CITATION: Gonder v. Gonder Estate, 2010 ONCA 172
DATE: 20100308
DOCKET: C51009
COURT OF APPEAL FOR ONTARIO
Sharpe, Rouleau and Epstein JJ.A.
BETWEEN
Allan Edward Gonder
Plaintiff (Appellant)
and
Margaret Rose Evans and Graeme Leslie Evans, Estate Trustees for the Estate of the late Pearl Louise Gonder
Defendants (Respondents)
Marc Munro for the appellant, Allan Edward Gonder
Sean M. Sullivan for the respondents, Margaret Rose Evans and Graeme Leslie Evans
Heard: February 8, 2010
On appeal from the order of Justice James A. Ramsey of the Superior Court of Justice dated June 12, 2009, with reasons reported at [2009] 49 E.T.R. (3d) 152.
Rouleau and Epstein JJ.A.:
[1] This is an appeal from an order removing the respondents, Margaret and Graeme Evans, as trustees and executors of an estate without taking any steps to ensure the orderly administration of this estate. The key issue raised in this appeal is whether that is a proper order.
[2] For the reasons that follow, we would allow the appeal.
FACTS
[3] Pearl Gonder died on January 23, 2008, leaving an estate consisting of about $25,000 in cash or cash equivalent, and a modest house in Hamilton, Ontario.
[4] The named beneficiaries are the testatrix’s sister, Margaret Evans, her mother, Katherine Gonder, and her brother, the appellant, Allan Gonder. The testatrix left a life estate in the Hamilton property to her mother, who is still living but no longer able to stay in the house. The will further directed that the residue of the estate was to be divided equally among the testatrix’s mother, sister and brother.
[5] In February 2008, the appellant commenced an action against the estate, claiming that he is the beneficial owner of the Hamilton property. He claims that, in 1974, he transferred title to the property to Pearl Gonder in trust for himself and for his children.
[6] The testatrix named the respondents, Margaret and her husband Graeme, as estate trustees. In the event they were unwilling or unable to act, she appointed her niece, Tanya Evans.
[7] The respondents, who live in British Columbia, agreed to undertake the role of estate trustees. A “Certificate of Appointment of Estate Trustees with a Will” was issued to them on September 10, 2008.
[8] In March 2009, Tanya Evans formally renounced any right to a “Certificate of Appointment of Estate Trustee or Succeeding Estate Trustee with a Will.”
[9] A 2008 market appraisal of the property valued it at between $135,000 and $145,000. Canada Revenue Agency has registered a lien against it in the amount of approximately $32,000 for tax arrears owed by the deceased.
[10] The respondents have been unable to sell the property or to distribute the residue of the estate because of the appellant’s certificate of pending litigation registered on title. The respondents say that, as a result, they have been required to spend some $40,000 of their own money to defend the appellant’s lawsuit against the estate.
[11] Without prior court approval or beneficiary consent, the respondents registered a $100,000 mortgage against the property to secure the expenses they claim to have incurred in the administration of the estate. The appellant disputes the validity of this mortgage.
[12] The respondents brought a motion[^1] under s. 37 of the Trustee Act, R.S.O. 1990, c. T.23 for an order removing them as estate trustees of the deceased’s estate on the basis of their personal circumstances, location, other responsibilities and financial stress. Ms. Evans is in ill health and Mr. Evans has considerable obligations in caring for her and their household. In addition, they say they are in a conflict of interest situation as, due to the mortgage, they have become creditors of the estate.
[13] At the time of the removal motion, the respondents moved for directions seeking, among other forms of relief, an order that the house be sold and the proceeds of the sale be paid into court pending the resolution of the competing interests.
[14] Prior to the motion, the Public Guardian and Trustee of Ontario indicated, in response to an inquiry from respondents’ counsel, that it does not intend to become involved in the Gonder estate. While respondents’ counsel also asked an institutional trustee whether it would be willing to act, the respondents did not file an affidavit suggesting a replacement trustee or file a written consent.
REASONS OF THE MOTION JUDGE
[15] The motion judge found that continued service as estate trustees would work substantial hardship on the respondents, both physically and financially, and that through no fault of their own, they now have a conflict of interest with the heirs because they have become creditors of the estate.
