The Reverse Onus of Proof When Suing a Fiduciary

Suing a Fiduciary and Reverse Onus Is Important

The duty of loyalty of a fiduciary is protected through onuses. Fiduciaries are held to an irregularly high standard of behavior in civil law due to the nature of their duties. It is the peculiarly unequal position of the parties that results in the reversal of onus onto the fiduciary in most fiduciary relationships. Fiduciary- reverse onus

Typically, the reverse onus works as follows: in asserting a breach of fiduciary duty claim, the plaintiff need only establish a prima facie inference of the fiduciary obligations and the breach. The fiduciary concept then imposes a reverse onus that shifts the burden of proof onto the fiduciaries to disprove the beneficiaries’ allegations.

The reverse onus burden of proof was applied more recently by Satanove J. in Lee Estate v. Royal Pacific Realty Corp., (2003) BCSC 911, where she held that certain relationships and specific categories of actors are presumed by law to be of a fiduciary nature. When such a presumption arises, the onus is on the defendants to rebut that presumption. She explains that even in the case of a real estate agent and a buyer, the court should look at the evidentiary factors which support or contradict the existence of a fiduciary relationship between them, recognizing that the burden of proof will be on the defendants.

Lasky v. ProwaX (1993), 7 ET.R (2nd) 70 (B.C.S.C) is another case where a reverse onus of burden was applied. This case involved the undue influence of a niece over a mentally compromised and hospitalized patient. The niece was able to get the patient to sign over sole possession of the house and cash into her name, in direct contravention of a will executed a month prior. The defence bore the onus of rebutting the presumption in s. 20 of the Patients Property Act (B.C.) that a gift made by a patient is to be deemed fraudulent and void as against the committee if the gift is not made for full and valuable consideration or the donee has notice at the time of the gift of the mental condition of the patient. Although the niece herself was not committee, the dangerous position of the patient and the importance of a protective and accountable fiduciary duty was evident to the judge. The BC Court of Appeal recently approved these cases in their decision Easingwood v Cockroft 2013 BCCA 182.

Court Removes Trustee and In Rare Case No Replacement Trustee Appointed

Court Removes Trustee

Evans v Gonder 2010 CarswellOnt 1240 Ont C.A is unusual in that the court removed a trustee without appointing a replacement, and found that it had the authority to do so.

The case involved a conflict of interest in the trustee necessitating his removal.

In very rare cases where equity demanded that sole trustee be removed but no replacement was forthcoming,
the courts possessed the inherent jurisdiction to order a trustee’s removal and provide for or­derly administration of estate

No single provision of Act, nor Act as whole, ousted inherent equitable jurisdiction of court to remove trustee.

This was true even if such removal would leave trust without trustee, so long as court ensured proper ad­ministration of estate in best interests of beneficiaries

Mitchell v. Richey, [1867] 13 Gr. 445 (U.C. Ch.), stands for the proposition that no person can be compelled to remain a trustee.

The law of trusts is a creature of equity and the Courts of Chancery. In exercising its equitable jurisdiction, a court must ensure that fairness is done for all parties. Equity is “the soul and spirit of all law … equity is synonymous with justice”: William Blackstone, 2 Commentaries on the Laws of England, 2d ed. (Chicago: Callaghan & Co., 1879), at p. 429.

The role of trustee is a difficult one. A trustee must act in the best interests of the beneficiary, even at personal hardship. However, if such obligations were unlimited, and if no relief were available, “no one would undertake the task of trusteeship”: see Donovan W.M. Waters, Waters Law of Trusts in Canada 3d ed. (Toronto: Carswell, 2005), at p. 841.

 

The courts have long recognized an inherent power to remove a trustee when circumstances require. In Letterstedt v. Broers (1881), 9 A.C. 371 (P.C.), Lord Blackburn stated, at pp. 386-87:

[I]f it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustec.it seems to their Lordships that the Court might think it proper to remove him.

In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on the details often of great nicety.

