TRUSTS SUMMARY by jolinmilioncherie


									                                          TRUSTS SUMMARY

Equitable Maxims
o Developed in Courts of Chancery
o Relate to moral idea of justice – not binding principles, just general guides.
o There are about 30
1. Equity looks to be seen as done that which ought to be done: will overlook little trivial mistakes because equity
     is concerned with basic intent
2. Equity acts in persona: equity acts on the person and is individualized
3. Equity will not assist a volunteer: if you don’t pay for something, equity won’t necessarily assist you, but if you
     are a bona fide purchaser, your rights are highest
4. Equity will not allow a … to become a purchaser for fraud: people couldn’t rely on writing to allow a person to
     commit fraud. Won’t allow a statute to be interpreted in a way that commits fraud
5. Equity will follow the law
6. Whoever comes to equity must come with clean hands: someone who is not fair or just will not be favoured by
7. Where the equities are equal, the law prevails: if you have 2 people who have equally equitable claims, CL will
     resolve it.
8. Where equities are equal, the first in time prevails.
9. Equity aids the diligent not the tardy: there are no limitation periods, but you can’t let damages pile up etc…
     element of reasonableness
o Judge only- individualized law depended on the facts, didn’t want artificial distinction between fact and law
o A way to allow the King to have his own court system.
o A gloss on the CL, to remedy when you thought CL didn’t work.
o At first set up to be a moral court, to fulfill the moral obligations of the people
o You could seek relief if someone’s conduct was contrary to conscience
o No precedents or record keeping.
Common Law
o Separation of govt and judiciary
o Operated as courts of equity didn’t exist, never alluded to in CL reporting.
o CL lawyers went only to CL courts- were in competition.
16th Century
o Threats to the Chancery court, pressures to change
o Huge amounts of litigation
o 1480-1590: staggering amounts of cases, especially in chancery, way more than today, and the Chancery courts
     became overloaded.
o 17th Century: Attempts to end Chancery. This lead to change- more rules
o 1615- Earl of ____ case: proved that Chancery had primacy. Ratio: Equity has the jurisdiction to prevent a
     plaintiff from exercising a CL verdict.
o Late 1600’s- Equity courts sucked, and used most of the trappings of CL (e.g.: precedents, reports, certainty,
     continuity became more important than conscience)
o 1873-5: Judicature Acts attempted to meld the 2 systems by abolishing the Chancery courts and having just one
The Present
o There has been a renaissance of conscience-based decision making in the SCC
o Lac Minerals, Guerin, Petkas- court is looking back to original ideals of equity, and make D’s act in a certain
     morally correct way.
History of Trusts
o   Trusts were developed because the courts of equity were conscience based
o   Began with the use
o   A  B to use C
o   A owns property, transfers to B, so that C can use it.
o   CL didn’t recognize it, so it existed purely in Chancery

Reasons for Uses:
    o Basically it was a way to avoid rules in place at the time
    o C is not trustworthy
    o C is far away and B is going to give it to her
    o C is unable to hold property
    o Avoiding taxes was properly the most common
    o Primogeniture- first born son inherits. This allows females to use property
    o Provide charitable donations

The Statute of Uses
o Much of the land in England became tied up in uses, so the King lost half his original revenue
o Difficult to tell who owned land
o 1535: Statute of Uses: all uses would be executed as of the date of the statute, so B’s interest was executed,
    and it became a transfer to C
o 1550- Got around this by adding another use, because the statute only executes the first use
o A  B to use C to use D
o C would be the trustee, and D had the use
o This was challenged in court, and at first courts found it invalid, slowly, lawyers continued to use it, and by the
    end of the 1500’s, it was accepted as a valid use of property
o By mid-1600’s, property was all tied up again
o Current uses of trusts: pensions

Trusts Defined
Maitland: “any person who has property vested in him/her who is subject to an equitable obligation to hold that
property for the benefit of another, or for a purpose recognized by law, is a trustee of that property. If the obligation
arises by an intention to create than it’s an express or charitable trust, if it’s from a presumed intention, the trust is
resulting, and if it arises by operation of law, it is a constructive trust.”

Donovan Waters: “a trustee is compelled in equity to hold property, whether by law or equitable title for the benefit
of some persons called “beneficiaries” or for some objects permitted by law, so that the real benefit accrues not to
the trustee, but to the beneficiary or other objects.”

Express: created on purpose by the originator

Components of the Definitions
A             B                    C

    A- creator, settlor (inter vivos trust), testator (as part of a will)
    B- holds legal title to the property. Trustee, cestui qui trust
    C- beneficiary, cestui que use, has equitable title (person or charitable purpose)
    * Property has 2 aspects, equitable and legal title. Not possible in CL.
1. B has an equitable obligation because it was enforced in Chancery. It arises because the trustee has been
    determined to be a fiduciary- original form of fiduciary, and has equitable obligations. 2 types of obligations:
    personal and proprietary due to CL/equity split and title split.
2. You must have trustee, but your trust won’t fail for lack of one, as long as it’s clear you meant to have one. If
    creator by accident sets up something that fails to appt a trustee, courts will appt one for you.
3. Trust property is held legally by the trustee. Notion of what property can be held in trust has evolved in the
    case law over time (e.g.: intangibles, personal properties, land)
4. Very broad range of possible beneficiaries. Originator can also be the beneficiary- set up a trust for yourself.
    Beneficiaries have rights, because otherwise there wouldn’t be a real person. Beneficiaries don’t have to be
    alive (i.e.: persons to be).

Example Trusts?
A  B  A (yes)

A       B  B (no- title isn’t separated)

A       B  B+C (yes- title is split)

A       B  A+B (yes)

A       B  C  D (yes- SUBTRUST- C gives part or all of her equitable interest to D, holds it in trust)

A  B  C1+C2+C3 (yes- you can have an infinite no. of beneficiaries, or B could choose such as in
awarding a scholarship)

A       B1+B2+B3  C (numerous trustees- board)

A       B  C1+C2+C3  D1+D2

A       B  Clife  Dremainder

A       B  Cpurpose

A       B  Cdog (no- can’t creates subtrusts or anything- no jurisprudence)

A       B  Cdog for life  Dremainder

A       B  Cif C marries William
                                                      Public policy (chancery), other prop. principles
A       B  Cif Cdoes not marry William

Trusts and …

o All trustees are fiduciaries, but not all fiduciaries are trustees
o Trustees were the first fiduciaries, and the highest because they have proprietary interest in the property, which
   regular fiduciaries don’t have
o Has the greatest discretion in looking after the property
o The fiduciary acts on behalf of the beneficiary, and the beneficiary has a right in equity, whereas a the
   beneficiary of a trust has a proprietary interest
1. No trust because bailee has an interest, but not title, and bailor is required to return the property once whatever
    it is is finished
2. Bailee, because he doesn’t have title, can’t pass title.
3. Intention behind the relationship is different- no transfer of title in bailment.
4. Bailee is not a fiduciary- have lower duties of care
5. The types of property that can be subject to trust or bailment are different (i.e.: trusts can be limitless, bailment
    is restricted to real and personal property)

1. Bailee transfers property to bailor for some reason (e.g.: car to mechanic to fix it)
2. Bailee and trustees have duty of care towards the property- bailor to take reasonable care, trustees a whole
    bunch more
3. Bailees and beneficiary can rely on tracing remedies if stuff goes on (allow the party to trace the property thru
    to other 3 parties)

No proprietary rights
1. Trusts and Ks define relationships between people

1. Ks governed by CL, trusts are equitable
2. Ktors are an equal relationship where there is agreement, in trusts there is no agreement between settlor, trustee,
3. K’l terms can be varied by the parties, where the creator of the trust is in charge of varying it- also statute
4. Ks can be terminated by agreement, but trusts generally aren’t revocable by settlor or trustee
5. Ks governed by personal rights, trusts by fiduciary rights (due CL/equity split)
6. Transfer of title fundamental to trust, but Ks can be about many things, including transfer of title
7. Ks enforceable only by parties that entered into them, where trusts can enforced by 3 parties

1. one person is acting for another in both
2. Both are fiduciaries

1. Agents don’t have to have legal title.
2. trustees have more say in what happens to the property
3. Principals monitor their agents

1. creature of statute
2. only limited liability (where trustee has absolute)
3. no title change
4. no separation of legal/equitable

o CL duty, personal obligation to pay off creditor.
o Same facts that give rise to C/D relationship may give rise to trust relationship.
o Was the intention to create a trust, or was it just C/D. Can just sue for $, not the property
Gifts: “I give my house to B in hopes she maintains it in good condition.” Could be a gift or trust- intention
determines which. Expectation that house is maintained, but it is not a legal duty. Gifts are absolute beneficial
interests, no obligation. “Provide a home for Chelsea”- more like trust- intended to provide home for C, or give it to
Conditions: intention is important, did the originator want the condition to always function?
Equitable Charges: Flat given to son absolute to maintain daughter- court said this is more than a condition, it’s an
equitable charge that the daughter could enforce. She could claim for equitable relief in the courts, and get $ for not
being maintained, or some sort of SP.
Equitable Personal Obligation: courts say no equitable charge on the property, just a personal obligation on you,
B must maintain C. Different remedies.
                look at each situation to determine intent- was there reliance, does C need a house, or to be

Hilary Lim Article: “Mapping Equity’s Place: Here be Dragons”
 Law is specialized discourse, and once you enter it, you must use the language of law
 Equity may be slightly different because it doesn’t have the baggage of law, and it tried to bring in marginalized
    people who might have been left out by law
 Georgina Nestle: is marginalized because she is a woman, also possible that all beneficiaries are marginalized,
    because they have no control over what happened to their property
 Trust law is the area of a very small, elite portion of society
 Trusts, in general, were a preserve the rich, so there is a tension between equity and trust law
 Middle and lower classes, until 20thC, wouldn’t have known what they were.
 Equity can be a constructive force for society because of the ideals of individualized justice, ordinary citizen
    can raise a claim
 One realm of private law that can be progressive and even activist, so we shouldn’t ignore the entire private law
 The use of equity where real changes can be made without the overt pretence of being activist, such as every
    time you raise a Charter claim/Constitutional case in public law.
 The tide will be slow because these are single judgements, chipping away at it.
 Even SCC is thinking of equity as a progressive force.
                                              THE EXPRESS TRUST
o   The first trust (other 2 are just corollaries)
o   The legal title is held by one person (trustee), and the equitable interest is held by another (beneficiary)
o   Management of property is split from enjoyment of it.
o   Is created when settlor is alive by transferring property to the trustee, or the settlor can do it in a will
o   In Canada (and most CL countries), there is no common repository for trusts- they can be held anywhere (e.g.:
    by lawyer, under bed etc…)
o   Unlike K’s, there is no consideration
o   They can be oral, but most are written

                                  THE CREATION OF AN EXPRESS TRUST

   1. Settlor must have legal capacity
   2. The three certainties must be satisfied
           - intention
           - subject matter
           - objects
   3. the trust must be constituted by the transfer of property to the trustee(s)
   4. Any requisite formalities must be met

                                                  1. CAPACITY
The Settlor: must have capacity to deal with property
    i)       Age: Minors cannot create a trust by way of will as they cannot, with certain exceptions, create a valid
             will. With inter vivos trusts, the trust is voidable and will become binding only if he ratifies the trust
             upon reaching the age of majority, or, in the case of trusts concerning long-term interests in property,
             he fails to repudiate the trust within a reasonable time after attaining the age of majority.
    ii)      Incompetency: A person may be found incompetent to create a trust where it is found that they are not
             capable of properly understanding the nature and effect of the transaction. In the case of a testamentary
             trust, the testator must also be able to understand the extent of the property being disposed of and
             appreciate the needs of dependants.
    iii)     Not Bankrupt: don’t want A to create a trust that will tie up a property that creditors are after.

The Trustee: Any individual who can hold an interest in property can be a trustee.
    i)      Anyone who can hold property, can be individuals or corporations.
    ii)     Minors can’t hold property, and neither can unincorporated associations
    iii)    Must have capacity to hold property

Beneficiaries: All persons whether individuals or incorporated entities can be beneficiaries.
   i)        All persons can be beneficiaries: Minors and unborn children
   ii)       Charitable purpose trusts are ok.
   iii)      Beneficiary is not supposed to be a company, it is not supposed to be a profit driven thing, so generally
             corporations can’t.
   iv)       Unincorporated associations and partnerships can’t be because they can’t hold equitable title either
                                       2. THE THREE CERTAINTIES
·   All trusts must meet these requirements. They are not truly distinct categories- they do interact.
·   2 possible ways to interpret trust-like grant: a) Life Estate to B, Remainder to C, b) gift with a condition- B
    gets the pie, obligation to give a bit to C.
· The three certainties are a way of analyzing and determining if a trust exists or not.
Commissioner of Stamp Duties v. Joliffe:
    Facts: Bill opens an acct for himself, and one for his wife, with bank as trustee- he did it to avoid taxes.
    Majority: Courts found no trust because there was no intention to create a trust- never wanted his wife to have
    the money. Using the word “trust” is not enough
    Minority: How can the courts let a person who objectively created a trust subvert the law due to subjective
    intention- trying to rely on equity to say it is wrong to take the $ away from the wife.
    Ratio: there is a subjective element to intent.
Jones v. Lock:
    Facts: Business trip, comes back, wife asks if husband brought back a gift for their new baby. He takes a chq
    for $1000 and says “I give this to baby, I’ll put it away for her.” He promises to complete the next day, but died
    that night.
    Issue: Is there a trust on behalf of baby?
    Majority: There is no trust; no intention to create a trust, the intention was to give baby a gift. The gift was
    Ratio: there is an objective manifestation of a trust, the subjective intent to give the money to baby was not

i)        Certainty of Intention
·    Refers to the intention to create a trust which is itself an intention that another person who is to receive property
     will be obliged to hold that property for the benefit of some other person
·    Intention must relate to more than a mere wish or moral obligation
·    The expression can be oral, written, and it can be showed thru conduct.
·    The absence of words like “trust”, or the absence of conduct showing it may indicate it is not a trust.

Re: Shamas (pp.74)
    Facts: provision causing problem: “I give all my belongings to my wife. I want her to pay my debts – raise the
    family. All will belong to my wife until the last one comes to the age of 21 years old. If my wife marries again
    she should have her share like the other children, if not, she will keep the whole thing and see that every child
    gets his share when she dies.” Is the wife the beneficiary of a gift, or just a trustee?
    Decision: This is a trust with qualifications.
    Reasoning: The wife is a life beneficiary, children get the remainder. “The widow is entitled to encroach on
    capital for her maintenance after the youngest child became 21 years of age and during her widowhood.”
    Power of Encroachment: allows the life beneficiary to take away from the capital, rather than just use the
    interest, which is normal.
Paul v. Constance:
    Facts: Unmarried couple, living in sin. Man is separated from his first wife. They started to share finances,
    wanted to get a joint acct, but couldn’t because they weren’t married. The man opens the acct in his name,
    intending to share, puts in $500. They put in bingo winnings- over 10 years $500 goes in and they use it to
    spend on xmas gifts. The man dies, and his wife comes back, and says the acct is all hers because they never
    divorced. Common-law spouse says no, it’s held in trust for me- ½ is mine.
    Issue: is there an intention to create a trust?
    Decision: Yes
    Reasons: over a period of time, they put money in together, with the understanding that it was held in trust for

     ** Haigh on the moral element: Gifts are a moral act, but you divest yourself totally of the gift- a trust is even
     more generous because what you are doing is giving the use (equivalent to gift), but you are assuming
     obligations to look after them of an ongoing nature- more than one time gift
ii)     Certainty of Subject Matter
· This has two aspects:
    · Certainty of the property subject to the trust obligation
    · Certainty of the amount beneficiaries are to receive
· The subject matter must be ascertainable at the time the person dies, not at the time the will is written
· In an inter vivos trust, the time of ascertainability and the time the trust arises are the same.
· Separation agreement with trust of 3/5 of husband’s net property at his death for wife until she remarries and
    then for her kids. So trust was supposed to arise immediately, but the amt couldn’t be determined until his

Sprange v. Bernard (1789), 2 Bro. CC 585; 29 ER 320
Facts: Testator willed $300 to her husband with the stipulation that the remainder “that he does not want for his own
wants and use” should be divided among two others at his death.
Ratio/Judgment: The held that husband was entitled to the gift absolutely. As the property and person to whom
property is given must be certain, the remainder was void for uncertainty as the will suggested that there might be
nothing left and thus nothing to hold in trust.

Re Romaniuk (1986), 48 Alta. LR (2d) 225; 23 ETR 294
Facts: Testator’s will attempted to create a trust in favour of her nieces and nephews. The will contained two
paragraphs which raise some uncertainty as to the subject matter of the trust. In one paragraph she wrote: “The rest
of the contents of the house and my personal belongings are to be available to my brothers to divide among [X] and
[Y] and the rest sold as well as the house and car”. In a following paragraph, she wrote “The money from the sale of
my house, car and other property as well as the money from my bonds and bank accounts is to be divided into four
equal shares and put in trust to be given to [nieces and nephews] on their each reaching 21…”
Issue: Is the description of the subject matter uncertain such as to void the trust as a result of the relationship
between the two paragraphs?
Judgment: The phrase “and other property” is capable of several interpretations. The Court has no clear grounds
upon which to determine which interpretation was intended. As a result the subject matter of the trust in favour of
the nieces and nephews fails for lack of certainty.

Green v. Queen (1973, Ont HCJ)
Facts: Green tries to stop development of a provincial park by arguing that the govt was holding the provincial park
in trust for the people of the province.
Decision: There is no trust
o The judge found Green had no standing as a citizen to make a claim
o Cement company contract was made before the park
o s.3(2) of the act makes it clear that the province can change the size of the park, or cancel it all together, means
     there is no certainty of subject matter.
Implications: Haigh says it would make more sense to say no certainty of intention: nothing about trusts in the
legislation. Pp. 4 s.2: says “for the use of the people, and future generations.” Last part sounds like a trust.
Because trust law came from a tradition of small, individual justice, it is easier to find it in individual cases, rather
than on the part of an entire province.
US: 15 years ago a case like this was successful.
iii)       Certainty of Objects
Three types:
               1. Fixed Trust: amt is fixed, trustee doesn’t have to determine how much to give, or who to give it
               2. Discretionary T: trustee has discretion to determine amts, and/or who is entitled
               3. Power
o Has probably produced the most litigation- many pitfalls
o Settlor wants to make sure trustee carries out your intention, and those you intend to benefit, do.
o Important for monitoring the trustee and making sure they are carrying out their obligations
o Clearly beneficiary wants to know what and if they are entitled
o Courts need to know because if they are advising on a trust, need to know who can come to court to enforce a
o Beneficiaries aren’t entitled to their benefits unless trustee knows how to deliver their property, so need
     objective way to determine.
o The test for certainty depends of whether the trust is fixed or discretionary;

1. Fixed Trust
Test: List Certainty Test- two components, both of which need to be ascertainable, need a complete list of all the
         a. Trustee must be able to determine if a person is on the list,
         b. you have to be able to determine the entire list- create a class.
There are different levels of failure of List Certainty:
         a. Conceptual/language uncertainty: you can’t create a class by virtue of the language- improperly
               drafted (e.g.: to all my old friends- time, age, how long …). Consequence: whole trust failed
         b. Evidential Uncertainty: concept is certain, but hard to track everyone down (e.g.: all of my flying
               mates in the RAF from 1942- all were identifiable, but many had scattered and couldn’t be found).
               Consequence: court will find the trust voidable but not void, so the trust doesn’t fail.

2. Discretionary Trust
o Test:
             a. Determine whether any given person is or is not a member of the class
             b. One need not identify every single potential member of the class; however,
    o Required to determine who in a potential class of people will get property, how much
    o Beneficiary has some form of proprietary interest, but not in a power.
    o Until the Baden (has 2 names) case, a person had to meet the list certainty test.
    o New test establishes the dame test for powers and trusts
    o Conceptual/Evidentiary uncertainty applies here to.

3. Powers of Appointment
o Power is given to a donee, the one who receives (object) is the appointee of power
o A donee is a fiduciary – duty to carry out the power as prescribed- can’t go outside their power
o A type of relationship in law, sometimes part of a trust, but are a separate entity.
o Under a discretionary trust, the trust has the power to appt beneficiaries
o Definition: an authorized owner invests in someone else the legal authority to deal with property that is not
    theirs. There is no obligated to use the property, but the power is there.
    1. I will allow my daughter the authority to drive my car – this is a power
    2. Consignment; your property is on consignment, and they have the power to sell it, and you expect some
    3. Leaving your car with a mechanic, who has the power to drive it if necessary
    4. Most common: Power of Attorney
Test for discretionary power:
     o IN/OUT TEST: you don’t have to draw up a list of potential appointees. As long as the drafter created
          enough certainty that you could determine if an individual was or wasn’t part of the class, that is sufficient.
o Trustees have lots of powers attached to their duties (E.g.: investment powers, to advance money to life tenants)
o Major difference between trusts and powers is that trusts are imperative – trustee must perform, where powers
    are discretionary
o Consequences: Trustee who doesn’t perform can be liable for breach of trust, and if trustee fails to exercise,
    courts can intercede to compel them to act
o You can’t find a power liable for failure to act
o Lower level of legal standard than in trusts.
     o “I allow my son Bob to give my car to whichever of my children he wishes, including himself.”
     o This is a power of appt, Bob is in the position of donee, and is entitled to choose any of the children
          including himself, there is no compulsion
     o If the Bob dies without exercising the power, it goes back to original owner (estate of the father)
o Types of powers:
     1. General: power to appt anybody
     2. Specific: restricted to a class, group or list
     3. Hybrid/intermediate: anyone except a certain group

4. Gifts
o Creator’s intention is what governs in determining if a gift, trust or power has been given
o Gift over and default of appointment clause: E.g.: “I give my car to Sam for life, remainder to such of her
    children as she may appoint, failing which, it shall go to Fred”
    o To Fred is a gift over clause, and means you the creator have considered that Sam will not appoint anyone,
         and because you’ve considered that, this is not a trust because there is no compulsion- it must be a power
         of appt to her, and a pure gift to Fred.
Re Frame [1939] Ch.700; 2 All ER 865 (Ch.)
    Facts: Testator gave X funds and insurance policy proceeds on condition that she adopt his daughter. X was
    unsuccessful in adopting daughter.
    Issue: Did the gift to X fail? If not, was it subject to any trusts in favour of the daughter?
    Ratio/Judgment: A devise on condition that the devisee makes certain payments does not import a condition in
    the strictest sense of the word, but a trust. The intent of the testator was that X receive the money on the terms
    that she “adopt” the daughter; however, what was envisioned was not a single act, the adoption itself, but was a
    series of acts that involve the maintenance of the daughter. As it is a trust, the Court will not strike it down in its
    entirety simply because one aspect of it cannot be fulfilled.

