ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 150/18
DATE: 20200206
BETWEEN:
Tillsonburg Scout Association and Camp Jackson
James R. Morgan, for the Applicant/Respondent by Counter-Application
Applicant/Respondent by Counter-Application
- and -
Scouts Canada and Provincial Council for Ontario; Boy Scouts of Canada
Anne Tardif and Mark Josselyn, for the Respondents/Applicant by Counter-Application
Respondents/Applicants by Counter- Application
HEARD: September 19, 2019
TRANQUILLI J.
[1] This application and counter-application seeks the determination of ownership rights of a 95-acre parcel of land located in the District of Muskoka, known to the parties as “Camp Jackson”.
[2] The applicant Tillsonburg Scouts Association seeks a declaration that the Respondent Scouts hold Camp Jackson in trust for the Association. The Association claims it is the beneficial owner and is entitled to an order terminating the trust and vesting title to Camp Jackson in the name of the Applicant. At the hearing, the applicant acknowledged some difficulty with this position and alternatively argued that there should be a declaration vesting title to Camp Jackson in the TSA as the original settlor of the trust.
[3] The respondent Scouts Canada deny that Tillsonburg Scouts Association holds a proprietary interest in Camp Jackson. The respondents seek a declaration that it holds absolute legal title to the property. Alternatively, Scouts Canada seeks a declaration that it holds title to Camp Jackson as trustee pursuant to the terms of a charitable purpose trust.
The Parties
[4] The applicant Tillsonburg Scout Association is an unincorporated Association that traces its inception to in or about 1952. At the material times, the Association was historically and interchangeably known as the Tillsonburg Boy Scout Camp Committee as well as the Tillsonburg Camp Committee (collectively referred to as “TSA”). There is documentation of the historical chairs of the TSA; however, no evidence establishing the existence of a constitution or its membership since inception. Tillsonburg Scout Association (“TSA Inc.”) is a non-share capital corporation registered in Ontario on February 20, 2015.
[5] Scouts Canada (“Scouts”) was incorporated by an Act of Parliament in 1914 for the purpose of “instructing … boys in the principles of discipline, loyalty and good citizenship.” Scouts is a registered charity. Its charitable purpose expressly includes terms “to contribute to the education of young people through a value system based on the Scout Promise and Law … Practices and methods include learning by doing … and the use of outdoor activities as a key learning resource.”
[6] In general, title to all property within the Scouts organization in Ontario is held by a related corporation, the Respondent Provincial Council, Boy Scouts of Canada, incorporated in 1963. This related corporation is now known as the Ontario Incorporated Body (“the OIB”). The OIB holds title to all Scouts property in Ontario (with the exception of the Scouts’ national office) and operates a reserve fund to maintain and operate these properties in accordance with its policies.
[7] Scouts carries out its programming at the local level through a series of councils. Scouting in the Tillsonburg area falls under the authority of the Tri-Shores Council. Camps operating under a Scouts council, such as Camp Jackson, are operated by a camp committee, which is responsible for the management, operations and funding of the camp. The camp committee historically responsible for Camp Jackson is the Applicant TSA.
The Record
[8] The application and counter-application proceeded on a record of affidavits and historical documents as will be described in greater detail where relevant in these reasons. Several of the deponents were cross-examined by the parties on their affidavits in advance of the hearing.
[9] The issues in dispute touch upon a number of historical transactions and communications that occurred beginning approximately sixty years ago and which evolved over the next 23 years. Most of the individuals with direct knowledge of the matters in issue are no longer available to give evidence. The parties advised the court at the hearing that the the record was as complete as possible in the circumstances such that the issues could be determined from the documentary record supplemented by written submissions and oral argument. I am satisfied the issues can be appropriately determined on the basis of the record before the court.
The Facts
[10] The record at the hearing included voluminous documentation about the histories of the parties and affidavits by various individuals with some direct, but mostly indirect information about the material issues in dispute. The following evidence was either admitted or undisputed by the parties, subject to material dispute as to the interpretation or inferences to be made. The following facts are relevant to the disposition of this application and counter-application:
(a) In 1952, Tillsonburg community members formed the Tillsonburg Camp Committee, which became part of the TSA, for the purpose of raising funds to purchase property to be used as a camp for the boy scout troops in Tillsonburg.
