Court File and Parties
COURT FILE NO.: 03-CL-4939A DATE: 2016-06-14 SUPERIOR COURT OF JUSTICE – ONTARIO COMMERCIAL LIST
JOHN C. CHAPLIN Estate Trustee of the Estate of Nancy Ritva Wagg, deceased Plaintiff
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FIRST ASSOCIATES INVESTMENTS INC. and CLIFFORD TODD MONAGHAN Defendants
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JOHN ERIC WAGG Third Party
BEFORE: Newbould J.
COUNSEL: Patricia L. McLean, for the plaintiff Nigel Campbell and Doug McLeod, for the defendant First Associates Investment Limited Michael Miller, for the third party John Eric Wagg
HEARD: May 17, 2016
Endorsement
[1] The defendant First Associates Investments Inc. (“First Associates”) moves for summary judgment to dismiss this action against it on the basis that the action is statute barred.
[2] Nancy Wagg (“Nancy”) had three children, Anita Ingeborg Monahan (“Anita”), Daisy Yvonne Monaghan (“Yvonne”) and John Eric Wagg (“John”).
[3] In October 1995, Nancy won approximately $1.026 million in the Lotto 649 lottery. Following her lottery win, she opened an investment account with her son-in-law Todd Monaghan who was married to Anita and who was a registered investment advisor with First Associates, in which she invested a portion of her lottery winnings. Mr. Monaghan was also an officer, director and shareholder of First Associates. Nancy had a grade 10 education, earned a very modest income before retirement and had no investment experience. Agreements signed by her with First Associates set out investment objectives and risk tolerances. Between May 1997 and December 31, 2000, the investments held in her accounts at First Associates did not meet the investment objectives and/or the risk tolerances set out in her agreements with First Associates. An expert report has concluded that the investment objectives were not suitable for Nancy.
[4] The evidence indicates that Mr. Monaghan arranged for Nancy to invest approximately $800,000 in Three Country Recycling & Composting Limited (“TCR”) including shares plus two promissory notes in the total amount of $400,000. Mr. Monaghan has admitted in discoveries that TCR was a speculative penny stock and known to First Associates to be speculative and that any type of investment in TCR was a high risk investment.
[5] Nancy died on February 4, 2000. In her will, Nancy named her daughter Anita as the estate trustee. On January 23, 2001 Anita applied for a certificate appointing her as estate trustee and was appointed estate trustee on March 14, 2001.
[6] On January 23, 2001, the lawyer for Anita wrote to her brother John Wagg stating, inter alia that the assets of the Estate included 504,500 shares of TCR values at 0.12 cents totalling $60,500, and the TCR promissory notes, original cost $400,000, had no value as the date of death because the company was unable to pay them. John told Anita that as executor she should be starting an action against her husband Todd Monaghan and First Associates. Anita refused to do so.
[7] On October 2, 2001 John Wagg commenced an application against Anita in her capacity as estate trustee (the “Wagg application”) seeking an order to remove Anita as executor of the estate because of her conflict of interest, and have the Court appoint him as the estate trustee.
[8] On January 14, 2002 in the Wagg application, Justice Wilson removed Anita as estate trustee effective January 18, 2002 and appointed a Harry Edwards as estate trustee effective January 18, 2002 unless otherwise ordered and gave the three children of Nancy until that day to propose a third party willing to act as estate trustee. On January 17, 2002 Anita contacted John Chaplin C.A., who had no knowledge of the Wagg family, who agreed to act as estate trustee and he was appointed estate trustee by Justice Wilson on January 18, 2002.
[9] On April 4, 2003 Mr. Chaplin as estate trustee commenced this action claiming damages of approximately $1,350,000 for losses caused by the defendants to Nancy’s investments at First Associates. This was more than two years after Nancy’s death on February 4, 2000.
Analysis
(a) Section 38 of the Trustee Act
[10] First Associates relies on the two year limitation period contained in the Trustee Act, RSO 1990, c T.23:
- (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.
(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.
(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.