When a sole remaining trustee was removed, the courts normally required a replacement trustee to be appointed. However, this was not intended to impose an additional burden to a trustee seeking to retire: see Courtenay v. Courtenay (1846), 3 Jo. & Lat. 519, at p. 533. Where no replacement could be found by the retiring trustee, the court could take it upon itself to ensure a continued administration. In cases from that era, the court would attempt to locate new trustees itself: see Gardiner v. Dowries (1856), 22 Beav. 395, 52 E.R. 1160.

[28] Alternatively, the court could take steps to obviate the need for a trustee. In Mitchell v. Rickey, Mowat V.C. permitted a sole surviving trustee to retire without appointing a replacement. Rather, he ordered that a receiver previously appointed by the court be continued, and that the trust funds be paid into court to be administered for the good of the beneficiaries.

[29] The case of Barker v. Peile (1865), 2 Dr. & Sm. 340, 62 E.R. 651 illustrates the court’s power to deal with an estate in the best interests of the beneficiaries in circumstances similar to the instant appeal. The case was summarized in the English Reports, at p. 651, in the following terms:

It appeared that the Plaintiff was the surviving trustee of a voluntary settlement – that the trust fund had always been an ascertained fund, but that many questions had arised among the parties claiming the fund, and several suits had been instituted with reference to the settlement, to all of which the Plaintiff had been made a party. The Plaintiff, under these circumstances, being desirous of avoiding further annoyance with regard to the fund, instituted the suit for administration of the fund by the Court, asking to be discharged, and, if necessary, that new trustees of the settlement might be appointed.

In that case the court ordered the discharge of the trustee in these circumstances, and took on the duty of administering the trust itself.

Court Finds Transfer of House from Mother to Son a Valid Gift, Subject to a Life Interest of Financial Support For Mother

Transfer of House

Ruff v Ruff 2013 BCSC 169 is a very interesting and creative judgment relating to the thorny question of how do the courts treat a gift of real property from a parent to an adult child, when the parent subsequently changes his or her mind and demands the return of title to the property.

In this particular case the court found that the adult did intend to get the house to the son, and thus allowed the sun to keep the home, but found that the adult also expected that she would remain in the house, and thus a trust was created such that the sale proceeds from the home would be held in trust for the adults lifetime, and the income would be available for the adults reasonable maintenance and support.

The plaintiff adult, transferred title to her house to her son, the defendant in 2005.

The adult remained in the house alone until 2008 when the son and his wife moved in with her, when she was then 88 years of age.

After approximately 2 years friction had developed between the parties to the extent that litigation was commenced by the mother, who sought a declaration claiming that the title to her house was held in trust for her by her son. The litigation was commenced after the defendant had taken steps to sell the property.

The court allowed the property to be sold, but found that the proceeds should be held in trust for the plaintiffs lifetime, and the income used for her support.

 

Transfer of House

The following quotes of law are taken from the decision:

 63]         I repeat that the relevant time to determine the intent of Freida Ruff was the time of the transfer: see Farrell Estate v. Turner Estate, 2002 BCSC 165 at para. 26, and Hamilton Estate, supra, at para. 74.

[64]         It is Freida Ruff’s intent, and hers alone, that is relevant: see Kerr v. Baranow, 2011 SCC 10 at para. 25.

[65]         Evidence tendered to show Freida Ruff’s intent at the time of the transfer should be contemporaneous to the time of transfer: Pecore at para. 56. Evidence of intention that arises after the transfer may be admitted if it can be shown to be relevant to the intention of the transferor at the time of the transfer: Pecore at para. 59. Evidence arising after a transfer may be unreliable for a variety of reasons, not the least of which can be remorse on the part of the transferor, or self-interested justification on the part of the transferee, and its relevance to actual intent at the time of transfer is questionable: see Fuller at para. 65.

[66]         Freida Ruff’s intention at the time of the transfer is not the same as her reasons for the transfer, although her motives shed some light on her intention. Thus, her desire to minimize the opportunities for her sons to quarrel over the portion of her estate represented by the property is relevant to the determination of her intention, but not determinative

Freida Ruff would not fare any better on the basis of unjust enrichment. The requirements are:

1.       An enrichment of the defendant;

2.       A corresponding deprivation of the plaintiff; and

3        An absence of juristic reason for the enrichment: Garland v. Consumer’s Gas Co., 2004 SCC 25 at para. 30.

Mrs. Ruff has established that she conferred a benefit on Robert through the transfer of title, with the corresponding detriment to her of giving up title. She would not succeed in a claim based in unjust enrichment because her intent to gift the land to Robert would constitute a juristic reason for the benefit/detriment result.

