Daly v. Giles
Because the respondent's breach did not result in failure of the trust nor in damages to the appellant, the application judge erred in winding up the trust and ordering the sale; consequently a resulting trust could not be ordered. The appeal is therefore dismissed subject to varying the judgment by striking out...
Source-derived case information.
- Citation
- C31755
- Parties
- Applicant/appellant: Susan Elizabeth Daly; Respondent/counter Applicant/respondent: Deborah Leigh Giles; Respondent by Counter Application/appellant: Brian Daly
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 27 April 2001
- Procedural Posture
- Civil (trusts/property) / Appeal to Court of Appeal From Application Judge Decision
- Outcome
- Appeal dismissed except that the judgment is varied by striking out paragraphs 3 and 4; respondent awarded costs of the appeal; cross-appeal dismissed as abandoned.
- Legal Topics
- Breach of Trust, Winding Up Trust, Resulting Trust, Costs, Sale of Property
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Elizabeth Daly
Applicant/appellant
Deborah Leigh Giles
Respondent/counter Applicant/respondent
Brian Daly
Respondent by Counter Application/appellant
Procedural Posture
Civil (trusts/property) / Appeal to Court of Appeal From Application Judge Decision
Legal Issues
- 1 Whether breach of trust required winding up the trust and sale of the cottage
- 2 Whether the breach resulted in failure of the trust such that a resulting trust should be ordered
- 3 Whether the application judge erred in awarding costs or in his exercise of discretion on costs
Ratio Decidendi
Because the respondent's breach did not result in failure of the trust nor in damages to the appellant, the application judge erred in winding up the trust and ordering the sale; consequently a resulting trust could not be ordered. The appeal is therefore dismissed subject to varying the judgment by striking out specified paragraphs, and the costs decision is left undisturbed.
Court Disposition
Appeal dismissed except that the judgment is varied by striking out paragraphs 3 and 4; respondent awarded costs of the appeal; cross-appeal dismissed as abandoned.
Orders
- Vary the application judge's judgment by striking out paragraphs 3 and 4
- Dismiss the appeal (subject to the variation stated)
Full Case Text
Judgment text and source record
1 paragraphs
Daly v. Giles Collection Decisions of the Court of Appeal Date 2001-04-27 Docket numbers C31755 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Borins, Stephen Subject Civil Decision Content DATE: 20010427 DOCKET: C31755 COURT OF APPEAL FOR ONTARIO RE: SUSAN ELIZABETH DALY (Applicant/Appellant) vs. DEBORAH LEIGH GILES (Respondent) and DEBORAH LEIGH GILES (Counter-Applicant/Respondent) vs. SUSAN ELIZABETH DALY and BRIAN DALY (Respondents by Counter-Application/Appellants) BEFORE: ABELLA, LASKIN AND BORINS JJ.A. COUNSEL: Thomas J. Corbett for the appellants James C. Orr for the respondent HEARD: April 11, 2001 On appeal from judgment of Justice J. Arthur Mullen dated February 18, 1999. ENDORSEMENT Released Orally: April 11, 2001 [1] The application judge appears to have misconceived the remedy sought by the appellant Susan Daly. He correctly found that the respondent holds title to the cottage in trust for herself and the appellant in accordance with the Trust Deed of May 12, 1992 and that the respondent had breached the terms of the trust. However, the breach did not result in the failure of the trust, nor did it result in the appellant sustaining damages. [2] In light of the nature of the breach, in our view the application judge should not have wound up the trust, nor ordered the sale of the cottage. [3] There being no failure of the trust, the application judge could not have ordered a resulting trust in favour of the settlor’s estate, as requested by the appellant. [4] In the result, the appeal is dismissed subject to varying the judgment by striking out paragraphs 3 and 4. [5] Leave to appeal costs is granted. However, the appeal from costs is dismissed as we see no reason to interfere with the exercise of his discretion by the application judge. [6] The respondent will have her costs of the appeal. The cross-appeal is dismissed as abandoned. “R. S. Abella J.A.” “J. I. Laskin J.A.” “S. Borins J.A.”