Top 5 Civil Appeals from the Court of Appeal (February 2017)

1. Roulston v. McKenny, 2017 ONCA 9 (Doherty, Brown and Huscroft JJ.A.), January 5, 2017

   Paul Penner died in March 2013, survived by his sister, the appellant Rita Roulston, who was his estate trustee as well as a beneficiary under his will. Penner was also survived by his former wife, the respondent Pauline McKenny. Penner and McKenny signed a separation agreement in 2002, which provided that Penner would maintain $150,000 in life insurance designating McKenny as the beneficiary and that in the event Penner failed to maintain the insurance, McKenny would have a first charge against his estate in the amount of $150,000. Penner failed to pay the premiums on the life insurance policy, which lapsed before his death. Under his will, Penner's estate of slightly more than $100,000 was to be divided between Roulston, on the one hand, and several nieces and nephews on the other.

   In September 2015, more than two years after Penner's death, McKenny commenced an action against Penner's estate, seeking payment of $150,000.

   In an application for directions brought by Roulston as estate trustee, the parties asked the court to determine McKenny's claim against the estate.

   The application judge rejected Roulston's assertion that McKenny's claim for a first charge against the estate was statute barred, holding that the application of the doctrine of fraudulent concealment tolled the two-year limitation period until at least September 25, 2013. Citing the decision of the Court of Appeal in Giroux Estate v. Trillium Health Centre, 2005 CanLII 1488 (ON C.A.), the application judge found that (i) Roulston was in a special relationship with McKenny because she had exclusive possession of knowledge and information as to whether an insurance policy existed and whether McKenny had a claim against the estate, (ii) Roulston acted in an unconscionable manner by withholding from McKenny material facts about the status of the policy, and (iii) as a result of the withholding of that information McKenny had a reasonable belief, at least until September 25, 2013, that Penner's insurance policy had been in good standing at the time of his death.

   Roulston appealed in her personal capacity as a beneficiary under her brother's will. She argued that the application judge erred in finding that a special relationship existed between her as estate trustee and McKenny, and in finding that her conduct as estate trustee was such as to attract the operation of the doctrine of fraudulent concealment.

   The Court of Appeal rejected these submissions.

   In a brief endorsement, the court held that the application judge was correct to find that a special relationship existed between Roulston, as estate trustee, and McKenny. This relationship arose from a combination of the duties owed at law by an estate trustee to estate creditors pursuant to the Estates Administration Act, R.S.O. 1990, c. E.22, and Roulston's control over information about insurance policies owned by her brother.

   The court noted that counsel for McKenny wrote to counsel for the estate asking for particulars of any insurance policy under the separation agreement and also contacted the insurer, Sun Life Financial, seeking information, but was advised that Sun Life could only release information to the estate trustee. Because McKenny was unable to obtain information about a policy directly from the insurer, the court held that there was no error in the application judge's findings that (i) the estate trustee had exclusive possession of knowledge and information of whether McKenny's debt actually existed and that (ii) since the estate trustee was in a unique and privileged position to obtain information, it was reasonable for McKenny to rely on what she was being told.

   The court also found no error in the application judge's finding that the estate trustee's conduct was unconscionable or in his conclusion that the doctrine of fraudulent concealment applied. McKenny's action claiming a first charge of $150,000 on the estate's assets was, accordingly, not statute barred.

   The appeal was dismissed.

2. Nissen v. Durham Regional Police Services Board, 2017 ONCA 10 (Sharpe, Pepall and van Rensburg JJ.A.), January 9, 2017

   What are the required elements for a claim for damages against the police for breach of a promise of confidentiality made to a citizen reporting wrongdoing...