Edwards et al. v. Law Society of Upper Canada et al., (1998) 55 O.T.C. 189 (GD)

• Judge: Sharpe, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 03, 1998
• Jurisdiction: Ontario
• Citations: (1998), 55 O.T.C. 189 (GD)

Edwards v. LSUC (1998), 55 O.T.C. 189 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. MR.014

John Edwards and Nancy Edwards on behalf of themselves and with leave of the court on behalf of the class herein described (plaintiffs) v. The Law Society of Upper Canada, Palmer Mills, Beverly Hoover, and James Thomas Leslie Mills, executors of the Estate of John T. Murray Mills, deceased, Sisto Consultants Inc., Maurice Carr, Jasper Naude, John Davison, Marilyn Davison, Arlene Woolcox, Jasbir Gill, Sisto Finance Inc., Camm-Tex Appraisal Co. Ltd., John D. Shaw and Appraisal Group Professional Services (Canada) Ltd. (defendants)

(File No. 94-CQ-48311)

Indexed As: Edwards et al. v. Law Society of Upper Canada et al.

Ontario Court of Justice

General Division

Sharpe, J.

March 11, 1998.

Summary:

The plaintiffs sued the defendants alleging that they were victims of fraud which involved the purchase of gold delivery contracts for which they paid substantial sums. The defendants included the executors of a deceased solicitor (Mills) with whom the plaintiffs alleged a solicitor-client relationship. The plaintiffs alleged that Mills was in breach of his contractual and fiduciary obligations with respect to these funds and claimed an accounting, tracing of the funds and damages. The executors moved for an order dismissing the action against them on the ground that the claim was statute barred. The executors argued that the claim against them was barred by the two year limitation period in s. 38(3) of the Trustee Act, while the plaintiffs contended that their claim was saved by ss. 43 and 44 of the Limitations Act. The executors argued further that the action should be dismissed on the basis of plene administravit (i.e., there were no assets in the estate). The plaintiffs argued that there were assets because of coverage under a lawyer's professional liability insurance policy.

The Ontario Court (General Division) granted partial summary judgment substantially dismissing the claim against the executors. The court held that part of the claim was statute barred. To the extent the claim was not statute barred it failed to qualify for coverage under the insurance policy and the executors were entitled to rely on the plene administravit defence.

Executors and Administrators - Topic 5246

Actions by and against representatives - Actions against executors and administrators - Defences - Plea of plene administravit - See paragraphs 23 to 34.

Executors and Administrators - Topic 5401

Actions by or against representatives - Limitation of actions - General - See paragraphs 1 to 19.

Limitation of Actions - Topic 6024

Trusts - Actions against trustee - Fraud (incl. equitable fraud) - See paragraphs 28 to 34.

Limitation of Actions - Topic 8558

Claims by or against an estate - Claim against an estate - Applicable limitation period - See paragraphs 1 to 14, 28 to 34.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - See paragraphs 15 to 19.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - See paragraphs 20 to 22.

Cases Noticed:

Smallman v. Moore, [1948] S.C.R. 295, refd to. [para. 8].

Roth v. Weston Estate et al., [1997] 104 O.A.C. 316 (C.A.), refd to. [para. 8].

Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103; 106 D.L.R.(4th) 404, addendum 157 N.R. 372; 66 O.A.C. 240, refd to. [para. 11].

Swain's Estate v. Lake of the Woods District Hospital (1992), 56 O.A.C. 327; 9 O.R.(3d) 74 (C.A.), refd to. [para. 13].

Mackey Estate v. Mackey (1986), 24 E.T.R. 174 (Ont. C.A.), refd to. [para. 15].

1061590 Ontario Ltd. v. Ontario Jockey Club et al. (1995), 77 O.A.C. 196; 21 O.R.(3d) 547 (C.A.), refd to. [para. 16].

Wood v. Smart (1914), 16 D.L.R. 97 (Man. K.B.), refd to. [para. 21].

Crown Bakery Ltd. v. Preferred Accident Insurance Co. of New York, [1933] 2 W.W.R. 33 (Sask. C.A.), refd to. [para. 21].

Commander Leasing Corp. v. Aiyede Estate and Aiyede (1984), 1 O.A.C. 135; 44 O.R.(2d) 356 (C.A.), refd to. [para. 23].

Egnatios v. Leon Estate (1990), 73 D.L.R.(4th) 137 (Ont. Gen. Div.), refd to. [para. 28].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 30].

McLellan v. Milne, [1937] O.R. 742 (H.C.), refd to. [para. 31].

Nocton v. Lord Ashburton, [1914] A.C. 932, refd to. [para. 31].

Armitage v. Nurse, [1997] 2 All E.R. 705 (C.A.), refd to. [para. 32].

Statutes Noticed:

Limitations Act, R.S.O. 1990, c. L-15, sect. 43, sect. 44 [para. 10].

Trustee Act, R.S.O. 1990, c. T-23, sect. 38(2), sect. 38(3) [para. 7].

Authors and Works Noticed:

Waters, Law of Trusts in Canada (2nd Ed. 1984), p. 1017 [para. 28].

Williams, Mortimer and Sunnuchs, Executors, Administrators and Probate (17th Ed. 1993), p. 894 [para. 23].

Counsel:

D.E. Wires and K.E. Jolley, for the plaintiffs;

M.S. Teitelbaum, for Beverly Hoover and John Mills, Executors of the Estate of John T. Murray Mills.

This case was heard on February 3, 1998, before Sharpe, J., of the Ontario Court (General Division), who delivered the following judgment on March 11, 1998.