[80]         Had Freida Ruff succeeded in having the property restored to her, Robert and Denise Ruff would have had a valid claim in unjust enrichment. In that case, the money and labour they put into improvements to 140 South Petersen Road would have benefited Freida Ruff, to their corresponding detriment, and there would be no juristic reason to support that benefit/detriment result. As to remedy, however, they have not gone much further than a rough estimate of the money they have spent on improving the property, and have not attempted to quantify the amount or value of their labour.

Trustee Discretionary Spending Limited By Court

Closeup of man holding briefcase with money spilling out close to his chest

Trustee Discretionary and the Courts Oversight

The decision of Steven Thompson Family Trust v. Thompson 2012 ONSC 7138, (Ont. S.C.J.) dealt with a contested passing of accounts for the Steven Thompson Family Trust .

The beneficiaries contested the passing and opposed 23 disbursements that had been paid to lawyers and accountants for the Trust

The trustees in turn  relied on the terms of the Trust which stated that they could employ lawyers, accountants and agents, and pay them from the Trust funds.

They also relied upon the very broad exculpatory clause in the Trust Deed which they argued indemnified them from any errors in judgments or mistakes made by them.

Justice McCarthy stated that while the courts have the inherent jurisdiction to limit the operation of an exculpatory clause,

Such clauses will generally be effective as long as the Trustees’ conduct does not constitute gross negligence, bad faith, or wilful misconduct. Accordingly, even if this court should find that the estate trustees breached the terms of the Trust, they should be relieved from liability in the absence of evidence of gross negligence, bad faith or wilful misconduct.

Justice McCarthy reviewed the legal principles applicable to these facts and stated that the law imposes limits on a Trustee exercising a trustee discretionary power.

The existence of an exculpatory clause in a trust document does not necessarily relieve a trustee from exercising fundamental duties which are referred to as “substratum duties”. Justice McCarthy summarized these as being: 

(a) no trustee may delegate his office to others;

(b) no trustee may profit personally from his dealings with the trust property, with the beneficiaries or as a trustee; and

(c) a trustee must act honestly and with that level  of skill and prudence which would be expected of the reasonable man of business administering his own affairs.

An exculpatory clause is not a licence to a trustee to act as they wish.

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Resulting Trust Upheld Transfer to One Child When Will Left Estate Equally

Resulting Trust Upheld Transfer to One Child When Will Left Estate Equally

Van De Keere v. Turner 81 ETR (3d) 175 , Manitoba Court of Appeal is important in that the court clearly recognizes that is is usually inconsistent for a parent who treats his children equally thorughout life, and his will, would have gifted %90 of his assets to just one of five children.

The deceased had five children, applicants J, R, G, I, and defendant D, with whom he had good relationships.

In August 2000, the deceased executed a new will, which divided his property equally to children and named D as executrix .

Between 2003 and 2007, the deceased transferred approximately $408,000 and camper van to D and her husband, B .

Applicants successfully claimed that deceased’s transfers to D and B were subject to resulting trust .

The trial judge held that deceased intended to gift camper to D and B , but the  Trial judge held that D did not rebut presumption of resulting trust with respect to the transfer of $408,000.

The trial judge found that gifting D over 90 per cent of his estate was inconsistent with deceased’s behaviour that showed intention to treat children equally

The trial judge found that there was no explanation why deceased would strip himself of almost all of his assets at time when he was still in relatively good health

D appealed but the appeal was dismissed holding that the trial judge did not introduce new test or place additional onus on D in determining whether presumption of resulting trust was rebutted, but rather, looked at evidence from common sense perspective

” The law states that, where a parent makes a gratuitous transfer of assets to an adult child, there is a presumption of a resulting trust, such that the child is presumed not to be the beneficial owner, but rather to hold the assets as a trustee for the parent. This is a rebuttable presumption, so the child claiming that the transfer was a valid gift can rebut it by bringing evidence to support his or her claim. The evidence required to rebut the presumption is evidence of the parent’s intention to make a gift, which must be proved on a balance of probabilities. (See Pecore v. Pecore.2001 SCC 17 (S.C.C.) at paras. 19-44, {2007]J_ S.C.R. 795fS.C.C.Ut paras. 19-44.)