[16] The motion judge held that there was nothing preventing him from ordering that the respondents be removed as executors of the estate. He concluded that s. 37 of the Trustee Act does not require a trustee to provide a replacement before applying to be removed. While s. 37(4) “gave [him] pause”, he concluded that the provision “is aimed at the situation in which one of several trustees is removed. Such a trustee need not be replaced, because the remaining trustees can act. That is not the same thing as saying that the last remaining trustee cannot be removed until a replacement is available” (emphasis added).
[17] The motion judge also relied on Mitchell v. Richey, [1867] 13 Gr. 445 (U.C. Ch.), for the proposition that no person can be compelled to remain a trustee.
[18] He observed that what is left to be administered is a vacant house that is subject to a tax lien and a certificate of pending litigation. He justified discharging both of the respondents on the basis that they are not in a position to do anything meaningful since the litigation by the appellant prevents them from selling the house and the tax lien prevents them from settling the litigation. In his view, little was lost by discharging them. The motion judge further noted that a litigation administrator could be appointed to deal with the litigation over the Hamilton property. He did not explain how it would be possible to find a litigation guardian to act, and not a replacement estate trustee.
[19] Having concluded that in these circumstances the respondents had made out a case for removal, the motion judge ordered that the respondents’ certificate of appointment as executors be revoked under r. 75.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and that they be removed as trustees pursuant to s. 37 of the Trustee Act.
ISSUES
[20] The appellants raise the following issues on appeal:
(i) Did the motion judge err in removing the respondents as estate trustees, thereby leaving the estate without a personal representative?
(ii) If so, what was the appropriate disposition?
(iii) If not, did the motion judge err in failing to require the estate trustees to pass their accounts?
(iv) Did the motion judge err in ordering the appellant to pay costs on the motion?
ANALYSIS
I. Governing principles
[21] The law of trusts is a creature of equity and the Courts of Chancery. In exercising its equitable jurisdiction, a court must ensure that fairness is done for all parties. Equity is “the soul and spirit of all law ... equity is synonymous with justice”: William Blackstone, 2 Commentaries on the Laws of England, 2d ed. (Chicago: Callaghan & Co., 1879), at p. 429.
[22] The role of trustee is a difficult one. A trustee must act in the best interests of the beneficiary, even at personal hardship. However, if such obligations were unlimited, and if no relief were available, “no one would undertake the task of trusteeship”: see Donovan W.M. Waters, Waters Law of Trusts in Canada 3d ed. (Toronto: Carswell, 2005), at p. 841.
[23] In the specific circumstances of this case there were three objectives that ought to have been considered and addressed by the motion judge: (1) ensuring the orderly administration of the estate in the interests of the beneficiaries; (2) recognizing the plight of the respondents; and (3) providing for the timely resolution of the disputes concerning the estate.
[24] Although the interests of the beneficiaries must be the primary concern of both trustees and the courts, as we see it, the courts can meet each of these concerns, and do justice to all of the parties without requiring that a replacement trustee be immediately appointed, so long as there are steps taken to ensure the proper administration of the estate. We reach this conclusion based on the following: First, the courts have historically exercised an inherent equitable jurisdiction to remove trustees, even if it would, for a period, leave no trustee to administer the estate, so long as provision was made for the estate’s orderly administration. Second, no statute has removed this power. Finally, there may be reasonable alternatives to the immediate appointment of a new trustee that can ensure the proper administration of the estate.
[25] The motion judge erred not because he removed the respondents as trustees without appointing a replacement. Rather, the error was to remove them without making alternate provisions for the proper administration of the estate. It is for this reason alone that the matter must return to the Superior Court to be reconsidered.
II. Equitable Powers
[26] The courts have long recognized an inherent power to remove a trustee when circumstances require. In Letterstedt v. Broers (1881), 9 A.C. 371 (P.C.), Lord Blackburn stated, at pp. 386-87:
[I]f it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee...it seems to their Lordships that the Court might think it proper to remove him.
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on the details often of great nicety.
[27] When a sole remaining trustee was removed, the courts normally required a replacement trustee to be appointed. However, this was not intended to impose an additional burden to a trustee seeking to retire: see Courtenay v. Courtenay (1846), 3 Jo. & Lat. 519, at p. 533. Where no replacement could be found by the retiring trustee, the court could take it upon itself to ensure a continued administration. In cases from that era, the court would attempt to locate new trustees itself: see Gardiner v. Downes (1856), 22 Beav. 395, 52 E.R. 1160.