(b) The TSA learned that Gordon Burgess Jackson held title to Lot Number One in Concession E, containing 95 acres of land in the then Township of Medora in the District of Muskoka, with direct access to Moon River (“Camp Jackson”). Mr. Jackson was not interested in selling this property until he learned the intention was to use the property for the boy scouts in Tillsonburg.
(c) The Tillsonburg Camp Committee worked with service organizations and other members of the Tillsonburg community to raise the necessary funds to purchase Camp Jackson from Mr. Jackson and then the property improvements.
(d) As the TSA was an unincorporated entity, it was arranged that three individuals would hold title to Camp Jackson as trustees for the TSA.
1960 Transfer
(e) The deed of conveyance dated November 16, 1960, which transferred the lands to become known as Camp Jackson to the three trustees included the following terms [emphasis and spelling as in the original]:
I, Gordon Burgess Jackson, of the Village of Port Credit in the County of Peel, Queen’s Counsel, (formerly of the Village of Cooksville in the County of Peel),
in consideration of the sum of One Thousand ($1,000) dollars, paid to him
TRANSFER to LEONARD LEFEBVRE, of the Town of Tillsonburg, in the County of Oxford, Salesman, WILLIAM PARROTT of the said Town of Tillsonburg, Jeweller, and ELMER QUINTYN, of the said Town of Tillsonburg, Medical Doctors, Trustees for the TILLSONBURG SCOUT ASSOCIATION
PROVIDED that the lands herein shall be used by the Transferees only for the purposes of promoting youth welfare and that the said lands or any part thereof shall not be sold, mortgaged, leased or alienates by the Transferees except on the written approval of the Transferor which approval shall be given and the necessary conveyances executed by the said Transferor upon payment to him of one-half of the net proceeds of such disposition.
The above condition shall be in force for the term of twenty-five (25) years from the date hereof …
(f) After the 1960 transfer the TSA added buildings and converted the lands to Camp Jackson. The intended use was to provide a place that the Tillsonburg Boy Scouts could use as a camp for day use and overnight camping. Camp Jackson was also available for use of other youth organizations in the Tillsonburg as well as other boy scout troops.
1971 Transfer
(g) On September 27, 1971 the three individual trustees transferred Camp Jackson to the Kinsmen Club of Tillsonburg (“Kinsmen”) as “Trustee for the Tillsonburg Boy Scout Camp Committee, otherwise known as the Tillsonburg Scout Association”. The original transferee, Mr. Jackson, consented to the conveyance. The 1971 transfer was also subject to the same condition as in the 1960 transfer: that the land be used “only for the purpose of promoting youth welfare” and that any disposition of the property required the written approval of the original transferee, Mr. Jackson.
1979 Declaration of Trust
(h) On December 13, 1979, the Kinsmen signed a “Declaration of Trust” concerning Camp Jackson. Among other things, the declaration provided the Kinsmen “shall have full power to sell, mortgage, or otherwise deal with the said lands in the event that the said Tillsonburg Scout Association shall, by proper authorization of its members, so direct and in so doing the said Trustee shall be wholly relieved of liability and responsibility for so doing.”
(i) The TSA continued to fund and manage the Camp Jackson operations and the Kinsmen paid for the property taxes. After several years of this arrangement, the Kinsmen decided it could no longer carry on responsibility for property taxes. The TSA sought a new arrangement that would provide for a tax exemption and allow for the continued use of the property by the Tillsonburg scouts and under TSA control.
1983 Transfer
(j) The TSA and Scouts entered negotiations concerning Camp Jackson. The parties discussed involving Scouts in the camp ownership years earlier; however, could not agree on terms.
(k) This time, the parties agreed to a transfer. The parties disagree on the nature and import of the terms of the agreement eventually reached; however, there is no dispute the TSA sought the transfer as Scouts enjoy tax exemption status and TSA and were satisfied the Scouts real estate policy stipulated any eventual disposal of real estate would be on the recommendation of the local Scouting council and include a plan for the proceeds of sale, provided the proceeds would be used for “Scouting purposes in the relevant area.”
