
    received.

[37]

But causation involves a
    factual inquiry:
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R.
    181, at para. 13;
Ediger v. Johnston
, 2013 SCC 18, [2013] 2 S.C.R. 98,
    at para. 29; and
Campbell v. Bruce (County)
, 2016 ONCA 371, 349 O.A.C.
    302, at para. 55, leave to appeal refused, [2016] S.C.C.A. No. 325. Such a factual
    issue should generally not be determined on a motion to determine a question of
    law under r. 21.01(1)(a).

[38]

The motion judges finding
    that the CT imaging did not add anything of significance to the [appellants]
    knowledge is also problematic. The CT imaging was not in evidence, either on
    the motion or this appeal.

[39]

However, the respondent
    doctors assert in their factum that the April 2017 claim provides definitive
    evidence that the [a]ppellants had knowledge of their cause of action as of
    April 27, 2017. They note that courts have considered prior pleadings in
    motions under r. 21.01(1)(a), citing
Metropolitan Toronto Condominium Corp.
    No. 1352 v. Newport Beach Development Inc.
,

2012
    ONCA 850, 113 O.R. (3d) 673, at paras. 111-13 and
Torgerson et al. v. Nijem
, 2019 ONSC 3320
.
But neither of those
    cases purports to authorize a court to make a factual finding on a disputed point
    on a motion under r. 21.01(1)(a). The appellants assert that issuing a statement
    of claim is not necessarily determinative of their knowledge of a cause of
    action, and that the April 2017 claim simply reflected their suspicion that a
    cause of action may have existed. The case law requires knowledge of the cause
    of action, not mere suspicion. For example, in
Pioneer
, at para. 53, Brown
    J. cited approvingly
T.P. v. A.P.
, 1988 ABCA 352, 92 A.R. 122, though
    on a different point, in which the Alberta Court of Appeal discussed fraudulent
    concealment and stated that [s]uspicion is not knowledge: at para. 15. See
    also
Zeppa v. Woodbridge Heating & Air-Conditioning Ltd.
, 2019
    ONCA 47, 144 O.R. (3d) 385, at para. 41, leave to appeal refused, [2019]
    S.C.C.A. No. 91;
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75, at
    paras. 21-28; and
Kaynes
, at para. 56. Because this is a fact-based
    analysis and both parties positions depend on evidence, this factual dispute cannot
    be decided on a motion under r. 21.01(1)(a).

[40]

The respondents contest this
    conclusion with their second argument. They say that the motion judge was
    entitled to find no causation between the non-disclosure of the CT imaging and
    the failure to sue within the limitation period because the July 2018 claim
    pleads facts about causation that are patently ridiculous or manifestly incapable
    of proof. I will address this argument next.

(2)

Was it open to the motion judge to find
    that the facts as pleaded in the July 2018 claim relating to causation were
    patently ridiculous or manifestly incapable of proof?

[41]

There are two problems with the
    respondents argument that the motion judge was entitled to find that the facts
    pleaded in the July 2018 claim relating to causation are patently ridiculous or
    manifestly incapable of proof.

[42]

The first problem is that
    the motion judge did not purport to apply the standard of patently ridiculous
    or manifestly incapable of proof. He instead made a factual finding against
    the appellants on causation based on the pleadings alone. As I have already
    explained, this was an error. A motion under r. 21.01(1)(a) is not the proper procedural
    vehicle for weighing evidence or making findings of fact.

[43]

The second problem is that, assuming
    the facts pleaded in the July 2018 are taken as true, the plea of fraudulent
    concealment is not patently ridiculous or manifestly incapable of proof.

[44]

The Supreme Court of
    Canadas decision in
Operation Dismantle v. The Queen
, [1985] 1 S.C.R.
    441 remains the leading case on the type of allegation that is manifestly
    incapable of proof. At issue was whether to strike out, as disclosing no
    reasonable cause of action, a statement of claim. The key allegation was that
    the decision of the federal cabinet to permit the United States to test cruise
    missiles in Canada would threaten the lives and security of Canadians by
    increasing the risk of nuclear conflict, and would thus violate s. 7 of the
Canadian
    Charter of Rights and Freedoms
. The claim pleaded such a causal link
    through a series of reactions by various foreign powers, including arms
    agreements becoming unenforceable, Canada becoming the target of a nuclear
    attack, an increased likelihood of a pre-emptive strike or accidental firing,
    and escalation of the nuclear arms race. Dickson J. (as he then was) for the
    majority of the Supreme Court ruled, at p. 455, that he did not need to assume
    that the plaintiffs allegations were true because they were by their very
    nature incapable of proof:

We are not
, in my
    opinion,
required  to take as true the appellants allegations
concerning
the possible consequences of
the testing of
the cruise missile. The rule that the
    material facts in a statement of claim must be taken as true
for the purpose of determining whether
it discloses
    a reasonable cause of action does not require that allegations based on
    assumptions and speculations be taken as true.
The very nature of such an
    allegation is that it cannot be proven to be true by the adduction of evidence.
    It would, therefore, be improper to accept that such an allegation is true. No
    violence is done to the rule where allegations, incapable of proof, are not
    taken as proven
. [Emphasis added.]