[11] This limitation period is a strict one and the discoverability rule has no application. See Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53 at para. 31:
31 In my view, the case that best assists this Court in the present matter is the one giving rise to the Ontario Court of Appeal's decision in Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370. The court had to determine the possible application of the discoverability rule to s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23, the statutory provision in Ontario permitting an action in tort by or against the estate of a deceased person and limiting the period during which such actions may be commenced. Abella J.A., as she then was, concluded, at para. 16, that the discoverability rule did not apply to the section since the state of actual or attributed knowledge of an injured person in a tort claim is not germane when a death has occurred. She explained at paras. 8-9:
In s. 38(3) of the Trustee Act, the limitation period runs from a death. Unlike cases where the wording of the limitation period permits the time to run, for example, from "when the damage was sustained" (Peixeiro) or when the cause of action arose (Kamloops), there is no temporal elasticity possible when the pivotal event is the date of a death. Regardless of when the injuries occurred or matured into an actionable wrong, s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged.
The underlying policy considerations of this clear time limit are not difficult to understand. The draconian legal impact of the common law was that death terminated any possible redress for negligent conduct. On the other hand, there was a benefit to disposing of estate matters with finality. The legislative compromise in s. 38 of the Trustee Act was to open a two-year window, making access to a remedy available for a limited time without creating indefinite fiscal vulnerability for an estate. [Emphasis in original.]
[12] Section 38(1) refers to “an action for all torts or injuries to the person or to the property of the deceased”. It has been held that this language covers claims in tort, contract and breach of fiduciary duty. See Lafrance Estate v. Canada (Attorney General) (2003), 64 OR (3d) 1 (C.A.) in which claims were made by native persons who when children were sent to residential schools in Northern Ontario. Some of the persons had died and claims were made by their estates. Some of the claims made were for unpaid wages caused by forced labour. It was argued on behalf of the estates that these claims were contractual in nature and that as a claim for breach of contract could be sustained at common law, such claims did not depend upon the existence of the Trustee Act and, therefore, were not statute-barred. That argument did not succeed. The Court stated:
[54] In determining whether the estate claims fall within the scope of s. 38(1) of the Trustee Act, the focus is not upon the form of the action but, rather, the nature of the injury. The question to be asked in determining its applicability is whether the alleged wrong constituted an injury to the deceased person. See Smallman v. Moore, [1948] S.C.R. 295, [1948] 3 D.L.R. 657, and Roth v. Weston Estate (1997), 36 O.R. (3d) 513, 20 E.T.R. (2d) 69 (C.A.).
[55] Whether the claim for forced labour is framed in tort, contract, quasi-contract or breach of fiduciary duty, the claim is for injury of a personal nature. The core of the alleged wrongdoing is the failure of those running the residential schools to compensate the deceased persons for the work they were forced to perform. In other words, the claims arise out of the treatment that the deceased plaintiffs endured at the residential schools. As such, the claims for forced labour are within the meaning of "injuries to the person". Accordingly, they fall squarely within the provisions of s. 38(1) of the Trustee Act and are subject to the applicable two-year limitation period in s. 38(3).
[56] The same analytical approach applies to the estate claims for breach of fiduciary duty. Again, the focus is not upon the form of the action but whether the alleged wrong constitutes an injury to the person. It is apparent that the alleged breaches of fiduciary duty are said to have inflicted injury upon the deceased persons and therefore the claims for breach of fiduciary duty are within the ambit of s. 38(1).
[13] The action in this case is based on breach of contract, negligence and breach of fiduciary duty. Thus section 38(1) covers the claims made.
[14] The plaintiff relies on the case of English Estate v. Tregal Holdings Ltd. [2004] OJ No 2853 in which a deceased had transferred shares in one company to another and a claim had been made by her estate against the two companies and several officers for oppression and fraud. Pepall J. (as she then was), held that the word “injury” in section 38(1) of the Trustee Act did not apply to claims for pure economic loss. She stated:
[23] Counsel were unable to locate any Ontario cases that were precisely on point. Adopting the British Columbia Court of Appeal decision in Alberni District Credit Union v. Cambridge Properties Ltd., [1985] B.C.J. No. 1829, the Alberta Court of Appeal in Guest v. Bonderove & Co. 1988 ABCA 105, [1988] A.J. No. 323 held that the word "injury" imported something in the nature of physical injury or damage and pure economic loss was not included.