(l) By deed of conveyance dated October 11, 1983, in consideration of two dollars, the Kinsmen, as “Trustee for the Tillsonburg Boy Scout Camp Committee, otherwise known as the Tillsonburg Scout Association” transferred Camp Jackson to the Scouts, with the written consent of the original transferee, Mr. Jackson.
(m) The deed transferred Camp Jackson to “PROVINCIAL COUNCIL FOR ONTARIO; BOY SCOUTS OF CANADA, an Ontario Corporation incorporated under the laws of the Province of Ontario”. The transfer was subject to the same condition as in the 1960 and 1971 transfers, being that the property would be used “only for the purposes of promoting youth welfare” and that any disposition would require the written consent of Mr. Jackson. This condition was to remain in force for the term of 25 years from the date of the 1960 transfer.
Land Titles Act Affidavits
(n) The Scouts’ honourary counsel swore two affidavits pursuant to the Land Titles Act regarding the 1983 transfer.
(o) The affidavit sworn September 1, 1983 included the following statements:
(i) Kinsmen held Camp Jackson as trustee for the TSA and that the TSA was the beneficial owner;
(ii) Scouts policy required that all Scout real estate in Ontario is to be held by the “Provincial Council for Ontario; Boy Scouts of Canada”; and
(iii) The transfer of Camp Jackson from Kinsmen to the Provincial Council for Ontario; Boy Scouts of Canada is a “transfer from one bare trustee to another bare trustee for the same beneficial owners…”
(p) The affidavit sworn January 11, 1984 included the following statements:
(i) Camp Jackson was held in trust over the years by various trustees on behalf of the local boy scouts;
(ii) Camp Jackson was now held by the Provincial Council for Ontario; Boy Scouts of Canada, which holds title to numerous scout camps throughout the province as trustees for the various local scout organizations;
(iii) The TSA is the “beneficial owner” of Camp Jackson “and always has been since December 21, 1960 when the lands were originally acquired”;
(iv) That Kinsmen and Scouts “were and will be bare trustees and had and will have no active duties to perform”; and
(iv) There are no documents setting out the terms of the trust between Scouts and TSA because of Scouts policy that such trust agreements are not entered into.
(q) TSA remained responsible for the Camp Jackson costs and operations following the transfer of the property to Scouts. In recent years, the relationship between TSA and Scouts has become strained, with a disagreement about ownership of the property. TSA has not participated in the local Scouts council.
(r) On April 29, 2013 Scouts requested the TSA to report on Camp Jackson’s compliance with Scout property standards. TSA refused to report to Scouts regarding Camp Jackson. TSA closed the camp beginning in or about 2016. Work is required to bring the property up to municipal and provincial standards. TSA issued this application seeking a declaration of its proprietary interests in Camp Jackson.
Positions of the Parties
Applicant’s Position
[11] At the hearing, TSA acknowledged it could not be a beneficiary of a trust as it was an unincorporated association at the time of the transfers in issue. My analysis therefore focuses on the applicant’s alternative position advanced in argument at the hearing.
[12] TSA contended the issue of its unincorporated status is overcome as it was, in fact, the settlor of the trust in 1960. The TSA purchased the property with entirely with money it raised from the Tillsonburg community. The TSA placed title in the names of the individual trustees due to its unincorporated status. The TSA was thereafter entirely responsible for the improvement and maintenance of the property. The TSA’s dedication to the acquisition and maintenance of the camp is evidence supporting its ownership.
[13] The conditions set out in the deed were merely Mr. Jackson’s restriction to prevent the TSA from selling or “flipping” the property for profit. The 1971 transfer to Kinsmen carried on this trust. TSA points to the 1979 trust declaration, wherein Kinsmen affirmed it was trustee for the TSA.
