“An Unconscionable Thing for the One to Do Towards the Other:” The Doctrine of Fraudulent Concealment

Abstract

What tool is available to the courts to address conduct of the defendant which frustrates or impedes the plaintiff from discovering a cause of action? The doctrine of fraudulent concealment has developed at equity to attend to this issue, and has operated largely as a court-made rule in Canada. Curiously, the equitable doctrine does not actually speak to fraud per se in the common law sense, but rather operates to toll or suspend a limitation period where the defendant has acted unconscionably so as to conceal a cause of action from the plaintiff. The paper evaluates the constituent elements of fraudulent concealment as the test has been developed in Ontario, and with reference to other common law provinces and English jurisprudence. It also addresses the question of whether the doctrine is still relevant in light of the modern discoverability rule. Lastly, whether the doctrine has been applied consistently, and whether it may operate coherently in the class proceeding context will be examined.