[24] In examining the nature of the injury, I am unable to conclude that the wrongs alleged constitute an injury to Ms. English or her property of the type contemplated by section 38(1) of the Act. In my view the claims in this action are not for injury of a personal nature. They therefore are not captured by section 38(1) of the Act and hence are not barred by section 38(3).
[15] I have difficulty with this decision and would not follow it. The Guest case referred to in English Estate dealt with the limitations legislation in Alberta that provided a two year limitation period for an action “for trespass or injury to real property or chattels”. It was held that these words did not encompass an action alleging pure economic loss without injury to the real property in question. That language is not the language of section 38(1) of our Trustee Act. The Alberni case referred to involved British Columbia legislation providing for a two year limitation period “for damages in respect of injury to person or property, including economic loss arising from the injury” and a claim relating to damaged property. It was held that “injury” imported something in the nature of physical injury or damage and as the building had not been injured, the limitation period did not apply. There was no discussion of whether pure economic loss would constitute an injury to the person. The case did to raise the issue raised in this case.
[16] Section 38(1) of the Trustee Act does not contain any language that suggests that the claims made in this case are not actions “for all torts or injuries to the person or to the property of the deceased”. The property of the deceased, being her money, was allegedly destroyed in value due to the wrongful acts of Mr. Monaghan. Black’s Law Dictionary includes in the definition of “injury” the “violation of another's legal right, for which the law provides a remedy; a wrong or injustice” and “any harm or damage”. That is broad enough to include the claims here for damages arising from the actions of Mr. Monaghan who was a registered investment advisor with First Associates.
[17] In Lafrance Estate it was held that the claim for unpaid wages fell within section 38(1) of the Trustee Act. I recognize the claim as pleaded arose from being required to perform forced labour, but it was a claim for economic damages.
[18] Section 38(2) of the Trustee Act applies to claims against the estate of a deceased who committed “a wrong to another in respect of his or her person or to another person’s property”. Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196 involved a claim against a deceased’s estate arising out of economic loss allegedly caused to the plaintiff. It was held that section 38(3) applied to bar the claim. The point as to whether the claim involved a “wrong to another in respect of his person or another person’s property” was not an issue directly raised, but the premise of the decision was that causing an economic loss was a “wrong”. While section 38(2) of the Trustee Act does not include the word “injury” and section 38(1) does not include the word “wrong”, in principle there is no reason why the two should be treated differently. As stated in Black’s Law Dictionary, injury includes a wrong.
[19] I conclude that the claims asserted in this case fall within the language of section 38(1) of the Trustee Act, and are statute barred under section 38(3) unless there is reason otherwise as claimed by the plaintiff.
(b) Wagg and Monaghan applications
[20] By Notice of Application dated January 2, 2002, Anita and Yvonne commenced an application against John Wagg (the “Monaghan Application”).
[21] On or about April 11, 2002, John Wagg filed a “Respondent Application” (the “Wagg Application”) in the Monaghan Application. In his Application, John Wagg sought the following relief:
(i) An order dismissing the Monaghan Application; (ii) In the alternative, a stay of the Monaghan Application pending the outcome of the Wagg Application; (iii) In the alternative, an order consolidation the Monaghan Application with the Wagg Application; (iv) An order directing that the Monaghan Application and the Respondent’s Application be treated as an action and counter-claim, and subject to directions, that the matters proceed to a trial.
[22] On January 18, 2002 in the Wagg Application, when Mr. Chaplin was appointed the estate trustee of the estate of Nancy, Justice Wilson adjourned the application to May 8, 2002 for the receiving of the report of the estate trustee.
[23] On April 12, 2002, the Monaghan Application was before the Honourable Madam Justice Pepall. Justice Pepall issued the following endorsement in regard to same:
There is a related action in Estates court with a return date of May8/02. In my view this application should be heard in Estates Court by the same judge hearing Wagg v. Monaghan 01 469/01. Accordingly this application is transversed to Estates Court + adjd to May 8, 2002 at 10 am.
