Trusts on Property: (Re)Making Canada | An Open Legal Coursebook

Introduction to Trusts

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Adapted from James Grimmelmann, “Trusts and Corporations” in Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet, eds., Open Source Property: A Free Casebook, https://opensourceproperty.org (2015).

Origins of the Trust #

The origin of the trust lies in medieval tax estate planning and tax evasion. (Arguably, nothing has changed in the last six hundred years.) Imagine Osbert, a minor lord in the 15th century, who holds Greenacre as a tenant of Leonard, a slightly less minor lord. Osbert is getting on in years and has started to worry about the future of his family. His elder son, Aylwin, is not showing promising signs of maturity, and Osbert has come to think that Aylwin may be better suited to religious orders than the duties of managing a great estate. But Osbert’s younger son Bartholomew appears to be a fine young gentleman: athletic, patient, and wise in the ways of men. Osbert would like to provide for Aylwin, but would prefer to have Greenacre go to Bartholomew. Osbert’s problem is that the available conveyancing devices don’t work for him. If he does nothing, then Greenacre goes to Alywin at Osbert’s death under the rule of primogeniture in effect in England at the time, according to which the eldest son receives any land his father owned at his death (was “seised of,” in contemporary terminology). A will leaving Greenacre to Bartholomew doesn’t work because land could not be devised by will until the Statute of Wills in 1540. And Osbert doesn’t want to convey Greenacre (or a future interest in Greenacre) to Bartholomew now, because Bartholomew might die before him, or Aylwin might get his act together, or something else could come along to force a change in plan.

Lawrence v Maple Trust Company

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Gillese J.A. – #

Ownership of a person’s home is fraudulently transferred. The property is then mortgaged. In a contest between the two innocent parties–the homeowner and the lender of mortgage moneys–who wins? This appeal answers that question in favour of the homeowner.

Background #

Susan Lawrence lives in her home in Toronto (the “Property”). The Property was encumbered by a mortgage in favour of TD/Canada Trust (the “TD Bank mortgage”) in the approximate amount of $120,000.

Duthie v Gallagher & Duthie

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Fisher, J. - #

The plaintiffs, who are beneficiaries under the will of William Duthie, deceased, complain, inter alia, of a breach of trust on the part of the defendants as executors and trustees under the will in omitting to sell the testamentary property when it might have been sold at a good price and retaining it and paying taxes thereon for a while until part of it (some eleven acres) was finally lost at a tax sale and the rest or the portion thereof unsold has become so depreciated in value that the estate, which was estimated to have had a net value of approximately, $21,000 at the time of the death of the testator in September, 1911, is now apparently at best little more than solvent. In reply the defendant Gallagher, who has been the active executor (the co-executor being now a man over 80 years of age), first calls attention to a fact which I think should be taken into consideration under the circumstances here where such a devastavit as aforesaid is alleged, viz., that since the death of the deceased, the plaintiffs, being the widow (who married again in 1912) and the children while infants, have lived rent free on the most salable part of the estate being one of the Burnaby properties consisting of about five acres and have also had certain rents from time to time therefrom. Attention has also been called to the fact admitted by the plaintiffs that the widow did not wish this part of the property sold and apparently the other plaintiffs since coming of age have all approved of the use being made of this portion of the estate though in the last paragraph of the will the testator directs that in the event of his wife marrying again his trustees should use the income for the benefit of the daughters (only).

Land Titles Clarification Act

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3(1) Where the residents of an area of a municipality are in necessitous circumstances as a result of lack of property development in the area and where there appears to be confusion as to the ownership of land, the Governor in Council may designate the area as a land titles clarification area. [..]

4(1) A person who claims to own land in a land titles clarification area may apply to the Minister for a certificate of claim in respect of a lot of land in the area which he claims to own.

Trusts and Reserve Lands

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Iwasaki v R

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Sheppard, D.J. — #

The suppliant, Torazo Iwasaki, alleges by petition that the Custodian as trustee for the suppliant as evacuee committed a breach of trust in selling land of the suppliant without any power of sale, or by selling to the specific grantee, Salt Spring Lands Limited, and for such acts of the Custodian the Crown is liable by respondeat superior.

The Crown in defence says:

(1) That there was no trust;

The Unlawful Dispossession of Japanese Canadians

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Excepted from Eric Adams and Jordan Stanger-Ross, “Promises of Law - The Unlawful Dispossession of Japanese Canadians” Osgoode Hall Law Journal 54.3 (2017) 687-740.

While interning Japanese Canadians, the federal government seized control of all of their real and personal property within the “protected area in British Columbia.” In the spring of 1943, federal officials began to sell virtually everything that the government had taken, often below market value. Families lost heirlooms, vibrant businesses, and everyday possessions. They lost cars, boats, books, toys, furniture, and cameras. They lost homes and farms. Beyond the tangible, Canadians of Japanese descent lost opportunities, neighbourhoods, and communities. They lost connections to place. They lost retirements, livelihoods, and educations. They lost agency over their property and life choices. They lost, as Rikizo Yoneyama poignantly expressed in a defiant letter to the Minister of Justice, “more than just a home.” Japanese Canadians, he lamented, lost “the foundation of security and freedom as Canadian citizens.”

Melisa Marsman, Good Deeds

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Please read the following article available online: Melisa Marsman, Good Deeds? A Critical Race Analysis of the Nova Scotia Land Titles Clarification Act" (2024) 47:2 Dalhousie Law Journal 620.

Abstract #

The Nova Scotia Land Titles Clarification Act (“LTCA”) is remedial legislation that was enacted in 1964 to resolve insecure land titles within designated communities, particularly African Nova Scotian communities. However, African Nova Scotians had been advocating for legal title to their land for over 100 years prior to the enactment of the LTCA, and those demands were largely ignored by the government. Furthermore, despite the 60-year existence of this remedial legislation, many African Nova Scotians still hold insecure title to their land. Through a critical race analysis, this article explores why the LTCA has failed to achieve its promise to African Nova Scotians and attributes that failure to the converging interests which gave rise to the enactment of the LTCA but were insufficient to sustain transformative change. The author concludes that unless the motivations for racial equality change, the promise of prosperity for African Nova Scotians will not be achieved.