BCSC Provides Much Needed Guidance For Trust Proceedings

In Mayer v. Mayer, 2013 BCSC 1958, the BC Supreme Court ruled on the following issues:

the principles which govern an application by a trustee under s. 86 of the Trustee Act for leave to bring proceedings on behalf of a trust without the unanimous agreement of all of the trustees; the ability of a beneficiary to bring proceedings for damages to the trust when leave is denied to the beneficiary to bring proceedings as a trustee; and whether the court may direct the winding up of a trust and, if so, the circumstances when it should do so. Because these issues had not previously been considered by Canadian courts, this case may have significant implications for both personal and commercial trusts. Trustees and beneficiaries may find this case useful for determining their respective rights and duties, and the assistance that can be obtained from courts.

The case involved brothers engaged in years of protracted litigation. Two brothers, Bhora and Mhinder, were the remaining trustees and beneficiaries of a trust established over 40 years prior to permit them (and, formerly, three other brothers) to carry on business and own properties together. Under this trust, all brothers were both beneficiaries and trustees. In these proceedings, Mhinder wished to bring a number of claims against Bhora's family members and their companies for damages allegedly done to the trust. Given the legal requirements that a trustee who is also a beneficiary must first act in the former capacity, and that trustees must act unanimously, and given that Bhora would not agree to these claims being brought, Mhinder sought the court's permission to bring these claims in the name of the trust without Bhora's consent. Mhinder also sought a declaration that, if leave was denied to him as a trustee, he was at liberty to bring these claims as a beneficiary of the trust. Finally, Mhinder argued that the trustees were hopelessly deadlocked and, as a result, the court should order the winding up of the trust.

With respect to the first issue, the court confirmed that it has the discretionary jurisdiction under s. 86 of the Trustee Act to intervene, where it is "just and equitable" to do so, to break a deadlock between trustees to ensure that trustees exercise their powers properly and in the interests of the beneficiaries. This includes permitting a trustee to bring claims on behalf of the trust notwithstanding opposition from the other trustees. The court found guidance in the...