Telling the difference:
     1. is there compulsion- donee and trustee are fiduciaries, but donee is only liable if acts outsides power.
         Trustee has many other aspects to the role – improperly exercising your trust is only one of many things
         you can be liable for
     2. Intention of the Creator
McPhail v. Dualton/Badens Deed Case:
   Facts: terms in a discretionary trust where a testator wanted to benefit staff of his company, or their relatives
   and dependants.
   Issue: are the words “relatives and Dependants” sufficiently certain
   Trial (Lord Goth): this is a power, not a trust, so test is not list test
   Appeal Court (1970): a test for powers had been changed in a different case
   HL: discretionary trust- decided to adopt the in/out test for powers, and sent it back to trial to be decided using
   the new test
   Trial: all 3 judges had different interpretations of how “relatives and dependants” met new test. Are they
   linguistically certain?
        Issue: How close of a relative does it need to be? Each said it passed, but came to the same conclusion in a
        different way
         Decision: discretionary trust just needs powers test
   o fixed trust- amts and people are fixed, so if you are operating under that regime, list certainty test make
   o If operating under discretionary regime, you can pick who and how many from the class, so it’s not as
        important to know whole list. Old idea was that if there was inaction, courts said you need the whole class
        to give equal distribution.
         o In Badens Deed, Wilberforce said that is against the point of a discretionary trust, the creator would
             have created a fixed trust
         o As a result, the test can be different, don’t need entire list, creator didn’t intend to distribute equally to
             the entire class.
         o It’s enough if you can determine if someone is in the class or not
         o Wilberforce also added (pp.88 last para): there may be a 3 rd case where the meaning of the words
             clear, but the definition of the beneficiaries is so wide that it can’t be used to determine a class,
             making it administratively unworkable. E.g.: all the residents of greater London- this is not
             conceptually unworkable, but it’s too difficult for trustee to decide who to appt to among that class- no
             criteria to determine what creator intended (but there is no criteria for smaller classes either – so this
             has created many problems, judgment doesn’t really help much)
         o So added a requirement for administrative workability. This created an addition to the discretionary
             powers test.
   Ratio: McPhail Test: don’t need to create entire list, just need to meet the test for discretionary power (is an
   individual in or out of the class?). Also, administrative workability is now cited as part of the test, so drafters
   try to keep class size smaller, but don’t focus on that- has never been used in Canada to strike down a trust.

Values that May Influence Findings on the Three Certainties
    i)      Maximizing property values
          o importance attributed to freedom to dispose of property
    ii)     Evidence of owner’s intention
    iii)    Deliberation by owner
          o Consider if decision made in haste or with reflection
    iv)     Reliance
    v)      Unjust enrichment
    vi)     Enforceability and administrative costs
          o How vague is the trust?
          o How easy/difficult would the administration of the trust be?
    vii)    Distributional equity
          o Is one of the interested parties more deserving or in need?
    viii)   Balancing of these underlying concerns
                                      3. PROPERLY CONSTITUTED
·   when creating a trust, you must split the legal and equitable title
·   needed because intention isn’t enough. This extra step is ensure that there is more than just intention to create a
·   Protects against off-hand statements and uncareful comments

          a. Transfer by creator:
Most common, basic rule is that the settlor must comply with all formalities with transfer to give trustee legal title,
and “all the formalities” depend on the type of property. Most times, we will see transfer by possession, shares or
houses. Issue: when transfer is completed.
               i. Cash: simple possession is enough under the law
               ii. Cheques: must be endorsed on the back
               iii. Shares: look into articles of incorporation
Milroy v. Lord (late 1800’s, England)
  Facts: Settlor (Medley) purported to transfer shares to Lord, who was then to act as trustee for Milroy. S thought
  he had created a trust – no issue of intention. The shares were in Bank of Louisiana, and its constitution required
  transfer of shares to go thru a number of steps, none of which were done.
  Issue: Was Milroy entitled to the benefit of the shares?
  Decision: She is not a beneficiary under a trust.
  Reasons (Lord Turner on pp.96-7): “I take the law of this court to be settled that in order to render a voluntary
  settlement valid and effectual, the settlor must have done everything which, according to the nature of the
  property comprised in the settlement, was necessary to be done in order to transfer the property and render the
  settlement binding upon him.”
  Ratio: Settlor must do everything which, according to the nature of the property, must be done

In re: Rose (1952, England)
  Facts: Intended trust created by transfer of 10,000 shares to his wife. Intention was clear, certainties met.
  Transfer was not registered in company shareholder registry. Mr. Rose gave the share certificate to the secretary
  as required, assuming she would get it registered.
  Issue: Is there a properly constituted trust?
  Decision: Yes, there is a trust.
  Reasons: (Lord Evershed on pp. 99): Distinguished from Milroy (pp.102) because Milroy didn’t take any of the
  required steps. Here, everything was done properly, so it follows that so far as lay in his power, the deceased did
  all that he could.
  Ratio: Settlor must do all that he or she can do to effect a transfer of property.
  Implications: This case is now settled law.
  TEST: has the settlor done everything that was within his/her power? This test is a bit more subjective than that
  in Milroy. The question is now what will the courts do with cases where the settlor has done everything possible,
  but a third party (i.e.: secretary in this case) is required to take steps, but doesn’t. Any other kind of property
  transfer is straightforward and everyone knows what has to be done.

          b. Transfer by third party:
Less common, can have a trust constituted whereby creator asks 3 rd party to transfer property to a trustee. There are
tests to determine that transfer took place, and it varies depending on the property in question. Cases in 1600’s
where property was in possession of 3rd party, and settlor would ask them to transfer it over to a trustee – this is
possible at law. No trust until transfer takes place, and settlor can revoke it right up until that moment.
           c. Declaration by creator:
Creator declares that title has been split. No physical act for the courts to focus in on when looking for separation of
legal and equitable interests. (A  A  C). Timing is important because it is by declaration, so when can a court
say that title has split and a trust has arisen and A can no longer revoke.
Issue: at which point after the statement does a trust arise?

Jones v. Locke-
    · A trust is not constituted until transfer has taken place
    · It is binding on the settlor unless this is specifically allowed by the deed
    · Beneficiary can only enforce rights on the settlor or trustee after the constitution, as well as against 3 rd
         parties (except innocent purchaser)

Paul v. Constance
    Facts: see above under intention
    Issue: when did he declare that the property was both of theirs – at what point did it become a trust?
    Decision: There is a trust, and it arose over time.
    Reasons: Words, on several occasions, “this money is as much yours as mine”, is enough. Court seems to say
    that over a period of time, the trust became constituted. But strictly speaking, there must be a fixed occasion
    where title passes and it became a trust.
    Ratio: this case doesn’t really meet the requirements for constitution.

1. If A declares she will transfer $5000 cash to B in trust for C, is there a trust?
         o No, because possession is necessary to effect the transfer. Under this scenario C is referred to a
              gratuitous volunteer, because she is about to benefit although there is a no relationship with A. This is
              just a moral expectation or hope.
         o If a) C has given consideration for the promise, or if b) the promise was made under a seal, it will
              affect court’s interpretation of constitution.
         o Contractual principles have driven the interpretation of constitution, as much as the rules of trust.
         o Where there is no consideration or deed under seal, that is where you see the equitable maxim “equity
              will not assist a volunteer”, so the courts will not create a trust.
         o This means equity will assist someone who has given consideration, so this is a more contractual
         o Exceptions to the maxim:
              1. Where there has been part performance (term of art) on behalf of the settlor
              2. Where equitable estoppel arises – it would be unjust to allow A to say there is no trust
              3. Strong v. Bird: relates to gifts made during donors lifetime (not relevant)
              4. If covenants/promises are made under seal. Could be between A and B, and then B could sue for
                   damages. So what about C, who is not a party to the covenant, but shouldn’t she have rights
                   because she was promised something?

· Once a trust is constituted, it is irrevocable by the settlor, in effect the property belongs to the beneficiary
· A trust relationship is governed by a trust deed.
· What if trustee promises to transfer to a trustee, but doesn’t?
· What if beneficiary gives consideration?
   · At this stage beneficiary has rights, and can use CL to obtain rights for breach of K
   · If B can prove damages are insufficient, can get SP (i.e.: creation of a trust)
   · In equity, the term consideration is wider than at CL
   · The situation is more difficult when promise to create a trust is but no consideration is given- equity will
       not assist a volunteer
   · If the promise is under seal or covenant, the courts will assist. CL treats the seal as being equivalent to
       consideration, so beneficiary is entitled to damages. But equity will not allow SP because seal isn’t
       consideration, so can’t compel SP because damages are inadequate
  1. Beneficiary is party to covenant
  2. Trustee is party to covenant
  3. Re-characterizing of subject matter.

Category 1: Beneficiary is party to covenant
Canon v. Hartley (pp.120)
Facts: there is a deed of separation husband, P, entered. Anytime he received money over 1000L, he had to give to
his wife for life, and then his daughter for life. Got 50,000L, refused to set up a trust for his daughter
Decision: can’t set up a trust because there is just a covenant under seal, but daughter can sue for damages because
she is a party to the covenant.

Category 2: Trustee is party to covenant
Issue: should the trustee be able to recover? The beneficiary has the loss.
General Trend: CL seems to find that trustee can’t recover

Re Pryce [1917]
Facts: Marriage settlement between H and W in 1887. Property and funds belonging to W were settled on trust
which provided life interest for wife. Remainder to wife’s children, if no children, to her statutory next of kin. H
promised in the settlement that funds to which he might become entitled, pursuant to existing future interests
(including money from his parents’ marriage settlement in 1849) would be added to the trust. He deeded this future
interest to his wife in 1904, and died in 1907, with no children of the marriage. The H’s mother died in 1913, and
the H became entitled to money under her marriage settlement.
Issue: the trustees of the 1894 marriage settlement sought a determination of whether they should enforce the terms
of the 1887 marriage settlement to have the funds to which the H was entitled settled on the trust created by the 1887
marriage settlement.
Outcomes: (conflict between W and her statutory next of kin)
     A. if t’ees of 1887 marriage settlement had to take steps to enforce the covenant of the J to settle the AAP,
           then the wife would have a life interest in the property and remainder would go to her statutory next of kin
     B. if the t’ees ought not toe enforce H’s covenant, then the amt to which H became entitled under the 1849
           settlement would go to his wife absolutely by virtue of the 1904 deed of gift that H made to his wife.
Judgment/Ratio: Court held that the relatives could not enforce the marriage settlement against the wife.
· To what extent might the next of kin have relied upon getting something from the 1887 settlement? It depended
     on H becoming entitled to money under 1857 settlement or something else, also depended on there being no
     children – hard to say relatives had relied
· To enforce the trust would mean that any future arrangements the couple made (i.e.: 1904 gift) would be
· The relatives were volunteers, and volunteers have no right whatever to obtain SP performance of a mere
     covenant which has remained as a covenant and never been performed.
Re: Kay Settlement (pp.116)
Facts: Unmarried woman settlor executed a voluntary settlement under covenant saying she would settle all her
after acquired property in favour of herself, and then her issue if she had any. At the time, she was a spinster. She
got married (unexpectedly) and had 3 kids (they didn’t exist at time of trust, so weren’t considered parties). She got
some property thru her parents, which, on the face, properly fell within the terms of the original covenant. But she
didn’t want to put the property in trust, so the trustee thought he should get it and it should form part of the trust.
Trustee applied to court.
Decision: followed court in Price case, found the trustee can’t enforce the trust. Trustee also can’t enforce damages
for failing to transfer the property.
Reasons: Trustee can’t enforce the trust, and the beneficiaries weren’t parties to the covenant. If the Bs can’t, the
trustee can’t have a better claim than them. Bs can’t indirectly (through trustee) what you can’t get directly (through
the covenant).
Implications: large majority of cases say there is not right on the part of the trustee to get damages or compel
performance. If the trustee were to succeed, the requirement for constitution of a trust will be whittled away.

Category 3: Re-characterizing of subject matter
If you as settlor promise to convey property to a trustee, will the courts enforce that promise to convey property? Is
it a promise to take property and put in trust for someone else, or is it something different? (e.g.: promise to repay a
debt such as chose in action.) If the covenant contains that promise/chose in action, trustee can sue on that promise.
Beneficiary is the equitable owner of that promise- you characterize the promise, not the property.

Fletcher v. Fletcher
Facts: A testator covenanted with trustee, saying that in one year, money would be provided to trustee in trust for
his son. Beneficiary is a volunteer, not a party to the covenant.
Decision: Property doesn’t need to properly constituted, the beneficiary owns the promise, and can get relief.
Reasons: Seems results driven because it seemed unfair for the son to not participate in the trust- the property came
through a deed and the executors knew what it consisted of.
Implications: Difficulty with intention: they intend to give property, they don’t intend to give a promise as an end.
Problematic to say promise is subject matter of trust. Not widely accepted, there are some cases in Canada that
follow this, but generally courts prefer Kay and Re: Price, but it has never been overruled.

Future Property
 Price and Kay both dealt with future property.
 How does trust law deal with future property?
 How to constitute a trust when the subject matter is an expectancy?? You don’t know that the property will
 Problem right away because equity doesn’t regard expectancy as property for the purposes of trust law-
     certainty of property is not met by future property.
 You can’t constitute this trust as it is missing a certainty
 But there is an intersection between CL and equity, so CL does allow future property to be subject to contracts
 If consideration is given for some sort of trust-like conveyance, then you can use K principles to enforce the
     conveyance of future property
 If you have a declaration of trust made gratuitously and it involves future property, equity will not assist
 But if it is under seal, then it is back into Fletcher- settlor can try to force the trust by making the subject
     matter the promise (chose in action). Beneficiary can argue that it is constituted because shows declaration of
     intention which is a promise to convey which forms the subject matter of the trust which has been conveyed
     because it is in the document there fore it has been constituted
 There is no way to fit the situation into #1, so instead of doing that (and because #2 is not sufficient to
     enforce the trust), the courts just say that it is irrelevant who is party to the covenant because the trust is
     already constituted and conveyed to the beneficiary in the form of a promise.
 Subject matter is promise by settlor to give trustee stuff when they have it, even though they might never get it.
     This only comes up when B is not party to covenant.
GOLDEN RULE: Unless the beneficiaries give valuable consideration for creation of a trust, in these kinds of
situations, the trust cannot be constituted until the future expectation is realized.
                                          4. LEGAL FORMALITIES
   Mostly related to writing requirements- there might be other formal requirements in other jurisdictions, etc…
    but we aren’t looking at those
   One that is more universal- requirement for trust in writing
   Writing requirements are statutorily based, and the statues are usually enacted to correct problems- mischief:
         1. Proof
         2. Intention
         3. People who aren’t around (unborn)
   The more abstract something is, the more you need to formalize it for others to understand it
   There may be differences between inter vivos and testamentary trusts. There is no recourse to creator in
    testamentary trusts
   Statutes of Frauds were developed in 1500’s- UK statute that came into Canada, adopted on Confederation, is
    in every province
   Is a terribly written statute that was never updated
   S.4, 7, 11 affect trust law
   Most trusts these days trust are in writing, written by lawyers
   Issues only arise when trusts are claimed to have been made orally.
   We are moving further away from seeing oral trusts made, but it sometimes happens. Argument against is that
    it violates statute of frauds.

Section 4: Contracts creating trusts
No action shall be brought upon any K or sale of lands, tenements or hereditaments, or upon any interest in or
concerning them …
 Applies to land
 This will apply to trusts if they arise through K or sale of land

… Unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in
writing, …
 Need evidence of writing, but doesn’t need to be created by writing
 At some point it must be reduced to writing
 If not in writing, the trust will be void, but courts have ignored this and have held s.4 to make a trust void, just
     unenforceable if there is a dispute or claim
 If A sells property to B, expecting B to undertake to support C for life, that is outside the statute because the
     support part is collateral to the sale of land. Doesn’t need to be in writing

… and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

Section 7: Creation of trusts in land
All declarations or creations of trusts or confidences or any lands, tenements or hereditaments,…
 Speaks more directly to trusts
 Relates only to land again
 Covers declaratory trusts, and the situation where property is transferred to trustee

…shall be manifested and proved by some writing
 only need evidence of writing, same as section 4, doesn’t need to be created by writing
 although this deals with lands, because it refers to trusts it means that it deals with legal and equitable interests

signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be
utterly void and of no effect
 Courts ignore this, it is unenforceable, not void
 This is a evidentiary statute, it isn’t about procedure, so don’t have to make it void
Section 11: Assignments of equitable interests in trusts
All grants or assignments of a trust shall be in writing signed by the party granting or assigning the same, or by his
or her last will or devise, or else are void and of no effect
 Applies to land and other forms of property
 Doesn’t say creation of a trust, says grants or assignments, so different to other sections
 Interpreted to mean a trust is already there, and you’re assigning it. Deals with equitable interests only
 Nothing about notes or memos, so courts have held that creation must be in writing: creation must be
     contemporaneous with assignment
 Not found void, just unenforceable

Trusts not Caught by Statute of Frauds
 There a lots of places where none of these apply, so you can have oral trusts
 Newly created trust of personal property isn’t covered (e.g.: Jones v. Locke): trust for money isn’t covered

Why do we have formalities?
 Idea of equity is supposed to be less harsh and formalistic, and deals with merits of the case, not relying on
   formal requirements
 This is true in most cases- courts will frequently circumvent writing requirements to get to what they see as just
   or right outcome
 E.g.: There was a written agreement for sale of land, and on the side an oral agreement for the buyer to act as
   trustee for someone else, and the transferee denies knowledge. If the trustee says that it is only writing that
   counts, courts of equity would have said that trustee can’t rely on a statute to commit fraud if there is a way of
   proving the oral agreement existed. What would a court of chancery do?
Rochefoucauld v. Boustead (pp.130)
   Courts will deny the existence of the Statute of Frauds where someone is going to benefit unfairly because of it.
                Less likely that someone would make up an oral agreement, than try to defraud someone by using
                 statute of frauds to disallow an oral agreement

Secret Trusts
 Testamentary Trusts: if the statutory formalities to create a valid will are not met, then any testamentary
    trusts purportedly created by the alleged will are also invalid. In spite of this, courts have, in some instances,
    enforced testamentary trusts that do not comply with the statutory formalities for wills.
 Secret Trust are one example of this
 Quite common historically. Where settlors want to provide for certain beneficiaries without public knowing.
 So leave beneficiary out of writing (e.g.: in a will, name a trustee who is privy to a side agreement in the form
    of an oral agreement or letter, which tells them they aren’t owners of the land, but just a trustee)
 Often used to provide for illegitimate children in the old days
 Problems because trustee would want the property, and would deny the existence of the side agreement
 Courts have over time found these trusts to be legit, because they want to give effect to the settlor’s intentions-
    don’t use Statute of Frauds to create an unfair situation
                                            LIMITATIONS ON TRUSTS
   These are limitations on individual authority of the settlor.
   But there are external controls on settlor’s autonomy
   So this is social policy CL
   A trust founded a long time under old rules can be found invalid under modern conditions


 Where the purposes are actually illegal.
 Case law has tended to limited to actual illegality (Criminal or civil wrongs)
 E.g.: 1920’s in England, a trust attempted to establish a school that teaches prostitution, one for pick-pockets
    (although this one had educational intention). Both struck down.
 Included are trusts for fraudulent purposes
 If a trust fails for illegality, property reverts back to creator

 Miller case
 Historically, most common ones related to illegitimate children (not a problem today)
 If it was obvious the trust was intended to illegitimate children (i.e.: they were specifically mentioned), the
   courts would strike them down
 More difficult where the trust was mixed, involving legitimate and illegitimate children
              Burden on illegitimate children to prove that they are within the trust
 Case where husband conveyed a house for himself and his mistress for their joint use for their lives. Remainder
   to children of their liaison. Court struck down the remainder part as contrary to morality because it was clear
   that any children of these 2 were illegitimate. No illegality/immorality to base striking down the life terms for.
 If a trust is carried out without the courts being brought into play, they will usually leave it alone
 Could avoid this by giving gifts, and avoid dealing with trust law
 Punished the children to avoid encouraging further immorality

Canada Trust v. Ontario Human Rights Commission
Facts: Trust set up around 1930s. Set out in the recital that the world depends on strong white males, and would be
a better place if white males were allowed to rule. There are 4 paragraphs to this effect. You don’t need recitals; it
could have just been set up. The trust set up a scholarship for young white men going to college (1940-1990). Then
HRC challenged it as being contrary to social policy. Was probably valid when set up.
Problems: was once valid, is it now? What about the settlor’s intentions?
Decision: Found invalid, and read in that it should apply to all potential applicants.
Reasons: Didn’t want to limit the opportunities for students going to college. The court’s goal was to preserve the
Implications: This was the exact opposite of the settlor’s intention.

Miller (Ont, 1937)
Facts: Trust created which will invest for 10 years, and then give it to the mother who had the most children, since
the institution of the trust. In the event of a tie, to be split equally. It was challenged right away.
Problems: It meets all the certainties etc..., so how to defeat it.
Decision: Trust struck down for policy reasons.
Reasons: it would encourage adultery, encourage irresponsible procreation by people who maybe couldn’t afford it.
The idea of a race or contest is not desirable.
US Federal Court
Facts: A prize was set up to be won by lottery. Contestants bought tickets in a foreign lottery, which is illegal.
Organizers didn’t realize at the beginning that it was illegal. There was a winning ticket, winner announced, but
before dispensing the money, the organizers learned it was illegal. They decided not to award the prize, and the
winner brought an action to claim the money, which was held in trust for the winner.
Decision: trust was upheld, money needs to be distributed.
Reasons: Trust could be executed legally, and organizers intended to provide for the beneficiaries, so from the
perspective of trust law it was valid. Didn’t want to compound illegalities, so applied trust law principles and
avoided dealing with the illegality.

   Common ones: restraining parties from marriage, or interfering with relationships between husbands and wives
    or parental responsibilities, racial discrimination, restraining freedom of religion
   E.g.: Children can only get the benefit of a trust if they 1) stay the member of a certain church, 2) don’t
    alienate property to people outside the family (or other named people), 3) don’t marry Jim/outside of Catholic
   Basic rule is that if the condition is determined to contravene public policy, the trust is void.
   Problem is the courts have refined it, making it more complicated and easy to recall
   Types of Conditions:
             1. Conditions precedent: must be fulfilled before a gift takes effect. Can assess at the moment the
                   gift takes effect
                   E.g.: $1 million to Susan on her 25 th, if she is a member of the Catholic Church at that time.
             2. Conditions subsequent: things that can bring the trust to end, could happen any time after the gift
                   is made
                   E.g.: $1 mill to Jane, but if she joins Catholic Church, 1 mill to Joe instead.
   CL rule is that if CP contrary to public policy, the entire trust is void/fails
   CL rule for CS is that if the condition is contrary to public policy, only the condition is invalid, and the gift will
   CL rules changed by courts of equity to have different rules, but only for personal property.
   Equity says that:
     If CP is malum in se: whole gift fails, but
     If the CP in equity is malum prohibitum: the condition only would be struck out and the gift will still take
     Malum in se: some kind of fundamental wrong, probably criminal, that goes to both moral and legal
     Malum prohibitum: is legally wrong, but not necessarily morally wrong.
         ** Hard to determine which is which

· Conditions Restraining Marriage:
 Prima facie, courts find them void because if you prevent someone from marrying, you are imposing life-long

Re: Goodwin (1969)
Facts: Half an estate to daughter in law provided she didn’t get married. “my property to Jill if she remains
unmarried”: interpreted as a limitation on enjoyment, not a condition, so it is just a gift
Decision: valid WOL
Reasons: Settlor’s intention is to provide for her while she is a widow.
·   Uncertain Conditions
   Hard to figure out if you are meeting them at the time that you are figuring it out, although it may be asked to
    be done ahead
   E.g.: must remain open and avowedly protestant, or conform to Church of England’s doctrines, not to marry
    someone not of Jewish parentage/faith
   CS – condition struck out
   CP – e.g.: Not marry a person of Jewish parentage/faith: gift struck down if they can’t determine if someone
    meets the condition

·   Impossible Conditions
   Those based on a state of facts which don’t/can’t exist.
   CP that are determined to be impossible, condition is struck down and beneficiary will get the property
   CS determined to be impossible: gift fails, B gets nothing

Re: MacDonald
Facts: Testator left part of estate in trust with a condition on beneficiary that historic home must be maintained, and
provided that the municipality agreed not to move the home (wanted to keep house in place)
Decision: This is an impossible condition
Reasons: the municipality didn’t own the home, so they couldn’t agree not to move it. No authority on the part of
the municipality. It was up to provincial authorities to move the house or not.

4. Discriminatory Conditions
 Haigh says they could fit under invalid for public policy as well.
Drummon Case: prohibited sale of land to people of “objective nationality” (in property class)

·   Words of Limitation
   Courts interpret as not even being conditions. If a court determines something is a WOL, there are different
   E.g.: if you set up a trust is which a farm is being held for Jill as long as she is married to William. “as long
    as” – CP? CS? Cold be WOL. In that case the court held hat those words were WOL and it was just a gift.
    WOL can be fine, so they apply and act accordingly. If they are contrary to public policy, the words will be
    struck down and the entire gift will take.