Duties of an Executor or Administrator

Duties of an Executor or Administrator of an Estate

A personal representative, whether an executor by a will, or an administrator appointed by the court,  has a duty to act solely and exclusively for the benefit of the beneficiaries.  This duty is construed strictly, and forbids a personal representative from making a profit that is not authorized, or occupying a position where the personal representative’s self interests would conflict with the duty to the beneficiaries.

The Courts of Equity have required personal representatives to ensure that each beneficiary receives exactly what he or she is entitled to receive under the will or the estate.  The personal representative must maintain an “even hand” when dealing with all beneficiaries.

The personal representative has a duty in exercising all of his or her powers, whether discretionary or administrative, to maintain the standard of care of a reasonably prudent businessperson managing someone else’s property.

Generally speaking, the personal representative cannot delegate his or her duties. The Courts in recent years however have permitted delegation of administrative duties that a reasonable and prudent businessperson would delegate in the management of his or her own business affairs.  This would include the use of brokers, real estate agents, accountants, lawyers, appraisers and so forth.

 

The personal representative’s general duties are as follows:

Duties of an Executor or Administrator

(1)        To dispose of the deceased’s body.

 

It is the executor and not the testator’s spouse or family, who has the right to determine the place and manner of burial. The Cemetery and Funeral Services Act sets up a priority structure as to who has the right to control the disposition of human remains.  First priority is given to the executor, then to the spouse, and then to various categories of relatives.  If the person who has the right to control disposition is unavailable or unwilling, the right passes to the next person of the priority list.   Proper funeral expenses incurred are payable out of the estate.  Generally, the person who instructs the funeral director will be personally liable to pay all expenses incurred, but is entitled to indemnity as a first priority against the estate for the reasonable expenses of a suitable funeral.  There are some cases where the executor has been denied reimbursement of the full funeral costs, where the costs have been found to be excessive under the circumstances.

 

(2)        Take possession or control of the deceased’s assets.

 

The personal representative must take steps to search for any cash, jewelry, valuables and the like, and arrange for their safekeeping.  Any personal property must be locked up and properly insured.  Other assets that may require insurance coverage must also be checked into.  Financial institutions and government agencies must be notified of the death.  Mail must be re-directed and the bills, including mortgages, must be paid.   Rents must be either collected or paid and businesses must be managed for the interim until distribution of the estate or until the sale of the business.  A personal representative must enquire as to whether they have sufficient legal authority to carry on the business, and must also be cognizant of the potential for personal liability for carrying on the business.

 

(3)        Complete a schedule of all of the deceased’s assets and ascertain their value.

 

After the executor has taken charge of the assets of the estate, and has made a full inventory of the assets and a valuation of same, the personal representative should then arrange to have an application made to the court for the issue of a grant of probate.  In the case where the deceased dies intestate or without a named beneficiary, there is often a delay experienced in finding some appropriate person to step forward and apply for letters of administration.The Rules of Court, seem to assume that in practice, in the absence of special circumstances, the court will usually give priority to appointing as administrator of the estate, the person or persons who have the greatest interest in the estate.  In practice consents will be required from any person entitled to share in the estate who has a greater or equal right to apply.  Thus, if two or more persons are equally entitled to apply, they must either apply jointly, consent to the appointment of one of them, or be served with notice under the Rules of court.  There is no limitation on the number of administrators who may be appointment.

 

(4)        Advertise for creditors.