[14] TSA argues the 1983 transfer to Scouts confirmed a “bare trust”, where the Scouts has no active duties as trustee, has no power to sell the property and the TSA can call for the property on demand. TSA relies on the affidavits sworn by the respondent counsel before and after the 1983 transfer which affirmed that Scouts was a bare trustee and that TSA was the beneficial owner.
[15] If the trust fails due to TSA’s unincorporated status and due to the rule against perpetuities, the applicant argues that the property devolves to the TSA as the settlor. TSA Inc. is now incorporated and can take title as successor to TSA.
Respondent’s Position
[16] Scouts submits that TSA never had the requisite capacity to hold an interest in Camp Jackson and that the historical uncertainty of the applicant’s status and composition otherwise prevents TSA Inc. from holding title now as a successor.
[17] Scouts submits that the TSA’s position that it was settlor of the 1960 trust is inconsistent with the terms of the deed and there is no evidence that such a trust was constituted at the time of the 1960 transfer.
[18] Scouts contends the 1960 transfer from Mr. Jackson gave rise to a charitable purpose trust in favour of scouting. It argues this is the plain meaning of the terms of the deed, where Mr. Jackson, as settlor, required that the property be used only for the purposes of promoting youth welfare and the evidence is that he was aware it would be used for scouting, including the reference to the TSA.
[19] The transfer to Kinsmen in 1971 carried on the charitable purpose trust. Scouts submits it took full title to Camp Jackson on the 1983 transfer, with the consent of the original transferee, Mr. Jackson. It was clearly against Scouts policy to hold property on trust. It was also unnecessary to establish a trust, as Scouts and the OIB are registered charities with a legally enforceable duty to hold their assets beneficially to be used only and strictly in accordance with their charitable objects.
[20] In the alternative, Scouts submits it holds title to Camp Jackson as a charitable purpose trust, carrying on the trust that was originally established in the 1960 transfer and continued in the 1971 transfer, wherein the TSA continues to have no claim.
Issues
[21] The issues are:
Could the TSA hold a proprietary interest in Camp Jackson?
Did the 1960 transfer establish a trust and if so, what type of trust?
Does Scouts hold absolute legal title to Camp Jackson pursuant to the 1983 transfer?
In the alternative, does Scouts hold title to Camp Jackson as trustee pursuant to the terms of a charitable purpose trust for the purpose of promoting youth welfare?
Legal Principles
[22] As set out in Re Elliott Estate, 2008 63993 at para 24 (ONSC), a valid trust must meet the following requirements:
- The three certainties must be met:
(i) Certainty of intention to create a trust;
(ii) Certainty of subject matter; and
(iii) Certainty of objects (i.e. beneficiaries)
The settlor, the trustee and the beneficiary must have capacity;
The trust must be constituted, that is, the trust property must be transferred to the trustee; and
Any necessary formal requirements must be met, such as compliance with the Statute of Frauds, in the case of the transfer land.
Capacity to hold Property
[23] The fundamental issue in this analysis is the applicant’s ability to hold a proprietary interest in Camp Jackson. TSA held unincorporated status at the time of the 1960, 1971 and 1983 transfers. TSA Inc. was constituted in 2015.
[24] TSA appropriately conceded it could not be beneficiary of any private trust ostensibly established in its favour in the 1960 transfer as it did not have the requisite capacity.[^1] As noted by Justice Gillese of the Ontario Court of Appeal, unincorporated associations are incapable of being beneficiaries to a trust as they have no separate legal personality: Gillese, Eileen E. The Law of Trusts, 3^rd^ ed. Toronto: Irwin Law, 2014 at p 40.
[25] In my view, the applicant’s argument that it was settlor of the trust is insufficient to overcome the problems related to its unincorporated status at the time of the transfers in issue, for the same reasons that it cannot be beneficiary. As outlined in Re Elliott Estate, supra, the second requirement for a valid trust is that each of the settlor, trustee and beneficiary must have capacity in such a transfer. As unincorporated associations have no separate legal personality, they are incapable of holding title to property and are incapable of acting as trustees: Gillese, supra at p 40. In Waters Law of Trusts in Canada, the authors explain that in order to settle property on trust, the settlor must either own property or have an interest in property: Waters, Donovan et al., Waters Law of Trusts in Canada, 4^th^ ed. Toronto: Thomson Reuters Canada Ltd, 2012 at p 115. If the TSA could not hold title or another interest in the property, it follows it could not settle the property on a trust. Therefore, I conclude TSA did not have the requisite capacity to be either the settlor or beneficiary of a trust in respect of Camp Jackson.
