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Limitations - Extension - Fraudulent Concealment

Rajmohan v Norman H. Solmon Family Trust (Ont CA, 2014)

In this case the Court of Appeal canvassed the law applicable to the extension of limitation periods where the defendant engaged in fraudulent concealment of the cause of action:
[3] The motion judge carefully considered the rationale and requirements of the doctrine of fraudulent concealment as set out by this court in Giroux Estate v. Trillium Health Centre 2005 CanLII 1488 (ON CA), (2005), 74 O.R. (3d) 341 (C.A.), aff’g 2004 CanLII 18056 (ON SC), (2004), 69 O.R. (3d) 689 (S.C.). Justice Moldaver stated, at para. 29, that the doctrine prevents “unscrupulous defendants who stand in a special relationship with the injured party from using a limitation provision as an instrument of fraud”. As the motion judge observed in Giroux, three elements must be established to make out the doctrine:
a) the defendant and plaintiff are engaged in a special relationship with one another;

b) given the special or confidential nature of the relationship, the defendant’s conduct amounts to an unconscionable thing for the one to do to the other; and

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).

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