doctrine of fraudulent concealment to the conduct of the appellant, the estate
trustee, tolled the limitation period until a date that was less than two years
after P’s death. The appellant appealed.
Held, the appeal should be dismissed.
The application judge did not err in finding that a special relationship existed
between the appellant, as estate trustee, and the respondent. That special relationship arose from a combination of the duties owed at law by an estate trustee
to estate creditors and the appellant’s control over information about any insurance policies owned by P. The application judge did not err in finding that the
appellant engaged in unconscionable conduct by concealing the lack of an insurance policy from the respondent when the respondent inquired about it and then
taking the position that the claim was statute-barred. The claim was tolled from
the date of P’s death until the date when estate counsel advised the respondent
that the policy “may have lapsed”. Consequently, the respondent’s action claiming
a first charge on the estate’s assets was not statute-barred.
Cases referred to
Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341,  O.J.
No. 226, 249 D.L.R. (4th) 662, 194 O.A.C. 231, 30 C.C.L.T. (3d) 88, 13 E.T.R.
(3d) 1, 136 A.C.W.S. (3d) 778 (C.A.); Waxman v. Waxman,  O.J. No. 1765,
186 O.A.C. 201, 44 B.L.R. (3d) 165, 132 A.C. W.S. (3d) 1046 (C.A.)
Statutes referred to
Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1)
Trustee Act, R.S.O. 1990, c. T.23, s. 38, (3)
Authorities referred to
Thériault, Carmen S., ed., Widdifield on Executors and Trustees, looseleaf (2011-
Rel. 1), 6th ed. (Toronto: Carswell, 2016)
APPEAL from the order of Koke J.,  O.J. No. 4238, 2016
ONSC 2377 (S.C.J.) on an application for directions.
Robert Trent Morris, for appellant.
Sean Dewart and Adrienne Lei, for respondent Pauline McKenny.
Endorsement BY THE COURT: —
 This appeal concerns the estate of the late Paul Penner,
who died in March 2013. He is survived by his sister, the appellant Rita Roulston, who is his estate trustee, as well as a beneficiary under his will. Mr. Penner is also survived by his former
wife, the respondent Pauline McKenny.
 Mr. Penner and Ms. McKenny signed a separation agreement in 2002. It was a term of that agreement that Mr. Penner
would maintain $150,000 in life insurance designating Ms.
McKenny as the beneficiary. The parties also agreed that in the
event Mr. Penner failed to maintain the insurance, Ms. McKenny