Generally WOL are ok, it is if conditions violate public policy that the trust will be struck down
 Thought of as illegal because they contravene CC, Bankruptcy Act Provisions etc…
 They have a body of case law of their own because there is an act dealing specifically with fraudulent
    conveyances in each province
 Basis for these trusts is different from previous ones, where settlor had a good intention to help people
 These trusts are set up specifically to avoid creditors. Someone is in financial difficulty, and set up a trust to
    hide the property by giving it to someone else – they still want use of the property.
 Most common example is husbands settling property on wives and children to avoid creditors, used to happen
    all the time with no sanction until 1640’s.
 Then UK parliament enacted legislation declaring it fraud
Fraudulent Conveyances Act
(2): Every conveyance of real or personal property and every bond, suit, judgment and execution heretofore or
hereafter made with intent to defeat hinder, delay or defraud creditors or others of their just and lawful actions, suits,
debts, accounts, damages, penalties or forfeitures are void against such persons and their assigns
         · “Intent” – the onus is on those trying to defeat the transaction; however, as these conveyances are often
           voluntary, it is difficult to rebutt a claim of fraud, so there is often a de facto presumption of fraud.
         · Note that FCA has no time limit.
   Fraudulent Preferences: preferring one category of people over another (certain categories of creditors)
   Bankruptcy Act deals with some fraudulent conveyances and each province also has statutes dealing with
    fraudulent conveyances

Bankruptcy and Insolvency Act
91(1): Any settlement of property, if the settlor becomes bankrupt within one year after the date of the
settlement, is void against the trustee.

(2) Any settlement of property, if the settlor becomes bankrupt within five years after the date of the
settlement is void against the trustee if the trustee can prove that the settlor was, at the time of making
the settlement, unable to pay all his debts without the aid of the property comprised in the settlement or
that the interest of the settlor in the property did not pass on the execution thereof.

(3) This section does not extend to any settlement made
a) before and in consideration of marriage
b) in favour of a purchaser or incumbrancer in good faith and for valuable consideration; or
c) on or for the spouse or children of the settlor of property that has accrued to the settlor after marriage
    in right of the settlor’s spouse of children

   Most of the statutes state that fraudulent conveyances are void ab initio, but the courts hold them to be voidable,
    not simply void. The creditors need to bring actions in order to have a conveyance declared void
   There are exceptions to fraudulent trust being void when valuable consideration has been given. This does not
    include nominal consideration (i.e.: love and affection- .s92(3))

Ex Parte Russel (1882)
Facts: Baker sets up grocery business, even though he was a baker and knew nothing. He also created a trust on his
home at the time to protect it from any potential creditors (concerned that business may go under). Within six
months of setting up the company, it fails.
Issue: Is the trust fraudulent?
Decision: The trust is voidable
Reasons: The intention behind the trust was to protect family assets to provide for his family even if the business
fails. Likelihood of failure was higher than normal because he didn’t know about grocery business.
Badges of fraud:
        b. secrecy
        c. no consideration (but not within families)
        d. set up to defeat creditors
Ramgotra Case (1996, SCC)
* issues of jurisdiction: how does the interplay between the federal act and provincial act work
Facts: R converted RRSP into a RRIF, which you do when you’re 65 to start withdrawing from it. Within 2 years
he became bankrupt. Wife is the beneficiary under the retirement income trust. Is this trust available to creditors
now that he is bankrupt?
Creditors Argue: the transfer is meant to defraud creditors.
Provincial Act: RRIF: is exempt from seizure by creditors in provincial act (S.67)
Federal Bankruptcy Act: the trust is voidable if the transfer is done fraudulently (s.91)
Decision: monies are not transferable to creditors, but trustee could use the money to pay off any of the direct
expenses to pay off TIB.
Reasons: RRIF is not seizable under s.67, but the transfer to wife is voidable under s.91. this is a compromise. The
sections are both valid pieces of legislation
Implications: courts want to protect retirement income, to allow people to have sustainable income to support
them. The crucial element is to understand the settlor’s intention. Onus on creditor to prove it.

 Policy consideration: there needs to be a way to get property out into the marketplace and not be held by a
    small group of families forever
 It applies to things outside trusts – no differentiation between conveying by sale, transfer, trust
 Trust: have them to limit how long testator can 1) withdraw property from the normal workings of the
    commercial world, 2) control future enjoyment of an infinite number of future generations. Want certainty so
    that at some point it can be freely alienated
 Many problems with perpetuities arise in trusts – they are specifically set up to provide for future generations
 Not about how long the trust lasts, it’s the time at which the interest commence (vesting in interest), because
    they will always eventually end (i.e.: death)
 Original Rule: no interest was valid unless, when the trust takes effect, the interest would vest within the life of
    the beneficiary plus 21 years (some future interests are allowed – unborn). Still in effect in a couple of

    Ask if the gift can vest in the life plus 21 years at the time the gift is given
   Ontario: Wait and See Rule: see if the gift will vest, use hindsight. More interests will be saved. Closes off
    the fertile octogenarian rule: i.e.: all the children a woman has.
   Policy: is the idea behind the rule important today? Manitoba has abolished it
              1. It used to be that there was no reason for a family not to keep a property forever, but now taxes
                   etc… create disincentives for people to own property
              2. Don’t have the class divisions where only a select few families could own land, and most just
                   expect work it for their lifetimes
              3. We’ve developed principles in trust law that allow trusts to be terminated without settlor’s consent
              4. There is a rule that allow beneficiaries to terminate trusts under certain circumstances.
              Exam: most important question is whether we need it anymore

   A trust cannot accumulate income without dispersing it forever
   Concerned with making sure remoteness of control doesn’t last too long.
   I.e.: interest is vested, but it is controlled by the settlor so the beneficiary loses out
   Don’t want it sitting forever with no disbursement – no one enjoys it
   It was as a result of a case in England that modern day accumulation rules started
   Rare because most people want someone alive now to benefit
Thelluson v. Woodbird (1400’s)
Facts: T left will – wanted to accumulate income from property during the lives of sons, grandsons, great-
grandsons, who are now living, and then the death of the surviving great-grandson would entitle the dot to the
benefit of the trust.
Decision: Judge wanted to strike down the provision, but had no basis for doing so. Parliament would have to do.
Reasons: all the great-grandchildren were lives in being, so didn’t violate perpetuities. It was estimated that the
fund would be worth millions of pounds. Judge wanted to strike it down for policy reasons of not keeping it out of
circulation – like reasons for rules against perpetuities.

                                                  Accumulations Act
                                                  R.S.O. 1990, c. A.5
Maximum accumulation periods
   1.--(1) No disposition of any real or personal property shall direct the income thereof to be wholly or partially
accumulated for any longer than one of the following terms:
1. The life of the grantor
2. Twenty-one years from the date of making an inter vivos disposition.
3. The duration of the minority or respective minorities of any person or persons living or conceived but not born at
     the date of making an inter vivos disposition
4. Twenty-one years from the death of the grantor, settlor or testator
5. The duration of the minority or respective minorities of any person or persons living or conceived but not born at
     the death of the grantor, settlor or testator
6. The duration of the minority or respective minorities of any person or persons who, under the instrument directing
     the accumulations, would, for the time being, if of full age, be entitled to the income directed to be accumulated.
   (3) The restrictions imposed by subsection (1) apply to every disposition of real or personal property, whether
made before or after its enactment. …
   (6) Where an accumulation is directed contrary to this Act, such direction is null and void, and the rents, issues,
profits and produce of the property so directed to be accumulated shall, so long as they are directed to be
accumulated contrary to this Act, go to and be received by such person as would have been entitled thereto if such
accumulation had not been so directed
   Want to make sure that at some point, income that is accumulated is dispersed.
   Reasons for this: stop current generation from benefiting, increasing how much you give away
   Anything beyond allowed accumulation period is struck down, and it goes to the intended recipient

National Trust Co. v. McIntyre; In the Estate of Clara Lucile Adamson (1997)
Facts: Terms of trust provided for monthly allowance for testator’s sister. It earned more income than was needed.
From time to time, the trustee has drawn on the capital of the fund, as they were authorized to do. However, for 21
years, amounts accumulated that exceeded capital encroachments and the monthly allowance.
Issue: Trustees sought direction of the court as to who should receive the “extra income” in the estate when the
Accumulation Act bars further accumulation. Is this an intestacy or is the residual beneficiary entitled to it?
Judgment: Partial intestacy and income to be distributed accordingly.
Ratio: An intestacy is found in the event that the intention of the testator cannot be determined or inferred unless it
falls into an exception.
 Restraints on alienation are generally contrary to public policy with certain exceptions
 Trusts that impose limitations for the well-being of beneficiaries – often called “spendthrift” or “protective”
    trusts. These trusts, if so named, are valid even though there is a restraint on alienation built into them.
 Turns often on whether or not the clause is determined to be a CS or a determinable limitation. That distinction
    is sometimes apparent, sometimes not. I.e. to my daughter as long as she stays in the Catholic Church – words
    of limitation. To my daughter unless she leaves the Catholic Church – held to be a condition subsequent
    therefore invalid.
 Conditions are usually concerned with ifs – if something happens; words of limitations are usually concerned
    with when – duration. Not always obvious.
 Spendthrift trusts are allowed because the courts determine that restraint to be a word of limitation and not a
 There are alternatives if you are drafting and want to protect your legacy from falling into the hands of
    creditors. One of the most common ways is to provide for a discretionary trust whereby the trustees have
    discretion to pay all the heirs, so given the discretion, the trustee could hold off giving money to “wasteful
 Could also give the trustees a mere power to pay the wasteful heir, so they may not even exercise the power at
    all. Can do this on the income side, and could have that discretion when it comes time to dealing with the
    capital as well.
 Modern times, it is probably more common to do it that way, putting a discretionary trust in place, than setting
    up a spendthrift trust.
 No legislation governing spendthrift trusts.
 Concerned about restraints on alienation – issue is whether trust is valid and whether settlor can restrain
    alienation to some extent.
 Classic example is Re Fox where the settlor inserted a clause in will giving executors the power to maintain a 5
    year probation over his son and empowered them to sell the property if son did not remain sober. In upholding
    the provision the judge stated that “[i]t would be unfortunate if the court was obliged to impose difficulties in
    giving effect to the intentions of the testator so obviously framed fro the well-being, and well-doing, of the
    objects of his bounty, and especially so when these objects are his own children”
 Courts are sympathetic to these sorts of trusts, there are technical barriers to achieving the objectives of these
    kinds of trusts.

Re Driscoll (1983)
Facts: Father of 6 kids set up a trust only concerned with 2 of them. Main asset of trust was family farm. At the time
of the hearing the farm was valuable as it could be developed for residential purposes. One of the beneficiaries (X)
was the testator’s son who was also an alcoholic on welfare. Y was a businessman who made his own way.
According the will, wife was to have a life interest, after which each son, X and Y, were to have a half interest
provided X continue to work on the farm. X could initiate a sale, Y couldn’t, but Y had to give consent for any sale,
so there was a possible conflict in that Y could refuse consent and then later benefit. If X requested that the farm be
sold, and Y consented, then each son would have a half interest in the proceeds. If the farm was not sold, then X had
a life interest which would go to Y upon his death. X requested farm be sold
Issue: What kind of interest was set up for X – was it a protective trust, or was there restraint on alienation?
The judge had two interpretations:
1) This was a spendthrift/protective trust. This is what Y was arguing. He was saying that Y’s right to hold consent
was built in, it was obvious that was what testator wanted.
2) X was really the primary interest holder, Y was just in there to make sure that an improvident bargain was not
 Condition subsequent which called for X to work on the farm void for uncertainty.
 X had more than a life interest as he had the power to initiate a sale of the land. Judge characterizes this as a
    determinable life interest with a power of disposition and therefore an interest in half the estate (in trust).
 Y does not have a general veto power over a decision to sell that land. Rather, the requirement that he consent
    was intended to protect X from making an improvident sale but this condition is a repugnant condition
    subsequent and is therefore void.
 The general and dominant intent of the testator was to care for X
 Trust was really set up for X’s benefit. X had the power to initiate a sale, with Y’s consent. Y didn’t have the
    power to initiate any sale. Focus was on X, intention was that X would live there, at least until the death of
    testator’s wife. Y merely had veto for improvident sale.
Ratio: A condition that serves to limit the right of a beneficiary to alienate land is void (though only when they
acquire a fee simple). Example from Re O’Mullane “to X provided that the property is not sold without consent of
executors” was found to be invalid.

                                  OVERRIDING THE TRUST INSTRUMENT

   All trusts must come to an end/close at some point. If they are valid trusts, met the rule against perpetuities
     and accumulation requirements, will still terminate within the correct period.
   What happens upon termination is that the trustees pass the final accounts and discharge the trusts when that is
     carried out. Trustees usually transfer property to beneficiaries, final transfer takes place, trust dies out.
   In the normal course of things, as a settlor or testator, you want the trust to last as you planned it, usually
     means that you wanted to have the beneficiaries take the land, the capital of the trust.

     1) A to B as trustee, C takes entire property when turns 25. C is 17 at the time. What happens from 17 to
        25 is that C will take the income that is allotted to him under the trust, at 25 the whole property, the
        capital, will be transferred along with title to him.
     2) “T to wife for life then to wife’s children in equal shares.” Normally, W would live out her remaining
        years as life tenant, income set up under trust would go to her on that trust. On her death, the children
        would say to trustee that they would like to receive their share of the capital. Basically they ask the
        trustee to terminate the trust by sharing the capital equally between them.

     What about the possibility of ending the trust ahead of its natural term? (I.e.: before the settlor actually wished
      the trust to end)
     It is possible to do this. There are possibilities for terminating trusts early, two main ones:
          a. Rule in Saunders v. Vautier. Termination without the assistance of the court.
          b. Through the power of the courts – the statutory power of the courts to vary or revoke set out in the
              Variation of Trusts Act, also the inherent power of the courts in very limited situations to terminate the
              trust early.
          c. Revocation by the settlor. S herself could terminate the trust early if there is a power built in to the
              trustee to do that. Has to be expressly stated. Or, where a trust isn’t fully constituted.
Saunders v. Vautier
Facts: In 1832, a man died leaving 3,000 pounds in shares for his great nephew, who was to take the shares when
he reached 25. But, at age 21, he went to court and said he wanted his shares.
Issue: was what to do with that request.
Background: There were hints in previous case law that beneficiaries could do something like this, but it was here
that rule was laid down as a defined principle.
Decision: Court said yes, you can terminate the trust.
Reasons: There is one main reason why you can, and two conditions that we are going to put on this. The reason
why you can is that you are the owner of the property. The whole reason the trust was set up was to benefit you, and
although T wanted you to wait until 25, but court can’t tell you what to do once you reach the age of majority, so if
you want to terminate the trust, you can do it. Basis is that beneficiaries own the property.
Limitations: Two main controls on this – two main rules behind it:
  1) Beneficiaries must be sui juris – adult and of sound mind. You must be an adult and you must be of sound
       mind or full mental capacity in legal terms.
  2) You must be absolutely entitled to the property. If there is one beneficiary, then just have to look and see that
       he/she has absolute entitlement. If there are a number of beneficiaries, have to make sure that collectively
       they have absolute entitlement.
   Here, the court said that the actual gift vested right upon the rising up of the trust upon the death of T. He had
       to wait, by virtue of words of limitation, until he was 25. It was not a condition that created contingent
   These two requirements, especially the second, have created a lot of difficulty in trust law because we’re back
       to the difficulty of determining determinable vs. limitation. Problems as to whether contingent interests can
       be included – i.e. what if you have beneficiaries that have contingent interests, but can get their consent.

 1) Where you have a beneficiary who is already an adult and of sound mind.
 · By virtue of the rule, will be entitled to whole beneficial interest and can require the trustee to transfer and
 · A is to get $5 million payable on her 27th birthday and until that time is to receive an annual income of X
 · Even though have income stream set up, that person can simply terminate that trust despite the fact that T has
    set up the income trust until the 27th birthday.

 2)   Where you have a number of concurrent beneficiaries, all adult and of sound mind.
 ·    If between them the entire beneficial interest is covered, then between them, they can terminate the trust.
 ·    For the children of the Testator with an $8 million trust.
 ·    Capital to be divided equally between them until youngest reaches 30. In the meantime they are entitled to
      some income.
 ·    In that situation, you have more beneficiaries.
 ·    Again, once the youngest reaches the age of majority, by virtue of the fact that they all have the entire interest,
      however many there are can band together and say they would like to terminate the trust and divide the
 ·    Assuming they all agree and the youngest is past majority age, it doesn’t matter how many there are, they can
      band together and terminate the trust.

 3) Where you have a number of beneficiaries entitled in succession.
 · In this situation, whether those interests are vested or contingent, can combine them all to terminate if they are
    all adult and of sound mind and cover the entire property of the trust between themselves.
 · Trust to my husband for life, remainder to go to my children B and C provided each attains his 25 th birthday.
    If either dies before the age of 25, the survivor gets the entire share and if both die before the age of 25, then it
    goes to D absolutely.
 ·    What happens now, because have successive interests, also have contingent interests, because if children die,
      it goes to somebody else. The rule would say that once the children are both adults, and assuming that D is
      also an adult, if the four get together – the husband, the two children and D, then by virtue of getting them all
      together and in agreement, covered the absolute entitlement because as a group the entire interest is covered.
 ·    Here, it doesn’t look like the testator wanted the trust to end early, because have all these contigents, etc, but
      by virtue of the way the rule is applied, can terminate early, as long as you get D on side.

  So, all you have to do is have all the beneficiaries be adults and of sound mind, and get them together to have
   the entire interest, and the rule will apply.
  In every common law country except the U.S., the Saunders v. Vautier rule is in effect, the reason is mainly
   because of the view that it is the beneficiaries that the whole thing is set up for, they have ultimate use of it
   and you shouldn’t prevent them from gaining access to that property.
  P. 258 of Bernstein article – two main rationales of the rule:
             1. A trust is the equitable equivalent of a common law gift.
             2. Settlor should not have any control once the trust is set up and operating.
  It is not quite that simplistic. At common law, if you give somebody a gift, there is nothing further in mind,
   you don’t have any intention other than giving the gift, not attempting control over somebody/something.
  Trusts, by their very nature, have been set up differently. There are lots of things when settlors have when
   they set up the trust that gives them some interest. As a settlor, you can set up a spendthrift trust, and you can
   also put in the deed a power of revocation. This shows that there is something there that gives the settlor
   some right, something more than a straightforward CL gift.
  To develop a rule that excludes the settlor from the picture is somewhat harsh (Haigh). In the U.S., they don’t
   like the rule, and give more rights to settlor.
  But, it is really easy to get around the rule. If you are a settlor and you don’t want the beneficiaries to
   terminate early, you can draft around it. You can prevent it from arising.
  If it is so easy to prevent from arising, is it worth worrying about? Is it really a trap for the unwary and
   privileges the sophisticated person drafting the trust over other people who may try and draw up trusts on their
   own? Is it a good rule for that reason alone? Is a rule that catches the unwary worth having?
  In other provinces they have statutorily changed the rule to allow a variation of Saunders v. Vautier, but only
   through courts intervention, so can’t have self terminating beneficiaries, it is only through the help of the

1) Include a generation of beneficiaries that will prevent it from happening too early (the sui juris component). If
    you include another generation in the trust, you might prevent it from vesting too early, you might have a
    beneficiary who will not become an adult until you want the trust to vest.
· EXAMPLE: to my widow, the remainder equally to my children’s children when the youngest reaches 30. The
   children of a child pre-deceasing the widow will take in the parents place. Here, there is no way that the child
   of a child will reach the age of majority before the youngest turns 30. No way that all the beneficiaries can
   band together.
2) Provide for a contingency not to a person, but to a charitable entity.
· EXAMPLE: to my children when they reach 50 but if they fail to reach 50 then it goes to the Toronto Zoo
   (assuming the Zoo is a charitable purpose). By adding that in there, the gift over upon a contingency, you are
   now forced to wait and see if the children reached 50. No way to know if they are going to reach 50 until they
   do. There is no way to get the Zoo on side as one of the beneficiaries because it is not a person. Variation of
   this idea is to have another person be involved, and make sure that that person is not going to agree with the
   other beneficiaries to terminate early.
   If the rule can be avoided so easily, is it worth bothering about, or is it worth having?
   Part of the rationale for the jurisdictions that have modified or gotten rid of the rule is based on this rationale.
    It benefits those who are or who have sophisticated draft persons.
   The unsophisticated person is not going to know/think about easy ways to draft around the rule. And, if you
    are a settlor and you want the beneficiaries to hold off on getting the whole trust property until they are a
    certain age, why should a rule from an old English case affect this and subvert your intention?
Situation of simple trust 4 beneficiaries (22, 19, 15, 10)
     Each gets a 25% share of the property
     Can AB server the trust using to rule in Saunders v. Vautier and leave CDs intact
     In some cases, the income earned by CD would be the same in that situation, because interest earned on
         50,000 2 people is the same as 4 people on 100,000
     In Canada, the rule of Saunders v. Vautier won’t apply and this can’t be done, but in Australia, if remaining
         beneficiaries won’t be in a worse situation, then it can be done.
     We have variation of trust legislation in most Canadian provinces

         B. REVOCATION
   A settlor may reserve the right to end a trust early
   This does not represent “overriding” the express trust as the right to revoke must be expressly stated in the trust
   Exercise of any right to revoke may be affected by K obligations the settlor has
   Note that a large reason for not including this right of revocation is the likelihood that income from the trust will
    be treated as that of the settlor for tax purposes as assets have not been fully divested

                                                Variation of Trusts Act
                                                  RSO 1990, c. V.1
Jurisdiction of courts to vary trusts

  1.--(1) Where any property is held on trusts arising under any will, settlement or other disposition, the Ontario
Court (General Division) may, if it thinks fit, by order approve on behalf of,

(a) any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who by
reason of infancy or other incapacity is incapable of assenting;
(b) any person, whether ascertained or not, who may become entitled, directly or indirectly, to an interest under the
trusts as being at a future date or on the happening of a future event a person of any specified description or a
member of any specified class of persons;
(c) any person unborn; or
(d) any person in respect of any interest of the person that may arise by reason of any discretionary power given to
anyone on the failure or determination of any existing interest that has not failed or determined,

any arrangement, by whomsoever proposed and whether or not there is any other person beneficially interested who
is capable of assenting thereto, varying or revoking all or any of the trusts or enlarging the powers of the trustees of
managing or administering any of the property subject to the trusts.

