Court File and Parties
Court File No.: CV-22-00000235-0000 Date: April 2, 2026 Superior Court of Justice – Ontario
Re: John Ratcliffe and Gloria Ratcliffe, Plaintiffs And: Canadian Imperial Bank of Commerce, CIBC Wood Gundy and CIBC World Markets, Defendants
Before: Justice Patrick Hurley
Counsel: Plaintiffs, Self-represented A. Bazak and B. Cerqua, for the Defendants
Heard: December 15, 2025
Endorsement
Introduction
1The plaintiffs John and Gloria Ratcliffe commenced this lawsuit on August 3, 2022. They allege that the defendants misappropriated funds in 2005. According to them, they did not discover the embezzlement until 2020.
2The defendants have brought a motion for summary judgment. They assert there is no genuine issue requiring a trial and the action is statute-barred because it was commenced after the expiry of the limitation period.
3For the following reasons, the motion is granted, and the action is dismissed. Although the plaintiffs may genuinely believe that the defendants are responsible for the loss of their money, it is a claim based on conjecture, not evidence. The action was also commenced too late, after the applicable limitation period had passed.
Overview of the evidence
4The plaintiffs are husband and wife. On May 29, 2020, they emailed Steve Tutty who was then Branch Manager of the defendant CIBC Wood Gundy for Eastern Ontario. The email stated:
I was a long time client with CIBC Wood Gundy, and David Hider looked after my accounts. I am requesting that you would send me a printout of all my accounts from the years 2004 to and including 2011. We find that we need them for income tax purposes, and have somehow lost them during our last move to Ottawa. I am a US citizen by birth, and also have become a Canadian citizen about 20 years ago.
In 2004 and 2005 I sold US stocks with CIBC Wood Gundy acting as my agent, which included H. J. Heinz, General Electric, Procter and Gamble, Merck and Phizer [sic]. It is very important to establish where those funds were directed at time of sale.
5Mr. Ratcliffe inherited the shares from his mother who lived in the United States and died in 2004. The Ratcliffes lived in Belleville. Mr. Ratcliffe held a management position at Magna Autosystems, an auto parts manufacturer in Belleville. Ms. Ratcliffe was a licensed real estate agent.
6The defendants conducted an extensive investigation after receiving this letter. This investigation established that the plaintiffs opened a joint investment account at the CIBC Wood Gundy branch in Belleville in the fall 2004. The account number was 472-03383 (I will refer to this account as the "joint investment account").
7The proceeds from the sale of the shares were deposited into the joint investment account in 2004 and 2005. The total amount was $280,737.75. Some of the funds were transferred from this account to an RRSP account of Mr. Ratcliffe in 2005.
8During the investigation, the plaintiffs disclosed copies of their income tax returns from 2004 and onwards which contained documents issued by the defendants in relation to the sale of the shares and the joint investment account. These documents were sent to the plaintiffs' home address of 9 Huron Lane, Belleville.
9The defendants have a record retention policy, consistent with the financial industry standard, pursuant to which electronically generated customer records, including account statements, are purged from the digital database seven years after the record was created. Thus, there are many documents which no longer exist.
10The plaintiffs closed all their accounts with the defendants in 2014. They claim that the only documents which they still possess concerning their investments with the defendants were those included with their income tax returns.
11Mr. Hider was the plaintiffs' financial advisor at CIBC Wood Gundy. He first met Mr. Ratcliffe around 1990 when he worked at the Royal Bank of Canada in Belleville. The plaintiffs remained his clients after he moved to the investment brokerage Midland Walwyn in 1993 and later when this firm was acquired by CIBC Wood Gundy. Mr. Hider retired in 2014 after about 40 years in the financial industry.
12The plaintiffs allege they were the victims of an embezzlement perpetrated by Mr. Hider. They plead in paragraph one of the statement of claim:
We discovered on May 28, 2020, that our inheritance money worth $229,823.78, US dollars, had gone missing from an account #472-03383 at CIBC Wood Gundy in Belleville, Ontario in 2005. We never knew this account existed, as it was set up by our trusted friend and investment advisor, David Hider, under the guise of updating our personal information, and we were never informed that we were filling out a "Know your Client Form" to establish a new account. We never received a statement from that account ever.