 

Before any debts of the estate are paid, the executor or administrator should see to the publication of the proper advertisement for creditors, claims and other claims against the estate.  From my experience, common sense should prevail in deciding whether or not to advertise for creditors, as the costs can be considerable.  In the case of a little old lady with simple assets and a history of paying her bills on time, it may not be necessary to publish such an advertisement.  However if the personal representative is to protect him or herself from liability, then serious consideration should be given to the placement of such an advertisement, as Provincial Legislation states that the personal representative shall not be personally liable to creditors, where notice has been properly given and the assets of the estate have already been distributed.

 

(5)        To notify beneficiaries, and persons who would take on an intestacy with respect to an application for probate or letters of administration;

 

(6)        To act personally, although as aforesaid, delegation may be allowed in certain administrative  circumstances;

 

(7)        To ensure that investments are authorized.

 

There is a duty to examine the assets and investments of the estate, and in general, to convert in a reasonable and timely manner, the assets that do not qualify as authorized investments for the estate.  The executor must be concerned with assets that may waste (ie, an unheated greenhouse) or that are to speculative (penny stocks), or reversionary assets;

 

(8)        To complete and file income tax returns and where necessary obtain a Clearance Certificate from Revenue Canada;

 

(9)        To pay the debts, including funeral, legal, testamentary expenses, succession duties and probate fees;

 

(10)      To claim all debts due to the deceased and generally collect all of the assets;

 

(11)      To keep accounts:

 

The personal representative has a duty to be prepared to account to creditors and to persons who have a beneficial interest in the estate.  The personal representative must give to anyone to whom he or she owes a duty such information as that person reasonably requires.  The type and amount of information varies, but the duty to account is owed to beneficiaries, unpaid legatees, unpaid creditors, successors, trustees, others who may have an interest in the deceased’s assets, and others provided for by statutes such as the Public Guardian or Revenue Canada.

 

(12)      To continue or bring and maintain court actions on behalf of the estate:

 

Under Section 59  of the Estate Administration Act, a personal representative of a deceased claimant may continue or bring and maintain an action for a loss or damage to the person or property of the deceased in the same manner and with the same rights and remedies as the deceased, except for certain actions such liable and slander, pain and suffering, and loss of expectancy of earnings.  A personal representative may continue or bring and maintain an action under the Wills Variation Act, or an action for constructing or resulting trust on behalf of the deceased.

 

(13)      To distribute the assets in accordance with the will or the laws of intestacy.

What is a Fiduciary?

What is a Fiduciary?

The term “fiduciary” is not well understood by the average citizen.

It was probably best stated  in the simple terms of the following:

” If one person undertakes to act in relation to a particular matter in the interests of another, and has been entrusted with a power of discretion to affect the other’s interests, in a legal or practical sense, so that the other is in a position of vulnerability, then a fiduciary duty exists.”

Williams Lake Indian Band v. Abbey (1992), 1992 CarswellBC 1067, [1992] 4 C.N.L.R. 21, K12,13,SkippJ.(B.C. S.C.)

Other  noted comments on the definition are:

“where by statute, agreement, or perhaps by unilateral undertaking, 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. Equity will then supervise the
relationship by holding him to the fiduciary’s strict standard of conduct.”

Guerin v. R. (1984), 36 R.P.R. 1, 20 E.T.R. 6, [1985] 1 C.N.L.R. 120, 55 N.R. 161,13 D.L.R. (4th) 321, [1984] 2 S.C.R. 335, [1984] 6 W.W.R. 481, [1984] S.CJ. No. 45,1984 CarswellNat 813,1984 CarswellNat 693, 59 B.C.L.R. 301, f98, Dickson J. (Beetz, Chouinard and Lamer J J. concurring) (S.C.C.)

[In Guerin v. ft, [1985] 1 C.N.L.R. 120 (S.C.C.)] … Dickson J. writing for the majority stated at [p. 137] … that:

… where by statute, agreement, or perhaps by unilateral undertaking, 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.

Desjarlais v. Canada (Minister of Indian Affairs & Northern Development) (1988), 1988 CarswellNat 184, [1988] 2 C.N.L.R. 62,18 F.T.R. 316, f9, Strayer J. (Fed. T.D.)

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A Fiduciaries Duty Of Trust and Loyalty

Fiduciaries duty is a persons in a position of trust, ranging from doctors, lawyers, accountants, to financial advisors and many others in between.

