Cerquiera v University Health Network presents an interesting discussion of s. 38(3) of the Trustee Act, which establishes a 2-year limitation period on any action commenced by or against an estate.
The Cerquiera estate sued the University Hospital for negligence in relation to the death of Mr. Cerquiera. Mr. Cerquiera died in 2009; the action against the hospital was not commenced until 2011, a few days after the 2 year limitation period expired. On a summary judgment motion, the motion judge dismissed the estate’s action on the grounds that it was statute barred pursuant to s. 38 of the Trustee Act.
The Cerquiera estate appealed, arguing that the hospital “fraudulently concealed” the cause of Mr. Cerquiera’s death – the trustees of his estate did not discover the cause of Mr. Cerquiera’s death some time after his death. They argued that the motion judge did not adequately consider the issue of fraudulent concealment by the hospital. They submitted that if she had, the limitation period should have been extended because of the fraudulent concealment.
The court of appeal rejected this argument. It held that there was no evidence of fraudulent concealment by the hospital, thus the motion judge did give it adequate consideration. In addition, the court of appeal held that the trustees were making an argument about discoverability under the guise of “fraudulent concealment.” Unfortunately for the trustees, the Trustee Act does not allow the s. 38 limitation period to be extended on the grounds of discoverability – the 2 year limitation period is absolute (unless, of course, there was actual fraudulent concealment). In the result, the court of appeal held that the motion judge was correct is ordering the estate’s action against the hospital dismissed.