13Mr. Hider first became aware of the plaintiffs' allegations in 2022. He recalled that the joint investment account was opened because Mr. Ratcliffe had received an inheritance which consisted of shares in American companies. He did not remember what the plaintiffs did with the money that was deposited in the joint investment account other than a transfer of $24,918.84 into an RRSP in 2005.1
14According to Mr. Hider, he had a good relationship with the plaintiffs. They never raised any concerns with him about their investments, including the funds in the joint investment account. He was not aware of any cognitive issues that the plaintiffs now claim Mr. Ratcliffe suffered from when Mr. Hider was their investment advisor.
15Mr. Hider deposed at paragraphs 24-26 of his affidavit:
My relationship with Mr. and Mrs. Ratcliffe was always positive throughout my professional career. They never raised any concerns with me about the validity of any of their accounts or about missing funds or unauthorized withdrawals. I always tried to help them invest in a way that promoted their financial wellbeing.
I am disappointed to learn of the allegations made by the Ratcliffes, and in particular, their allegations that call into question my conduct as their Investment Advisor. Throughout my career, I always prioritized my clients' interests. I never acted without express direction from my clients. I never opened accounts, made withdrawals from, or authorized the withdrawal of funds from any of my clients' accounts without express authorization and direction from my clients, including the Plaintiffs.
I never misappropriated funds or misdirected the withdrawal of funds from any of my clients' accounts. I never misled or concealed any information from my clients regarding their finances, investments or banking accounts.
16Mr. Ratcliffe claims to have no memory of what happened to the money in the joint investment account. The plaintiffs produced some documents in relation to Mr. Ratcliffe's cognitive disorder which indicate he has experienced problems with anxiety, confusion and memory. Dr. Gerard Hamilton, his longtime family physician, started treating Mr. Ratcliffe for these issues in 2010.
17Mr. Ratcliffe was employed on a full-time basis in various managerial positions at companies in Belleville and Ottawa from 1987 to 2010. He applied for a Canada Pension Plan disability pension in January 2012 which was denied. He appealed the denial to the Office of the Commissioner of Review Tribunals which dismissed the appeal in June 2015. The adjudicator did not make a finding about the severity of Mr. Ratcliffe's alleged disability but concluded that, because Mr. Ratcliffe was intending to return to part-time employment, his condition was not "prolonged" as required under the Canada Pension Plan.
18Mr. Ratcliffe agreed at his cross-examination that the joint investment account was set up to deal with his inheritance. He testified:
Q. As far as you know – I think we can, though, agree that the shares in your inheritance were transferred into an account here in Canada, right?
A. Yes.
Q. And it was this joint account, right?
A. It was…
Q. This non-registered account?
A. I-- my understanding is, yes, that they have-- CIBC said that they were—had--they were holding them.
19Mr. Ratcliffe now says he has no memory of what happened to the money. He testified:
Q. Well, the issue I have, Mr. Ratcliffe, is you – your claim is premised on CIBC that this – some of these funds, at least. Not all of them, but some of these funds, were lost while in the care of CIBC. That's essentially what you are claiming.
A. Yes.
Q. But sitting here, you can't tell me whether you did something with them, whether someone else did. You just don't know. You don't remember, right?
A. I know we have been dealing with that kind of money, and Gloria had been involved. I mean, I would not have spent $300,000.00 without Gloria knowing. There's no way.
Q. How are you certain of that?
A. Pardon me?
Q. How are you certain of that?
A. Because I know Gloria.
Q. But you can't tell me here today that you didn't do something, right?
A. I'm – I will tell you I didn't.
Q. You didn't?
A. No. Well, I mean, you're trying to make me make – I really don't know.
Q. I'm not trying to do anything.
A. All –
Q. I'm just trying to –
A. – I know is, if Gloria had been involved –
Q. Right.
A. – we wouldn't be sitting here today. No matter what question you ask me about it. Because you keep asking a similar question a little bit different. And my answer is, if Gloria had been involved –
Q. Right.
A. – we wouldn't be here.
Q. But Gloria did know about the money coming in from the inheritance, because you told her about it. So, she left it to you to deal with?
A. I don't know.
Q. You don't know?
A. No.
20At her cross-examination, Ms. Ratcliffe testified that she did not know about the joint investment account until 2020. Nor did she know what her husband was doing with the inheritance that he had received in 2004. She testified:
Q. He didn't tell you about the inheritance or what he was doing with it?
A. No. He and Mr. Hider were like this. When they would talk –
Q. So, I understand that you say that. But I think you've already responded to it that you and – you were just simply not informed of this inheritance?
