The Court of Appeal’s decision in Beaudoin Estate v. Campbellford Memorial Hospital provides a good summary of Trustee Act limitation period:
[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”. 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”. [page596]
[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: Camarata v. Morgan (2009), 94 O.R. (3d) 496, [2009] O.J. No. 621, 2009 ONCA 38, at para. 9; Smith Estate v. College of Physicians and Surgeons of Ontario (1998), 1998 CanLII 1523 (ON CA), 41 O.R. (3d) 481, [1998] O.J. No. 4367 (C.A.), at p. 488 O.R., leave to appeal to S.C.C. 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), 136 O.R. (3d) 161, [2017] O.J. No. 2866, 2017 ONCA 455, at para. 51; Bikur Cholim Jewish Volunteer Services v. Penna Estate (2009), 94 O.R. (3d) 401, [2009] O.J. No. 841, 2009 ONCA 196, at para. 25.
(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: Giroux Estate v. Trillium Health Centre (2005), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341, [2005] O.J. No. 226 (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.
It also summarises the principles of fraudulent concealment:
[19] The Supreme Court of Canada recently addressed the doctrine of fraudulent concealment in Pioneer Corp. v. Godfrey, [2019] S.C.J. No. 42, 2019 SCC 42, 437 D.L.R. (4th) 383. Justice Brown 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 CanLII 31 (SCC), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, at pp. 58-59 S.C.R. He stated that “[w]here the defendant fraudulently conceals the existence of a cause of action, the limitation period is suspended [page597] 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 S.C.R.; Giroux Estate, at para. 28.
[20] Pioneer was released a few months after the motion judge’s decision here. The motion judge had cited Colin v. Tan, [2016] O.J. No. 810, 2016 ONSC 1187, 81 C.P.C. (7th) 130 (S.C.J.), 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 defendant’s conduct is unconscionable; and (3) the defendant conceals the plaintiff’s 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).
Given the factual nature of fraudulent concealment, the Court held that it can’t be considered 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 rule 21.01(1)(a).
[30] This court has underscored that a motion under rule 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., [page599] [2015] O.J. No. 6312, 2015 ONCA 830, 344 O.A.C. 5, at paras. 19-20; Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576, 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 rule 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., [2012] O.J. No. 266, 2021 ONCA 36, at para. 74; Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1, [2001] O.J. No. 4574 (C.A.), at para. 21; Tran v. University of Western Ontario, [2016] O.J. No. 6645, 2016 ONCA 978, 410 D.L.R. (4th) 527, at paras. 18-21; and Golden Oaks Enterprises Inc. (Trustee of) v. Lalonde (2017), 137 O.R. (3d) 750, [2017] O.J. No. 3188, 2017 ONCA 515, 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 rule 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 plaintiff’s 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 rule 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 Rule 20, which provides the court with certain fact-finding powers: Kaynes, at para. 80; Brozmanova v. Tarshis, [2018] O.J. No. 3097, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at paras. 21, 23 and 35; and rule 20.04(2.1).
[34] These principles about the limited scope for using rule 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 [page600] to discoverability on a motion under rule 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.
[39] However, the respondent doctors assert in their factum that the April 2017 claim “provides definitive evidence that the [page601] [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 rule 21.01(1)(a), citing Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc. (2012), 113 O.R. (3d) 673, [2012] O.J. No. 5682, 2012 ONCA 850, at paras. 111-113 and Torgerson v. Nijem, [2019] O.J. No. 2930, 2019 ONSC 3320 (S.C.J.). But neither of those cases purports to authorize a court to make a factual finding on a disputed point on a motion under rule 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 P. (T.) v. P. (A.), [1988] A.J. No. 1055, 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), 144 O.R. (3d) 385, [2019] O.J. No. 610, 2019 ONCA 47, at para. 41, leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 91; Lawless v. Anderson, [2011] O.J. No. 519, 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 rule 21.01(1)(a).