[28] Alternatively, the court could take steps to obviate the need for a trustee. In Mitchell v. Richey, Mowat V.C. permitted a sole surviving trustee to retire without appointing a replacement. Rather, he ordered that a receiver previously appointed by the court be continued, and that the trust funds be paid into court to be administered for the good of the beneficiaries.
[29] The case of Barker v. Peile (1865), 2 Dr. & Sm. 340, 62 E.R. 651 illustrates the court’s power to deal with an estate in the best interests of the beneficiaries in circumstances similar to the instant appeal. The case was summarized in the English Reports, at p. 651, in the following terms:
It appeared that the Plaintiff was the surviving trustee of a voluntary settlement – that the trust fund had always been an ascertained fund, but that many questions had arised among the parties claiming the fund, and several suits had been instituted with reference to the settlement, to all of which the Plaintiff had been made a party. The Plaintiff, under these circumstances, being desirous of avoiding further annoyance with regard to the fund, instituted the suit for administration of the fund by the Court, asking to be discharged, and, if necessary, that new trustees of the settlement might be appointed.
[30] In that case the court ordered the discharge of the trustee in these circumstances, and took on the duty of administering the trust itself.
[31] The respondents argue in their factum that “[s]ince trusts must be continuously administered, there cannot be a suspension of trustee administration” and cite Gillese J.A.’s text on trusts as authority. It is worth setting out the passage that they refer to in its entirety:
Trusts must be continuously administered: there can be no hiatus in the administration of a trust. At all times there must be a trustee, or someone that the law designates as standing in his or her stead, with responsibility for the administration of a trust. [Emphasis added.]
See Eileen E. Gillese, The Law of Trusts (Concord: Irwin Law, 1997), at p. 123.
[32] Contrary to the appellant’s assertion, this passage confirms that there are situations where a trust, while still requiring administration, will lack a trustee to fulfill this role. While rare, this situation is not the impossibility that the appellant asserts.
[33] We recognize that there is good reason to ordinarily require a replacement trustee to be located. The fiduciary nature of the trustee role ensures that they “put the beneficiary’s interests first in the performance of any act and the exercise of any powers or duties”: see Gillese, at p. 130. History has proven that trustees are effective actors in ensuring that the estates of deceased persons are administered properly. When a trustee wishes to resign, it will ordinarily fall to that person to locate a replacement trustee. The modern reality is that the court is ill suited to locate replacements.
[34] However, as we will discuss below, a trustee is not the only entity that can ensure the proper administration of an estate. In the very rare cases where equity demands that a sole trustee be removed, but no replacement is forthcoming, courts possess an inherent jurisdiction to order the trustee’s removal and provide for the orderly administration of the estate.
[35] Before turning to these alternatives, we will consider the effect that modern legislation has on the inherent jurisdiction that we have described above.
III. Legislative provisions
[36] In our system of democracy, Parliament and the legislatures, acting within their constitutional limits, are sovereign. The Legislative Assembly of Ontario is entitled, if it so wishes, to override the common law (including principles of equity) and replace it with statute. Alternatively, they may pass legislation that complements common law rules and powers without overriding them. In the case of the Trustee Act, the legislature has not granted a positive power to remove a sole remaining trustee. As we will explain below, however, neither has the legislature removed the inherent power of the courts to do so in limited circumstances.
[37] The appellant effectively argues that the legislature has in fact overridden this inherent jurisdiction with the Trustee Act. He says that the judicial replacement of estate trustees is now governed entirely by s. 37 of that Act:
- (1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.
(3) The order may be made upon the application of any executor or administrator desiring to be relieved from the duties of the office, or of any executor or administrator complaining of the conduct of a co-executor or co-administrator, or of any person interested in the estate of the deceased.
(4) Where the executor or administrator removed is not a sole executor or administrator, the court need not, unless it sees fit, appoint any person to act in the place of the person removed, and if no such appointment is made the rights and estate of the executor or administrator removed passes to the remaining executor or administrator as if the person so removed had died.