A. No.
Q. And you figured this on your own in 2020?
A. Well, before that, I started looking.
Q. And I think, if I recall, that was in 2011 when you were growing concerned? Or was that 2008 you were growing concerned?
A. Not really. I would say it was after we were in Ottawa.
Q. What year was that? 2012?
A. No. It was 2017. And I may have mentioned it on-and-off. But by this time, Tom had forgotten all about it.
21The plaintiffs' income tax returns for the years 2004-2007 were prepared by Dorothy Lensen of Dal's Bookkeeping Services in Belleville. The returns include copies of statements which the defendants sent to the plaintiffs' home address of 9 Huron Lane, Belleville. One of the documents in 2005 records the sale of the shares, the amounts received by the plaintiffs and that the funds were deposited in the joint investment account.
22Affidavits of documents have been exchanged. There were examinations for discovery. The defendants brought this motion in March 2025. The parties exchanged affidavits and there were cross-examinations. The record before me consists of approximately 3,500 pages.
The Law
a. Summary judgment
23A court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: Rule 20.04 (2)(4). In determining whether trial is required, rule 20.04 (2.1) allows the court to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence, unless it would be in the interest of justice for such power to be exercised only at trial.
24The legal criteria are set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
25The onus of proof is on the moving party. It is only after the moving party has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success: Dia v. Calypso Theme Waterpark, 2021 ONCA 273, at paras. 24-25.
26Although decided before Hryniak, the Court of Appeal's decision in Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545 (C.A.), remains a leading case on what constitutes a genuine issue for trial. Morden A.C.J.O. described the test as follows at p. 10:
It is safe to say that "genuine" means not spurious and, more specifically, that the words "for trial" assist in showing the meaning of the term. If the evidence on a motion for summary judgment satisfies the court that there is no issue of fact which requires a trial for its resolution, the requirements of the rule have been met. It must be clear that a trial is unnecessary. The burden is on the moving party to satisfy the court that the requirements of the rule have been met. Further, it is important to keep in mind that the court's function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists.
27I decide whether a genuine issue exists by reviewing the factual record before me. If I determine that there is a genuine issue, I need to consider the fact-finding powers granted under subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure and whether the exercise of these powers would lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: Hryniak, at paras. 45-46 and 63.
28In this type of motion, "[t]he focus must be on whether the summary judgment process enables a fair determination on the merits in light of the record presented by the parties" (emphasis in original): Moffitt v. TD Canada Trust, 2023 ONCA 349, at para. 50. Put another way, summary judgment is appropriate where the evidentiary record permits a fair determination on the merits and a trial would add nothing of value: Stingelin Estate v. Woods, 2026 ONCA 240, at para. 17.
29While the onus is on the moving party to establish the existence or lack thereof of a genuine issue requiring a trial, "[e]ach side must 'put its best foot forward' with respect to the existence or nonexistence of material issues to be tried": Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, at para. 25. I am entitled to presume that the evidentiary record is complete and there will be nothing further if the matter was to go to trial: Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, at para. 54.
b. Limitation period
30The relevant statutory provisions of the Limitations Act, 2002, S.O. 2002, c.24, Sch. B are:
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.
(4) The limitation period established by subsection (2) does not run during any time in which,
(a) the person with the claim,
(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and
(c) the person against whom the claim is made,
(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or
31The ultimate limitation period in s.15(1) applies even if the regular two-year limitation period under ss. 4 and 5 of the statute has not yet run out. A claim can be barred by the ultimate limitation period irrespective of the date of discovery of the plaintiff's right to sue: Tessaro v. Gora, 2025 ONSC 198, at para. 32; Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA at para. 69.
32Under ss. 4 and 5, a claim is discovered when a plaintiff has actual or constructive knowledge of the material facts upon which a "plausible inference of liability on the defendant's part can be drawn." It must be more than mere suspicion or speculation but certainly is not required. A plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence: Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at paras. 42-46.
