Cameron J. Wetmore

The appellant appealed the dismissal of its third party claim against the estate of a deceased solicitor for professional negligence.

The motion judge had dismissed the claim as time-barred under s. 38(3) of the Trustee Act.

On appeal, the appellant argued that the limitation period should be tolled by the doctrines of fraudulent concealment or special circumstances.

The Court of Appeal upheld the motion judge's finding that the solicitor's conduct, while negligent, was not unconscionable, precluding the application of fraudulent concealment.

The Court also held that the doctrine of special circumstances does not permit a party to commence a third party claim after the limitation period has expired.

The appeal was dismissed.

The applicant, convicted of two counts of second degree murder and awaiting a further murder trial, sought a publication ban on evidence and credibility findings arising from an earlier application under s. 462.34 of the Criminal Code for access to seized funds to pay legal fees.

The court considered whether it had jurisdiction to grant a ban and applied the common law Dagenais/Mentuck test balancing freedom of expression against the accused’s right to a fair trial.

The court concluded that publication of the applicant’s admissions of criminal activity and the court’s adverse credibility findings posed a serious risk to the proper administration of justice in the upcoming jury trial.

A temporary ban was therefore necessary and proportionate.

The court ordered a time‑limited publication ban on the evidence, the fact of the application, and the earlier decision until completion of the pending murder trial.

The accused applied under s. 462.34(1) of the Criminal Code for access to funds seized by police as alleged proceeds of crime in order to pay legal fees while facing multiple serious criminal charges including kidnapping and murder.

The court applied the three‑part test requiring proof of an interest in the funds, the absence of other assets or means to fund legal expenses, and the absence of competing ownership claims.

While the Crown conceded the accused had an interest in the seized funds, the court found he failed to establish that he lacked other available assets.

Given extensive evidence of undisclosed or unaccounted assets and the applicant’s lack of credibility, the court was not satisfied on a balance of probabilities that no other means existed to fund counsel.