(2) The court shall not approve an arrangement on behalf of any person coming within clause (1) (a), (b) or (c)
unless the carrying out thereof appears to be for the benefit of that person.
   Prior to enactment of variation legislation, courts of equity held there was very little room to vary trusts except
    for Saunders v. Vaultier
   Only 4 ways:
         1. Conversion: to get court to reverse personal property or real property held for a minor to the other
         2. Compromise: trusts could be changed in the event of a law suit not related to the trust (family, tort).
              Need to change to meet requirements of the suit
         3. Emergency reasons: circumstances unforeseen by the settlor and threatens the existence of the trust
         4. Maintenance Purposes: if a trust was accumulating income, and it was hurting the beneficiaries to the
              point that they were couldn’t subsist
   Sometimes trustees can vary trusts if they were given wide discretion – Haigh calls this discretionary trust
    rather than variation
   1958: UK enacted Variation of Trusts Act. We followed suit, except for NFLD, which retains inherent
    variation only
   pp.167: basic for all provinces, except Alberta and Manitoba, who’s legislation is slightly different (PHOTO
   Legislation focuses on those unable to act for themselves – unborn, incapacitated, minors (focuses on Saunders
    v. Vaultier rule)
   Court speaks on their behalf
   Case law developed so that there is more to it than just those unable to act for themselves.
   Anyone can propose an arrangement
   S.2: court will decide to offer approval or not
   Note: who can apply, who can the court approve benefits on behalf of, criteria for approval

         a. WHO CAN APPLY
   Seems to allow anyone “any arrangement by whosoever propose”
            i. But generally, applications to vary are made by trustees because it is them who have to deal with
            beneficiaries, conflicts, divergent interest
   Want assistance from the courts
   Legislation is meant to help those who can’t help themselves
   Trustee have to treat beneficiaries the same
   Official guardian in most cases in Canada because they are the person who acts on behalf of minors or unborn
   Settlors, in inter vivos trusts, may have reason to bring forth arrangement to vary. Often in small family trusts,
    settlor is also beneficiary

   Legislation seems to say that if you are a fully capacitated adult, the court shouldn’t really get involved because
    they are capable of looking after themselves. Court concerned with those unable to consent
   However, courts have used it against adults.
   England : trust with 27 beneficiaries, 2 did not want a variation. Courts used this legislation to do it anyway
   S.1(a): infants and mentally incompetent: incapable of consenting. Courts have held that people who are weak
    or infirm can be dealt with under this clause
   (b): people who will be beneficiaries on the happening of a future event. Example: to A and his then wife, 10
    years after my death. If A is unmarried and has a wife, she would be covered under this clause.
   (c): unborn. Official guardians involved here. Alta and Man. vary here – have untraceable beneficiaries
   (d): people with discretionary interest that hasn’t been terminated. Usually there is a life interest already in
    place, followed by a discretionary interest. Those who may possibly take under this are covered by (d).
   Mostly infirm, minors and unborn
1.   Objective Prudent Adult Test is used: courts have determined this is the proper test.
     Finnell v. Schumacher Estate
     Facts: original trust had tax issue not foreseen by settlor. Variation proposal driven by desire to save a lot in
     taxes. Made up by many lawyers
                  ORIGINAL TRUST                                            VARIATION REQUESTED
                                     Schumacher Estate: - $800,000/year income

Capital                        Schumacher fnd’n – 75%          Capital                         Fnd’n – 66 2/3 %
                               Issue Mike Finnel – 25%                                         Issue – 16.7%
                                                                                               Issue Remote – 16.7%
Income                         5/8 to fnd’n                    Income                          Fnd’n – 55.5%
                               2/8 to M and his issue                                          Sister – 11.1%
                               1/8 to sis, rest to fnd’n on                                    Issue Remote: 5.6% then
                               her death                                                       16.7% after M dies
                                                                                               Issue – start at 5.6% then
                                                                                               16.7% after M dies

     Comments: All beneficiaries with vested interests consented to this, because vested interest beneficiaries were
     going to benefit.
     Issue: should court approve variation on behalf of infant or remote interests?
     Decision: the court will not vary the trust, it would not be prudent from the perspective of the unborn etc…
     Reasons (Carthy): The beneficiaries who were vested and had consented gained the most, the benefits to the
     unborn or remote are much more speculative. Court must look at the situation thru the eyes of the unborn, if it
     is not their best interests, tax purposes is not enough to conclude that they would want it. If not, it is not
     prudent. Huge gain to current beneficiaries, compared with small benefits to unborn, and possible losses to
     most remote, unborn interests makes this imprudent in the eyes of those beneficiaries.

2.   Intention of settlor is considered: should the variation keep alive the settlor’s intent. On the face, the
     legislation doesn’t say. Finnell – pg. 171: the variation was inconsistent with intention of the original trust.

     Irving (Ontario, 1975):
     Facts: Courts assessing a variation looked to settlor’s intention as first and most important consideration.
     s.1(2): benefit of beneficiary is the main consideration
     Implications: has since been overturned in UK and BC, whittled down in other jurisdictions – not clear on what
     role intention should play. In Ontario, import needs to be placed on settlors intent. However, every variation,
     to some extent, moves away from original trust and therefore intention.
     Haigh: intention is not relevant, because Saunders v. Vautier rule says that you can terminate without settlor’s
     intention. Also, not in the act. But in Canada we have a patchwork.

3.   Extent of Variation: how far can you vary before you’re actually creating a whole new trust. Cases have
     interpreted this legislation to say court only has jurisdiction to say whether a variation is acceptable, they don’t
     have jurisdiction to approve a whole new trust. English case says that: “Courts cannot approve a change in the
     whole substratum of a trust.” Hard to find line between new variation and new trust – not likely to be allowed
     to redraw a trust. If structure and beneficiaries are similar, it is likely safe to say it is just a re-draw, not a re-
          Irving: reconstruction of a trust goes against settlor’s intent, which was reason for the trust. Combines
          issues of extent into a question of intent – blurs the distinction.
     However, there are cases that do talk about a jurisdictional issue as separate.
4.     Actual Benefits Allowed: will the beneficiaries benefit in the same way they did before the variation.

       a. Economic Benefits: Most common, easy to assess. Courts look at the new variation monetarily.
       1. Risk and return: 5% chance of $1million could be changed to smaller, vested gain now
       2. Tax: Alleviation of liability

      b. Non-Economic, Indirect Benefits: Moral or social reasons (e.g.: bring family together, case excluded 4 th,
         accidental child. Monetary benefit of original 3 beneficiaries was less, but for moral reasons, court approved
         the variation.)
           Re: Kovish
           Facts: Variation brought to court for approval where children and grandchildren given $ immediately, at
           the expense of possible unborn children covered under original trust. Official guardian was representing
           unborn children.
           Evidence: wanted immediate money to invest in a decorating business that would eventually benefit all.
           Guardian brought no evidence that the business was risky – but everyone was very optimistic, judge seems
           to accept it as guaranteed that the business will succeed.
           Decision: Variation approved.
           Reasons: because it is a small family business and this a small family trust, the unborn will ultimately
           benefit of the success of the business. So they aren’t really losing out because their interest under the trust
           is reduced. Their interest under the business will compensate for that.
      Non-financial interests are considered in variation in Ontario on the basis of case law, but it is not written into
         the statute like in Manitoba. Question is how much weight to put on it.
      These cases crop up in pension cases (e.g.: wrap them up, deal with surplus) where variation will affect future
         beneficiaries. Is it better to give money now at expense of future generations, or should we not take that risk.
      A pensioner electing to lump sum cash now rather that a structured payout, may be approved due to
         immediate benefits to the family

                                            ADMINSTRATION OF TRUSTS
      Pp.269-300’s
      Focusing on trustee as administrator of a trust.
      Settlors and beneficiaries, in principal, have no rights unless provided for specifically provided for in that trust.
      Settlor can keep power to remove/replace trustee, can appoint an overseer – can remain engaged without being
       part of the trust
      3 sources for trustees roles and duties
       1. Trust instrument: specific duties which may differ from general statutes and laws
       2. Case law: equitable jurisdiction
       3. Statutory sources: Trustee Act in Ontario, Red Tape Reduction Act. Not a comprehensive scheme dealing
            with all the duties, just piecemeal problems where problems have arisen.
      Any person capable of holding property can be a trustee. Standard, capacitated adult is the norm.
      Doesn’t deal with the fact that you can have old, infirm, unstable trustee. Inability to exercise judgment. What
       if the trustee is not good at the job?
      Corporations can be trustee if allowed under the articles.
      Also public trustees – crown provides a trustee
      Statutory trustees – statutes set up trust entities
      Fiduciary duties: important position, under highest civil law duty created in CL world. Higher than all other
       fiduciary categories, higher than public office.
Appointment, Retirement and Removal of Trustees
   Maxim: a trust will not fail for want of a trustee.
   If a settlor doesn’t name one, or a trustee is unable or willing to perform, the court will appt a trustee.
   In Ontario there is no minimum or maximum. The maximum is limited pragmatically because another maxim
    is there must be unanimity among them (average is 1-6)


         i)       The Trust instrument
   The trust instrument will usually appoint the first trustee
   No person can be compelled to act as a trustee
   Any appointee, even if they have given an advanced indication of willingness, is free on the creation of the trust
    to accept or disclaim an appointment
   Acceptance can be express or implied
   It may be necessary to appoint trustees during the lifetime of a trust. This can be dealt with by the trust
    instrument and is also covered by the Trustee Act.

         ii)      Statute
   Subject to a contrary intention in the trust instrument, Trustee Act has a section conferring on specified persons
    the power to appoint trustees in specified circumstances.

                                                      Trustee Act
                                                    RSO 1990, c. T.23
Appointment of New Trustees
[Power of appointing new trustees]
    3.--(1) Where a trustee dies or remains out of Ontario for more than twelve months, or desires to be discharged
from all or any of the trusts or powers reposed in or conferred on the trustee, or refuses or is unfit to act therein, or is
incapable of acting therein, or has been convicted of an indictable offence or is bankrupt or insolvent, the person
nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust, or if there is no
such person, or no such person able and willing to act, the surviving or continuing trustees or trustee for the time
being, or the personal representatives of the last surviving or continuing trustee, may by writing appoint another
person or other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the
place of the trustee dying, remaining out of Ontario, desiring to be discharged, refusing or being unfit or incapable.
    (2) Until the appointment of new trustees, the personal representatives or representative for the time being of a
sole trustee, or where there were two or more trustees, of the last surviving or continuing trustee, are or is capable of
exercising or performing any power or trust that was given to or capable of being exercised by the sole or last
surviving trustee.
[Authority of surviving trustee to appoint successor by will]
    4. Subject to the terms of any instrument creating a trust, the sole trustee or the last surviving or continuing trustee
appointed for the administration of the trust may appoint by will another person or other persons to be a trustee or
trustees in the place of the sole or surviving or continuing trustee after his or her death.
[Power of court to appoint new trustees]
    5.--(1) The Superior Court of Justice may make an order for the appointment of a new trustee or new trustees,
either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
[Limitation of effect of order]
    (2) An order under this section and any consequential vesting order or conveyance does not operate as a
discharge from liability for the acts or omissions of the former or continuing trustees
[What may be done]
    6. On the appointment of a new trustee for the whole or any part of trust property,
[increase in number]
           (a) the number of trustees may be increased; and
[separate trustees for distinct trusts]
           (b) a separate set of trustees may be appointed for any part of the trust property held on trusts distinct
from those relating to any other part or parts of the trust property, even though no new trustees or trustee are or is to
be appointed for other parts of the trust         property, and any existing trustee may be appointed or remain one of
such separate set              of trustees or, if only one trustee was originally appointed, then one separate trustee may
          be so appointed for the first-mentioned part; and
[where not less than two to be appointed]
          (c) it is not obligatory to appoint more than one new trustee where only one trustee was originally
appointed or to fill up the original number of trustees where more than two              trustees were originally appointed
but, except where only one trustee was originally            appointed, a trustee shall not be discharged under section 3
from the trust unless there will be a trust corporation or at least two individuals as trustees to perform the trust; and
  [execution and performance of requisite deeds and acts]
          (d) any assurance or thing requisite for vesting the trust property, or any part thereof, in the person who is
the trustee, or jointly in the persons who are the trustees, shall be           executed or done.
[Powers of new trustee]
    7. Every new trustee so appointed, as well before as after all the trust property becomes by law or by assurance or
otherwise vested in the trustee, has the same powers, authorities and discretions, and may in all respects act as if the
trustee had been originally appointed a trustee by the instrument, if any, creating the trust.
[Application of Act]
    8. The provisions of this Act relative to the appointment of new trustees apply to the case of a person nominated
trustee in a will but dying before the testator.

         iii)      Judicial Appointment
    Court have an inherent jurisdiction to appoint trustees and is also conferred on the court by statute
    Section 5 of the Trustee Act (above) permits the Court to appointment a new trustee

In re Tempest (1866)
Ratio: In appointing trustees, the discretion of the court must not be exercised arbitrarily. The Court ought to be
guided by general rules and principles:
 Should have regard to the wishes of the settlor if such wishes can be ascertained from the trust instrument
 Court will not appoint a person as trustee with a view to the interest of some of the persons interested under the
    trust, in opposition either to the wishes of the settlor of the beneficiaries (as the trustee must hold an even hand
    between interests)
 Will have regard to whether the person’s appointment will promote or impede the execution of the trust

          i)       Non-Judicial
    Trust may provide for the retirement/discharge of trustees. Subject to this, statute deals with

                                                     Trustee Act
                                                   RSO 1990, c. T.23
    2.--(1) Where there are more than two trustees, if one of them by deed declares a desire to be discharged from
the trust, and if the co-trustees and such other person, if any, as is empowered to appoint trustees, consent by deed
to the discharge of the trustee, and to the vesting in the co- trustees alone of the trust property, then the trustee who
desires to be discharged shall be deemed to have retired from the trust, and is, by the deed, discharged therefrom
under this Act without any new trustee being appointed.

    (2) This section does not apply to executors or administrators.

           ii)      Judicial
    Courts have inherent jurisdiction to permit a trustee to retire and to give a discharge.
    Note that trustees hold title as joint tenants and thus the right of survivorship operates upon the death of one
    If a sole trustee dies, under Trustee Act [2(3)] title vests in his personal representative who may act as trustee
     until new trustee appointed
    C.   REMOVAL

        i)       Non-Judicial
   Trust instrument may provide for removal of trustees in certain circumstances and may confer power of removal
    on someone
   By implication, s.3 of Trustee Act confers power of removal in the circumstances dealt with in the legislation

    iii)    Judicial
   Courts have inherent jurisdiction to remove trustees.

Conroy v. Stokes:
 Facts: 2 of 5 beneficiary wanted trustee removed and replaced. Court said there was no evidence of breach,
 unfitness, misconduct. Actual problem was friction between the trustee and the B’s bringing the motion.
 Issue: is friction between some B’s and T enough to bring about the court’s inherent jurisdiction to act for the
 best interest of B and remove T.
 Decision: No!
 Reasons: need to show that the friction endangered the B’s entitlement under the trust. Here, friction had nothing
 to do with B concerns about their entitlement. Problem here stemmed from the fact that the 2 were children of a
 different marriage from the other 3.

Re: Consigilio Trusts (No.1)
 Facts: 3 trustees. At trial, all 3 were removed. Only 1 appealed this. Case dealt with bitterness among the
 trustees, who couldn’t agree on any policies for effectively managing the trust. Guardian was concerned about
 this. Reply by the trustees that they hadn’t breached anything – only had differences of opinion, no misconduct.
 Decision: When the issue is dissention amongst the trustees, misconduct is unnecessary.
 Reasons: Evidence showed that the dissention affected the continuing management of the trust, so Bs interests
 were at stake. If it is impossible or improbable for Ts to act in best interests of Bs, courts can act to remove them.
 Implications: It is a rebuttable presumption that dissention between the Ts will harm the Bs – if the dissention
 doesn’t affect the administration of the trust, then it won’t be necessary to remove them.

         Situations where Trustees have been removed:
         1. Petefield v. Benn (1853): breach of trust
         2. Re. Ex. Parte Reynolds: Trustee purchasing part of trust estate (breaches fiduciary duty to avoid
         3. Moore v. McGlynn (1890): Trustee starting up a rival business
         4. Millard v. Ayre (1793): Trustee absconding after charge, but no conviction, of forgery.
         5. Paileref v. Karoo (1863): Refusal to execute the trust.
         6. Trustee is not impartial, favours one set of Bs over the other (maxim that you have to treat them
         * in some cases, they will be liable to damages or compensation.

         What if all the Bs want a trustee removed?
          Question to ask: Does Conroy turn on the fact that 3 of the Bs didn’t want removal.
          Answer: No! But could use appt powers to reduce influence of objectionable trustee.
          Ultimate club: can always terminate under the rule in Saunders v. Vautier.
          Can change the number of trustees if the trust instrument allows for it.
Duties of Trustees
   Duties are becoming more and more onerous – riskier
   Currently, there is talk about investment duties, and necessity of making money for the Bs.
   There are a number of duties and standards Ts must know about, and often they enter into a trusteeship lightly
   Sources of duties:
        1. Trust instrument: will specify scope of duties that have been ingrained in trust law for centuries
        2. Statutory/Legislation: not much spelled out in Trustee Act, most relate to investment powers which are
             contained in amendments and recent, new acts such as The Red Tape Reduction Act (spells out new
             rules for investment by trustee – quite different from old rules).
        3. Trust law principles from equity, established thru the CL over time. Most of these stem from the fact
             that trustees are fiduciaries. You’re administering property on behalf of a B, whose interests must
             come first

      A. DUTIES
   Can be divided into initial duties and ongoing

Initial: right from the start there are fairly onerous duties, most trustees don’t do any of this because they don’t
     know what the role entails.
For new trustees and new trusts:
a. familiarize with nature of the property
b. ensure it’s invested in accordance with instrument and legislation: courts allow time to convert unauthorized
     investments into authorized ones.
c. ensure property is held in proper custody

Additional duties for newly appointed trustees for ongoing trustees:
a. reasonable steps to ensure accts, books, administration of property is up to date.
b. take action to recoup losses from possible breaches (especially if previous trustee was removed for breach of

a. Loyalty: to the trust and the B’s. This includes honesty, candour (can’t do anything without Bs knowledge),
   diligences (not profit or act in conflict). Not expressed in recent cases because it is so engrained. There a
   number of specific duties which flow directly from this:
b. must perform personally and not delegate.
c. duty to invest, so Bs will benefit
d. act impartially as between life interest and remainder, or capital and income.
e. Keep proper accts
f. duty to provide information

RE: Tempest:
Facts: Beneficiaries wanted the trustees to purchase the family home as part of assets of the trust. The Ts had that
power. But Ts determine that they would need to mortgage to do so. One T said let’s do it, other didn’t want to.
Issue: was the exercise of discretion reasonably done?
Decision: T was within his discretion in deciding not to mortgage
Reasons: court can interfere where Ts exercise discretion wrongfully,
      B. POWERS
   Different from duties – consequences differ depending if a trustee is under a power or duty.
   Duties are compulsory or mandatory, powers are discretionary.
   There are tests for determining which something falls under, depending on the discretionary element, but test is
    not clear cut.
   Courts say that if you have a discretionary power, you must exercise some judgment in deciding if you are, or
    are not, going to be exercising it.
   You can’t exercise the discretion with mala fide (i.e.: with improper purpose/motive, irrelevant considerations)
   Court must decide if it there was mala fide, discretion, duty
   Courts must analyze as a power and a duty
   Further complicated because there may be both duties and powers in a trust instrument, which add to the
    difficulties of figuring out if something is a duty (must adhere to principles of trust law), and powers (can use
    discretion, as long as mala fide is avoided)
   Key area of confusion is in investing – general duty to invest, but instruments may give powers as to how to
    invest (may fail to use power correctly, and invest wrong)

Re: Wright
Facts: Ts wanted to sell shares, but hadn’t received a reasonable offer yet.
Issue: Was there: 1) An absolute duty to sell the shares, 2) An absolute duty to retain the shares, or 3) An equal
duty to sell or retain depending on situations.
Decision: Ts were within their powers of discretion.
Reasons: Court will not interfere with proper exercise of discretion. Court said that you have to properly
characterize the trust. Look at the instrument as a whole. Likely #3, and definitely there was not a duty to sell at an
unreasonable price. Instrument gave Ts discretion. Here they would sell, just waiting for right price.

Gisborne v. Gisborne
Issue: should trustees take extra money from the trust to provide for an incompetent widow in an asylum. She had
an annual stipend, but could she have extra.
Decision: amt that is necessary for her upkeep is best decided by the Ts, this is what the testator wished.
Reasons: If there is mala fide in the exercise of discretion, the courts will interfere.

Fox v. Fox Estate (CB 286)
Facts: Husband gave 75% of his estate to his widow Myriam, and son Walter got 25%, and W would get remainder
of 75% when M died. M was allowed to encroach on the capital, 1) on Ws behalf, or 2) on behalf of his children.
Will was set up when W was married; he divorced his Jewish wife and married his non-Jewish secretary. M
encroached to the point that the capital was reduced to zero and gave it to the children of his first marriage. W was
upset because he lost his family trust money, and he felt the motivation was something other than his kids’ best
interest. It was accepted at trial that a large part of Ms motivation was disapproval of second wife, in addition to
concern for kids.
Issues: a) What is mala fide? b) did M act with mala fide?
Decision: a) Mala fide doesn’t have to be fraud, it can be behaviour that is seen as wrongful, improper conduct, b)
M acted improperly in her exercise of discretion.
Reason: if there is mala fide, the court can intercede. The marriage to the non-Jewish woman was not a valid
consideration. This was improper exercise of discretion. Public policy aspect: this was an abhorrent way to
motivate exercise of discretion.

Re: Blow
Facts: Two trustees are arguing over encroaching on capital. One was a father who wanted to advance money from
capital to his daughter. Other T was a professional trust company, and claimed that they have a memo the other
doesn’t that said this wasn’t allowed.
Decision: Court can interfere because company was not exercising discretion – they were being directed by the
Haigh: inaction is based on a memo, so isn’t that an exercise of discretion based on something extraneous?
Schipper v. Guaranty Trust Co. of Canada (1989) (CA)
Facts: Testator created trust with life interest for W with “so much thereof as remains” to son and then to his
children. W, son and Trust Co. were trustees. Will gave trustees a discretion to encroach on capital for the “general
welfare, benefit, comfort and enjoyment” of W. W wanted to do so (as did son), but Trust Co. refused on the basis
that it wanted to preserve the capital for the benefit of future unborn beneficiaries.
Judgment: Testator’s primary intention was to provide for W. Trust Co. failed to properly exercise discretion by (1)
prioritizing future beneficiaries despite clear indication in instrument that W was priority; (2) by having undue
concern for interest of remote unborn whose interest “was speculative to say the least”; and (3) by having no regard
to the unanimous consent of all living residual beneficiaries.
Ratio: While the court will generally refuse to intervene with the “uncontrolled” discretion of a trustee where they
are acting bona fide, the court is entitled to do so where the trustee is attempting to exercise discretion to achieve a
purpose not intended under the terms of the trust.

Summary of the cases:
Basic principles:
1) courts will back off in most cases and let trustees exercise discretion
2) only at the margins were courts are concerned (I.e.: when the (non)exercise might be unjust)


   Normally trustees have a large number of discretionary powers, even more today (e.g.: where to vest, who shall
    benefit in what amt)
   Courts have been asked to police the exercise of discretion
   Based on the duties of trustees.
    a) honest, loyal etc…
    b) exercise discretion
    c) act within confines of your authority (this ties in mala fides)
    d) understand your powers

                      i) General Principles
                                                          Trustee Act
                                                     RSO 1990, c. T.23
Relief of trustees committing technical breach of trust
    35. (1) If in any proceeding affecting a trustee or trust property it appears to the court that a trustee, or that any
person who may be held to be fiduciarily responsible as a trustee, is or may be personally liable for any breach of
trust whenever the transaction alleged or found to be a breach of trust occurred, but has acted honestly and
reasonably, and ought fairly to be excused for the breach of trust, and for omitting to obtain the directions of the court
in the matter in which the trustee committed the breach, the court may relieve the trustee either wholly or partly from
personal liability for the same
THE case:
Fales v. Canada Permanent Trust Co.(SCC)
Last big trust case SCC has heard
Facts: There is a simple family trust in which Mr. W appointed his widow trustee and the trust company as co-
trustee. Estate was left in trust for widow for life, and remainder to the children equally. The estate was worth half
a million. The trust instrument did not contain a power of investment (it can be wide open, or say nothing, then
fallback is statute, which gives a list of conservative, mostly govt related authorized investments), so had to invest in
authorized statutory list.
The Case: One of the assets was shares in a company called Boils Brothers, which weren’t marketable, so Ts
needed a way of trading them. Did by exchange agreement where they obtained shares in a company called
Inspiration – this was done very early on, but this company was not on the list of authorized investments. They held
on to I shares for 2.5 years, which became worthless – slow decline, then dropped like a rock, company went
bankrupt. The estate lost a lot of money. The children sued the trust company only for not investing in authorized
investments. The trust company joined the widow as well. The problem with deadlock had not been considered, the
role of each trustee was not laid out.
Problems of the Court:
          1) Trust Co. said that they told Mrs. W that they needed to sell shares in I at least 5x over the 2.5 years.
          She adamantly refused, so the Trust Co. used the defense that they had done all they needed to do.

