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. Rubner v. Bistricer

In Rubner v. Bistricer (Ont CA, 2019) the Court of Appeal stated some useful basics of trust law:
(a) Applicable trust principles

[49] There are four requirements for establishing a valid express trust. The relevant parties to the trust must have capacity; there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects; the trust must be constituted, meaning the trustees must hold legal title to the trust property; and the required formalities must be met: A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed., (Toronto: Carswell, 2014), at p. 189. The three certainties are reflexive in the sense that, although they are considered one at a time, “consideration of the certainty of subject matter and certainty of objects may inform (reflect back on) the matter of certainty of intention”: Angus v. Port Hope (Municipality), 2017 ONCA 566 (CanLII), 28 E.T.R. (4th) 169, at para. 95, leave to appeal ref’d [2017] S.C.C.A. No. 382.

....

i. Certainty of intention and constitution in the context of a self-declared trust

[52] The court must be satisfied that the settlor intended to create a trust, that is, intended that the trustee be required to hold the trust property for the benefit of the beneficiary. A trust will only exist where the trustee is obliged to deal with the property on the beneficiary’s behalf. If the purported trustee is permitted, but not required, to deal with the property for the benefit of the beneficiary, then a trust relationship does not exist: Oosterhoff, at p. 193; Eileen E. Gillese, The Law of Trusts, 3rd ed. (Toronto: Irwin Law Inc., 2014), at p. 42.

[53] Whether certainty of intention to create a trust exists is a question of fact: Elliott, at para. 29. Certainty of intention can be express or implied, can arise from words or acts, and does not require that the settlor use the technical language of trust – there is no “magic” in the word “trust”: Oosterhoff, at 193; Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) at pp. 141-44; see also Commercial Union Life Assurance Co. of Canada v. John Ingle Insurance Group Inc. (2002), 2002 CanLII 45028 (ON CA), 61 O.R. (3d) 296 (C.A), at paras. 58-63; Belokon v. Kyrgyz Republic, 2016 ONCA 981 (CanLII), 136 O.R. (3d) 39, at para. 49, leave to appeal ref’d [2017] S.C.C.A. Nos. 74, 75 (“[C]ertainty of intention can be established by words or conduct other than explicit trust language, provided the words or conduct convey the requisite intention.”); Elliott, at paras. 26-31.

[54] A settlor need not fully understand the legal concept of trust in order to hold the requisite certainty: Oosterhoff, at p. 193. In Paul v. Constance, [1977] 1. W.L.R. 527 (C.A.), at p. 530, the English Court of Appeal did not require the settlor to have used “stilted lawyers’ language” to find that the settlor intended to create a trust. Scarman L.J., for the court, determined that the court must instead consider what was “said and done by the plaintiff and the deceased during their time together against their own background and in their own circumstances”: p. 530. This echoes Prof. Oosterhoff’s assertion that certainty of intention is a question of construction: Oosterhoff, at p. 193; see also Gillese, at p. 42.

[55] Where the settlor of a trust intends to act as a trustee, no transfer of property is required to constitute the trust: the property is already vested in the trustee. The settlor must identify the property and self-declare a trust over it: Oosterhoff, at p. 245. The trust exists as soon as the declaration occurs, since the settlor/trustee has parted with equitable title to the property in favour of the beneficiary: at p. 255; Waters, at pp. 184-85. It is important to reiterate that equity focuses on substance – the settlor does not have to speak or think in the terms of a trust: Oosterhoff, at p. 257. Where a person intends to transfer the beneficial ownership in some property to another person, they may create a trust “regardless of legal acumen”: Oosterhoff, at p. 257 (citing Paul v. Constance).

[56] A bare trust is generally accepted to be a trust where the trustee holds property without any active duties to perform other than to convey the trust property to the beneficiaries on demand: Waters, at p. 33. The hallmarks of a bare trust are: (1) the beneficiaries must be able to call for the property when they please, and (2) the trustee must not have (or must no longer have) active duties in respect of the trust property: Waters, at p. 34. The duty to guard the property prior to conveyance is considered passive: Waters, at p. 34.

ii. Certainty of subject-matter

[57] A valid trust will feature property that is identifiable: Oosterhoff, at p. 199; Waters, at p. 159; Angus, at para. 112. In addition to the trust property being identifiable, there must also be sufficient certainty respecting the quantum of the trust property to which a beneficiary is entitled: Oosterhoff, at p. 212; Waters, at p. 159.