[26] The evidence is also otherwise inconsistent with TSA having been the settlor of the trust. There is no written document evidencing the TSA’s transfer of the property to the trustees, as would be required by the Statute of Frauds; the deed sets out a transfer from Mr. Jackson as grantor to the three individual trustees. A plain reading of the deed leads to the inescapable conclusion that it was Mr. Gordon Jackson who transferred title of the property to the three individuals as trustees; not the TSA.
[27] At the hearing, the applicant argued that as the 1960 trust failed due to its incapacity as beneficiary and the rule against perpetuities, the result would see the property devolve to the TSA as settlor. The applicant argued that now it is incorporated, it has the capacity to hold title to the property as a successor in interest to the TSA. The applicant cited no legal authority to support this proposition as to a successor right of interest. In my view, this argument also fails to advance the applicant’s position. The notion of being a successor in interest presupposes that there is an interest to assume from the original owner. The TSA was incapable of holding such an interest at first instance, so even assuming TSA Inc. is the successor to the TSA, there is no interest to which it can succeed either as settlor or beneficiary. I also accept the Scouts’ position that TSA Inc. has not established that it is, in fact, the successor in interest to the TSA. The record lacks the evidence to establish that TSA Inc. is merely a change to the TSA in form, and not in substance: G.M.A.C. of Can. Ltd. V. Bowick, 1988 2903 at para 17 (BCCA). There is also no authority for the proposition that a successor can become the beneficiary of a trust in these circumstances: Provincial Plasterers’ Benefit Trust Fund (Board of Trustees) v. Provincial Plasterers’ Benefit Trust Fund, 1990 6897 (ONSC) at 13.
1. Did the 1960 Transfer Establish a Trust; if so, what type?
[28] Although I conclude the TSA was neither a beneficiary or settlor of a private trust, did the 1960 transfer nevertheless establish a valid trust? In the 1960 deed of conveyance, Mr. Jackson transferred the lands that became “Camp Jackson” to three individuals as “trustees” for the TSA, subject to the condition regarding its use for youth welfare and any disposition requiring Mr. Jackson’s consent.
Certainty of Intention
[29] Determining certainty of intention is a matter of interpretation. There is certainty of intention where a person who owns the property (the settlor) transfers it to another (the trustee) with the intention that the trustee hold and manage the property for the exclusive benefit of others (objects or beneficiaries): Angus v. Port Hope (Municipality), 2017 ONCA 566 at para 98.
[30] Whether the settlor intended to settle a trust is fact specific. Explicit trust language is not required, provided the settlor’s words convey the requisite intention: Belokon v. Krygyz Republic, 2016 ONCA 981 at para 49. The alleged settlor must employ language that clearly shows his intention that the recipient should hold on trust: Byers v. Foley, 1993 5506 (ON SC), 16 O.R. (3d) 641 (Gen. Div.) at 645.
[31] I find that the transferor, Mr. Jackson, intended to create a trust with the transfer to the three individual trustees. The language expressly intends that the three transferees held title to Camp Jackson on trust.
Certainty of Subject Matter
[32] Certainty of subject matter simply requires that the subject matter of the trust be ascertained or ascertainable: Angus, supra at para 112. There is certainty of subject matter in the transfer as the trust clearly describes and relates to the lands known as Camp Jackson.
Certainty of Objects
[33] The question arises with certainty of objects. Certainty of objects is used to describe two concepts: 1. that a trust must be in favour of persons or a charitable purpose; and 2. that the class of beneficiaries must be described in sufficiently certain terms that the trust can be performed: Gillese, supra at p 40.
