Public Trustee v. Guaranty Trust

Public Trustee v. Guaranty Trust

Majority held the trust company could not in principle sue itself but the writ was an irregularity, not a nullity; the irregularity was cured by the court order removing the executors and appointing the Public Trustee. The doctrines of retainer and merger did not extinguish the company’s unliquidated claims upon...

Source-derived case information.

Citation
[1980] 2 SCR 931
Parties
Appellant/defendant: Public Trustee (Trustee of the Estate of James Wilson Berry); Respondent/plaintiff: Guaranty Trust Company of Canada; Defendant: Edward Thomas Berry
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 October 1980
Procedural Posture
Appeal to Supreme Court of Canada Estate/trust Litigation / Final Appeal From Court of Appeal for Ontario Following Interlocutory Rule 124 Application
Outcome
Appeal dismissed (majority). Dissent by Ritchie J. would have allowed appeal.
Legal Topics
Capacity of Executor to Sue in Representative Capacity, Doctrine of Retainer, Doctrine of Merger, Substitution of Personal Representatives, Irregularity Vs Nullity (rule 186), Trustee Conflict of Interest
Source Language
english
Estates Trusts Civil Procedure Equity Capacity of Executor to Sue in Representative Capacity Doctrine of Retainer Doctrine of Merger Substitution of Personal Representatives +2 more

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Parties

Public Trustee (Trustee of the Estate of James Wilson Berry)

Appellant/defendant

Guaranty Trust Company of Canada

Respondent/plaintiff

Edward Thomas Berry

Defendant

Procedural Posture

Appeal to Supreme Court of Canada Estate/trust Litigation / Final Appeal From Court of Appeal for Ontario Following Interlocutory Rule 124 Application

Legal Issues

  1. 1 Whether a writ issued by a trust company naming itself in its corporate capacity as defendant and plaintiff was a nullity or merely an irregularity
  2. 2 Whether the irregularity (if any) was cured by the court order removing the executors and appointing the Public Trustee
  3. 3 Whether Guaranty Trust had capacity to maintain the action against the Public Trustee after accepting probate and/or after issuing the writ

Ratio Decidendi

Majority held the trust company could not in principle sue itself but the writ was an irregularity, not a nullity; the irregularity was cured by the court order removing the executors and appointing the Public Trustee. The doctrines of retainer and merger did not extinguish the company’s unliquidated claims upon acceptance of probate; therefore the action could proceed against the substituted Public Trustee and against Edward Berry in his personal capacity.

Court Disposition

Appeal dismissed (majority). Dissent by Ritchie J. would have allowed appeal.

Orders

  • Appeal dismissed
  • Order of the Court of Appeal dated May 31, 1979 left undisturbed