[24] These applications came on before Justice Backhouse on May 8, 2008. There was discussion of a potential action, now this action, being commenced by the estate trustee. Justice Backhouse made an endorsement adjourning the Monaghan Application and said that if the estate trustee commenced a lawsuit, it should be joined with the Monaghan application for a vive voce hearing. The endorsement stated:
This matter shall be adjourned to Aug 7, 2002 to enable the estate trustee to complete his investigations, deal with the income tax issues and determine whether the estate will commence a lawsuit regarding the invested funds which, if commenced, should be joined with Court File 02-CV0226320CM3 for a vive voce hearing.
[25] The order of 8 May 2002 made by Justice Backhouse stated:
- THIS COURT FURTHER ORDERS THAT if an action is commenced by the Estate to recover the funds which had been invested by the last Mrs. Wagg, then such action is to be heard together with the application commenced by Anita Ingeborg Monaghan and Daisy Yvonne Monaghan against John Eric Wagg, being Court File Number 02-CV-223 632-CM3, and the Respondent’s application therein and there shall be a trial of the issues with respect to the said application and the said Respondent’s application.
[26] The plaintiff argues that by ordering that if an action were started by the estate trustee, the action was to be heard together with the Monaghan and Wagg applications, Justice Backhouse effectively joined the action with the two applications. He claims that the endorsement may be looked at which states that the lawsuit, if commenced, should be joined with the applications. He further argues that as the Monaghan claim was started on January 21, 2002, less than two years after the death of Nancy, and as the action later commenced by him was “joined” with the Monaghan action, section 38 of the Trustee Act has no application to his action because the “joined” action was started within two years of the death of the deceased. I do not agree.
[27] I doubt on the authorities that the endorsement of Justice Backhouse can be looked at in construing the order that was made. That order was no doubt approved by the parties as to its form and it is clear in stating that if the action is started, it is to be heard together with the Monaghan and Wagg applications. In any event, it is really no different in substance with the endorsement of Justice Backhouse that stated that if started, the action should be joined with the Monaghan application for a viva voce hearing.
[28] In any event, Justice Backhouse could make no formal joinder order for an action that had not yet been commenced. She did not say that if the estate trustee commenced an action it would be the same action as the Monaghan application. The order stated the opposite in saying that there should be a trial of the issues in the two applications and that the action of the estate trustee, if started, would be heard together with the two applications.
[29] In any event, even if the actions had been effectively joined, as the action by the estate trustee had not yet been commenced, there would be no reason why a limitation defence could not be pleaded.
[30] What is apparent is that no one twigged to the fact that at the date of the order of Justice Backhouse, more than two years since the death of Nancy, the two year limitation period in section 38 of the Trustee Act had expired. Nothing was argued or decided as to whether an action started by the estate trustee would be statute barred under section 38 of the Trustee Act.
(c) Fraudulent concealment
[31] The plaintiff argues that there has been fraudulent concealment by First Associates and that therefore the limitations period in the Trustee Act cannot be invoked by First Associates. The doctrine of fraudulent concealment can apply to the limitation period in section 38 of the Trustee Act. See Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341 (C.A.).
[32] In Authorson v. Canada (Attorney General), 2007 ONCA 501 the principle of fraudulent concealment was summarized as follows:
[120] The principle of "equitable fraud" is aimed at preventing a limitation period from operating "as an instrument of injustice": M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, at para. 66. It has been described in many ways. Essentially, it involves some form of unconscionable conduct on the part of a wrongdoer who stands in a special relationship with another party, where the conduct conceals the existence of a claim by that party against the wrongdoer and is considered by equity to be sufficient to preclude the wrongdoer from relying on a limitation period defence. See Guerin, supra, at p. 390 S.C.R.; Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563, [1958] 2 All E.R. 241 (C.A.) at p. 573 W.L.R.
[121] In Guerin, Dickson J. described the concept in this fashion (at p. 390 S.C.R.): It is well established that where there has been a fraudulent concealment of the existence of a cause of action, the limitation period will not start to run until the plaintiff discovers the fraud, or until the time when, with reasonable diligence, he ought to have discovered it. The fraudulent concealment necessary to toll or suspend the operation of the statute need not amount to deceit or common law fraud. Equitable fraud, defined in Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563 [at p. 573], as, "conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other", is sufficient.
