Canada Case Law

Cunningham v. Cunningham

Court

Supreme Court of Nova Scotia

The conveyance of the Property to the Respondent, an independent adult child, without consideration gave rise to a presumption of resulting trust; the Respondent failed to rebut that presumption on the evidence (text messages, conduct, corroborating testimony); accordingly a resulting trust was declared and the Respondent was ordered to reconvey or have title revested in the Applicants.

Source excerpt

• Resulting trust
• Presumption of advancement
• Conveyance
• Reconveyance
• Costs

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Carley v. Birchard

Court

Supreme Court of British Columbia

The court found an oral 2009 agreement that the Birchards bought all of Ms. Carley’s undivided 2/10 interest for $150,000, with lifetime use of Lot A reserved to her.

• Resulting trust
• Constructive trust
• Oral contract for disposition of land
• Land title act presumption
• Part performance
• Unjust enrichment

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Cottrell v. Cottrell

Court

British Columbia Court of Appeal

Appeal dismissed in a family property dispute over a discretionary trust. The court held the appellant failed to prove any increase in the respondent’s beneficial interest.

• Beneficial interest
• Discretionary trust
• Excluded property
• Family property
• Valuation
• Statutory interpretation

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Jahnke v. Rhodes

Court

Supreme Court of British Columbia

The court found oppressive conduct in Donna Rhodes’s failure to hold AGMs and obtain audited financial statements, but rejected liquidation and other monetary relief.

• Oppression remedy
• Bca s.227
• Bca s.324
• Reasonable expectations of shareholders
• Corporate governance
• Audited financial statements

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Wilson v. Koch

Court

Supreme Court of British Columbia

The court refused to decide a specific performance dispute summarily under Rule 9-7 because credibility conflicts and disputed authority required a conventional trial.

• Specific performance
• Summary trial (rule 9-7)
• Fiduciary duty / undue influence
• Power of attorney
• Joint tenancy
• Caveat

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Pirani v. Pirani

Court

British Columbia Court of Appeal

The Court of Appeal ordered a new trial in a family trust dispute, holding the trial judge applied fiduciary principles without properly interpreting the trust deed and its context.

• No conflict rule
• No profit rule
• Disgorgement
• Constructive trust
• Interpretation of trust instrument
• Estate freeze

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Ghag v. Ghag

Court

British Columbia Court of Appeal

Appeal from a petition order removing a trustee and nullifying share transfers was dismissed. The Court held no triable issue arose from the appellant’s own evidence.

• Trustee removal
• Nullification of fiduciary transactions
• Referral to trial vs petition disposition
• Secret trust vs written trust instrument
• Interpretation of trustee discretion
• Trusts

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A.P. v. A.F.

Court

Supreme Court of British Columbia

The court upheld the July 25, 2014 will, finding testamentary capacity, no suspicious circumstances or undue influence, and dismissing the wills variation claim.

• Testamentary capacity
• Undue influence
• Suspicious circumstances
• Will formalities
• Wills variation
• Testamentary-capacity

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Aquilini Estate v. The Queen

Court

Tax Court of Canada

Court found the AIGLP income and loss allocation (and GERI loss allocation) objectively unreasonable under s.103(1.1) because allocations bore no relationship to capital invested or work performed (extreme disproportionate allocations: nominal capital holders receiving almost all income while those supplying capital or performing work bore losses), and alternatively were driven by tax reduction motives under s.103(1); Minister’s reallocation pro rata by initial capital contributions was reasonable and is upheld; losses already utilized in 2003 are not reopened and may not be disallowed.

Source excerpt

• Allocation of partnership income
• Reallocation under s.103(1.1)
• Subsection 103(1) purpose test
• Attribution of partnership losses
• Reasonableness test (arm's length comparator)
• Deeming rules for partnerships and trusts

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Berkner (Estate)

Court

Supreme Court of British Columbia

The court granted probate of the deceased’s Primary Will, holding that multiple wills are permitted and that British Columbia law does not require probate of every will.

• Multiple wills
• Grant of probate
• Secondary will
• Representation grant
• Probate fees
• Probate

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