33The plaintiff does not need to know the exact extent or type of harm they have suffered for the limitation period to start to run. Thus, the extent of monetary loss is not required to be known, only that some loss has been suffered: Hamilton (City) v. Metcalf & Mansfield Capital Corporation, 2012 ONCA 156 at para. 54; Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179 at para. 33.
Positions of the parties
34The defendants submit that the 15-year limitation period commenced September 6, 2005. This is the date of the final deposit in the joint investment account from the sale of the shares that Mr. Ratcliffe inherited. The records on which the plaintiffs rely in this action establish that the joint investment account existed, funds were deposited in 2005; and the tax documents produced by the plaintiffs show that there were in possession of documents associated with the creation of the account. In the statement of claim they allege that the money "had gone missing" in 2005; this means that they knew of the claim that year. This action was not commenced until 17 years later. There is no evidence that in 2005 or the succeeding years either plaintiff suffered from a physical, mental, or psychological condition that rendered them incapable of commencing a proceeding. There is no evidence that the defendants engaged in any wilful concealment.
35Although the plaintiffs assert that they only discovered the existence of the joint investment account and the misappropriation of the funds in May 2020, that is directly contradicted by documents they acknowledge were in their possession in 2004 and 2005. They closed all their accounts with the defendants in 2014. The only reasonable inference is that they would have known many years before May 2020 that funds once held by the defendants no longer existed. Therefore, the two-year limitation period under s. 4 of the Limitations Act, 2022 would have necessarily expired before August 2022.
36Further, there is no genuine issue for trial. The plaintiffs' claim that the defendants misappropriated Mr. Ratcliffe's inheritance but have produced no evidence in support of this allegation. The documentary evidence conclusively establishes that the shares were sold, and the proceeds deposited in the joint investment account. Because of his professed lack of memory, Mr. Ratcliffe does not know what happened to the money. Ms. Ratcliffe also does not know because she says that she was unaware of the joint investment account until 2020. The plaintiffs cannot prove that the money was misappropriated by the defendants.
37The defendants did not expressly address the limitation period in their factum, nor did Ms. Ratcliffe do so in her submissions at the hearing. Rather, the plaintiffs rely on Mr. Ratcliffe's childhood diagnosis of dyslexia and the cognitive issues that he experienced in adulthood to explain why they were unaware of the misappropriation of the funds before May 2020. They assert that the defendants have covered up Mr. Hider's wrongful conduct and a careful scrutiny of the documents which still exist prove they did so. They contend a trial is required.
Analysis
38I have concluded that this motion should be granted because this lawsuit does not require a trial for its fair and just determination on the merits. I say this for the following reasons.
39I have as complete a record as I would at a trial. The defendants conducted an exhaustive investigation of the plaintiffs' claim. There have been examinations for discovery and cross-examinations and extensive documentary production. There is no evidence in the record before me that the defendants have concealed any documents or that they failed to comply with their obligation to produce all relevant documents in their possession, custody or control.
40Based on this record, I find the following facts have been established. Mr. Ratcliffe received an inheritance in 2004 after his mother died and it consisted of shares in American companies which were sold and the sale proceeds deposited in the joint investment account with the plaintiffs' agreement. The plaintiffs received documents from the defendants about this transaction and the joint investment account. These documents and copies of their completed tax returns were returned to them by the business that prepared the returns, and the plaintiffs kept possession of them.
41Mr. Ratcliffe is not currently able to explain what happened to these funds. He is obviously an intelligent man who, after obtaining a master's degree in mechanical engineering, was gainfully employed in managerial positions in the United States and Canada until he left the workforce in 2010 when he was 63. I accept that he may not now have a memory of what transpired with his inheritance, but dyslexia would not account for this lack of memory. The cognitive issues that are identified in the records disclosed by the plaintiffs would not be an explanation for his memory loss. Moreover, to the extent that he was experiencing problems with his memory, the only medical records produced by the plaintiffs are from 2010 and onwards, well after the joint investment account was opened.
42The plaintiffs' income tax returns include documents about the sale of the shares and their deposit in the joint investment account. These documents were mailed to the plaintiffs' home address in Belleville and in their possession in 2004 and 2005 (and later years). The existence of these documents; the fact they remained in the possession of the plaintiffs; and that the plaintiffs gave them to the person who prepared their tax returns gainsay a fundamental assertion in the statement of claim – that they knew nothing of the joint investment account nor what happened with Mr. Ratcliffe's inheritance.