[33] In Rajmohan v. Norman H. Solmon Family Trust, [2014] ONCA 352, the Court of Appeal summed up the requirements for the doctrine of fraudulent concealment to be established:
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).
[34] Unlike Rajmohan, this is not a case in which the parties agree that a trial would not improve the evidence and that the matter should be decided on this summary judgment motion. If on a review of the evidence there is a genuine issue requiring a trial as to whether fraudulent concealment has been made out, the motion for summary judgment cannot succeed.
[35] I think it can be taken that the deceased, whose estate the trustee represents, had a special relationship with First Associates. She had an investment account at First Associates where her son in law was a registered investment advisor with First Associates and was an officer, director and shareholder of First Associates. Mr. Monaghan pleads that his relationship with Nancy was very close and akin to that of a son and mother.
[36] The remaining two questions to be decided on this issue are whether the actions of First Associates were unconscionable and whether there was concealment by First Associates of the cause of action against it. This includes the issue as to whether First Associates is vicariously liable for the actions of Mr. Monaghan.
[37] First Associates argues that the doctrine of fraudulent concealment does not exist to extend limitation periods concerning unconscionable conduct generally, but rather is concerned with unconscionable conduct engaged in for the purpose of concealing a cause of action. I do not think that is necessarily the case and the separate second and third test set out in Rajmohan state otherwise. The unconscionable conduct could be the way in which the cause of action was concealed, but it is not necessary that it be so. In Rajmohan, Justice Chiappetta held that the deceased lawyer unintentionally concealed his actions, thus meeting this part of the test for fraudulent concealment. See Rajmohan (2013), 55 C.PC. (7th) 287 at para. 30. However, because his actions amounted to only negligence, it was held that they were not unconscionable. The Court of Appeal at para. 4 accepted that the concealment test was met.
[38] In this case, Mr. Monaghan was an officer and director of First Associates as well as an investment advisor. For the purposes of this motion, if there is a basis to contend that the actions of Mr. Monaghan were unconscionable towards Nancy, his mother in law, that could be evidence to be used against First Associates as investments made on behalf of Nancy were made by Mr. Monaghan acting as a registered investment advisor at First Associates.
[39] If there is a genuine issue requiring a trial on whether the actions of Mr. Monaghan were unconscionable, or a genuine issue requiring a trial as to whether First Associates would be vicariously responsible for his unconscionable conduct, those issues cannot be decided on this motion for summary judgment. In my view, there is a triable issue as to whether the actions of Mr. Monaghan were unconscionable. He arranged investments in TCR, a company in which he was a director and shareholder. He had a conflict of interest. This goes beyond mere negligence. Mr. Monaghan has said that Nancy wanted to help him with needed money for TCR and that she knowingly lent $400,000 for that purpose. Even if that were proven, there is no evidence that Nancy was told by Mr. Monaghan to obtain independent advice. Moreover, there were purchases of over 500,000 shares of TCR through her account at First Associates. On the evidence in the record, the investment was speculative and not suitable for Nancy. There is also a triable issue as to whether First Associates is vicariously liable for the actions of Mr. Monaghan.
[40] The remaining issue is whether there has been concealment. The plaintiff argues that First Associates concealed the existence of a cause of action in that while the order of January 18, 2002 made on consent required First Associates to deliver its records to Mr. Chaplin who was that day appointed estate trustee, they failed to do so before February 4, 2002 when the limitation period expired. I do not agree. The estate trustee first wrote to First Associates on February 15, 2002 requesting the information, and after that First Associates responded in a timely fashion. The problem of course is that it is apparent that no one at the time twigged to the fact that there was an impending limitation period just 17 days away. The matter was adjourned to May 8, 2002 to permit Mr. Chaplin to provide a report on a possible claim against Mr. Monaghan and First Associates, far beyond the expiry of the limitation period on February 4, 2002.
[41] I do not think the issue starts with Mr. Chaplin. If there was concealment from Nancy while she lived or concealment from Anita who was the prior estate trustee that must be considered. Further, as it would be obvious that Anita might be conflicted as the allegations of wrongdoing were made against her husband Mr. Monaghan, concealment from a beneficiary such as John Wagg would need to be considered.
