British Columbia (Public Guardian and Trustee) v. Strand

British Columbia (Public Guardian and Trustee) v. Strand

The chambers judge erred in finding the Public Guardian's statutory fees excessive because he misapprehended the purpose and operation of the capital commission and failed to consider fee accrual over the life of the trusts; it was also improper to impose trusteeship on Murphy Battista without notice or consent; accordingly the April 14, 2008 order was set aside and the funds were ordered delivered to the Public Guardian to hold in trust until each infant attains majority subject to Infants Act s.14(1).

Citation
2009 BCCA 158
Parties
Appellant / Plaintiff: Public Guardian and Trustee of the Province of British Columbia (litigation guardian for Natalie Beaurivage and April Beaurivage); Respondent / Defendant: Dale Strand; Respondent / Defendant: Joseph Richard Emard
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
8 April 2009
Procedural Posture
Civil Appeal Concerning Appointment of Trustee and Approval of Infant Settlements / Court of Appeal Hearing and Judgment on Appeal From Chambers Decision (2008 BCSC 441)
Outcome
Appeal allowed; April 14, 2008 chambers order set aside; Murphy Battista ordered to deliver funds to Public Guardian; Public Guardian to hold funds in trust until each infant attains 19 years subject to Infants Act s.14(1); no costs awarded.
Legal Topics
Appointment of Trustee, Public Guardian Fees, Approval of Infant Settlements, Conflict of Interest in Recommendations by Public Trustee, Judicial Oversight of Chambers Orders
Source Language
English
Trusts and Trustees Infant (minor) Settlements Estate Administration Administrative Law Civil Procedure Appointment of Trustee Public Guardian Fees Approval of Infant Settlements +2 more

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Parties

Public Guardian and Trustee of the Province of British Columbia (litigation guardian for Natalie Beaurivage and April Beaurivage)

Appellant / Plaintiff

Dale Strand

Respondent / Defendant

Joseph Richard Emard

Respondent / Defendant

Procedural Posture

Civil Appeal Concerning Appointment of Trustee and Approval of Infant Settlements / Court of Appeal Hearing and Judgment on Appeal From Chambers Decision (2008 BCSC 441)

Legal Issues

  1. 1 Whether the chambers judge erred in finding the Public Guardian's statutorily prescribed fees excessive compared to private trustees
  2. 2 Whether it was proper for the chambers judge to order a law firm (Murphy Battista) to hold trust funds without notice or consent
  3. 3 Whether the Public Guardian should be appointed trustee of the infant settlement funds

Ratio Decidendi

The chambers judge erred in finding the Public Guardian's statutory fees excessive because he misapprehended the purpose and operation of the capital commission and failed to consider fee accrual over the life of the trusts; it was also improper to impose trusteeship on Murphy Battista without notice or consent; accordingly the April 14, 2008 order was set aside and the funds were ordered delivered to the Public Guardian to hold in trust until each infant attains majority subject to Infants Act s.14(1).

Court Disposition

Appeal allowed; April 14, 2008 chambers order set aside; Murphy Battista ordered to deliver funds to Public Guardian; Public Guardian to hold funds in trust until each infant attains 19 years subject to Infants Act s.14(1); no costs awarded.

Orders

  • Appeal allowed without costs