         2) What is the period of relevance – when should they sell? Trial court and CA had different ones, SCC
         said that it was from the time they obtained the I shares, until 6 mos. prior to I’s de-listing. There was
         always a duty to sell in this period.

Issue 1: was there a breach of trust when Ts failed to carry out the activities?
General rule: that beneficiary is compensated by both trustees, and both will be liable to compensate.
 At trial: company should have higher standard, they shouldn’t have allowed her to oppose the sale.
SCC: Company shouldn’t have let her oppose the sale, they should have gone to court for direction – duty is more
than asking to sell (but they said that the standard was the same).

Issue 2: should there be a different standard of care for lay person trustees, as opposed to professional
SCC: There should be just one standard of care.
Application to the facts: the court found a middle ground. The basic standard is the skill of the trust company –
widows and friends are likely to fail, but will be allowed to escape thru statutory exoneration. In this case,
professional didn’t meet the lowest possible standard.
          a. does this apply to other professionals (lawyers, accountants?) Yes

Issue 3: What’s the obligation of disclosure on the part of Ts, when one is party to information and the other
isn’t? Does it matter if the information is publicly available?
SCC: Trust Co. knew much more about Is financial situation than the widow, but they only told the widow that they
should sell cuz they can’t hold unauthorized shares . They argued that was ok because the info was publicly
available, but court said that the duty to provide the info was still there, they should have disclosed, if she still
refused, should have gone to the court to get direction.

Issue 4: statutory power of relief, which allows courts to exonerate Ts who are found to be in breach. (s.96 of
BC Act, s.35 of Ontario Act)
SCC: Both trustees were held in breach. Trust Co. because they didn’t disclose or go to court, widow because she
didn’t exercise her powers. However, she gets a statutory out, and trust co. had fully compensate the loss. She tried
to the best of her ability to act as a trustee. This is subjective:
         At Trial: She was characterized as intelligent, capable, strong willed, independent minded, who from time
to time sought the opinion of professional advisors, sometimes she followed, sometimes not.
         SCC: Housewife with 4 young children, school teacher who took night school course on “how to invest
your money.” She had minimal investment experience, no trustee experience, she tried to the best of her ability to
be aware of info and act. Unsophisticated and vulnerable, therefore professional trustee should have done more.
mplications: court says there is only one standard of care, but this result seems to provide different standards. If
you generalize more, the SCC is really saying that where both co-Ts failed in their duties, and only one failed to
communicate info, it’s the knowing trustee who will have to bear the whole amt of the loss, professional or not. This
scared off professional trustees for awhile because of fear that they wouldn’t be able use this. This allows a remedy
to be tailored for the situation.
Dickson: 3 past instances where one trustee should bear entire loss: 1) T acts fraudulently, 2) Lawyers acting as
Ts and non-lawyer Ts rely on incorrect advice, 3) where Ts are also beneficiaries, therefore do something breach
fiduciary duty to benefit themselves. Only other instance is where they can be relieved under statutory power.
This is the first time it has been applied between co-Ts. The point of the s. was to relieve all the Ts in situations
where Bs had undergone a loss, but the harsh rules of trust law needed flexibility. Never enacted to allow this use
between co-Ts. SCC has used this remedy in a new way. He says this is what it was used for.
Haigh: says D was being disingenuous when he said it was created for this. Court has a single standard for all
with ability to use remedial power. Court never intended to excuse one trustee vis-à-vis another, rather to excuse all
Ts vis-à-vis the Bs. This use gives implication of an indirect double standard of care.

Facts: The loss was half a million dollars, and an additional $60 thousand was added by how the SCC calculated.
There are different ways of measure the loss:
   1. Value of shares at beginning when they should have sold, value of shares at end and subtract: this gives the
   2. Average price over the period
   3. Most common/consistent price
The number of shares that a trust holds may affect the price – more difficult to sell a large number of shares.
Another factor to consider is a case where the beneficiaries are minors, because they can’t control anything.
SCC: Took the average price during the period in question. They didn’t discuss their reasons. Highest value is not
sole criteria – other factors are best addressed with average. The breach was a continuing breach, so it is easier to
accept the averaging principle. If it were a fixed point of breach, perhaps taking the value at that time would help.
It is uncertain how we do it in Canada

Discussion re: Twinning of professional and lay trustees:
 the trust companies promote this arrangement because:
     they will have the knowledge and experience to administer the trust – insurance, accounting, and especially
         investments and tax
     The lay person can decide which beneficiaries should get what, in terms of income and capital, as well as
 Fales case gives examples of problems with this theory,
 What happens in the case of a dispute?
 The normal rule is action must be unanimous, so disputes resolution must be built into the trust instrument,
    because deadlocks can be considered to be a breach of trust
 Perhaps direction from the court could be sought, but the Gisborne and Blow show that courts are loathe to
    interfere in this
 Resignation provisions could be included (i.e.: such and such party must resign)
 How to determine what each Ts role is, what if lay T wants to participate
 Is the division between admin and matters relating to beneficiaries interests really so distinct that one party can
    deal with each
 Boils down to problem of selecting trustees
 Having a single trustee doesn’t solve the problem either/
 Testator often think that a T would do the same thing they would if they were still around – lawyer must
    convince testator of this, and convince them to put boundaries etc…
 SCC’s decision was quite controversial, with new principles in any CL jurisdiction
 The court took a very dim view of TrustCo’s behaviour, which Haigh says colours their judgment
 The “reasonably prudent person managing her own affairs” is the standard, and sometimes that person will be
   looked at as the “reasonably prudent business person”
 This made the trustee industry start to examine its own practices, and they became reluctant to pair up with a
   lay person. Joint lay/professional trustee twinnings are more common again
 Now trustee companies are better when it comes to giving info to lay trustees.
 They may not analyze or interpret the info, but they pass it on.
 It is argued that they sould be held to a higher standard of care (argued in Fales, accepted in some US states)
   because they advertise themselves as having expertise
 The result might be different today because information is so much more widely available
 Today you would need stronger evidence that she is unsophisticated – there is even a difference between trial
   and SCC characterization
 However, maybe the trustee company would be required to provide more analysis today
 But Haigh pulled up a brochure for an trust guy who talks about how much more complex the business world is
   today, and how he is experienced and professional in this. We made fun of it for like 10 minutes

                       ii) Exculpation Clauses:
Re Poche (1984)
Facts: Trustee committed various breaches of trust. Will contain clause that trustee “shall not be liable for any loss
not attributable (a) to her own dishonesty, or (b) to be a willful commission of any act known by her to be a breach
of trust”. Loss in question was the result of gross negligence.
Ratio: While exculpation clauses afford a considerable amount of protection to trustees, Court holds that a trustee is
liable for any loss resulting from gross negligence regardless of exculpatory clause.
[but see below]

Armitage v. Nurse [1997] (CA)
Facts: Action for breach of trust. Clause stated that trustees were not to be liable for any loss “unless such loss or
damage shall be caused by his own actual fraud”.
 The Court considered that broadly speaking fraud requires dishonesty and that many breaches of trust are not
    the result of dishonesty (may breach in good faith and with honest belief that they at in best interests of trust).
 On its surface, the clause serves to exempt the trustee from liability “no matter how indolent, imprudent, lacking
    in diligence, negligent or willful… so long as he has not acted dishonestly”; however,
 The court accepts the proposition that there is an irreducible core of obligation owed by the trustees to the
    beneficiaries which is fundamental to the concept of trust. If the beneficiaries have no right enforceable against
    the trustee than there are no trusts
 These core obligations do not include duties of skill and care, prudence and diligence
 The minimum necessary duty is to perform honestly and in good faith for the benefit of the beneficiaries
 The law draws a distinction between negligence (however gross) and fraud, bad faith and willful misconduct.
    “Gross negligence may be evidence of mala fides, but it is not the same thing”. There is no authority for the
    proposition that a clearly worded clause cannot exclude gross negligence.
2. Duty Not to Delegate
 Trustees are expected to do everything related to the trust themselves
 Delegation refers to talking to expert – legal requirements and interpretation of trust instrument, tax advice from
    accountants, fund managers and business advisors.
 Once you’ve accepted the obligation to do it, you can’t shift onto someone else.
 This rule was strictly followed in the past, now the rule isn’t as strict, and Ts have way too much to do, so they
    try to delegate some responsibilities
 Most of the time, you are looking at whether the trust instrument permit delegation/
 Often in modern trusts, there are allowances to delegate specific duties
 There are statutory provisions which allow delegation because experts are needed because the 21st C is
 Ultimately, you can delegate to an expert now, but T must make the decision.

When may Trustees Delegate?
Speight v. Gaunt (1883, HL, CB 314)
*Leading case on duty to delegate
Facts: G was a trustee under will for family trust who wanted to invest in municipal bonds. In accordance with
usual practice at the time, he enlisted aid of a stockbroker, RC to purchase the municipal bonds. RC used the funds
for something else, and his company went bankrupt. He never bought the bonds, so the fund lost all the money.
Issue: Was G liable for breach of trust because he delegated that task to someone else?
Court Asks: what is the usual custom for purchasing municipal bonds?
Decision: it was proper to delegate to RC, and to pay him in advance,
Reasons: this was usual practice in London, one of the only ways to get the bonds. T is not to blame if, without
knowledge that will make the transaction risky, she acts in the normal business manner to delegate.

Speight and Fales
Standard of Care is similar:
 Fales: business person of ordinary prudence managing their affairs – if prudence requires delegation, the
    prudent standard will allow you to do so
 Speight: Trustee can delegate to the extent that normal business practices requires her to do so.

If you don’t allow delegation:
 No one would want to be a trustee, or it would cost a lot of money because so much work
 You would catch people for breach of trust for reasons they don’t understand because the couldn’t consult an

When delegating:
 Do you homework on the agent and make sure they are reputable
 Give them clear instruction from statutes or instrument
 Agent must know the scope of their role

3. Trustee Must Keep Proper Accounts
 the accts must be ready for inspection by the Bs at any time, since they beneficially own the trust
 you should keep inventory of the property, what the estate consists of, what the original estate consisted of,
    money that’s been received and paid out, the current state of the property
4. Duty of Impartiality
 no preferential treatment of Bs individually or as a group
 settlors can create “partiality” if they want to – in this case, T must make sure they understand how the creator
    wanted to favour one set of Bs over the other.

A                B                 C                 D
                                     Life               remainder

   Must strike an even balance between C and D – assets of trust must deal with them impartially
   It is tied to duty and powers to invest
   BC: Pp. 354: excerpt from Trustee Act: has statutory list of investments. The old fashioned way of preserving
    impartiality was to provide a statutory list of things you can invest in. Hope is that by investing in the list,
    you’ll get a good balance between income and capital
   Ontario: Pp. 357: has prudent investment standard, rather than a list. Still trying to establish a balance, but of
   administration fees/expenses of incurred are taking out of income, which reduces life tenant’s interest
   In the Fales case, there was no list, so receiving unauthorized investments at the start of the trust can create
    partiality. There must be a conversion to authorized ones that provides enough for life tenant and enough for
   One way to settle the conflict is to look at the language of the trust about conversion and postponement
   If there is a simple situation like the one above, there is a general presumption that you intend both to get
    something – equal value.
   If there are wasting assets (e.g.: shares in a mine), which don’t last forever, you want to convert
   However, sometimes a more specific duty exists and can be inferred (e.g.: if there is no duty to convert the mine
    shares, courts have said that because it was a mining share, there is less duty to act impartially because it was
    obviously intended that C would be favoured over D, because it brings income, rather than long term capital

Re Smith (1971)
Facts: Testator willed shares to son. In will requested that son give 25% of income to wife. Son created a trust to do
so, giving wife (his mother) a life interest with himself as the remainderman, and appointed Trust Co. as trustee.
Trust included power to sell or convert and invest proceedings therein in listed investments. Shares split etc. and W
requested that investment portfolio be altered. Trust Co. answered but stated that they had contacted son with the
intent of getting his opinion of the request and never contacted wife again.
Issue: Breach of duty for failure to be impartial between life tenant and remainder person?
 Trustee failed to maintain even hand.
 They ignored wife’s request for variation of investment which would afford her a much enhanced income
     (Evidence that they could easily and without risk have increased interest by 6%).
 The evidence seemed to suggest that the shares were retained rather than converted because for “some
     unspecified reason” this was in the interest of the remainder person (who was also the settlor). The Trust Co.
     acted under the assumption that the shares were not to be sold, though the Court notes that there was nothing in
     the trust instrument that suggested this limitation.
 With regard to the deference the Trust Co. had shown to the opinions of the remainder person, it is impossible
     to restore confidence in them with respect to the future administration of the trust and they were therefore
     removed as trustees.

          i)        Trusts for Sale
   Problem re impartiality arise in the case of trusts for sale – where the trustees are under a duty to sell assets (so
    far as not in authorized investments) and invest the proceeds of the sale in authorized investments
   If a trust for sale exists, life tenant is entitled to net income from authorized investments
   Trustees should sell and invest as instructed but the time may not be opportune to sell hence many trusts give
    trustees the authority to retain.
  Note: The Rule in Howe v. Lord Dartmouth
   If the court finds either an express or implied duty to convert then the rule in Howe v. Lord Dartmouth applies.
   The rule states that: “Where residuary personally is settled on death for the benefit of persons who are to enjoy
      it in succession, the duty of the trustee is to convert all such parts of it as are of a wasting or future or
      reversionary nature, or consist of unauthorized securities, into property of a permanent and income bearing
   Rule “requires a trustee to deal even handedly between life interest and remainderman by converting wasting or
      unproductive assets and investing the proceeds of conversion. This enables all interest to be protected and the
      assets preserved so that the benefits provided in the will may pass in succession to the respective beneficiaries”
      (Lottman v. Stanford)
   Note that the rule:
            o applies only to testamentary trusts created (residual is settled upon death)
            o only applies to personal property (not real property)
            o applies to the residue where there are successive interests (Life interest followed by a remainder)
            o Rule does not apply if will shows a contrary intention
            o In these circumstances there is a duty to convert and failure to do so will be found a breach of trust
            o property of a “wasting nature” (eg vehicles, furniture, boats) must be sold
            o “unauthorized” property refers to those unauthorized by either the trust instrument or statute

  Lotman v. Stanford
  Background: Need to understand how the rule in Howe v. Lord Dartmouth is applied in Ontario. The rule says that
  “you must convert assets that are in trust that arise under a will that are wasting or future, reversionary, or
  unauthorized, unless the trust instrument says otherwise.” The rule only applies to personal property, not land. If
  you don’t do this, it is a breach of the duty of impartiality because it treats life and remainder differently.
  Issue: Does the rule apply to land in Canada? Rationale was that it makes sense to apply it to all property in
  Canada. UK has the special treatment because of historical concerns of land, the place of land in trust law there.
  Decision: No, we are going to stick to longstanding rule, and apply it to personal property and not land
  Reasons: Lawyers in the wills and estates field know the rules and plan for it. They draft wills that would deal with
  it, and changing the rule would create great inconvenience. If this is to be reformed, it will need to be done so
  Haigh: Lawyers are capable dealing with change, this was flimsy.
  Conclusion: there is a duty to convert personal property investments that fall under the 4 circumstances in the rule.

5. Duty of Loyalty
   Most of other duties come from this duty
   Loyalty means observing terms of trust, manage property properly, Bs interest first, you are a fiduciary so no
      unauthorized profits, no conflicting behave between yourself and duty as trustee, treating both classes of Bs the
   The duty of loyalty overarches everything T does, but there are exceptions
           To rule of taking unauthorized profits:
            You can purchase trust property in very limited conditions. E.g.: if it is authorized by the settlor –
                always look at instrument first, because even the most integral duty can be authorized. You can also
                have the court intercede in rare circumstances consent of all Bs who are fully informed and have full
                capacity, and T pays a fair price.
           Not act in conflict: didn’t do an example

1.   Duty to Invest
    Ontario – “prudent investor” as captured in

           i)      Permitted Investments
     a.     Trust Instrument: common to include clauses expressly conferring powers of investment.
     b.     Statute: at one time most jurisdictions had a list of legal authorized investments,
           · Now most jurisdictions (including ON) have replaced this with “prudent investor” regimes under
              which they are not confined to specified investments but may investment in any investment which a
              prudent investor might.
           · (see the Red Tape Reduction Act).
           · Reasons: Attempt is to let Ts invest according to “modern portfolio” theory – you need to balance
              your risks and your return by diversifying. What you want to have is some shares that will do well in
              certain conditions and if those conditions change, you want to have shares that will do well in those
              changed conditions.
            EXAMPLE: if you are going to invest in shares in sunscreen, you should also invest in umbrellas
            (Example by Haigh) Theory also means that prudence means that that standard is applied to your overall
            strategy of investments, not particular items.

                                                     Trustee Act
                                                   RSO 1990, c. T.23
   27. (1) In investing trust property, a trustee must exercise the care, skill, diligence and judgment that a
prudent investor would exercise in making investments.
Authorized investments
   (2) A trustee may invest trust property in any form of property in which a prudent investor might invest.

Note: Prudent investor v. Prudent trustee
 A “prudent trustee” may invest in any kind of property, “but in doing so must exercise the judgment and care
    that a man of prudence, discretion and intelligence would exercise as the trustee of the property of others” [New
    Brunswick Trustee Act]

           ii)       Duties and Powers in Relation to Investments
                 a. General Principles

Cowin v. Scargill (CB 362)
Context: Scargill was head of union, represented the union – a thorn in Thatcher’s side. NCB wanted to get rid of
him; this case was one aspect of a strategy to get rid of the union.
Facts: involved pension fund for coal miner union in UK. T board of 10 – 5 from National Coal Board, 5 from
union. The NCB reps wanted to invest in overseas land, and in natural gas and oil. The position of the union
members was that this would indirectly harm the coal industry because they were investing directly into its
Issue: Was this a breach of trust, can the NCB Ts make these investments?
Decision: Trustee must be allowed to invest in the overseas investments.
Reasons: First duty of trustee is to best invest to provide for future and present Bs. There was nothing in the
pension scheme that said that you couldn’t invest overseas, or in competing industries. Point is to provide for
financial best interest of the Bs, and so Ts strong personal views are not a consideration.
Discussion re: Exceptions: there may be situation where Bs financial interest is not sole consideration. Trust can be
set up for financial benefit plus something else, which will affect investment decisions. Courts e.g.: small group of
Bs with strict views against tobacco/alcohol captured in the trust instrument – type of investments could be
considered here. This is a very rare case, and there would be a heavy burden to show that best interest is not best
financial instrument. In the case of a large institutional trust, it will always be financial because the group will be
too diverse to have the same view. Exceptions will mostly apply to small family trusts.
CB 366: excerpt from s.27 of Ontario Guidelines – can see Towne case in s.27(5)(4) and 27(5)
                                                            Trustee Act
                                           As amended by Red Tape Reduction Act
                                                        RSO 1990, c. T.23
27. (3) Any rule of law that prohibits a trustee from delegating powers or duties does not prevent the trustee from
investing in mutual funds, pooled funds or segregated funds under variable insurance contracts, and sections 27.1
and 27.2 do not apply to the purchase of such funds.
   (4) If trust property is held by co-trustees and one of the co-trustees is a trust corporation as defined in the Loan
and Trust Corporations Act, any rule of law that prohibits a trustee from delegating powers or duties does not prevent
the co-trustees from investing in a common trust fund, as defined in that Act, that is maintained by the trust
corporation and sections 27.1 and 27.2 do not apply.
   (5) A trustee must consider the following criteria in planning the investment of trust property, in addition to any
others that are relevant to the circumstances:
           1. General economic conditions.
           2. The possible effect of inflation or deflation.
           3. The expected tax consequences of investment decisions or strategies.
           4. The role that each investment or course of action plays within the overall trust portfolio.
           5. The expected total return from income and the appreciation of capital.
           6. Needs for liquidity, regularity of income and preservation or appreciation of capital.
           7. An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of
the beneficiaries
   (6) A trustee must diversify the investment of trust property to an extent that is appropriate to,
                     (a) the requirements of the trust; and
                     (b) general economic and investment market conditions.
   (7) A trustee may obtain advice in relation to the investment of trust property.
   (8) It is not a breach of trust for a trustee to rely on advice obtained under subsection (7) if a prudent investor
would rely on the advice under comparable circumstances.
   (9) This section and section 27.1 do not authorize or require a trustee to act in a manner that is inconsistent with
the terms of the trust.
   28. A trustee is not liable for a loss to the trust arising from the investment of trust property if the conduct of the
trustee that led to the loss conformed to a plan or strategy for the investment of the trust property, comprising
reasonable assessments of risk and return, that a prudent investor could adopt under comparable circumstances.
   29. If a trustee is liable for a loss to the trust arising from the investment of trust property, a court assessing the
damages payable by the trustee may take into account the overall performance of the investments.

         iii)     Standards of Care of Professional and Non-Professional Trustees
   Many trustees are Trust Co.’s and investment managers
   They are subject to the same SoC as applies to non-professionals (“prudent person managing his own
   Debate over whether professionals should be subject to a higher SoC.
   Arguments in favour focus on the fact that professionals hold themselves out as having special skill and
   Arguments against state that “prudence is prudence” and any attempt to distinguish between professional and
    non-professional trustees is artificial.
   In US, professionals are held to a SoC commensurate with their skill level. In other words, they can be found to
    be in breach of trust if they do not perform at the level of similarity skilled trustees.

         iv)      Delegation of Decision Making Power
            a. General
   Basic rule that trustee must act personally.
   [see section on Duty not to Delegate for more]
   It is however, generally recognized that the financial market is complex and that the ordinary prudent person
    now “as a matter of course” will obtain investment advisors and that most trustees will require day-to-day
    assistance in management of assets.
           b. Mutual funds:
   see Trustee Act s.27(3) though note that without statutory authority mutual funds would be a breach of trust as
    an abdication of decision making power
           c. Permissible Delegation of Portfolio Management
   While a trustee can delegate to some degree he must exercise due care in selecting a competent manager, acting
    within the terms of the trust, and reviewing the manager’s performance closely to ensure the trust portfolio is
    adequately administered

2. Duty to Provide Information
 Must regularly provide the Bs with information about the trust.
 What the property is, how it’s been invested, related to the assets
 Includes other information such as expected growth

Trust documents
        i)       General Principles
 General rule, the beneficiaries may, on reasonable notice, require trustees trustee to produce for their inspection
   any trust documents they wish to see
 This right may be exercised by all beneficiaries, including those with contingent interests
 Trustee are under no obligation to provide info if it is not requested with one exception: when a minor
   beneficiary reaches the age of majority trustees must inform them of their interest and its nature.
 Some unsettled aspects of the law are:
        o What is a trust document? (see Re Londonderry’s Settlements)
        o Must trustees disclose documents that record reasons for making discretionary decisions? (see Re
             Londonderry’s Settlements)
        o Is a clause in trust instrument prohibiting the disclosure of info the beneficiaries valid? (see Jones v.
             Shipping Federation of BC)

Re: Londonderry’s Settlements (1965, Eng):
Facts: trustee had discretion to decide how much to give Bs. One B was dissatisfied, and wanted to see documents
– minutes of trustee minutes, documents between Ts. T didn’t want to show this, just the trust documents.
Issue: distinguishing between trust documents and discretionary documents.
Decision: T is not required to produce documents that show motivation. Easier if they are kept separately.
Salmon J: three characteristics of trust documents: 1) In possession of trustees as trustees, 2) Contain info B are
entitled to know, 3) B has proprietary interest in them
Harmon J: there are some documents which you might be able to say are trust documents, but there is an exception
for a category of protected documents which should not be disclosed to Bs. There might be instances where
documents that would normally be produced won’t be. I.e.: cause discord among family members. He felt this
would aggravate pre-existing dissention. To know why would make it worse.
Implications: The cases in this area have not developed a universal standard about Ts duty to provide info. In a
breach of trust case, in Ontario, disclosure rules would require production of those documents.

         ii)     Accounts
   In accordance with general rule, beneficiaries can request to inspect accounts and can make copies (at their own
   Trustees should therefore maintain a record of the financial affair of the trust

Sandford v. Porter (1889)
Facts: Beneficiary requested accounts of trust. Initial request made on May 15, but no names given. On 18 th names
given. On 25th trustee stated that account being prepared. but on June 2nd that he required some time to prepared
them as costs due by estate were being revised without which the proper accounts could not be prepared. The
beneficiary alleged neglect and commenced action on June 2nd ; accounts given on 7th
 Absolutely no grounds for negligence claim. Conduct of trustee completely proper. Fault altogether on the side
    of the plaintiff.
 Beneficiary seemed to operate under the false assumption that once asked for documents it was the duty of the
    trustee to lay absolutely everything aside and prepare them as fast as humanly possible. But the law is not so
 The trustee is not required to always have a copy of accounts on hand for when beneficiary request it, he is
    rather under a duty to prepare a copy within a reasonable amount of time and is entitled to that reasonable
 [note that trustee was given costs on solicitor and client basis from trust]

Jones v. Shipping Federation of BC (1963) (BCSC)
Ratio: A clause in a trust document which limits which beneficiaries may bring action against the trustees is void on
public policy and illegal as purporting to oust the jurisdiction of the courts.