[42] The record before me contains conflicting evidence provided on the various competing motions heard in 2002. John Wagg said in his affidavit of September 5, 2001, sworn in his application to have his sister Anita removed as trustee of Nancy's estate, that in May 2000 he asked Mr. Monaghan if his late mother Nancy’s investments were in jeopardy, to which Mr. Monaghan said “maybe” and that in late May, 2000 his sister Anita and her husband Mr. Monaghan confessed that they had taken almost $800,000 of Nancy's funds and invested them in TCR. Anita in her affidavit denied any such confession and denied that Todd Monaghan was even there. She painted a picture of her brother John Wagg being completely unreasonable and trying to get her to leave her husband.
[43] This is an unusual case. In his affidavit John Wagg said that he wanted Anita removed as he wanted to start an action against Anita and her husband Todd Monaghan. He had no means to do that however unless he became the estate trustee. That never occurred. Anita denied any wrongdoing and clearly had no intention of starting an action against her husband.
[44] It is clear that John Wagg had some information at the time of his affidavit of the trading in Nancy's account at First Associates. He had one account statement for the month of March, 2000. He stated in his affidavit that since June, 2000 he made repeated requests of Anita and her husband Todd for further and better information about the handling and history of his mother Nancy's investments but that he did not receive anything further. He said he had made repeated requests of First Associates for copies of his mother’s account dealings but that they had refused to deliver them to him. It was contended in argument on behalf of First Associates that Mr. Wagg was not a trustee when he requested the account information and thus had no right to it. Whether that is the case, it was a refusal to disclose account information.
[45] When Mr. Chaplin was appointed estate trustee on January 18, 2002, the order required First Associates to deliver account information to him, which First Associates did. In his May 7, 2002 report to the Court Mr. Chaplin referred to a number of important things he learned from the account information provided to him. There were share purchases of TCR in 1997 and a large number of trades with little difference in the total number of TCR shares in the account. There was questionable margin trading. In 1997 Mr. Monaghan prepared a new client application form which provided for much more speculative trading than when the account was opened, with income preference being reduced from 50% to 40%, growth decreased from 30% to 10% and speculative trading being increased from 20% to 50%. This information led Mr. Chaplin to opine that as Nancy was 58 when she opened her account at First Associates and had no income but her investments, the bulk of her investments should have been in income and long-term growth vehicles and virtually none should have been in risk oriented investments. Mr. Chaplin also referred to internal memoranda at First Associates that indicated that trading in Nancy's account was being carried on without proper authority both before and after her death and questioned why the account was buying securities. All this is very important information regarding potential liability of First Associates both for its own negligence and vicarious liability for the activity of Mr. Monaghan. The account statements once produced were put to Mr. Monaghan on his examination for discovery and indicated transactions that arguably should have led First Associates to question what was going on.
[46] On the record before me, it cannot be said that there is no issue as to whether Mr. Monaghan concealed information about the trading in Nancy's account from Nancy or later from John Wagg or indeed from his wife Anita who swore she knew nothing about the trading in the account or that there is no issue that First Associates would have vicarious responsibility for that. While it may not be necessary to say so, it is likely in the circumstances of what is now known to have occurred in the account that Mr. Monaghan’s concealment was unconscionable. It is also the case that First Associates refused to disclose any account information to John Wagg prior to the hearing of his motion to remove Anita as estate trustee. Whether that was justified in the circumstances known by First Associates at the time is an open question.
[47] In the circumstances, there is a genuine issue as to whether there was concealment of critical and complete information regarding the dealings in Nancy's account at First Associates prior to the delivery of information by First Associates to Mr. Chaplin sometime after the order of January 18, 2002 and prior to his first report of May 7, 2002. Thus there is a genuine issue as to whether the two year limitation period from the time of Nancy's death on February 4, 2000 is applicable and whether it was tolled sufficiently to permit this action commenced on April 4, 2003 to proceed.
Conclusion
[48] The motion for summary judgment is dismissed. The plaintiff is entitled to his costs. If costs cannot be agreed, brief written submissions may be made in 10 days along with a proper cost outline, and First Associates shall have 10 further days to file brief written submissions.