The Doctrine of Fraudulent Concealment Postpones a Limitation Period

The doctrine of fraudulent concealment  . . .  was succinctly articulated by Justice Dickson (as he then was) in Guerin v. Canada, [1984] 2 S.C.R. 335 at 390, 13 D.LR. (4th) 321:

. . .  The fraudulent concealment necessary [to postpone a limitation period] need not amount to deceit or common law fraud. Equitable fraud, defined in Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563, as ‘conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other’, is sufficient.”
Halloran v. Sargeant (2002), 217 D.L.R. (4th) 327 at 338, (sub nom. Halloran v. Ontario (Employment Standards Act Referee)) 163 O.A.C. 138, 23 C.P.C. (5th) 23, (sub nom. Halloran v. Crown Cork & Seal Canada Inc.) [2002] O.L.R.B. Rep. 765 (C.A.).

(2) In summary, the doctrine of fraudulent concealment applies in cases when:

a) the defendant and plaintiff are engaged in a special relationship with [each other];
b) given the special or confidential nature of their relationship, the defendant’s conduct amounts to an unconscionable thing for the one to do towards the other;
c) the defendant conceals the plaintiff’s right of action (either actively, or as a result of the manner in which the act that gave rise to the right of action is performed).

When these elements are satisfied, the doctrine of fraudulent concealment will be used to postpone limitation periods: Giroux Estate v. Trillium Health Centre, 2004 CarswellOnt 569 (Ont. S.C.J.).

(3) “Fraudulent concealment that suspends a limitation period requires three findings:

(1) that the defendant perpetrated some kind of fraud;

(2) that the fraud concealed a material fact; and

(3) that the plaintiff exercised reasonable diligence to discover the fraud: H. (V.A.) v. Lynch, 2000 ABCA 97, 255 A.R. 359 [(C.A.)]  . . .

Fraudulent concealment requires an element of unconscionability, ‘some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts’: M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 at 57, 96 D.L.R. (4th) 289. Unconscionable conduct can be either active concealment or a failure to disclose  . . .  As well, the defendant must know of the wrong.”: Ambrozic v. Burcevski, 2008 ABCA 194, 2008 CarswellAlta 652 (Alta. C.A.), per curiam at paras. 21 and 23.

(4) It has been held that the “fraudulent concealment” of a cause of action postpones the running of a limitation period. Quaere the meaning of “fraudulent concealment”. Per Hughes, J.: “In M.(K.) [M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 (S.C.C.)] the Supreme Court noted at 57 that the factual basis for fraudulent concealment is described in Halsbury’s, 4th ed., vol. 28, para. 919, at p. 413: ‘It is not necessary, in order to constitute fraudulent concealment of a right of action, that there should be active concealment of the right of action after it has arisen; the fraudulent concealment may arise from the manner in which the act which gives rise to the right of action is performed.’” (At para. 77 of instant case.)

The fact that a sexual abuser of a child is a trusted family authority masks the wrongfulness of the abuser’s incestuous conduct. Hence, it amounts to a “fraudulent concealment” of the victim’s cause of action: T. (J.) v. H. (E.E.), 2007 ABQB 537, 2007 CarswellAlta 1172 (Alta. Q.B.).

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