43Although it is possible that a trusted financial advisor could conceal an embezzlement of funds for a period, the plaintiffs closed all their accounts with the defendants in 2014. Clearly, they would have discovered then that the money was no longer in any of the accounts.
44There is nothing suspicious about the defendants no longer possessing certain records given the passage of time and their policy about the retention of such records beyond a certain date. The policy is consistent with the industry standard.
45The plaintiffs' joint affidavit refers to several meetings with Mr. Hider in 2005 and 2006 when they discussed financial matters, including their investments. It defies belief that Mr. Hider could have arranged without their knowledge the sale of the shares and the deposit of the funds in an investment account fabricated by him. And then send them statements in relation to the joint investment account. Mr. Hider denied that he acted wrongfully; the plaintiffs have not produced any evidence that would controvert that denial or cause a judge at trial to disbelieve him.
46The plaintiffs obtained a report prepared by a Forensic Document Examiner, Samiah Ibrahim, in November 2024 and included it in their responding motion record. Mr. Ibrahim did not swear an affidavit attesting to the accuracy of the report. I place no weight on his report: Sanzone v. Schecter, 2016 ONCA 566, at paras. 15-19. Even if I were to consider it, his findings do not alter my view that the plaintiffs' central allegation, which is that Mr. Hider misappropriated the funds and successfully concealed this embezzlement from them, is wholly unsupported by the evidence.
47I cannot determine, on the record before me, what ultimately happened to Mr. Ratcliffe's inheritance. But that is not the issue in this litigation. The plaintiffs' claim is based on misappropriation of the funds, and they cannot prove that. At trial, Mr. Ratcliffe would testify that he has no memory of what happened to the funds. Ms. Ratcliffe would testify that she had no knowledge about what her husband did with his inheritance, and she was unaware of the joint investment account until 2020. The plaintiffs have raised objections about the documentary record and the defendants' investigation of their claim but none of those assist them in proving their case.
48The action was commenced beyond the applicable limitation period. The plaintiffs state that the money "had gone missing" from the joint investment account in 2005 but they did not discover the loss of the funds until May 2020. I find that the plaintiffs knew of the existence of the funds in 2005, and Mr. Ratcliffe admitted that they were held by the defendants in one of their accounts. This is an inescapable conclusion from the documentary record. There is no dispute that the plaintiffs closed all their accounts with the defendants in 2014. When they closed their accounts, they would know what funds were in those accounts. Therefore, the plaintiffs would have known in 2014 that the funds were no longer in any account, and the limitation period of two years would start upon the discovery of the alleged missing funds. The plaintiffs did not commence this action until 2022, which is well beyond the two-year limitation period in the Limitations Act, 2022.
49Does this lawsuit require a trial for its fair and just determination on the merits? The answer in this case is no. I appreciate how this will likely be very upsetting to the Ratcliffes. I know this litigation has been a trying experience for them. I do not believe Mr. Ratcliffe's present lack of memory is feigned. The decline in his cognitive function has, I am sure, been quite distressful for him and his wife. Ms. Ratcliffe's belief that the defendants embezzled the money is, I think, a sincerely held one. She has done a thorough job in her review and critique of the defendants' investigation and their response to the claim. But suspicion is not proof in a court of law. The result of a trial in this case is a foregone conclusion: The action would be dismissed.
Disposition
50The motion is granted, and the action is dismissed. As the successful parties, the defendants are presumptively entitled to costs. The parties should make reasonable efforts to agree on the amount of costs. If the parties are unable to reach an agreement, the defendants shall deliver written submissions not to exceed five pages exclusive of the costs outline and any written offers to settle within 30 days of the release of this decision. The plaintiffs shall deliver their responding submissions of the same length within 30 days of receiving the defendants' submissions. The submissions shall be filed and uploaded to Case Center. The defendants shall notify my judicial assistant at Sarah.Wheaton@ontario.ca once both sets of submissions are filed.
Hurley, J.
Date: April 2, 2026
COURT FILE NO.: CV-22-00000235-0000
DATE: April 2, 2026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Ratcliffe and Gloria Ratcliffe Plaintiffs
AND:
Canadian Imperial Bank of Commerce, CIBC Wood Gundy and CIBC World Markets Defendants
ENDORSEMENT
Hurley, J
Released: April 2, 2026