part about whether an insurance policy was in place when
Mr. Penner died, with the uncertainty mainly caused by the less
than forthright correspondence from the estate’s counsel.
 In light of the entirety of that correspondence, it was open
to the application judge to find, at para. 52 of his reasons, that,
By withholding material facts, the estate trustee concealed from
Ms. McKenny that she had a legitimate debt against the estate as a creditor.
In my view, given the special relationship between the estate trustee and
Ms. McKenny, it was unconscionable for the estate trustee to initially sug-
gest that insurance was in place, then delay matters by promising to bring
an application for directions, and then later take the position (a position
which provided a direct material benefit to her as a beneficiary of the
estate), that the time for claiming against the estate had expired.
 Given those circumstances, we see no basis to interfere
with the application judge’s conclusion that the doctrine of fraudulent concealment applied to the conduct of Ms. Roulston, as estate
trustee, with the result that the two-year limitation period for
Ms. McKenny’s claim was tolled from the date of Mr. Penner’s
death until at least September 25, 2013, when estate counsel
advised the policy “may have lapsed”. Consequently, Ms. McKenny’s action claiming a first charge of $150,000 on the estate’s
assets is not statute-barred.
 The appeal is dismissed.
 The respondent is entitled to her costs of the appeal fixed
in the amount of $7,500, inclusive of disbursements and HST.
Toronto Distillery Company Ltd. v. The Alcohol and
Gaming Commission of Ontario et al.
[Indexed as: Toronto Distillery Company Ltd. v. Ontario
(Alcohol and Gaming Commission)]
2016 ONCA 960
Court of Appeal for Ontario, Cronk, Juriansz and L.B. Roberts JJ.A.
December 20, 2016
Taxation — Legality — Distillery required as condition of grant of
licence to enter into contract with LCBO — Contract requiring distillery to first sell its spirits to LCBO and then sell them to public as
LCBO’s agent — LCBO’s markup being proprietary charge rather than
unconstitutional tax — Markup also escaping classification as tax
because distillery agreed to it by contract.