Charitable Purpose Trust
[34] Although I conclude that a private trust in favour of TSA as beneficiary would fail, it is still open to the court to consider whether the 1960 transfer established a charitable purpose as its object. At common law a “purpose” trust is not recognized due to uncertainty of object. A charitable purpose trust is the exception. Charitable purpose trusts also have the advantage of avoiding application of the rule against perpetuities: Christian Brothers of Ireland in Canada (Re), 2000 (ONCA) at paras 28- 29.
[35] Scouts submit Mr. Jackson established a charitable purpose trust with charitable object of the trust being the promotion of youth welfare through scouting. A charitable purpose trust must have a valid charitable purpose. The Supreme Court of Canada recognized that one valid charitable purpose is the “advancement of education”: Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., 1999 704 (SCC), [1999] 1 SCR 10 at para 147. Information or training provided in a structured manner to advance the knowledge or abilities of the recipients may be properly viewed as falling within the charitable category of “advancement of education”: Vancouver, supra at para 171. The Newfoundland and Labrador Court of Appeal held that a trust for the benefit of Scouting constituted a valid charitable purpose trust as it was made for the advancement of education: Boy Scouts of Canada, Provincial Council of Newfoundland v. Doyle, 1997 14620 (NLCA) at para 183.
[36] All valid charitable purpose trusts, except for those with the relief of poverty as its object, must also be shown to be of benefit to society, sufficiently public in nature, exclusively charitable and without political purpose: Gillese, supra at pp 67-68. I accept the Scouts position that the 1960 transfer met these criteria, as Camp Jackson must be used “only for the promotion of youth welfare”.
[37] The settlor Mr. Jackson clearly expressed that the lands could be used only for the purposes of promoting youth welfare. The evidence is that he intended the lands be used for scouting, which is further supported with reference to the TSA in the conveyance of the property. These purposes fall within the broadly defined terms for the advancement of education and satisfy the requirement for certainty of object.
[38] I conclude there is a valid charitable purpose that meets the certainty of object requirement such that the 1960 transfer established a valid charitable purpose trust. This charitable purpose trust continued with the 1971 transfer to Kinsmen.
[39] I find the 1979 declaration of trust by the Kinsmen is a nullity and does not negate the existence of a charitable purpose trust. The declaration improperly delegated the trustee’s duties and judgement as trustees to the TSA, thereby restricting the broad powers granted by Mr. Jackson. The declaration as to the power to dispose of the property at the direction of the TSA is also inconsistent with the restrictions imposed by Mr. Jackson. Finally, the declaration is fundamentally inconsistent with a trustee’s role and obligations. Trustees may not appropriate to themselves the right to vary the terms of the trust settled upon them or assume powers that have not been conferred upon them: Doyle, supra at paras 140-141. They must exercise independent judgment and cannot delegate their duties: Gillese: supra at pp 159-160.
2. What is the effect of the 1983 Transfer to Scouts?
[40] The 1983 deed clearly omits any reference to Scouts taking title to Camp Jackson as trustee. This is in marked contrast to the 1960 and 1971 transfers, where the transferees were clearly and expressly described as trustees. The transfer otherwise faithfully replicates the condition for the use of lands only for the promotion of youth welfare. Any future disposition would also continue to require Mr. Jackson’s consent, albeit only for the period of 25 years from the date of the 1960 transfer (i.e. November 16, 1985). I am accordingly left to conclude the omission in describing Scouts as trustee was deliberate. Although express trust language is not required to establish certainty of intention, there is no evidence of any language within this deed that establishes the Scouts as taking title on trust.
[41] TSA argues that Scouts can only take the title that the transferor held, i.e. the Kinsmen, as trustee. However, I note the original transferee, Mr. Jackson consented to the transfer to Scouts, consistent with his restriction that he provides consent in the event of a disposition of the property. I therefore find that Scouts took full legal title to Camp Jackson on the 1983 transfer. A trust is unnecessary given the Scouts’ charitable purposes and obligations under legislation.