[38] The appellants submit that s. 37(4) clearly establishes that where the court removes a sole executor, a replacement must be appointed. If this were not the case, then why set out in statute that, where an executor is removed and there is one or more remaining executors, no replacement is required?
[39] We would reject this argument.
[40] Professor Sullivan notes that there is a strong presumption, especially in cases of private law, against statutory provisions ousting traditional common law rules:
It is also presumed that legislatures do not intend to interfere with common law rights, to oust the jurisdiction of common law courts, or generally to change the policy of the common law. As explained in Halsbury, in a formulation adopted by many Canadian courts:
Except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law.
This assumption is likely to apply to any legislation dealing with so-called “private law – the law of contracts, torts and private property... Finally, certain matters are subject to the inherent jurisdiction of the courts. It is doubtful that legislatures could succeed in fully ousting this jurisdiction.
See Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008), at pp. 431-32.
[41] The Trustee Act is not a complete code. It does not provide for a comprehensive system for the administration of trusts. In 1984, the Ontario Law Reform Commission released a seminal report on reforming the law of trusts as part of a comprehensive review of the law of property: see Ontario Law Reform Commission, Report on the Law of Trusts (Toronto: O.L.R.C. Rep., 1984). In their report, the Commission considered, and rejected the notion of a codification of the law of trustees, preferring a statute that supplemented and clarified the judge-made law of trusts: see Report on the Law of Trusts, at pp. 12-15.
[42] More particularly, commentators widely accept that superior courts of equitable jurisdiction have an inherent power of appointment and removal that exists in parallel with provisions such as s. 37 of the Trustee Act: see Gillese, at p. 125; Waters, at p. 818; Report on the Law of Trusts, at pp. 86-87; Carmen S. Theriault ed., Widdifield on Executors and Trustees, 6th ed., looseleaf (Toronto: Carswell, 2002), at 15.2.2.
[43] As we read it, s. 37(4) does not constrain the power of the court to remove a sole remaining trustee and provide for an alternative mechanism for administering the trust in those rare cases where a replacement trustee is not available and the exercise of inherent jurisdiction is required.
[44] The purpose of s. 37(4) is to give the court discretion to decide not to replace a removed trustee when one or more trustees remain. In other words, there is no obligation to ensure that the “status quo” is maintained by appointing a replacement. In the spirit of simplifying the trusteeship regime, s. 37(4) also provides for how the powers and rights of the removed trustee devolve in the event that he or she is not replaced. The authority of the removed trustee vests in the remaining trustees.
[45] Such a clarification is understandable. Older decisions, such as Mitchell, express a judicial preference against moving from multiple estate trustees to a single trustee on the premise that a testator’s choice to appoint more than one trustee initially represents a desire to avoid their estate falling into the control of a single person: see Mitchell, at p. 449. This may be a relevant consideration in appropriate circumstances. Section 37(4) merely provides that such considerations need not predominate in all cases.
[46] In summary, it appears to me that no single provision of the Trustee Act, nor the Act as a whole, ousts the inherent equitable jurisdiction of the court to remove a trustee. This is true even if such a removal would leave the trust without a trustee, so long as the court ensures proper administration of the estate in the best interests of the beneficiaries.
IV. Administration of the Trust
[47] On the record before him, the motion judge found that the respondents have made a compelling case to be discharged as trustees.
[48] We would not interfere with the motion judge’s finding in this respect. Given the combination of their age, Margaret Evans’ state of health, their residence in British Columbia, and the difficulties and expenses involved in dealing with a claim being advanced by the appellant, responsibility for the administration of this estate appears to have become unduly burdensome. In our view, the motion judge’s finding on this issue is reasonable and ought to be given deference.
[49] While we agree with the motion judge that, in exceptional circumstances, the court has the jurisdiction to remove a sole trustee without appointing a replacement, this power may only be exercised where an alternative mode of administration can be put in place that secures the best interests of the beneficiaries and ensures that the estate’s assets are properly maintained. The motion judge, in removing the respondents without providing for proper administration, committed an error.
[50] Because of this error, this matter must be remitted to the Superior Court to reconsider the removal application. Any order made then must protect the interests of the beneficiaries and take into account and facilitate the timely resolution of the underlying litigation over title to the house.
[51] While not strictly necessary for the disposition of this appeal, we will suggest potential options for addressing these issues.
