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Trustee Act limitation period moderated by fraudulent concealment

Updated: May 12

Case Summary

Fletcher Estate et al v. Coyle, 2023 ONSC 6757 and 2024 ONSC 2642

In Fletcher Estate et al v. Coyle, the Ontario Superior Court of Justice ordered the defendant, a former nurse, to pay the estate of Hermina Fletcher and Fletcher's surviving son and granddaughter a total of $130,000, plus pre- and post-judgment interest.

Fletcher died in 2015 as a result of former nurse Coyle's manipulation of her medical records while Fletcher was a patient at the hospital. Coyle revised Fletcher's drug prescriptions in order to steal narcotics for her own use. The nurse on the subsequent shift, relying on the falsified record and the fraudulently increased prescription, administered a lethal dose which resulted in Fletcher's death. The facts available in detail here.

In August 2022, Coyle pleaded guilty to criminal negligence causing death. In January 2024, she was sentenced to two years' imprisonment. In parallel to Coyle's criminal prosecution, the deceased's estate and two claimants under Part V of the Family Law Act brought a civil claim against the hospital and Coyle.

The two-part decision, cited as 2023 ONSC 6757 and 2024 ONSC 2642, arises from a motion for default judgment brought by the plaintiffs against Coyle after reaching resolution with the hospital. In reaching his decision, Regional Senior Justice Newton addressed several points of law arising from the unique circumstances of the parallel civil and criminal court proceedings.

Limitation Period Under the Trustee Act

First, Justice Newton affirmed earlier jurisprudence on section 38(3) of the Trustee Act. The section provides that no action shall be allowed for the death or loss of expectation of life unless it is brought within 2 years from the death of the deceased. The section is not moderated by discoverability in the same manner as the basic limitation period under section 4 of the Limitations Act, 2002.

His Honour's conclusions on this point are consistent with a 2009 decision of the Court of Appeal, which found that the doctrine of special circumstances continues to govern section 38(3) of the Trustee Act. A 2021 decision of the Court of Appeal also states that the doctrine of fraudulent concealment can moderate the strict limitation period found in section 38(3) of the Trustee Act.

Notably, the Fletchers' suit was commenced 6 years after the victim's death. Justice Newton was satisfied that the doctrine of fraudulent concealment suspended the operation of the limitation period, with Coyle's actions to falsify the medical records reflecting the very type of wrongdoing that the common law doctrine was meant to address.

Justice Newton also accepted that sufficient facts were not known to the plaintiffs to pursue their claims until charges were laid against Coyle on August 1, 2019, which was over 4 years after the victim's death but less than 2 years before the Fletchers brought their claim.

Use of Admitted Facts in Criminal Prosecutions in Parallel Civil Matters

Second, Justice Newton relied on the admitted facts in the criminal prosecution to find liability in the civil suit. His Honour stated that the civil standard of proof on the balance of probabilities allowed him to accept the facts admitted to support Coyle's criminal conviction for criminal negligence causing death.

Coyle's criminal admissions were found to lead to the conclusion that Coyle's conduct in falsifying the medical records and withholding medication was the cause of Fletcher's death. Having determined these facts, His Honour found that Coyle (a nurse) obviously owed Fletcher (a patient) a duty of care, and that her conduct beached the standard of care, giving rise to liability.

Bar Orders Preventing Claims Against Settling Defendants

Third, in making his order for damages, Justice Newton made an order barring Coyle from seeking contribution or indemnity from her hospital employer, or from bringing any such claim against the hospital for the sums awarded to the plaintiffs. The hospital, which is part of Riverside Health Care Facilities Inc., had earlier resolved the plaintiffs' claims against it and was no longer an active defendant in the litigation.

While Justice Newton's decision does not provide extensive analysis on this point, this bar order arises in a circumstance where the plaintiffs had amended their claim after reaching resolution with one defendant, such that the proceeding was continued only against Coyle, who was in default. As such, no crossclaim or claim for contribution or indemnity had been pled by Coyle.

The court has previously stated that bar orders precluding such claims arising from the litigation are appropriate to achieve finality for partial settlements, to promote settlement, and to conserve judicial resources. The Court of Appeal has also previously indicated that while this type of order can create disadvantages to non-settling defendants, the ability to apportion fault against a former party to an action in determining the amount payable by the non-settling defendant is an option available to address this concern.

While the court in Fletcher did not determine this issue, it is possible that Coyle's conduct was such that no or little vicarious liability would attach to her employer given the gravity of her misconduct. In Jacobi v. Griffiths and Bazley v. Curry, the Supreme Court of Canada has outlined circumstances where finding vicarious liability is not appropriate.

The Fletcher family was represented by Judson Howie LLP.

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