In an appeal arising from Rule 20 and 21 motions, the appellants challenged an order dismissing their action against the executors of a deceased solicitor's estate arising from losses in a gold delivery contract investment scheme.
The court held that claims fitting within ss. 43 and 44 of the Limitations Act, including pleaded fraud, fraudulent breach of trust, recovery of trust property, accounting, and tracing relief, were not barred by the two-year limitation in s. 38(3) of the Trustee Act.
The court further held that the doctrine of plene administravit could not be determined against the appellants at this stage because it was not plain and obvious that the estate had no assets beyond $7,138, given possible insurance coverage and tracing remedies.
The appeal was allowed on the main dismissal issue, but dismissed as to two related interlocutory orders striking parts of the reply and refusing to strike an affidavit.