“Wilson J. offered some guidance on the subject of fiduciary relationships in the leading case of Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.). At p. 136, she stated:

Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

  1. The fiduciary has scope for the exercise of some discretion or power.
  2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
  3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power”

 

  • The Supreme Court of Canada considered the concept of loyalty in fiduciary relationships in Hodgkinson v. Simms, [1994] 3 S.C.R. 377 (S.C.C.). At p. 407, Sopinka and McLachlin JJ., writing for the dissent, adopted the language from Keech v. Sandford (1726), 25 E.R. 223 (Eng. Ch. Div.):

At the heart of the fiduciary relationship lie the dual concepts of trust and loyalty. This is first and best illustrated by the fact that the fiduciary duties find their origin in the classic trust where one person, the fiduciary, holds property on behalf of another, the beneficiary. In order to protect the interests of the beneficiary, the express trustee is held to a stringent standard; the trustee is under a duty to act in a completely selfless manner for the sole benefit of the trust and its beneficiaries (Keech v. Sandford (1726), 25 E.R. 223) to whom he owes “the utmost duty of loyalty”. (Waters, Law of Trusts in Canada (2nd ed. 1984), at p. 31). And while the fiduciary relationship is no longer confined to the classic trustee-beneficiary relationship, the underlying requirements of complete trust and utmost loyalty have never varied.

109     In Moffat v. Wetstein (1996), 29 O.R. (3d) 371 (Ont. Gen. Div.), Granger J. canvassed the
duty to avoid conflicts of interest. At p. 390, he stated:

Subsumed in the fiduciary’s duties of good faith and loyalty is the duty to avoid a conflict of
interest. The fiduciary must not only avoid a direct conflict of interest but must also avoid
the appearance of a possible or potential conflict.

The fiduciary is barred from dividing loyalties between competing interests, including self-interest.

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Transfer of Land to Minor Nephew For No Consideration Upheld as Valid Gift

Transfer of Land

Wong v Huang 2012 BCSC 975  involves a case where the court upheld the transfer of a haft interest in a house as joint tenants between an elderly man and his 6 year old great nephew, the grandson of the plaintiff’s brother.

The defendant was born in 2000 and shortly after his birth the plaintiff executed a will leaving all his assets to the defendant instead of the plaintiff’s own children.

In September 2006 the plaintiff executed a transfer of an undivided one half interest in his home to the defendant as joint tenant. The defendant was six years old at the time and did not provide any consideration for the transfer.

The plaintiff signed an affidavit stating that the transfer was the”less expensive than giving ownership of the house to the defendant in my will”.

The plaintiffs reasoning for the transfer was that he wanted to be part of a larger family but the family bond that he had hoped for did not materialize, so he unsuccessfully requested the return of the half interest in property from the infant defendant which was refused.

The transferor then brought a court application for a declaration that the defendant held the property in trust for the transferor.

The court dismissed the claim and held that the effect of the transfer was to make a completed gift.

Because the transfer was made without consideration, the presumption of resulting trust did apply, but that presumption was rebutted by the evidence.

The court found that on the balance of probabilities, the transfers intention when he made the transfer was to make an unconditional gift to the transferee of one half interest in the property.

While the transfers wish that the property would become the family home and that may have been the motive for the gift, the gift was not conditional upon that wish becoming a reality.

The court further held that since the defendant is a minor child and the plaintiff is not his mother or father, then in that event the presumption of advancement should not apply.

Accordingly since the transfer was made without consideration, the presumption of resulting trust applies unless the presumption is rebutted on a balance of probabilities.

The onus is on the defendant to prove on a balance of probabilities that the plaintiffs intention in making the transfer was to complete a gift of one half interest in the property to the defendant.

The court found that the transfer of the property in 2006 was not an isolated event, but instead should be viewed in the context of the plaintiffs expressed intentions going back to 2000 when the defendant was born. The court in fact found five reasons in total to support the rum bottle of the presumption of resulting trust.