[52] It is apparent that the fundamental issue that divides these parties is the ownership of the house, the only asset of the estate. Is it property of the appellant or is it the property of the estate? The house is of modest value and both the cost of maintaining it and legal fees are rapidly accumulating to the point that, however the dispute as to ownership is resolved, there will be little if anything left for the winner.
[53] Compounding these problems is the fact that there is no one to tend to the upkeep of the house. Katherine Gonder, the property’s life tenant, is ill and no longer able to either occupy or use the home as contemplated by the will. The appellant lives in the Yukon, and while he claims an equitable interest in the home for himself and his children, he does not appear to have been paying for its carriage nor tending to its care. As discussed above, the respondents are in no position to prevent the asset from wasting.
[54] At the hearing of the appeal, the appellant’s counsel advised the court that the appellant’s son has, though a form of “self help” moved into the house and is conducting some repairs and clean up of the property. The respondents, given their location, health issues and financial means do not appear to have taken steps to assert the estate’s ownership of the property or prevent the son from acting in this manner. While the son’s conduct may involve some maintenance of the property, there is no evidence as to the efficacy of these efforts.
[55] In the result, the estate’s limited value is being consumed by both the costs of litigation, waste due to ineffective upkeep of the trust property, mounting expenses such as taxes and maintenance, and the failure to provide for rental income. Surely this is not in the interests of the beneficiaries.
[56] The motion judge had before him two motions: one for removal, and another for directions. In the latter motion, the respondents sought to have the court order the sale of the home. While the motion judge dismissed the motion for directions as moot, having already released the respondents from their trusteeship, for the reasons given above, this was not the correct approach. Without commenting on the merits of the motion for directions, the difficulties caused by the removal of the respondents as estate trustees might have been addressed by an order for a sale.
[57] A practical impediment to the sale of the home is the presence of a certificate of pending litigation registered on title. So long as it remains, no one would realistically purchase the property.
[58] On a new motion for removal, the respondents might renew the request to sell the property and seek an order discharging the certificate. This should be done on notice to all potentially interested parties and may require additions to the record. As an equitable instrument, a certificate may be discharged by the court “on any ... ground that is considered just”: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 103(6)(c). On such a motion, “the Judge must exercise his discretion in equity and look at all of the relative matters between the parties in determining whether or not the certificate should be vacated”: see Clock Investments v. Hardwood Estates Ltd. et. al. (1977), 1977 CanLII 1414 (ON SC), 16 O.R. (2d) 671 (Div. Ct.), at p. 674.
[59] Because no motion was brought under r. 42.02 of the Rules of Civil Procedure, for a discharge of the certificate, there is insufficient information before the court to speculate on whether the equities would ultimately favour a discharge.
[60] If a sale of the property proves to be an available option because of a discharge, there are at least two mechanisms by which a sale could be realized. First, the will itself provides Katherine Gonder the authority to “at any time direct [the] Estate Trustees to sell [the house] and the proceeds of such sale shall revert to and form part of the residue of [the] estate.” Katherine Gonder has not been part of the proceedings below. We are simply not aware of whether she has been approached to approve a sale or not.
[61] Second, the respondents could renew the motion for directions that the motion judge found moot, in which they sought a judicial order for the sale of the property. The respondents had sought such an order from Goudge J.A. on the appellant’s motion to extend time to appeal to this court. Goudge J.A., while commenting that a sale of the home seemed reasonable, felt that the appropriate procedure would be to bring a separate motion for directions. It appears that the respondents have brought such a motion before the Superior Court, returnable in mid-March.
[62] Once sold, the court could ensure the proper administration of the estate by ordering the funds to be into court pursuant to s. 36(1) of the Trustee Act[^2]:
- (1) Where any money belonging to a trust is in the hands or under the control of or is vested in a sole trustee or several trustees and it is the desire of the trustee, or of the majority of the trustees, to pay the money into court, the Superior Court of Justice may order the payment into court to be made by the sole trustee, or by the majority of the trustees, without the concurrence of the other or others if the concurrence cannot be obtained.
[63] If the funds from a sale of the home were paid into court, concerns related to physical maintenance and property taxes would be resolved, and the beneficiaries would be free to litigate or settle any claims they might have.