[45]

Pleaded facts are incapable
    of proof when proof is inherently impossible:
P.K. v. Desrochers
(2001), 151 O.A.C. 341 (C.A.), at para. 4, leave to appeal refused, [2002]
    S.C.C.A. No. 81. Pleaded facts that are merely difficult to prove are not incapable
    of proof:
Spar Roofing & Metal Supplies Ltd. v. Glynn
, 2016 ONCA
    296, 401 D.L.R. (4th) 318, at para. 44.

[46]

Here, the essence of the appellants
    fraudulent concealment allegation is that had the CT imaging been disclosed
    rather than fraudulently concealed when it was requested in May and June 2015,
    then, as pleaded in the July 2018 claim, the appellants would have sued within
    two years of [Mr. Beaudoins] death and would not be faced with the limitation
    defence advanced by the [respondents].

[47]

This allegation is not of
    such a nature that it cannot be proven to be true by the adduction of
    evidence, nor is it patently ridiculous. On the contrary, it is the sort of factual
    issue that courts adjudicate regularly based on evidence when limitation period
    issues arise. Undoubtedly, that the appellants issued the April 2017 claim
    before receiving the CT imaging will be among the facts considered by the court
    deciding the fraudulent concealment issue. The allegation that the appellants
    would have sued before the limitation period expired had the CT imaging been
    disclosed when it was requested may be hard to prove or it may be easy to prove,
    but it is provable, depending on the evidence. This court should not speculate on
    what a trier of fact would decide based on evidence it has not seen.

[48]

This court applied the
    doctrine of fraudulent concealment where a defendants conduct was alleged to have
    been responsible for a plaintiffs delay in filing a claim in
Halloran v.
    Sargeant
(2002),
163 O.A.C.
    138 (C.A.).
Mr. Halloran, who was
    terminated from his employment because of a corporate reorganization, took an
    unreduced early pension instead of a special severance package based on false information
    provided by his employer that the pension option exceeded his statutory
    entitlement. In 1994, a group of employees who had also chosen the pension
    option succeeded in a claim for severance pay in addition to a pension, a claim
    that the Divisional Court upheld in 1995. In 1995, Mr. Halloran learned about the
    courts decision in a newspaper article, and in 1996, he sued for severance and
    termination pay. The referee dismissed the claim as statute-barred under s. 82
    of the
Employment Standards Act
, R.S.O. 1990, c. E.14, which imposed a
    two‑year limitation period. Mr. Hallorans application for judicial
    review was granted, and the employers appeal to this court was dismissed.

[49]

Armstrong J.A. held that the
    referee erred in refusing to apply the doctrine of fraudulent concealment to
    toll the limitation period. He found that because the company made a
    misrepresentation that caused the employee to act to his detriment, it was
    unconscionable for it to invoke the limitation period when it was responsible
    for the delay in filing the claim. At para. 34, Armstrong J.A. concluded:

In my view, the
limitation period in s. 82 (2) should not have commenced until Mr.
    Halloran
became aware that
severance money
    under the
Act
was due to him which was
either
December 2, 1995 [when he read a newspaper account about the courts
    decision in favour of the employees] or perhaps earlier, on March 23, 1994
    [when he read a newspaper account about the employees claim and learned that a
    pending decision was expected to go in favour of the employees]. Either of the
aforementioned
dates bring him within the time
    prescribed in s. 82 (2).

[50]

Armstrong J.A. added, at
    para. 36, that [t]he same conduct of the company that amounted to fraudulent
    concealment resulted in Mr. Halloran doing nothing. He had no apparent reason
    to consult a lawyer based upon what he was told by the company.

[51]

Here, the appellants similarly
    allege that the respondents fraudulent concealment was responsible for their delay
    in filing a claim. Based on a long line of authorities, they should have a
    chance to support this allegation with evidence.

[52]

If, based on the evidence,
    the court finds fraudulent concealment for some or all of the period between
    when the CT imaging was requested and when it was disclosed, the court will
    then have to decide when the limitation clock starts to run or, having started
    to run, when it stops and when it starts up again:
Giroux Estate
, at para.
    28, n. 6. These determinations would all factor into the assessment of whether
    the appellants negligence and derivative family law claims are statute-barred.

[53]

As a result, I conclude that
    the appellants plea of fraudulent concealment is neither patently ridiculous nor
    manifestly incapable of proof. It therefore should not have been rejected on a
    motion under r. 21.01(1)(a).

E.

Disposition

[54]

I would allow the appeal, set
    aside the order of the motion judge, and award the appellants costs of the
    appeal in the claimed amount of $15,000 all inclusive.

Released:
January
    29, 2021 (J.C.M.)

M. Jamal
    J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. B. Zarnett J.A.





[1]


Ischemia is an
inadequate
blood supply to part of the body.