The Court quoted from the leading case Pecore v Pecore 2007 SCC 17:

 

[20]    Regardless of which presumption applies, either presumption may be rebutted by evidence on the ordinary civil standard of a balance of probabilities. The Court explained at paras. 42-44:

[42]     There has been some debate amongst courts and commentators over what amount of evidence is [page814] required to rebut a presumption. With regard to the presumption of resulting trust, some cases appear to suggest that the criminal standard, or at least a standard higher than the civil standard, is applicable: see e.g. Bayley v. Trusts and Guarantee Co., [1931] 1 D.L.R. 500 (Ont. S.C., App. Div.), at p. 505; Johnstone v. Johnstone (1913), 12 D.L.R. 537 (Ont. S.C., App. Div.), at p. 539. As for the presumption of advancement, some cases seem to suggest that only slight evidence will be required to rebut the presumptions: see e.g. Pettitt v. Pettitt, [1970] A.C. 777 (H.L), at p. 814; McGrath v. Wallis, [1995] 2 F.LR. 114 (Eng. C.A.), at pp. 115 and 122; Dreger (Litigation Guardian of) v. Dreger (1994), 5 E.T.R. (2d) 250 (Man. C.A.), at para. 31.

[43]     The weight of recent authority, however, suggests that the civil standard, the balance of probabilities, is applicable to rebut the presumptions: Burns Estate v. Mellon (2000), 48 O.R. (3d) 641 (C.A.), at paras. 5-21; Lohia v. Lohia, [2001] EWCA Civ 1691 (BAILII), at paras. 19-21; Dagle, at p. 210; Re Wilson, at para. 52. See also Sopinka et al., at p. 116. This is also my view. I see no reason to depart from the normal civil standard of proof. The evidence required to rebut both presumptions, therefore, is evidence of the transferor’s contrary intention on the balance of probabilities.

[44]     As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. Thus, as discussed by Sopinka et al. in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

[21]    In Pecore, the Court considered whether the presumption of advancement should be expanded to apply to a wider class of family relationships, including dependant adult children. The Court concluded at para. 40:

I am therefore of the opinion that the rebuttable presumption of advancement with regard to gratuitous transfers from parent to child should be preserved but be limited in application to transfers by mothers and fathers to minor children.

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Executors of Deceased Substituted For Deceased

substitute executorExecutors of Deceased Substituted For the Deceased In Court Action

Dicken Mechanical Ltd v Nohels Group Inc 2012 BCSC 917 is a good example of the process that the Rules of Court have established to deal with the situation where  one a party dies and how his or her executor can, in  court actions that survive a death, be substituted as the litigation  party in the place of the deceased.

The plaintiff had commenced a court action against the defendant  limited company and a personal director for damages relating to contaminated soil.

The defendant personal director died after the commencement of the proceedings.

The real issue was whether or not the claim was one that survived death or not, as it is only actions that survive death that the rules allow for an executor to be substituted as a party for a  deceased litigant.

 

The court ruled that claims under the Waste Management legislation do in fact survive death and allowed the deceased defendant’s executors to be joined in as substituted defendants for the deceased director.

Rule 6-2(1) of the Supreme Court Rules provides for a continuation of an action against a deceased person where the claim survives death.

With respect to the type of cases that survive death vs. those that do not, the court cited:

The maxim actio personalis moritur cum persona (“a personal right of action dies with

the person”: Black’s Law Dictionary, 6th Ed., p. 31) was discussed by Southin J.A. in McCulloch v. Green, [1995] B.C.J. No. 567, wherein she wrote at para.

… this maxim “is not applied in the old authorities to causes of actions on contracts, but to those in tort, which are founded on malfeasance or misfeasance to the person or property of another: which latter are annexed to the person, and die with the person, except where the remedy is given to (or by) the personal representatives by the statute law.” And the general rule of the common law was, that if an injury were done either to the person or to the property of another for which unliquidated damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done …

For example, if a person is rear ended and suffers pain and suffering as well as wage loss, and dies before trial, the deceased’s  claim for pain and suffering dies with him or her, but the executors may continue the claim for the lost wages.

– See more at: http://www.staging-disinherited-staging.kinsta.cloud/blog/executors-deceased-substituted-defendants-place-deceased#sthash.eECDC6oJ.dpuf