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06 Nov 09

CanLII - 2009 CanLII 60408 (ON S.C.)

Construction Lien Trust [11] That decision makes the point that where a breach of trust is alleged, the initial onus is on the plaintiff to prove the existence of the trust by showing three elements:
(a) the owner received money on account of the project;
(b) that the plaintiff supplied materials on that project; and
(c) the plaintiff was not paid.

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Law Construction Lien Trust accounts Payment

[32] In my view the defendants
cannot be allowed to benefit from their refusal to supply the plaintiff with the
required information. It would be deleterious to provide an incentive to
trustees to avoid keeping beneficiaries informed, despite their requests. The
defendants should not benefit when the beneficiaries act reasonably in the face
of an information gap created by the defendants. The advantage of this principle
is that it provides an incentive for the contractor or owner to be forthcoming
in the provision of information, but still requires the supplier or
subcontractor to be proactive in making information requests. In other words if
there is a duty imposed on the one party to inquire, there is a like duty on the
other party to answer

19 Jun 09

Law Society of Upper Canada v. Mazzucco, 2009 CanLII 30679 (ON S.C.)

[23] Professor Waters has written that “tracing ends when the property is acquired by a bona fide purchaser of a legal interest for value without notice of the trust…The bona fide purchaser for value is immune from a claim that he holds the property in trust”: Waters’ Law of Trusts in Canada, Third Edition, p. 1284. In my view the same applies to a bona fide equitable assignee of a debt, such as Agnes Mazzucco, who has received trust property without notice of the trust or its breach:

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Law Trust tracing bona-fide

There is no doubt, on the
evidence, that the debt owed by Mariano Mazzucco to Petronilla Mazzucco and her
husband was a real debt.
- I am curious as to whether "no doubt" is overkill in terms of the burden of proof. Did he have to make this finding beyond a reasonable doubt because it's a trust case? or would finding it on the balance of probabilities have been enough? - on 2009-06-19
Add Sticky Note
(a) Legal
assignment?

[16] The February, 2006 arrangement
does not meet the formal requirements for a legal assignment because the
transaction was not made “by writing under the hand of the assignor”:
3 more annotations...
- (b) Equitable
  assignment?
  
  [17] Equitable assignment may exist
  where the statutory rules are not followed. Equity does not require a
  particular form in order to effect a valid assignment; an equitable assignment
  may be oral. But, there must exist an intention to effect an equitable
  assignment:
- A novation takes place where the two contracting parties agree that a third, who
  also agrees, shall stand in the relation of either of them to the other:
- where courts have expressed the need for consideration to support an equitable
  assignment, they have done so because, in the circumstances, it had remained
  open for the transferor to change her mind and to withdraw from her expressed
  intention to transfer the chose in action

09 Oct 08

Sunview Doors Limited v. Academy Doors & Windows Ltd., 2008 CanLII 49336 (ON S.C.D.C.)

[51] This panel of the Divisional Court has co-ordinate jurisdiction to the panel in Central Supply. We respectfully disagree with the conclusion reached in that case that there must be synchronization between the lien provisions and the trust provisions in the CLA in that, in both cases, the supplier must establish intent that materials be used for the purposes of a known and identified improvement. There is no language in s. 8, s. 14 or s. 15 that suggests that intent is a requirement. Nor does the definition of “improvement” or s. 1(2) refer to intent. Indeed, the only reference to intent is found in the definition of “materials” in s. 1(1) where intent is an alternative basis for making a claim based on use, not on destination.

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Law Construction Lien Trust

[54]
We have
found that Central Supply is distinguishable on the facts. However,
had we been unable to distinguish it, we would not have applied its conclusion
that the supplier must have intended that its materials be incorporated into a
specific and identifiable improvement in order to attract a trust remedy

18 Aug 08

Rowland v. Vancouver College Ltd., 2001 BCCA 527 (CanLII) [Christian Brothers]

The BC CA disagrees with the ON CA. in http://www.canlii.org/en/on/onca/doc/2000/2000canlii5712/2000canlii5712.html

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Law trust charity immunity purposes

the law of British Columbia is that as set forth by Blair J. in the Ontario case
Blair J. acknowledged that as a general rule trust assets are not exigible for
claims against the trustees but nevertheless recognised an exception where the
wrong is embedded in the further instance of the charitable purpose.
7 more annotations...
- Blair J. acknowledged that as a general rule trust assets are not exigible for
  claims against the trustees but nevertheless recognised an exception where the
  wrong is embedded in the further instance of the charitable purpose.
- In this, Blair J. struck an appropriate policy balance between the need to
  respect the terms of the trust and the appropriateness of compensating victims
  whose injuries have arisen out of the further instance of the objects of the
  trust
- In this, Blair J. struck an appropriate policy balance between the need to
  respect the terms of the trust and the appropriateness of compensating victims
  whose injuries have arisen out of the further instance of the objects of the
  trust
- [183] With
  deference to the contrary view expressed in the Ontario Court of Appeal, I am of
  the opinion that the doctrine rejecting charitable immunity does not warrant the
  conclusion reached. That doctrine rests on two propositions. The
  first is that a property owned beneficially by a charitable corporation is not
  immune from judgments against the corporation
- [183] With
  deference to the contrary view expressed in the Ontario Court of Appeal, I am of
  the opinion that the doctrine rejecting charitable immunity does not warrant the
  conclusion reached. That doctrine rests on two propositions. The
  first is that a property owned beneficially by a charitable corporation is not
  immune from judgments against the corporation
- The second is that a property held in trust for a charitable purpose may be
  exigible to compensate tort claims in cases where trustees have wronged third
  parties in the course of administering the charitable trust
- The second is that a property held in trust for a charitable purpose may be
  exigible to compensate tort claims in cases where trustees have wronged third
  parties in the course of administering the charitable trust

Christian Brothers of Ireland in Canada (Re), 2000 CanLII 5712 (ON C.A.)

charities are not immune from liability to tort victims, but I do
not agree that there is any exception for assets held on a
special purpose trust.

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Law trust charity immunity purposes

Christian Brothers of Ireland in Canada (Re), 2000 CanLII 5712 (ON C.A.)

charities are not immune from liability to tort victims, but I do
not agree that there is any exception for assets held on a
special purpose trust.

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Law trust charity immunity purposes

21 Jul 08

British columbia v. Henfrey samson belair ltd., 1989 CanLII 43 (S.C.C.)

s. 67(1)(a) of the BIA does not apply to statutory deemed trusts that lack the common law attributes of a trust, such as the requirement that the property be kept separate and not commingled with the bankrupt’s own property.

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Law deemed trust priority Bankruptcy