Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57

Guest Author: David Green, Linden & Associates

Full Decision

In this case, the Ontario Court of Appeal reversed the motion judge’s dismissal of the Plaintiffs’ medical negligence claims.

This is a medical malpractice claim arising from the death of Garry Beaudoin who passed away on January 9, 2015 from bowel ischemia.

Mr. Beaudoin’s estate and family sued Campbellford Memorial Hospital, two emergency room doctors, and a diagnostic radiologist alleging, inter alia, that Mr. Beaudoin was negligently diagnosed and treated at the Hospital on January 2, 3, 4, and 5, 2015, leading to a delay in surgery that could have saved his life.

In particular, it is alleged that:

  • Mr. Beaudoin presented to the Hospital on three separate occasions with symptoms consistent with an occluded mesenteric artery and/or bowel obstruction.
  • The Defendants twice discharged Mr. Beaudoin from their care and failed to diagnose the obstruction and/or occlusion until his third visit on January 4, 2015.
  • Mr. Beaudoin was transferred for surgery on January 5, 2015, three (3) full days after he had initially presented to the Hospital. By that time, Mr. Beaudoin’s small bowel was almost completely necrotic. He died several days later, on January 9, 2015.

The Plaintiffs subsequently amended their claim to plead “fraudulent concealment.” Under section 32(3) of the Trustee Act, R.S.O. 1990, c. T.23, the limitation period in respect of a claim on behalf of an estate is 2 years from the date of death. Case law has recognized that the two year limitation period may be tolled or suspended when the Defendant fraudulently conceals the existence of the Plaintiff’s cause of action. The particulars of the Plaintiffs’ fraudulent concealment claim are as follows:

  • In May 2015, the Plaintiffs ordered and paid for Mr. Beaudoin’s complete hospital records.
  • The Hospital, however, only provided the medical charts and imaging reports, but not the imaging itself.
  • The Hospital did not provide the medical imaging until May 2017 after Plaintiffs’ counsel requested the imaging from the Hospital.
  • The imaging revealed that there was, in fact, an occlusion and/or obstruction of the superior mesenteric artery reflected on the CT imaging conducted on January 3, 2015.
  • The Defendant radiologist, Dr. Brown, falsely and misleadingly failed to identify the presence of the occlusion and/or obstruction in his accompanying CT report, failed to advise the Plaintiffs that the report was false and failed to correct the report.
  • The Defendants actively concealed and withheld the imaging from the Plaintiffs and, instead, provided them with a typed CT report that did not identify the occlusion and/or obstruction of the mesenteric artery.
  • As a result of the fraudulent concealment, the Plaintiffs were unable to determine that Mr. Beaudoin’s death was the direct result of the negligence of the Defendants until the imaging was produced in May 2017.
  • As such, the limitation period does not expire until May 2019 at the earliest.

After the Plaintiffs amended their claim to plead “fraudulent concealment,” the defence brought a rule 21 motion seeking to strike the Plaintiffs’ claim as statute-barred pursuant to section 32(3) of the Trustee Act. The motions judge granted the Defendants’ motion to strike the Plaintiffs’ medical negligence claim. The motions judge reasoned that since the Plaintiffs issued a claim prior to their receipt of the CT imaging, the Defendants’ failure to disclose the CT imaging did not prevent the appellants from reasonably discovering their cause of action before the expiry of the limitation period. The motion judge found that, accordingly, there was no causal connection between the alleged concealment of the CT imaging and the Plaintiffs’ failure to sue within the limitation period.

The Ontario Court of Appeal reversed the dismissal, finding that the motions judge had erred in deciding a disputed factual question as a question of law under Rule 21.01(1)(a) – namely, whether the failure to disclose the CT prevented the Plaintiffs from discovering their cause of action.

The Court of Appeal clarified the principles on a motion under rule 21.01(1)(a) as follows:

  • The test is whether the determination of the issue of law is “plain and obvious.”
  •  The facts pleaded in the Statement of Claim are assumed to be true, unless they are patently ridiculous or manifestly incapable of proof.
  • 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.

The Court of Appeal found that because the facts pled in support of the fraudulent concealment 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. On this basis, the Court of Appeal allowed the amended claim to proceed.

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