[42] TSA argues the Land Transfer Act affidavits executed before and after the 1983 transfer by Scouts counsel demonstrates Scouts’s admission it holds title only as “bare trustee”. Scouts also has no responsibility for the camp and the transfer was done for tax exemption purposes only. There are three problems with this argument: first, there is no recognition of a trust whatsoever within the 1983 deed; second, in my view, the previous trust arrangements do not reflect a bare trust; and third, the affidavits are not relevant to the interpretation of the deed.
[43] A bare trust exists when the trust document provides that the beneficiaries are able to call for the property on demand and no active duties were ever imposed upon the trustee: 1168760 Ontario Inc. c/o R&R Realty, Peter Clark & J.G. Rivard Limited v. 67006037 Canada Inc. & Denis Bertrand, 2017 ONSC 5149 at paras 32-33. Although the affidavits use the term “bare trust”, I find no evidence within the 1983 transfer itself to support that characterization. Although Scouts has not held active duties in respect of Camp Jackson, there is no evidence that the TSA is able to call for the property on demand. In fact, its unincorporated status makes this an impossibility.
[44] The Scouts’ affidavits sworn for the purpose of the Land Transfer Tax Act do not constitute an admission and are irrelevant to the interpretation of the 1983 transfer. A contract must be read as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. However, the surrounding circumstances must never be allowed to overwhelm the words of that agreement. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract: Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53 at paras 47, 50, 57.
[45] Neither affidavit was executed at the time of the actual transfer and therefore, are not evidence of the surrounding circumstances known to the parties at the time of the formation of the 1983 transfer. The affidavits reflect only one individual’s information, with no identification of the source(s) of that information and are, in any event, inconsistent with the clear terms of the agreement. It also overlooks the fundamental problem in that the TSA does not have the capacity to be a beneficiary of a trust.
[46] These findings therefore lead to the conclusion that Scouts, through its Provincial Council for Ontario, now the OIB, took full title to Camp Jackson with the 1983 transfer.
[47] If I am in error in my conclusion that the respondent holds legal title to Camp Jackson, in the alternative, I find the 1983 transfer carried on the charitable purpose trust first established with the 1960 transfer. This would have been in the same form as the 1971 transfer, where the Kinsmen was appointed as trustee in substitution for the three individual trustees appointed on the original 1960 transfer.
[48] My findings in no way diminish the important role TSA has served through its members’ assistance in securing and maintaining Camp Jackson for the benefit of local youth and one appreciates its attachment to the property. However, those efforts cannot in themselves demonstrate a propriety interest in these circumstances. In fact, the philanthropic and civic-minded nature of the association’s efforts tend to confirm the charitable nature of this endeavour.
Disposition
[49] For the foregoing reasons:
The applicant’s application is dismissed;
The counter-application is allowed in part, with a declaration that the Provincial Council for Ontario; Boy Scouts of Canada holds legal title to the lands known as Camp Jackson absolutely, and a declaration that the Tillsonburg Scouts Association and Tillsonburg Scouts Association Inc. has no beneficial interet in the lands known as Camp Jackson.
Costs
[50] If the parties are unable to agree on costs of the application and counter-application, I will permit written submissions limited to a maximum of three pages, excluding a costs outline/bill of costs, delivered within 30 days of the date of release of this decision.
If no written submissions have been received on or by that date, costs shall be deemed to have been settled.
“Justice K.Tranquilli’’
Justice K. Tranquilli
Released: February 6, 2020
COURT FILE NO.: 150/18
DATE: 20200206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tillsonburg Scout Association and Camp Jackson
Applicant/Respondent by Counter-Application
- and -
Scouts Canada and Provincial Council for Ontario; Boy Scouts of Canada
Respondents/Applicants by Counter-Application
REASONS FOR JUDGMENT
TRANQUILLI J.
Released: February 6, 2020
[^1]: [1]There are two further difficulties with the TSA’s initial position that the 1960 transfer established a private trust. First, such a trust would violate the rule against perpetuities, since the terms expressly contemplate that the property would be held in trust forever. Second, I find the TSA could not call for the trust to be terminated. Saunders v. Vautier only applies where the beneficiary has an indefeasible interest. The condition that the land be used only for the promotion of youth welfare means that TSA’s interest in the property would be defeasible if the property ceases to be used for that purpose.