Remuneration and Indemnity of the Trustee
   Ignore the cases – they are about calculating fair and reasonable sums
   Old rule was that Ts weren’t paid for acting as a trustee, historically they were volunteers
   This was because it was thought that if you were paid, you’d be in a conflict of interest between you and best
    interest of Bs because they money would come out of the trust fund, which would benefit T at Bs expense
   From 1400-1800 not paid, were usually lawyers not paid for their services
   1800 – settlors started putting remuneration clause in instrument in England
   In Canada, we didn’t have the same history, so early on we had remuneration provisions in our statutes
   It is standard for ours to be paid, but the general CL is they are unpaid, which is why it had to go into statute
   In Canada, to not pay, you would have to put it in instrument (opposite of England)
   CB 378 – statute explaining how compensation is calculated. Different for lawyers than for others.
   Factors the courts will consider:
                   1. size of the trust,
                   2. care and responsibility required of the T (how active are they – look at instrument),
                   3. time put in (most important factor)
                   4. skill and ability required
                   5. amount of discretion required
                   6. success of trust – how good a trustee
                   7. special circumstances

 Ts can not only get paid in Canada for acting as T, but there is a provision in all trust instruments (it is a
     principle of general trust law, so you would have to take it out specifically)
 Deals with expenses incurred by Ts as a result of carrying out the trust
 Pay for investment advice, legal advice, maintain property (e.g.: insurance, fees such as property taxes)
 General rule: Ts make properly incurred expense payments out of trust fund first
 Beneficiaries personally may be liable personally for expense incurred on behalf of the trust fund
 B is ultimately the owner, so B is ultimately responsible
 B must check trust instrument to see if personal liability is excluded, usually not
 Ts look for trust fund first, but if they aren’t liquid, or if there are provisions divesting to get money for
Hardune v. Beluliose: source for general rule, says if you are sole B, or B together constitute entire interest, they
can be required to indemnify T for expenses incurred on behalf of the trust. 3 cases where T can recover from Bs:
1) T undertakes a trust at request of Bs, 2) where the B of a trust is also the creator of it, 3) where all the Bs together
are absolutely entitled.
   Even if T is found to breach in K or tort, if certain acts were reasonably and prudently performed under trust
    law principles, but a tort results, Bs can still be personally liable.

Stringham (Arizona)
Facts: indemnification and tax liability. A will was directed that taxes be paid out of estate. A US bank held estate
in trust.
Arizona Court: held that they should be paid out of the estate, so there was attempt to get the money from trust
assets held the assets.
Alberta Court: No, for 2 reasons: 1) T couldn’t sell Alberta stuff to pay Arizona taxes, 2) If T wants the money,
they can go after the B, who is a US resident.
Hardune: B can liable unless there is a good reason not to do so.
US v. Harden (SCC): one good reason to not enforce on B is if the money will be used to pay taxes in another
Implications: indemnification doesn’t require someone in Canada to indemnify for US taxes.

                                         THE CONSTRUCTIVE TRUST
   Arise by operation of law or the courts, rather than the intention of the creator
   Imposed on you
   You must still have property to comprise subject matter
   It is a remedy the court imposes on the situation
   Even if some of the elements exist, courts may impose an alternative
   Personal obligations in equity, accounting of profits, tracing remedies  can be applied with or separately from
    a constructive trust

1. Trustee gets property knowing it is improper, invests in improperly, makes money and absconds. Accounting, or
disgorgement of profits  personal remedies attached to trustee. No need for constructive trust if you can get
disgorgement. Could also have constructive.

2. Invests, but loses the money. Here there is a loss, so maybe no property to attach a remedy to, so do personal
remedy on T.

3. Makes money, but uses it to buy a car. Court may use equitable remedy of trading to find the profits. To get the
money back to rightful owner, can put constructive trust over title of car, so T is holding car for benefit of B.

   Mostly today the courts use them as remedial devices, often to prevent unjust enrichment
   Secondary use, from SCC  can be used in situations of misconduct to punish breaching fiduciaries. In these
    cases, it provides a better remedy that punishes T.
   Often comes up in matrimonial property case
   There are 2 types: purely remedial, and one used for misconduct.
   Traditionalist camps say it is for fiduciaries who make unwarranted profits – it is just like an express trust (but
    the original intention was not to create a trust), and arises when fiduciary engages in misconduct. The trust is
    imposed to punish wrong behaviour
   Remedialists say it is a property right created by the court, based largely on unjust enrichment. Courts will
    remove unjust enrichment and attach a constructive trust.
   In Canada, we use both applications. We have institutional and remedial constructive trusts
   In one situation, fiduciary is involved prior to trust, wrongfully taking the property (traditional)
   In the other, courts retroactively impose f.r., or trust where f.r is not needed because there is already a
    relationship with trust like norms
   They were developed in 17/18th C, by courts of chancery  creature of the court
Keach v. Sanford (1726)
Facts: fiduciary made a profit where he went and renewed the lease of profits on his own behalf, since he couldn’t
do it as a fiduciary for the trust. He intended to benefit the child, but did it improperly. He didn’t want to give all
the profits to B.
Decision: A trust was created over the property he earned for himself
Reasons: no chance of him benefiting, all improperly made profits go back to B. Didn’t fit under old express trust,
because it was new profits made independently.
Implications: for the next 200 years, this was the only constructive trust that existed. Should have been express
trust, but court needed to stamp it.

                                    ORIGINS OF CONSTRUCTIVE TRUSTS

Spousal disputes in the 1950’s-1970’s
·   Common Law spouses lived together sharing property and businesses
·   They would separate, and party that left the home (usually woman because man held title), family law act didn’t
    apply to CL
·   Wanted courts to address imbalance of asset sharing
·   Until 1970 – courts would decide for the woman, but on the basis of common intention resulting trusts (trusts
    that are formed when you don’t properly constitute a trust)
·   1960-70’s: this came under criticism because they didn’t doctrinally work. There was no common intention to
    create a resulting trust, because male didn’t intend to confer any beneficial interest, which is why woman had to
    go to court. Courts thought this was the opposite of common intent, so had to come up with something else
·   So constructive trust for disgorgement of unjust enrichment
·   Leading case:

Pettkus v. Becker
Facts: a couple lived together, pool resources for 20 years. Had a beekeeping business. Man held property title.
After 20 years, he told her to get lost and they separated.
SCC: principle of unjust enrichment lies at the heart of constructive trusts.
Implications: people starting thinking unjust enrichment must be present to impose a constructive trust. Not until
the 1990’s that the court remembered the other branch.

Today: Still open-ended, courts will apply it as remedy or punishment, court won’t define because there might be
future instances for it they don’t know about today. This doesn’t mean they are a remedy for everything, there is
appropriate situations.
     1. Relationship between parties: f.r, commercial relationship, co-habitation.
     2. What did the defendant do – serious breach or misconduct? (it is a strong remedy, and might not be
          appropriate for unserious breaches),
     3. Where did property come from? Is it Ps property, it makes more sense to have a constructive trust, because
          P can get back. If 3rd party, compensation may be more appropriate,
     4. Is the D insolvent at the time? B will rank ahead of other creditors, which may be unfair to other creditors,
          sp don’t want to impose CT at that time.
     5. is it a commercial relationship that could be governed by contract? I.e.: difference between cohabitation
          and commercial arrangements.
1.   Stranger as T, who come into contact with trust property, and depending on their level of knowledge about
     whether it has been improperly dealt with, court will impose to get it back to B
2.   Fiduciary obligation is breached so that F makes a gain
3.   Lac Minerals: Breach of confidence – not a f.r., but CTs can be used
4.   Biggest Category: Unjust enrichment

Breaches by Fiduciaries:
    Fiduciaries are bound to not profit from their positions. They will liable for any unauthorized gains.
    Common to used CT to hold them accountable to B, disgorgement of gains.
    Also based on idea that F must be loyal to B, so this punishes those who make gains.
    CT is a deterrent to other Fs who might want to get unauthorized profits
    Highest form a remedy because you get the profits back, and you beat all the other creditors in line.
    Case:

Most Recent:
Hodgkinson v. Simms (SCC)
Facts: P gets investment advice from D, and the advice made him into a F. He was getting kickbacks for
investments in a certain condo development. Condo investments lost money, so P sued because of breach of conflict
rule. The money was lost because the market crashed, not because the D made gains.
Decision: D breached the no conflict rule
Reasons: P would never have purchased those shares had he known D was getting kickbacks, so the determinative
factor is breach, not market crash. If D had told P about kickbacks, then D would probably have won.

Profiteering and Constructive Trusts Cases
Company Directors:
Regal (Hastings) Ltd. v. Gulliver [1942] (HL)
Facts: Regal. owned a cinema and sought to acquire two more cinemas in order to sell the resulting group at an
enhanced price. The cinemas were to be bought by a subsidiary company. The landlord was prepared to lease the
cinemas but only if the rent was personally guaranteed by directors or if the paid-up capital of the subsidiary was
$5000. Regal planned to hold shares of subsidiary but could only afford $2000 and directors unwilling to give
guarantee for the rest. Directors arranged to take $2000 worth of shares and the company’s lawyer took the
remaining $3000. They subsequently sold the shares in the subsidiary and made a profit of $2.75/share. The new
owners of Regal and subsidiary sought to recover this profit from directors and lawyer on the basis that they were in
a fiduciary relationship toward the company and therefore unable to make a profit at its expense.
 The directors were in a fiduciary relationship to Regal. They obtained the shares by reason and only by reason
     of their relationship with Regal.
 The fact that Regal could not purchase the shares due to lack of funds does not mean that the directors are not
     still accountable.
 The rule of equity insisting that those who make a profit from their fiduciary position account for this profit
     does not require that there be fraud or absence of bona fides, or even if the profit gained should rightly have
     gone to the person’s to whom a duty is owed, or if he was acting for the benefit of the person or if the person
     has in fact been damaged or benefited by his action.
 The general rule is that no one under a fiduciary obligation can entered into engagements in which he has, or
     potentially could have, a personal interest conflicting with the interests of those to whom he owes a duty. If he
     holds any property so acquired as trustee, he is bound to account for it to his cestui que trust.
Information as Trust Property
Boardman v. Phipps
* High watermark of preventative use of CT
Facts: Trustees were a professional, the senile widow and a daughter Phipps. Beneficiaries were all the Phipps.
Boardman and Tom Phipps (a B) decided that their 8000 shares in a private company were undervalued. They
wanted to obtain info about the company, and went to AGM. Said they were acting on behalf of the trustees. Got
info which told them the company was performing poorly. They tried to get Tom Phipps on the board of the
company, but were unsuccessful, and then tried to take over. Tried again, sought the approval of the professional
and daughter Phipps to get 22,000. But 8,000 was the most the trust allowed them to hold, so Boardman and TP did
it on their own, and ended up owning the company. They restructured and managed the company, which made a lot
more money and share value increased. Trust and Boardman and TP got richer.
The case: Plaintiff was a sister, sued Boardman the lawyer, and Tom Phipps, a beneficiary.
Decision: there was a breach. Put a CT on the 22,000, so that it all went to beneficiaries, minus a sum to Boardman
and Phipps for expertise and skill.
Reasons: Fs actions increased the Bs wealth substantially, but court fixated on the fact that they increased their own
too. Boardman and TP’s opportunity to buy the shares arose because of Boardman’s position. They only got the
info from the company in their position of fiduciaries – if the info had been public, the result would probably have
been different. They can’t used the opportunity to purchase shares for yourself without acting outside authority of
f.r.. Boardman had a conflict. Needed consent of the Beneficiaries. Boardman acted with honesty and integrity
(Got consent of Ts – but 2/3 not good enough).
Dissent: accepted Boardman of a fiduciary, but there was no way for trustee to purchase the shares because of 8000
limits, so F had to. No conflict if both profit. Bs did way better than they could have if this hadn’t happened.
Implications: Extremely strict interpretation of what F can do. Haigh says it isn’t unreasonable, because Boardman
could have gone to court to ask permission to do this – not a heavy burden. Courts would have to assess the risk. Fs
must understand that their ultimate duty was to Bs, it’s not enough that Bs will make more $. Wasn’t purely for Bs.
Never overturned, but not all courts have held Fs to such a high standard- can be used to come down hard on F
behaviour. Other cases on the other side though.

Bribes and Secret Profits:
Attorney-General for Hong Kong v. Reid [1994] (PC)
Facts: D was a public defender who was convicted of taking bribes in breach of duty to Hong Kong gov’t and the
Crown. Gov’t sought declaration of CT against 3 properties D held in New Zealand which could only have been
derived from the bribes.
Judicial History: Gov’t declaration denied in Court of Appeal based on principle that the relationship of a fiduciary
who received a bribe and his principal was one of debtor/creditor as the principal had no proprietary interest in the
bribe or property representing it. Gov’t appealed to PC.
 When a bribe is accepted in money or property, this money or property becomes the property of the recipient
    fiduciary in law; however, equity insists that it is unconscionable for a fiduciary to obtain and retain a benefit in
    breach of duty.
 The breaching fiduciary must pay and account for the bribe to the person to whom the duty was owed. They
    become a debtor in equity; further,
 If the bribe consisted of property which increases in value or money which is invested, the breaching fiduciary
    will receive a benefit from his breach unless he is accountable not only for the original amount or value but also
    for its increase.
 “Equity considers done that which ought to be done” therefore as soon as the bribe was received, it was held on
    CT for the persons to whom a duty was owed
 Equity therefore can provide two remedies: the first as debtor/creditor and the second as CT. If CT were not
    employed, the breaching fiduciary would be allowed to retain the increase in value which equity will not allow
    as it is to benefit from breach.
Commercial Context, not Fiduciary
Lac Minerals v. International Corona Resources (1989) (SCC)
Facts: LAC entered into negotiations with Corona regarding development of gold field owned by Corona. In course
of negotiation, Corona revealed confidential information with a view to LAC either buying Corona or joining in a
joint venture. This info suggested that property adjacent to Corona property was likely desirable. Corona attempted
to acquire this property, but LAC outbid them. Corona alleged that property was held by LAC on CT for them, or,
alternatively a right to damages because the purchase of the property by LAC was motivated by the confidential
(1) Is a fiduciary relationship required to found a CT remedy?
(2) Was there an obligation of confidence and a breach thereof by LAC?
(3) Is the appropriate remedy a proprietary remedy, accounting for profits, or damage?
Several long judgments:
(1) Unanimous that LAC misused confidential info entrust to it by Corona
(2) Sopinka and Lamer (McIntyre concurring) held that parties not in fiduciary relationship. Sopinka – misuse of
     confidential into not sufficient to establish fiduciary relationship
(3) La Forest and Wilson (dissenting) held that there was a fiduciary relationship
(4) Court held that the appropriate remedy (Sopinka and McIntyre dissenting) was imposition of CT.

Sopinka J.
 Fiduciary Duty: A fiduciary duty should not be found where parties are acting in a commercial transaction at
    arm’s length. K remedies suffice.
 The general characteristic of a relationship in which fiduciary obligations have been imposed are:
         (1) The fiduciary has scope for the exercise of some discretion or power
         (2) Fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or
             practical interests
         (3) Beneficiary is particularly vulnerable to or at the mercy of the fiduciary holding the discretion or
 While a fiduciary relationship can be found if not all of these characteristics are present, the existence of
    dependency or vulnerability is the core of the fiduciary relationship.
 Remedy: No support for imposition of CT over property acquired as a result of use of confidential info (except
    in extremely rare circumstances).
 The best remedy in a particular circumstance is that which corrects the unjust enrichment without contravening
    other established legal doctrines; hence,
 The conventional remedies for breach of confidence are an accounting of profits or damages
 A breaching fiduciary is subject to remedies that go far beyond mere compensation for loss as equity, unlike K,
    has regard to the gain obtained by the wrongdoer and not simply the need to compensate.
 Also, notes that when the extent of the connection between the confidential info and the acquisition of property
    is uncertain, it would be unjust to award CT.
 No fiduciary relationship. Essential element of dependency is lacking. If Corona placed itself in a vulnerable
    position by disclosing info, then this dependency was gratuitously incurred. Nothing prevented them from
    getting assurance from LAC that the info would not be used but they failed to do so.
 Damages appropriate remedy.

LaForest J.
 Fiduciary Relationship: There is an established practice in industry that confidential information is not to be
    used for the detriment of the confide.
 The two conducts of the parties gave rise to an informational understanding as to how each would conduct itself
    in anticipation of the conclusion of a formal business relationship.
 As a result, both parties would reasonably expect that a legal obligation would be imposed not to act in a
    manner contrary to the interests of the other in respect to the property
   The combination of these factors (trust and confidence, industry practice, vulnerability) support the finding of a
    fiduciary relationship.
   Remedies for breach of fiduciary obligation and breach of trust are equally available to each.
   A claim for breach of confidence will only be made out when it is shown that the confidee has misused the info
    to the detriment of the confidor (and therefore differs from fiduciary law which does not require harm to be
   Where it is established that one party (LAC) has been enriched by the acquisition of an asset (property) that
    would have, but for the actions of that party been acquired by the other party (Corona) and if he acquisition
    amounts to a breach of duty of confidence, then CT is one available remedy.
   The measure of restitutionary recovery is the gain the defendant made at the plaintiff’s expense
   Given the difficulty in calculating damages (estimates range from $700 million to 1.5 billion) and the fact that
    the property had yet to be fully explored (and therefore there could be more gold then known at the present) CT
    is an appropriate remedy.
   Policy: The essence of the imposition of a fiduciary obligation is the promotion and preservation of desired
    social behaviour and institutions. Likewise with the protection of confidences. IN the modern world exchange
    on info is both necessary and expected. The “institution of bargaining in good faith” is worthy of legal
    protection in those circumstances where the protection accords with the expectations of the parties.

No Financial Loss to Plaintiff
Korkontzilas v. Soulos (SCC):
Facts: P wants to purchase property on the Danforth, broker went and found one. Made an offer, which was
refused. Owner counter-offered, and it was rejected. Deal almost dead. Vendor told broker to accept the offer, but
the broker didn’t pass this on, and bought it himself. P sued. The property lost value in the period between
purchaser and going to trial.
Plaintiff: Lawsuit for CT or damages – there was value besides monetary reasons for owing the property.
Defense was that there was no damage because property has devalued – no loss. Also no unjust enrichment.
Decision: CT
Reasons: tried to remedy loose language in Lac Minerals. Two branches of CT – one for enrichment, and one for
breaching f.d, even if there is no monetary loss. Used CT to punish breach, not concerned with the fact that there is
no loss.

Fiduciary Duties and Local Government
Hawrelak v. City of Edmonton (1975) (SCC)
Facts: Prior to becoming mayor, purchased land. Land was annexed and assigned to Building Co. in which mayor
held 40% interest. City was negotiating to acquire land adjacent to Mayor’s land as part of development project. As
part of plan, city agreed to purchase land from Building Co. in 1963 but formal arrangement did not take place until
1964 but which time person was elected Mayor. Chrysler Co. wanted to purchase some city land in order to develop
but did not want to develop right away. Had required development within 6 months so it suggested that Chrysler
purchase non-city land adjacent to that of Mayor which it could later exchange. Chrysler did so. In order for city
land to be of use to Chrysler it would have to be rezoned. This was refused. Chrysler sold the land to the city, which
began redeveloping all the land. This had the effect of enriching the Mayor by drastically increasing value of
property held by Building Co. which was subsequently sold to the city. Important to note that Mayor had, at several
Council meetings, made his interest known and had abstained from relevant votes. City sought to recover this profit
as improperly gained.
 While there is a dilemma when city wants to act in a way that is a public advantage but will also enhance the
     value in which Council members have a direct or indirect interest, this dilemma can be avoided if members
     declare their interest and refrain from voting.
 Notes rules governing the conduct of a person in a fiduciary relationship:
         (1) Member of city council is an agent or trustee accountable to the municipality and accordingly his
             duties are fiduciary
         (2) No one under a fiduciary duty may enter into a transaction in which his personal interests are or may
             be in conflict
         (3) It is irrelevant if the person to whom a duty is owed did or did not suffer any injury
         (4) It is irrelevant if the trustee acted in good faith
         (5) Any gain or advantage arising out of such transaction must be accounted for.

The Value of the Traditional Trust Even Where the Plaintiff Has No Financial Loss

   One party makes a contribution to home/land/biz, no financial contribution, but the other person hold title to the
   Most often man and woman cohabitating, but also filial or friendship
   CT became much more common to deal with this situation
   Issues of unjust enrichment if the parties split
   P gets nothing, cuz D has title and won’t share
   Courts look to see if a CT can be invoked over entire property, and make D a trustee on behalf of Ps share.

Petkus v. Becker
* happened before Lac Minerals and SCC clarification of what CTs are for
Facts: Lothar P and Rosa B unmarried couple who lived together for 20 years and had a beekeeping/honey biz. P
held title to the property and all the assets. He dumped her, and since they weren’t married, she thought she would
get nothing. He made no effort to give her anything. She brought a novel claim for CT, claimed she had
contributed much to the value of the enterprise, even though she had no title.
Trial: judge characterized her domestic support of LP as a risk capital investment, in the hopes of seducing a
younger man into marriage. Her involvement in beekeeping – her help was seasonal and marginal, and LP got help
at peak periods. (but this doesn’t help his case either – he didn’t do the work either)
Decision: RB got ½ interest in the property.
Reasons: LP was unjustly enriched, and CT was a suitable remedy.
Implications: This was the first time used in a cohabitation situation – previously had used resulting trust

After SCC judgment:
 Judgment in 1980.
 Five years later, RB had only gotten $68,000 out of $100,000.
 Most of this had been used in legal fees to get the money, and she was penniless.
 In those 5 years, LP married someone else, and got her to make a claim for ½ the interest in the property,
     because she was married to him.
 RB had to go to court to say that this claim was illegitimate. She won.
 1984 she made claims to have beehives seized, LP appealed, so another court action, she won. He stopped
     feeding the bees, so she had to get a court application to force him to do so, but they died.
 1984 – property sold, assets paid into court, awarded to RB, but they were devalued.
 1986 – she killed herself at age 60
 suicide note: said legal system failed her – she never got any of $150,000 she was owed
 Implications: failure of our justice system to address problems. Not good lawyer action: she should have
petitioned for a partition and sale with the original claim, and valuation of the property. then a personal claim could
have been brought against him for the whole amt personally for the rest of his life.
To Prevent Criminals from Profiting
Re Crippin [1911]
Facts: H killed W to marry his mistress. H made will making mistress his beneficiary
Judgment: Any title H had acquired from W’s estate was held on CT for her estate and thence to her next-of-kin

Brissette Estate v. Westbury Life Insurance et al. (1993) (SCC)
Facts: Life insurance policy insured lives of H and W. H killed W. H renounced appointment as executor under W’s
will and waived rights to proceeds of the policy. Insurer refused to pay and action brought by W’s estate.
Judgment: SCC held that intention of policy was that payment should be made to surviving spouse and could not be
construed as requiring payment to estate. Public policy prevented payment to survivor, CT not relevant, and
accordingly, insurer did not have to pay

To Prevent Statute of Frauds Requirements from Being Used to Commit Fraud
Bannister v. Bannister [1948] (CA)
Facts: P requesting possession of cottage that he had bought from D. D had understood, based on oral assurances,
that she could stay in one of the cottages rent-free as long as she wanted and she had reduced price of cottage for
that reason. P tried to invoke requirement of writing for a K involving land
Judgment: Court rejected P’s argument re writing requirement and held that P held property on CT for D who had
an equitable right to live there as long as she liked.

