Christopher J. Cosgriffe

The appellant appealed the dismissal of his claims regarding the distribution of proceeds from two estate-freeze trusts.

The appellant was a potential beneficiary, but the trustees exercised their broad discretion to deny him any benefit.

The appellant argued there was a triable issue of breach of trust and fraud on a power.

The Court of Appeal dismissed the appeal, finding no triable issue of breach of trust given the trustees' broad discretion.

The Court further held that even if the distribution were set aside for fraud on a power, the trustee would retain discretion and had made it clear he would not exercise it in favour of the appellant.

Following an earlier appeal allowing the appellants' challenge to a trial judgment in a constructive dismissal and shareholder buyout dispute, the court resolved two outstanding issues arising on settlement of the order.

The court held that the “Effective Date” under the shareholders’ agreement was the date the appeal reasons were released, because that was when judgment on the counterclaim was finally and effectively determined.

The court further held that no prejudgment interest was payable before that date, but postjudgment interest was payable from and after that date at the statutory rate under the Courts of Justice Act.

The court also directed payment out of court to the bank of funds previously paid into court.