[58] Any type of property can be the subject-matter of a trust, save for “future property”, that is, property that the settlor does not yet own. However, a right (e.g. contractual) to receive property in the future can be held in trust, as can a vested interest in property that has not yet been possessed by the settlor. The property must be ascertained or ascertainable. The test for certainty of subject-matter applies at the moment that the trust is purportedly created: Oosterhoff, at p. 199-201.

iii. Certainty of objects

[59] Finally, the certainty of objects requirement provides that the beneficiaries of the trust must be sufficiently described to allow for trust performance: Oosterhoff, at p. 216; Waters, at pp. 167-68.

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23. Outaouais Synergest Inc. v. Lang Michener LLP, 2013 ONCA 526 (CanLII) - put in /equity and trusts

Trusts - Henson Trusts
Declarations - Criteria
S.A. v. Metro Vancouver Housing Corp. (SCC, 2019)

Equity - Breach of Fiduciary Duty

Equity - Laches

Equity - Remedies
Equity - Unjust Enrichment

Equity - Proprietary Estoppel

Equity - Unjust Enrichment - Piercing the Corporate Veil


Equity - Gifts

Equity - Unjust Enrichment


Equity - Proprietary Estoppel

Equity - Unjust Enrichment

Equity - Unjust Enrichment

Equity - Issue Estoppel

Equity - Relief from Forfeiture

Equity - Knowing Receipt of Trust Funds

Equity - Unjust Enrichment - Unconscionability

Equity - Constructive Trust - Embezzlement

Equity - Unjust Enrichment

Equity - Equitable Set-off - Elements

Equity - Equitable Set-off - Where Limitation Period Inapplicable

Equity - Laches

Equity - Breach of Fiduciary Duty - Damages

Equity - Breach of Fiduciary Duty - Remedies - Knowing Assistance of Third Party Actionable

Equity - Resulting Trust

Equity - Unjust Enrichment



Equity - Proprietary Estoppel

Equity - Resulting Trust

Equity - Relief from Forfeiture

Equity - Unjust Enrichment

Equity - Unjust Enrichment



Trusts - Constructive Trust

Equity - Unjust Enrichment

Moore v Sweet (SCC, 2018)

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Trusts - Elements
Trusts - Statutory
The Guarantee Company of Canada v. Royal Bank of Canada (Ont CA, 2019)


Trust - Essential Elements


Trusts - Resulting Trust - Purchase Money Resulting Trust


Trusts - Constructive Trust
Equity - Unjust Enrichment
Moore v Sweet (SCC, 2018)


===== TRUSTS

---------------------- Trusts / resulting trust

Korman v. Korman, 2015 ONCA 578 (CanLII)

----------------------- Trusts / leading unjust enrichment case

- the two-part analysis of the absence of juristic reason provided for in Garland v. Consumers’ Gas, 2004 SCC 25 (CanLII), [2004] 1 S.C.R. 629.

------------------ Equity / unjust enrichment

- The Supreme Court of Canada recently discussed the elements of unjust enrichment in Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2012 SCC 71 (CanLII), [2012] 3 S.C.R. 660

------------------------------------------ TRUSTS

- In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, the court established the compensatory model of support. This was followed by Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, which formally recognized compensatory, non-compensatory, and contractual entitlements to support.

- Kerr v Baranow (SCC, 2011): In this case the Supreme Court of Canada sets out a comprehensive review of the legal status of unmarried spouses on separation, in the course of which it states key doctrine applicable generally to resulting trusts [paras 12-29] and unjust enrichment [paras 30-]. The case essential reading for anyone involved in such issues.

- Peel (Regional Municipality) v. Canada; Peel (Regional Municipality) v. Ontario, 1992 CanLII 21 (SCC): unjust enrichment





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