CT: Strangers to a Trust
   In a normally functioning trust, 3rd parties (strangers) will usually deal with trustee – contact not usually with
   Strangers who breach the trust, usually wrongful, voluntary meddling.
   CT trust is put over a stranger
   If stranger is innocent, doesn’t receive notice, or doesn’t receive consideration, no liability.
   Trustee can take action against strangers in 3 situations:
         1. Trustee de son tort: a stranger who meddles to the point that court says they have assumed the role of
              trustee, and are liable.
                    E.g.: trustee in another jurisdiction, so a family member in home jurisdiction starts to get
                    involved, helping out and taking over.
         2. a) Knowing receipt: person who receives and becomes chargeable with trust property. Trustee ends
              up handing over trust property to a 3rd party stranger. Knowing has been defined as actual knowledge
              of a breach, reckless, wilful blindness, constructive knowledge (should have known)
             b) Knowing Assistant: assist trustee without receiving the property. (Air Canada v. ML Travel),
         active, reckless, wilful blindness count. Constructive knowledge is         not sufficient.
                                               RESULTING TRUSTS
   Second kind that arise by law (CT are first), different from express trust.
   Have been around much longer than CT because they deal with situations that have arisen since trust law began
   Vernacular: trusts not clearly expressed by the creator – no properly created
   An express trust that is imperfectly expressed gives rise to RT.
   Began back when the trusts were still called USES
   If settlor creates a use that doesn’t deal with entire beneficial interest, the other stuff results back to creator.
               a. Presumed Resulting Trust: Creator has voluntarily conveyed property from one person to another,
                   but doesn’t intend a beneficial trust relationship. E.g.: trust created in spouse’s name to avoid
                   creditors (illegal trust). You intend it to be yours, so it will be. Presumption that the property is
                   not to be taken beneficially.
               b. Automatic Resulting Trust: Express Trust where beneficial interest is not disposed of, in whole or
                   in part. Part not dealt with is held on resulting trust for grantor. No intention to create trust,
                   mistake on part of settlor. Failure to exhaust beneficial interest. Reasons: i) portion of the trust is
                   illegal, or void for failing to meet public policy,

Louth v. Diprose (Australia)
Facts: Man met a woman in one city, tried to seduce her, but she wasn’t interested. He pursued her to another city,
she slept with him twice. He supported her – paid taxes, washer, dryer. She started seeing someone else, he bought
her a house. She had her new b/f move in. He brought a suit to get his house back. Claimed he never intended her
to have the trust, it was supposed to be his all along – Resulting trust.
Decision: No resulting trust, but gave him the house on other grounds.
Implications: if a resulting trust arises, she would be holding it in trust for him.

                                      1. PRESUMED RESULTING TRUSTS

 Happens often in gifts – I didn’t mean to give it, I wanted them to hold it for me. Presumption in equity against
   gifts, u need proof it was a gift.
 Where you have gifts to related people: rebuttable presumption of gift – in those situations you meant to give
   gift, title meant to go to donee.
      Historically this has been made from husband to wife, father to child.
      Not wife to husband, mother to child, friend to friend.
      Statutes overridden this in some jurisdiction that will allow wife to husband gifts.
      Now husband to wife presumption is overridden, so that no longer is a gift presumed.
      I.e.: statutes say we have no presumptions anymore.

Daigle (CB 516)
Facts: two sons promised land under identical wills, one by husband, one by wife. Husband dies, and wife transfers
property to just her favourite son.
Issue: Do we assume that the transfer from mother to child is a gift?
Trial: you can’t rebut the presumption that just because second child didn’t get it the gift doesn’t mean anything
CA: assume it is a gift. The second child was self-serving on the stand, didn’t want to give him anything.
Implications: some people argue it stands for assumption from mother to child, haigh doesn’t think so

Tinker v. Tinker [1970] (Eng. CA)
Facts: H ran a business and placed house he bought in wife’s name alone on the advice of his lawyer who was
worried that business might fail and creditors might seize it. Marriage broke down and question arose regarding
presumption of advancement.
Ratio/Judgment: (Denning) H cannot say that the house is his as against his wife, but hers as against creditors.
Either it was conveyed absolutely or it was conveyed to her as trustee for her husband. The presumption is that it
was conveyed to her for her own use and he does not rebut that presumption by saying that he only did it to defeat
his creditors. (Ha ha sucker)

Goodfriend v. Goodfriend (1972, SCC)
Facts: spouses who swap (the Goodfriend’s and the Cox’s). Mr. G owned large farm on Howe Island. He
transferred title to Mrs. G to protect them from a lawsuit for adultery/enticement as a result of the swapping. Then
regretted this, and wanted it to result back to him, since it was never intended to a gift for his wife? G’s ended up
Issue: gift or trust?
Decision: presumption of advancement is rebutted, it is a trust.
Reasons: cause of action (A or E) doesn’t exist, plus you had other assets that you didn’t transfer – no evidence of
suffering creditors, which would have rebutted gift. Turns out it was Mrs. G who thought they would be sued, and
got Mr. G to transfer property into her name. He didn’t intend anything, she created a situation that would make
him transfer.

Scheuerman v. Scheuerman (1915) (SCR)
Facts: H bought land and built house. Title was taken in W’s name. W sold house was H was away. When H found
out he sought to recover purchase prince from W alleging he was beneficiary under resulting trust. Claimed that
transfer was to avoid creditors and was therefore void.
Judicial History: CA was divided. Creditor in question was paid and therefore at time of proceeding no creditor
was defeated, delayed or hindered.
 H argues that the presumption of advancement is rebutted by the agreement between H and W that property was
     to be held for H for the purpose of protecting him against creditors.
 He could also argue that there was an express trust by virtue of the agreement and that the wife is guilty of
     equitable fraud for breach
 But in order to make either argument H must rely on a fraudulent argument and he failed to in proving that he
     had recanted his illegal purpose or that the arrangement never put a creditor at risk.

   There are ways to rebut the assumptions
   Depends who it’s going to

Niles v. Lake
Facts: Joint bank accts, 2 sisters. Purposes of convenience. There was a large chnuk of money put in from Mrs.
Arnott’s husband (who had died). Bank form sets out rights and responsibilities of acct holders, and says that the
money must be split 50/50. So K law v.s. trust law.
Issue: Who owned the large sum of money in the acct?
Mrs. Niles: shared 50/50
Mrs. Arnott: there for convenience, resulting trust for Mrs. A.
Decision: no assumption of a gift.
Reasons: uphold both arugments by saying the K defines the right between bank and acct holders and vice versa, but
it doesn’t speak to the relationship between the acct holders. There we rely on trust law principles – there is no
assumption of a gift, so resulting trust.

 Has been separated into its own category
 Back in the day of uses (14th C) if A conveyed land to B for no consideration and the 2 were strangers, it was
   presumed B would hold it for the use of A.
 Law of Property Act (England, 1925): changed presumption, said there was no presumption of a resulting trust
   in cases where land is transferred to a stranger for no consideration. Leaves option to raise evidence of a RT,
   but got rid of presumption.
Neezor v. Hoyle (Alberta, 1923)
Facts: Kathleen Neesor married John when she 15 and he was 33. 1954 they formally separated – had never lived
as a couple. In 1954 J transferred farm to his sister so K couldn’t get it. He continued to collect rent and income, but
sister paid taxes. He dies and left it all to the sister, K applies for widow support
Decision: It was a gift.
Reasons: It was a voluntary transfer with no consideration, so there’s a presumption of resulting trust because it’s
land. Sister must establish a gift. No affection between J and K, was fond of his sister, promised his parents he
would look after her, she always gave him money, she sold a piece and never gave J proceeds, J’s will showed his
affection, she paid substantial taxes. The onus to rebut presumption of a RT is met.
Haigh: there is no one factor that rebuts the trust, so is it an accumulation? This case doesn’t tell you what you need
to prove to rebut the presumption.

Things to consider:
 If you have a voluntary transfer, is it land or personal property?
 Personal property: presumed resulting trust for sure
 Real property: presumed resulting trust maybe ??
 Advancement: certain close relations may have presumption of gifts.
     father to child,
     in contemplation of marriage,
     has been removed between spouses
     Dagle: seems to suggest mother to child
     In the old days, it went Father to child, Husband to wife because of obligation to provide, now we’ve
         moved to a time when mothers provide, and children to parents.
 Haigh: is there a better way to characterize who has the presumption – sibs?
 Don’t have to worry about the presumptions unless there is a dispute.
 Other possibilities: Love and affection, natural obligation to provide

                                       2. AUTOMATIC RESULTING TRUSTS
Settlor fails to dispose of entire beneficial interest
Vandervell v. IRC (1967)
Facts: creators attempt to create charitable trust for university professorship. Lawyers told Vandervell, the settlor,
that if he ever took is his company public, there is a possibility that university will dilute it. Set up a system so he
could buy back shares etc… The trust didn’t deal with entire beneficial interest.
Decision: results back to V
Court said: must presume a RT if there is a failure to dispose of the interest. Beneficial interest was never really
declared, depended on the language of the trust.

Failure of the Trust
Re: Ames Settlement (1946)
Facts: trust set up by the father for the son and his issue would get an interest if he had any. If no kids, was to go to
next of kin. Was dependant on the son getting married, which he did, but it was annulled after 18 years cuz he never
consummated. Wife remarried, and son died.
Issue: Was there a trust for next of kin, or was there a resulting to father’s estate.
Decision: RT
Reasons: the trust was based on marriage, but there was no marriage, so the trust never arose. Therefore there is a
RT to the father’s estate.

Gillingham Bus Disaster Fund (1958)
Facts: Bus accident, and a fund was set up to collect money on behalf of victims. People contributed to fund, and
then pay-out to victims. There was $9000 left over. Couldn’t be funnelled into another charity (illegal under charity
law), so dispute arose between ttwo options:
         1. Return to donors: would have to be a RT
         2. Some other way (to the crown, something else)
Decision: it goes back to donors on RT.
Reasons: it was complicated and hard to determine who to give back to, but that’s what trust law says.
Implications: has been statutorily overridden. As a direct result of this case, the law now says money will be dealt
with in other ways – the crown, another charity.
Haigh: probably put ad in newspaper telling donors to be somewhere at a certain time to get money back.

                                                  SECRET TRUSTS
   Generally two cases to be considered:

    The secret trust arises where:
    (1) According to the terms of the will a person appears to be given a complete beneficial interest in property
    (2) but this disguises the fact that only the legal interest in property is intended to pass to the recipient, who is
        actually intended to act as trustee on trusts that have been disclosed to him or her
    The requirements for establishing a secret trust are:
    (1) There must be a definite intent to create a trust and not a mere moral obligation [see Re Snowden, below]
    (2) There must be communication of the trust to the devisee or legatee in the testator’s lifetime
    (3) Devisee or legatee must consent to it (either expressly or by actions that he knows must give the testator the
        impression that he has assented to the testator’s request)

McCormick v. Grogan (1869) (HL)
Facts: Three years before death testator left estate to D. As he was dying, T told D that there was an accompanying
letter which indicated various beneficiaries and the gifts they were to receive, but also gave D considerable
discretion. D later decided that an illegitimate child in the letter should be excluded.
Ratio: Just as a person cannot rely on statute to perpetrate fraud, neither can they rely on a gift fraudulently
obtained. When a person agree or gives the testator the impression that he agrees to act as secret trustee, then equity
will regard them as such on the principle that an individual will not be allowed to benefit by his own fraud.
Judgment: While there are times when a court of equity will enforce a secret trust those circumstances did not
apply. D had committed nothing resembling fraud.

    The semi-secret trust: arises where
    (1) it is evident from the face of the will that the recipient is not be given a complete beneficial interest in
    (2) but the beneficiaries (or purposes) of the trusts are not disclosed in the will

    A. Time of Communication of the Trust
   For a secret trust: “if the trust was not declared when the will was made, it is essential in order to make it
    binding that it should be communicated to the devisee or legatee in the testator’s lifetime”
   Note that if the ostensible beneficiary (the secret trustee) is not told of the existence of the trust and has no
    knowledge he could take absolutely under the will, whereas if he does know he is obliged to hold property on
   For a semi-secret trust: must be communicated at the same time or before the will is drawn up (Johnson v.

    B.    The Proof Required

Re Snowden [1979]
Facts: Testator left residue to brother to split up as he saw fit. Her expectations seem to have been that nephews and
nieces should take equally but left exact division to brother. Died 6 days after making will. Brother died 6 days later
leaving everything to his son.
Judgment: The loose arrangement between testator and brother were insufficient to create any sort of trust. Brother
took interest absolutely and therefore so did son.
 The proof advanced to prove the existence of the trust must go beyond that necessary to establish a moral
     obligation or a family arrangement
   No single standard of proof for secret trusts. There could be cases where it would be appropriate to impose trust
    where it would be fraudulent for the legatee to assert full beneficial ownership.
   Proof required depends on nature and gravity of the issue

Note: What happens when a secret trust fails?
 Depends on whether there is a fully secret or semi-secret trust
 If semi-secret: you know there is a trust, so donee will hold property on a resulting trust for the donor.
 If fully secret trust: you have a donee who has received property but with no indication at all as to who the
    beneficiary should be, so therefore there is an absolute gift to the donee. Donee keeps property free and clear.

    C. Classification of Secret and Semi-Secret Trusts: Express or Constructive?
   Depends on whether they are regarded as turning on the words of the settlor or the written declaration in the will
    which suggest express trusts; or,
   where fraud is concerned they may also be treated as constructive trusts and the recipient of the trust property as
    constructive trustee

Blackwell v. Blackwell [1929] (HL)
Facts: Testator altered will by codicil that transferred funds to trustees to invest and apply income “for purposes
indicated by me to them”. A power to encroach on capital given to trustees in favour of “such person or person
indicated [to them] by me”. One of the trustees was given details of the testator’s plans while the others knew
nothing. The testator wanted to benefit a woman “other than his wife” and her 16 year old son. Testator’s wife
challenged arguing that semi-secret trusts failed and funds fell into residue.
Judgment: The will clearly creates a trust. While the requirements of wills are such that they must be written, a
secret trust will be enforced by equity so long as it is communicated to the trustee and acquiesced or accepted by

                                                 IMPLIED TRUSTS
   Some difficulty in distinguishing between constructive, resulting and implied trusts
   While it might have been thought that an implied trust turned on actual (but implied) intention of the parties is
    Lloyds Bank v. Gissing the House of Lords held that unless there was some detrimental reliance by a spouse
    based on the parties common but unwritten intention that a non-owing party would acquire an interest in
    property, no interest is favour of the non-owing party would arise
   One area where implied trusts are relevant is the trust that arises between the K for purchase of property and its
    completion/conveyance, where the K is specifically enforceable. While such trusts are supported by
    consideration, their content is based on the implied expectations of the vendor and purchaser.
   Implied trusts also arise in the case of mutual wills. Where mutual wills are prepared and the second to die
    alters his or her will contrary to the agreed on terms of the mutual will, equity steps in to remedy the situation of
    the prejudiced beneficiaries and to enforce the wishes of the first to die. Arguably this is either a constructive
    trust situation or an implied trust situation.

Re Cleaver [1981]
Facts: Couple prepared mutual wills in which property was divided among their children except one daughter’s
share was later reduced to a life interest (by both spouses). After death of H, W prepared 3 more wills: 1 consistent
with the mutual will and 2 others in which she increased the daughter’s share. Other children contested will.
Issue: Can the beneficiaries under the mutual will claim estate held on trust of first will and not last will?
 Mutual wills are part of a larger category in which equity will intervene to impose a constructive trust.
 The principle is that a court of equity will not permit a person to whom property is transferred by way of gift,
    but on faith of an agreement or clear understanding that it is to be dealt with in a particular way for the benefit
    of a third party, to deal with that property inconsistently with that agreement of understanding.
 The agreement or understanding must be such as to impose on the donee a legally binding obligation to with the
    property in a particular way and that the two other certainties (subject matter & object) must also be satisfied.
                                              FIDUCIARY DUTIES
 Court of chancery developed idea of equity
 To provide a role corrective for harsh, inflexible CL
 Equity provided remedies based on conscience, for fraud etc…
 Often gave different results from CL courts
 Judges were more able to fashion to meet conscience of the situation
 CL typically only allowed damages
 Most of this exist in the unified court today (Judicature Act)
 Main invention of courts of chancery are trusts
 These allowed wealth individuals to control their distribution and handling of assets
    Over generations
    Support for dependants
    Money in a position whereby king and his representatives couldn’t get it for tax revenues and feudal duties
      (tax avoidance)
    Today one of the biggest reason for trusts (pension, corporate, family) is a legitimate way to avoid tax
    Prior to 19th C, there was looser usage of words, so the courts of chancery used the word “trusts” loosely,
      referring to describe affairs of persons others than trustees, who were in a relationship where it was
      important they remain faithful or loyal to a person or obligations (agent and principals, guardians and
      wards, lawyers and clients)
 Basis of f.r. is that they are similar to those duties owed by trustee to beneficiaries
 Differences: fs have narrower duties, and no title

   1. No conflict rule: you have to avoid even the possibility of conflicting with those you are bound to protect.
       You must scrupulously avoid conflicts of any type
             (i.e.: in Boardman, everything they did benefited the beneficiaries, but they were more concerned
                with their own interests, so courts ruled against them)
             example: Paul Martin transferred ownership of his business from himself to his sons, so he is a
                fiduciary. The potential conflict of his sons operating the company is huge, and that is the test, not
                whether Martin is running or not.
             Consent is needed for conflict to be ok, in Boardman didn’t give enough info to Bs and Ts
             Can’t profit from opportunity afforded by your position (e.g.: Regal, Boardman)
             Remedies: strip fiduciary of ill-gotten gains, rescission to set a transaction aside, fire fiduciary,
                personal remedy of accounting of profits/disgorgement of profits, proprietary remedies such as
                constructive trust, obtain increase in value of property, ranking ahead of unsecured creditors in
                insolvency, trace into other hands property moving around)
   2. Modern Doctrine of Fiduciary Obligations in Canada
 Since 1984, in Canada, SCC has carved out a general theory of fiduciary obligatins that is much more elaborate
   than elsewhere.
 Have grappled with a number of issues that have come up in various fact scenarios which has allowed them to
   create a grand theory. Include:
       1. Definition of fiduciary
       2. Extent of f.d.
       3. Expansive treatment of remedies for breach

 Can’t be defined in abstract, must take place in context
 So what facts give rise to f.r., what is a f.r?
 3 cases that have tried to form a definition: Frame v. Smith, Lac Minerals case, Hodgkinson case
 synthesis of these 3 and other cases, two main categories created by SCC caselaw:
                 Have been recognized by law/society for a long time.
                 Still not a closed category.
                 There are one way and mutual relationships
                 Often a vulnerability because of huge difference in knowledge and expertise or psychological
                 Different kind in others, where no difference in knowledge (e.g.: agent and principal, corporate,
                 E.g.: trustees and beneficiaries, lawyers and clients, principals and agents, executors and
                  administrators of property, directors and corporation, partners, joint venturers, guardians and
                  wards, parent and child, doctor and patient.
                 Test:
                      The fiduciary must have undertaken to act in the interests of the other
                      Undertaking can come about in a number of ways – contract, gratuitous (parent child – not
                           necessarily by contract or consideration)
                      This has developed over time
                      Hodgkinson (LaForest): It is critical when determining the f.r. that one party could
                           reasonably expect the other to act in her best interest. Backs away from Lac Minerals
                           saying vulnerability not determinative or necessary
                      Lac Minerals: dependence, trust and responsibility, vulnerability

                 It isn’t accepted that the ones here will move into category A
                 Fiduciary obligation arises in the course of dealings, or in context of relationship.
                 Very open and textured – may be undertaking, but more likely Wilson’s idea
                 Frame v. Smith (Wilson’s Dissent): 3 things:
                         1. fiduciary has scope to act with discretion
                         2. fiduciary can unilaterally use that power and affect the B
                         3. beneficiary is vulnerable to that power
                 this is mentioned in all subsequent cases

 Still no test or definition, or how to classify.
 B can be used in a results driven manner
 Common elements?
 This is all very unclear, don’t know if things can move from b. to a.
 SCC may be saying real concern is nature of duties, rather than certain characteristics
 Traditionally it was assumed B expected F to act on their behalf, duty is to act consistently with that, which is
   where no profit, no conflict rule came from
 In the last 20 years of adding to the f.r., duties have been added as well
 Guerin: Crown has f.o. to follow the principal’s (Indian band in BC) instructions in negotiating a lease. No
   question of profit or conflict during the transaction, what was important was duty to negotiate fairly and in
   concert with directions from Band – duty to negotiate, new duty for fiduciaries.
 Kansen: fiduciary was a lawyer who was acting in RE transaction, court found a general f.d. to disclose all
   relevant info, even if no issue of profit or conflict.
 MacInary: first case where dr. is fiduciary – obligation to disclose all info in client’s file arising from fiduciary
   duty. Nothing in code of conduct etc, just because of SCC ruling that you have to disclose file contents.
 Norberg v. Weinrib: sex with patient, court said sexual assault is a breach of f.o. – not negligence or criminal
 MK v. MH: incest is breach of f.o. owed by parent to child
            The last two really pushed the envelope, prior to these, breaches only involved taking money away
             from Bs.
   Australia shot down our ideas, stuck with conflict and profit – wouldn’t say that dr. is fiduciary with regards to
    providing files
   Don’t need profit/conflict in Canada, although some say that the definition of conflict has been expanded
    beyond just financial (self-interest, sexual assault of patient,)
   Usually the judges create these remedies and force things into f.r. because statutes or CL is so unjust that no
    other remedy is available. (i.e.: dr and patient because consent made it impossible to find him criminally liable)

Mel Lastman Case
Facts: Kids born in 1958 and 1962. Ended in 1971, small monthly payments in the separation of agreement – not
adequate for 2 kids today.
Issue: fiduciary obligation on Mel to provide for them. Brought fiduciary claim because it was the only way to get
a positive judgment.
Decision: they lost
Implications: the bringing of the claim is significant. It means the fiduciary realm is still open.

Fehringer v. Sun Media
Facts: class action suit, there are a number of published decisions on it. F was a Sunshine girl bringing a claim on
behalf of a number of SSG, that a photographer (Norm Betts), from 1970 until he was fired 25 years later. He
engaged in inappropriate behaviour. Class of plaintiffs needed to be certified.
Issue: There was a motion to strike the fiduciary claim as having no cause of action (rule 21) heard in June 2000 in
Ont. Sup. Ct.
Arguments (Plaintiffs): Frame v. Smith – vulnerability, trust and confidence
Decision (Cumming): Not a f.r., dismisses claim.
Reasons: Lists all the different requirements and realises the difficulty. Two ways to establish f.r.: 1. breach of duty
between her and the defendant (traditional category), 2. show defendants owed f.d. that arose out of specific facts,
even if f.r. wasn’t inherent (non-traditional).
Key: Sunshine Girls don’t have a true relationship with Sun and NB. Arms length commercial encounters. Both
benefited – model to further career, Sun needed models. Radical defect in the cause of action is that nowhere does
the pleading say that the sun was under an obligation to act in best interest of plaintiffs – this must be specifically
pleaded, and is a requirement for f.r..
Comment: Best interest is almost always there, but the cases don’t seem to have raised it to a necessary element.
Court of Appeal: Cumming is wrong, there is enough in the claim to give rise to possibility of breach of f.d.
Nordheimer (2002): claim based on f.r. can stand, he is dealing with certifying the class – doesn’t certify because of
problems with individual claims and determinations of proof.
Implications: lower courts are having trouble applying the SCC tests.

