COURT OF APPEAL FOR ONTARIO

DATE: 20010427

DOCKET: C31755

RE: SUSAN ELIZABETH DALY (Applicant/Appellant) vs. DEBORAH LEIGH GILES (Respondent) and DEBORAH LEIGH GILES (Counter-Applicant/Respondent) vs. SUSAN ELIZABETH DALY and BRIAN DALY (Respondents by Counter-Application/Appellants)

BEFORE: ABELLA, LASKIN AND BORINS JJ.A.

COUNSEL: Thomas J. Corbett for the appellants James C. Orr for the respondent

HEARD: April 11, 2001

On appeal from judgment of Justice J. Arthur Mullen dated February 18, 1999.

E N D O R S E M E N T

Released Orally: April 11, 2001

[1] The application judge appears to have misconceived the remedy sought by the appellant Susan Daly. He correctly found that the respondent holds title to the cottage in trust for herself and the appellant in accordance with the Trust Deed of May 12, 1992 and that the respondent had breached the terms of the trust. However, the breach did not result in the failure of the trust, nor did it result in the appellant sustaining damages.

[2] In light of the nature of the breach, in our view the application judge should not have wound up the trust, nor ordered the sale of the cottage.

[3] There being no failure of the trust, the application judge could not have ordered a resulting trust in favour of the settlor’s estate, as requested by the appellant.

[4] In the result, the appeal is dismissed subject to varying the judgment by striking out paragraphs 3 and 4.

[5] Leave to appeal costs is granted. However, the appeal from costs is dismissed as we see no reason to interfere with the exercise of his discretion by the application judge.

[6] The respondent will have her costs of the appeal. The cross-appeal is dismissed as abandoned.

“R. S. Abella J.A.”

“J. I. Laskin J.A.”

“S. Borins J.A.”