[64] A second potential option would be to address the problems that the life interest in the house are currently creating by resort to the court’s inherent “salvage and emergency jurisdiction”: see Waters, at pp. 1293-96. The court possesses an inherent jurisdiction to vary the terms of a trust in support of the settlor’s intentions when circumstances “might ‘reasonably be supposed to be one not foreseen or anticipated’ by the testator, or one where his trustees were ‘embarrassed by the emergency’”: see Tornroos v. Crocker, 1957 CanLII 44 (SCC), [1957] S.C.R. 151, at p. 158.
[65] On a proper factual record, various events might be shown to have been unforeseen by Pearl Gonder. Conversely, on further evidence, it may be apparent that none of the subsequent events would have been unexpected. Potentially relevant considerations might include litigation over the estate in which one of the beneficiaries contended that the sole asset of the estate was not truly part of the estate at all; Katherine Gonder’s illness; the presence of a certificate of pending litigation that impairs Katherine Gonder’s power of sale under the will; the conflict of interest that the trustees created by becoming creditors of the estate; and the serious risk of waste of the estate’s sole asset.
[66] Exercising this power, the court may be in a position to bypass Katherine Gonder’s life interest and allow the estate to vest with the three beneficiaries, with title to the home held jointly between them.
[67] This solution would avoid the need to address the certificate of pending litigation or the tax lien on the home, allow for any beneficiary interested in maintaining the property to do so legitimately, and to preserve ownership of the property such that, if the appellant’s claim were ultimately found meritorious, he could obtain title to the property rather than money damages.
CONCLUSION
[68] The removal of a sole trustee without appointment of a replacement is an extreme remedy, and will be inappropriate in most cases. It will only be available when no other option is realistically available. In our view, given the limited value of the estate, the conflict of interest that the respondents are now in as creditors of the estate, and the lack of viable replacement trustees, this is one such exceptional case.
[69] That said, the motion judge was wrong to remove the respondents as trustees without also crafting a mechanism by which the estate could continue to be administered.
[70] This is a case that cries out for a practical solution. It is in that spirit that the judge hearing this matter should approach the task.
[71] The suggestions for solutions that we have outlined above are merely that: suggestions. Nothing in these reasons should be read as preventing the motion judge from finding other equitable mechanisms for ensuring the proper administration of the estate and the protection of the interests of the beneficiaries.
[72] On further evidence, it may be clear that some of these options are illusory, while other as of yet not contemplated solutions may exist. What is necessary is that, together with any order removing the trustees, there must be an order that protects the best interests of the beneficiaries.
[73] We also note that the true core of the dispute in this case is between the appellant and the respondents in their capacity as beneficiaries, not as trustees. The dispute should proceed with this reality in mind.
[74] Taking all these circumstances into account, in our view, the appropriate order is that the appeal be allowed and remitted to the Superior Court to consider the application for removal in conjunction with a motion for directions assessing how to administer the estate. Any person having a claim to the property or the estate should be served with the motion for directions and this judgment. We would order that the issue of the costs of the motion under appeal be reserved to the judge hearing the motion. We would make no order as to the costs of the appeal.
[75] Given our finding on the first issue raised by the appellants, it is unnecessary to comment on the passing of accounts.
[76] Regrettably, this disposition resolves very little and essentially remits the matter to the Superior Court for resolution. Given the amounts at issue and the cost of further litigation, this appears to be a case that cries out for early resolution and some form of consensual out-of-court resolution. If the parties are prepared to consider that avenue and require the court’s assistance, we may be approached through the Registrar to make appropriate arrangements.
“Paul Rouleau J.A.”
“Gloria Epstein J.A.”
“I agree Robert J. Sharpe J.A.”
RELEASED: March 8, 2010
[^1]: While s. 37 of the Trustee Act refers to bringing an application, the respondents brought a motion.
[^2]: Section 36(7) of the Trustee Act may also have relevance. It reads as follows:
36. (7) Where a trustee desires to be relieved from the trust, the court may order all property held for the trust to be transferred to the Public Trustee.
It appears to allow for the transfer of property such as the house to the Public Guardian and Trustee. We do not express a view as to whether the section would allow the court to make such an order. In any event, it may well be that in the circumstances of this case where the property is the subject of a claim, this option is not to be preferred as it would result in an increase in costs and complexity.