   SCC seems to allow the crafting of f.r. in novel cases.
   Vulnerability and confidence is helpful but not needed
   Lac Minerals: commercial dealings isn’t enough
                                               FIDUCIARY DUTIES
   The Guerin case set in motion all the other ones
   Crown/native f.r. is most developed
   Long, abusive history
   Beginning of 20th C, courts not supportive of native rights

Sheldon v. Ramsey (1852)
Decision: Crown should protect the interest of natives, treat them as people under their care (paternalistic aspect).
Natives people who can’t dispose of their own possessions because of their non-status. Colonialist attitude in court,
but hint that crown should protect them

1867 onwards (After Indian Act)
 Natives treated as children, wards of the state
 Paternalistic – couldn’t understand society or administer their own affairs. Moral obligation on crown to
    protect them (but this is not a binding relationship, so in instances where crown didn’t protect, no recourse)

St. Catherine Mills (Early 20th C)
Decision: Hint that natives should be treated with consideration for just claims and demands. But the obligation is
moral, not legal. Parliamentary sovereignty can’t be challenged.
Implications: set the tone for next 80 years, biggest case.

   After this, further entrenchment of idea that they were unable to look after themselves.
   Indian Act was practically constitutional
   Constitutional changes in 1982
   Royal Proclamation of 1763: Eng win over Fr, New Fr ceded to Br. All kinds of provisions dealings with
    natives. More mutual respect, natives considered equal partners, so the proclamation treated them as a nation.
    Since then it became clear that the mutuality was for strategic reasons only.
   Treaties were entered on its basis, early treaties were equitable, but became more and more one sided over time
    – mutuality gave way to dominion.
   Assimilation was policy from 1800 on, which decimated native rights
   Indian Act (1876): obligations between natives and state, very patronizing, set out all aspect of aboriginal life,
    governmental authority – wills, estates, family law, tax. Definition of who was native was created by the state.
    Was far worse than Royal Proclamation and treaties, as well as cases that hinted at their ability to have more
    say in their lives. But it was entrenched.
   Prevented judges from doing much.
   However, the concept of trust with regards to land was in the first Indian Act, “held in trust for their benefit”
   1971: revised and took out the reference to trust
   1982: constitution s.35 suggested all existing aboriginal rights were recognized, s.25 said charter rights (s.1-15)
    don’t derogate from rights given to aboriginal peoples
   US – trust concepts debated, held to be determinative in cases in 1950’s
Facts: Band agreed to surrender land to the Crown so that it might be leased as a golf course. The Crown
subsequently leased it out on terms that were less favourable then those that had been agreed upon in discussion
between the Band council and DIAND without notice or consultation with the band. Band asserted that had they
known the terms they would not have accepted a surrender.
 The Crown owes aboriginal peoples a fiduciary duty
 This fiduciary duty has its roots in native title to land and its inalienability to anyone other than the Crown
 The surrender requirement, and the responsibility it entails are the source of the obligation owed by the Crown.
 Native title is an independent legal right that predates the Royal Proclamation and predates and survived the
    claims to sovereignty made by the British Crown
 The policy with respect to the inalienability of native lands but through surrender to the Crown has been
    maintained since the Proclamation and still exists in the Indian Act.
 The purpose of the surrender requirement was and is to interpose the Crown between the Indians and
    prospective purchasers to prevent the Indians from being exploited and there is a historic responsibility which
    the Crown has undertaken to act on behalf of the Indians
 This discretion of the Crown in dealing with Indian lands has the effect of transforming the Crown’s obligations
    into a fiduciary one. Where one party has an obligation to act for the benefit of another, and that obligation
    carries with it a discretionary power, the party thus empowered becomes a fiduciary.
 Where land is surrendered to the Crown, a fiduciary obligation is imposed and regulates the manner in which
    the discretion is exercised. The Crown must hold surrendered land for the use and benefit of the surrendering
 While similar to a trust relationship, the fiduciary obligation owed by the Crown to aboriginal peoples is sui
 The fact that the discretion of the Crown is limited by the Indian Act does not eliminate the fiduciary obligation.
    It means only that failure to adhere to the conditions will be a prima facie breach of the obligation.
 “Political trust” inapplicable as they concerned the distribution of public funds or other property held by the
    government. IN each case the party claiming to be beneficiary under the trust depended on statute, ordinance, or
    treaty as the basis for its claim to an interest in the land. With aboriginals in Canada, the interest they rely on
    (interest in land) predates any and all legal instruments including the Proclamation and the Indian Act.

Blueberry River Indian Band v. Canada (DIAND) [1995] 4 SCR 344
Facts: Band surrendered mineral rights in reserve to DIAND in 1940 “in trust to lease”. Second general surrender in
1945 (They desired lands closer to trap line). In 1948, DIAND sold land to another gov’t organization who desired
it for agricultural purposes. DIAND did not reserve mineral rights in 1948 despite the fact that this was common
practice. In 1976, land was found to have considerable amount of oil and gas (valued at $300 million).
 The 1945 surrender imposed on the Crown a duty to ensure that the land was dealt with in the best interests of
      the Band.
 The general choice to sell the land rather than lease it was not a breach of duty as DIAND considered the
      interests of the band throughout; however,
 Failure to reserve mineral rights was a breach of fiduciary duty
           o The failure to reserve mineral rights was a result of “inadvertence” and was contrary to common
                DIAND practice.
           o Crown had issued permits to prospectors for oil and gas which suggests they new that in general
                mineral rights could be valuable
           o “A [reasonably prudent] person does not inadvertently give away a potentially value asset which has
                already demonstrated earning potential. Nor does [he] give away for no consideration what it will cost
                him nothing to keep and which may one day possess value, however remote the possibility. The Crown
                managing its own affairs reserved out its minerals. It should have done the same for the Band”.
 Further breached duty by failing to exercise its authority under Indian Act to revoke sale and rectify errors
      prejudicing the interests of the Band.
 The duty of the Crown in relation to surrenders is to protect bands from improvident and exploitative
 A fiduciary obligation arises where one person possesses unilateral power or discretion on a matter affecting a
    second peculiarly vulnerable person. The vulnerable person is in the power of the party possessing the power or
    discretion, who is in turn obligated to exercise it solely for the benefit of the vulnerable party.
 A fiduciary involved in “self-dealing” (conflict of interest) bears the onus of demonstrating that its personal
    interest did not benefit from its fiduciary powers.

Note: summary of significance of Guerin and Blueberry River
 federal Crown owes a fiduciary duty in the context of surrender of reserve lands
 the fiduciary obligation is sui generis and it arises out of Crown’s exclusive right to have lands surrendered to
    them – acts as an intermediary
 after surrender, obligation requires the Crown to deal with the land in the best interest of the band (required to
    put the interest of the band first)
 however, the fid has an obligation to consult with the the band, in relation to the terms of the deal (sale or lease)
    – if Crown does this, cannot ignore the opinion of the band (unless the band is likely to be exploited)
 if Crown breaches obligations, will be liable for loss, that is “restitution” or putting the band back in the place
    would have been in had the breach not occurred


    1.   Este: Crown as an agent for first nations when they surrendered the land. Not followed at all.
    2.   Dickson: Sui Generis finding is important in future decisions. Did not say there was a trust, fiduciary –
         like a trust, like fiduciary, but not exactly like either.
    3.   Wilson: was fiduciary due to history, uses, reserve lands. But went on to say there is also a trust that arises
         on surrender. Crown becomes like a trustee, and you start out as a fiduciary, and this was extended, with
         crown becoming full blown trustee upon surrender. Also not followed. What has been followed is a
         continuum of obligation of the crown, which changes depending on the context of the situation. Might not
         reach pure trustee, but is a continuum. E.g.: idea of fiduciary than it used to be – not just enough to be a
         lawyer, depends on what you are doing as a lawyer.

 Fiduciary language used by SCC is unfortunate because they are indicators of relationships of inequality –
  fiduciary law requires an inequality, so it won’t ultimately benefit FNs.
 This was likely the intention of the court.
 Most of traditional categories have this quality, but Haigh says you don’t need this – it may be there, but it’s not
  necessary (e.g.: traditional categories like partners and joint venturers)
 Another question that arises is what is meant by the Crown’s f.o.’s to FN? Dickson said it just meant they
  should have negotiated in good faith, but doesn’t deal with other circumstances or scope.
   Does it extent to provincial crown? (what about s.91 and previous precedents, which makes it only federal)
       No decision has answered this yet
   Obviously does include land surrender, where it is ceded to the crown
   But what about other things such as medical services or programs support agriculture, or funding of self-
 Sparrow case constitutionalized f.r., but didn’t explore scope or extent
   Continuum:
Strong                                                                       Weak

Reserve:                   Trad’l lands         Off-Rez Non-Trad’l, Services Self-govt,
almost trustee             Covered by                 resource rights –                   political rights like Wilson
         treaty                      duty to consult?
   To figure anything out on the continuum, you need to litigate.
   Judge have extreme power over the shape of the doctrine.
   Haigh says the judges have used historical context and reason to reach their conclusions, so there is some
    control on their subjectivity
   Fiduciary history and FN history create constraints
     f.o are fact specific, which allows judges creativity and lets “equity flourish”

 There is an overarching obligation, and specific obligation between crown and individual aboriginal peoples
 Also individual ones that apply in specific circumstances
 General:
     Crown should not be able to unilaterally be able to ignore promises long ago, or the situation of
        dependence it created without legal consequences
     Crown was able to achieve many of its goals because some native group was forced to give land to
        imperialist British invaders – SCC didn’t decide this until 1985
     Flip-side: you can’t fault FN people for not enforcing their rights way back when
     Problems in 19th/20th C left them powerless, only courts in late 20th C were able to recognize these rights
     Honour of crown is at stake
 Specific:
     Accounts for special instance in question
     Could be duties in some situations but not in others
     Specific situation where crown’s honour is at stake
     SLatterly: f.d. between individual first nations people and individual Canadians? (not followed)

Incorporated f.d. into constitution.
S.35(1) can be read to include f.o., which means SCC can’t overrule the Guerin Decision

 Hasn’t changed daily lives of FN people’s, especially those on reserves under the Indian Act
 Still disproportionate number in prison
                                                TRUST REMEDIES
   Deals with equitable remedies
   All remedies in equity are discretionary, never automatic even if defendant has breached
   In CL, once a breach is proved, remedy is automatic (damages once breach of K is proven)
   In equity, P must prove a remedy is needed.
   Actions of the plaintiff in equity are important, in contrast to CL
   2 main situations where equitable remedies are applied:
         1. Where you have an equitable cause of action – automatically entitled to equitable remedy
         2. Where you have CL cause of action, but CL remedy is insufficient – P must prove.
   SP is an equitable remedy that applies to things considered unique because damages were inadequate
   Equitable remedies come in 2 forms:
    1. Personal equitable remedies: apply to the person. In trust: compensation for loss claim on breaching
         trustee who lost money
              a. SP: order that a party perform in accordance with an agreement or K, used in specific situations –
                  unique items (art, autos, land)
              b. Injunctions: court orders requiring a person to do something (positive or negative) to prevent or
                  compel an act e.g.: Lac Minerals negative to stop mining
              c. Rescission: court order to set aside a k, to put parties back in original position (exact opposite of
              d. Rectification: seldom used, where K doesn’t accurately reflect original understanding between the
                  parties – can change the K – like a typo.
              e. Accounting: of profits made (e.g.: Boardman)
              f. Compensation for loss: equitable version of damages (don’t call it damages)
    2. Proprietary Remedies: attach to property, not persons
              a. Constructive trust
              b. Tracing – straddles personal and proprietary, mechanism to get a final remedy

Remedies can be added to one another – i.e.: injuction and compensatioin

Maxims that Apply
    1. Equity will not suffer a wrong to be without a remedy
             a. Wrong: equitable wrong, not legal. Expanded definition of wrong (E.g.: CL fraud is hard to
                  prove, but equitable fraud doesn’t have requirements to show intention). Rights not enforceable at
                  CL will be protected by equity.
    2. Equity follows the law
                       i. Provides a gloss on the law, or when the law doesn’t deal sufficiently with the situation.
                            If there is a proper CL/statutory remedy, equity won’t overrule. In trust, Tee has legal, B
                            has equitable title. Does law provide remedy in situation of K’l breaches, at equity, no
                            SP unless damages are shown to be inadequate
    3. Those who seek equity must do equity.
                       i. P seeking injunction must show that s/he is going to carry out their part of the bargain –
                            looks to future conduct of Ps.
    4. Those who come to equity must do so with clean hands
                         Where 3 looks forward, this looks back. If p proves K’l breach, at CL can still get damages
                         if P acted wrongfully, but in equity you might get nothing.
    5. Where equity is equal, the law prevails.
        If the P and D both have legit claims, one with CL on their side will prevail. (E.g.: Bonafide purchaser for
    value without notice will prevail against everyone)
    6. Equity regards as done that which ought to be done.
        If you have a final step only to do make a deal complete, equity will act as though it has been done – rubber
    stamp exercise. (E.g.: share transfer just needs to be registered on the books)
    7.  Equity is equality
        If 100,000 in trust for 4 kids, settlor doesn’t divide, equity assumes they are entitled to equal share. Cant be
    disputed if shown that settlor intended some other way.
    8. Equity looks to intent not form
        Substance of matter, not form. (E.g.: trusts created with using word trust, especially oral trusts with
    unsophisticated participants)
    9. Delay defeats equity.
        Equity acts on the vigilant, not on the indolent. (e.g.: Laches equity’s idea of limitation period – must
    exercise your rights when you know u have them, but this is malleable – Crown Fiduciary obligation – court
    argued that the Band should have pursued this long ago, but the band didn’t know their rights existed, so time
    wasn’t up.)

1. Equitable Compensation
CB 538
Canson Enterprises v. Boughton (SCC))
Facts: Land purchase with shady lawyer involved. He was acting for the V, but had made a secret arrangement
whereby payment price quoted by lawyer was lower than what V got – lawyer took the rest. The P subsequently
developed the land, putting up a warehouse. Engineers didn’t do their job properly, and it sunk. P Sued the
engineers for negligence, but there was a $1 mill short-fall in their recovery because developers couldn’t afford to
pay. P learned of secret deal, so a lawyer on behalf of Canson, the purchasers, wanted to seek the short-fall for
breach fiduciary. At trial it was accepted that land wouldn’t have been purchased had P known about the secret
In Equity: Hallmarks of CL recovery, such as mitigation and remoteness, don’t necessarily apply. Damages were
far down the road, and based on something else that happened down the road.
Issue: is the shortfall recoverable for the breach of f.d.?
Decision: Lawyer not liable. In both decisions: breach of f.d. doesn’t cover anything beyond an independent act.
Reasons (Laforest): Court needs to make a distinction between situation in land where there is trustee, and a
fiduciary. What’s most important in damages is fairness and justice, both in CL and equity. This means you should
use CL principle in equitable situations, unless there is a good reason not to. Agrees that fiduciaries should be held
to a strict standard. What would be gained by making the lawyer responsible for the engineers negligence – would it
be a deterrent if lawyer was responsible for every single consequence of the deal.
Dissent (McLachlin): fiduciary/T’ee distinction is a false one, this shouldn’t matter. Wants to keep equity and CL
separate, and looks at breach of f.d. as a wrong in itself. Consequences of actions wrong in themselves are different
from negligence, where there needs to be a connection. But there has to be a connection between breach and
consequences. CB 554: “Common sense view of causation.” – not the same as foreseeability and remoteness –
hindsight can be used to tie damages to fiduciary breach. Where the T’ee’s breach permits the wrongful act permits
the loss, then there is recoverability.

Hodgkinson v. Simms
Facts: Accountant advised his clients to invest in condo development because he was getting kickbacks. Condos
purchased, market dropped, so money was lost. Plaintiff sued, saying they would’ve have invested in something
else if they had known that the accountant was getting kick backs.
Reasons: problem because of decision in Camson, because damages not directly related to the kickback scheme.
Decision: in favour of plaintiff
Reasons: the loss does relate to the breach of fiduciary duty.
Dissent: no, loss relates to market falling.
Reconciling the cases: maybe that what the fiduciary did in Hodgkinson was worse than what happened in Canson.
Clear and quantifiable how much the lawyer screwed the purchasers for ($600,000 instead of $200,000) – easy to
sue him and get that amount back – they should have just sued for that. In Hodgkinson, it was hard to quantify
investment advice that depends on the market. Or maybe its foreseeability – lawyer couldn’t see the losses arises
from 3rd party, where accountant could’ve foreseen market collapse. Foreseeability, you can be liable up to
intervening act. But SCC expressly says this isn’t the reason.
Hodgkinson gloss – act must not be attributable to a third party. (don’t use common law language).
Implications of these cases
· Lawyer in Canson is liable for his improprieties – future lawyers will know this
· Accountant is punished for funnelling his clients into one direction – will accountants try harder to avoid doing
    this because they will be liable for changes in the market.
· Will this change behaviour? Hopefully yes, but will the different results have different effects in the future?

2. Accounting for Profits
· Of profits made improperly by trustees, beneficiaries are entitled to them
· Can be restitutionary, because usually the trust loses the amt the T’ee gains, but not necessarily (e.g.:
· Where there is no equivalent loss, the accounting is for deterrence, not compensation

MacMillan Bloedel v. Binstead
Facts: MB is logging company that always had excess unused logs. B set up a secret company to make money off
the logs, which he was supposed to sell. He was supposed to give them money for them, but the amt he gave back
tipped off the company. Accepted at trial that B was a fiduciary.
Issue: is B liable for breach of f.d. in making money from the logs. How do you account for the profit?
Decision: B’s entitled to accounting of profits are net profits after expenses.
Reasons: Straightforward bookkeeping (reasonable ones incurred by defendant’s actions – admin costs, towing
costs, salaries, taxes, interest payments). Salary B paid himself didn’t count.

Personal Remedies Summary
· When you have a breaching trustee, you are entitled to recover, but the rule is generally choosing between
    accounting for profits or compensation – mutually exclusive.
· Compensation – losses suffered by trust are greater than profits made by T’ee.
· Smart for lawyer for plaintiff to do an assessment of this beforehand to choose best remedy
· In Canada we have remedial constructive trusts, which are proprietary
· Where a T’ee still has property or assets, then often Ps will look to seeking a proprietary remedy, one that
    attaches to property, not an obligation put on the person
· Powerful because they attach to the property, meaning that whatever happens to property with certain limits, it
    will provide a remedy
· Personal remedies can be harder to access – D leaves jurisdiction, D has no assets
· If D is insolvent, these issues are avoided, because trust has certain priority in insolvency situations. (main
· Access to property is what the B’s want
· CTs over a property because of breaching t’ee means you have access to the property can get it placed back into
    trust, or sell it to get the proceeds to compensate
· Not useful where there is no property to attach to.
· Includes tracing and CTs

1. Tracing
    1. Trustees take trust property and claim it as their own, or convert to some other form of property.
    2. Takes property, mixes it with his own property, not kept separate as in first instance (e.g.: put money from
        trust is put in t’ees bank acct)
    3. Trust property taken and mix with other trust property, and B’s from different trusts want to be
    4. Trustee mixes trust property and then invests/converts/purchases, something else beyond that
· because property belongs to B
· stops at bona fide purchaser for value without notice
· but if given to a friend, it can be traced if B can prove that whatever the friend buys (shares/boat) is from
  original trust money
· used when defendant is bankrupt/insolvent, or when personal remedies are unavailable or barred by limitation
· can’t trace to disposal goods (i.e.: vacations)

   1. Trustee claims the property as his/her own
   2. Other 3 – trustee mixes trust property in some way or another

1. Trustee Claims the property as his/her own
· E.g.: asserts it as his own, or transform it into a boat
· B can take the property if it still exists, or trace to the proceeds of a sale if the original proceeds don’t exist.
· Tracing applies as long as the proceeds still exist in tangible form.
· Can follow transfers if 3rd party if that person takes with notice, or it was a gift or insufficient consideration is
· Tracing remedy stops if services are purchased.

2. Mixed trust property

    a.   Mixing not in bank acct: two options -
             i. Trace to funds mixed with or what was bought with it, get equitable lien (better if there has been
                  decrease in property value.
             ii. Claim a proportionate share of the mixed funds (like getting a CT) – better if there has been a
             Scott v. Scott: wife leaves her property (main is family home) to husband for life, remainder to kids.
             Husband got B’s consent, sold the home (for L1,400) and bought a new one for l,000 worth l7,000.
             put it in his own name, worth L55,000 when he died. Kids wanted this. Kids got tracing, and CT over
             proportionate increase of the value they put into the house. (got 10/17 of 5,000)

    b.   Mixing in bank acct:
         * can still seek equitable lien (personal remedy) or trace thru for proprietary remedy.
         Rule in Hallet’s Case:
         Facts: Lawyer got control from T’ee over marriage settlement, he was also life tenant under the trust,
         acting for another client as well. Put money sale from settlement into the acct, as well as money from the
         other client. Breached trust, money from various sources. Original bank acct is L15,000, L400 from Mrs.
         C, and L700 from marriage settlement, L18,000 from Mrs. C. Withdrawals were made, at lowest it was
         L17,000. At death of husband, L32,000.
         Case: Trustee sued for L700, Mrs. C sued too.
         Issue: who does the L32,000 belong to
         Reasons: no B can claim all the amts, e.g: of coins in a bag (old rule: Clayton’s case was in first, out first.)
         Not fair – trustees are assumed to take out their own money first – should assume people are acting

Date                    T’ees own                T$                       WD                       Balance
1                       L1,000                                                                     1000
2                                                3000                                              4000
3                                                                         3500                     500
4                       1500                                                                       2000
Total                   2500                     3000                     3500
    Assume on the day of withdrawal, most is his own.
    When he puts it back in, Hallet’s Rule is glossed by LIBR – only amount the trust fund can seek is lowest
    intermediate value, so here the 500. Because the original 1000 may belong to other creditors. So trust fund will
    suffer 2500. Tracing in this acct can only go after the 500 – trustee can’t replenish the trust later on. But can
    still seek personal remedy against the trustee.
    If Bs can prove that day 4 deposit was intended to replenish the trust fund, then may be able to claim for this.

    c. Trustee mixes trust funds and purchases assets with mixed funds

    c.   Trustee mixes trust property and then invests/converts/purchases, something else beyond that.
         i.e.: if he buys car for 3500, 1000 is his own, 2500 is trust money.
         Oakway: Purchase shares reducing the acct to 0. Can’t argue that a proportion is your own as you spend
         trust money. This means you can trace to an asset, but only to the proportion that the trust fund is allowed
         (so 2500/3500 would be purchased with trust money, could get equitable lien on it)

Date                T1                  T2                  T3                 WD                  Balance
1                   1000                                                                           1000
2                                       5000                                                       6000
3                                                           3000                                   9000
4                                                                              4000                5000

Clayton’s rule: of 4000 WD, 1000 is from T1, 3000 from T2, T3 is protected.
Greymack (Ontario):
Altered Clayton’s rule
Facts: Greymack was a lawsuit between two different beneficiaries.
Issue: Does Clayton’s rule apply for competing Bs, then the pro rata analysis should be fair. Apply total
proportionally to Bs interests.
Implications: Didn’t deal with how Clayton’s rule might apply between T’ee and B – might still apply, but not sure
where the law stands. Court says that there may be cases where proportionality analysis was too complicated, might
apply Clayton’s rule because it’s easy.

* Clayton’s rule is based on fiction – no good reason to say first in first out, but it was used for simplicity.
* Hallett rule an attempt at justice, but hard because you have to track sometimes over many years to find LIB.

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