By James Steele
I enjoy practising in the area of estate litigation, and follow case law developments closely. Interestingly, a recent Supreme Court decision from the construction context, nevertheless has important implications for estate lawyers. In Valard Construction Ltd. v Bird Construction Co. (2018 SCC 8), a majority of the Supreme Court found that a trustee can owe a duty to disclose the existence of a trust to its beneficiaries.
As a recap, a trust is a relationship whereby the trustee holds property for the beneficiaries of the trust. Bird was a general contractor on a construction project in the oilsands. Bird subcontracted with Langford and required Langford to obtain a labour and material payment bond naming Bird as trustee. If Langford was slow in paying a contractor, the bond would permit any contractor to sue. However, notice of any claim on the bond had be made within 120 days of work being provided by the contractor.
Langford became insolvent. Unfortunately, a certain provider of work (the “Beneficiary”) was not notified by Bird of the bond’s existence. The surety denied the Beneficiary’s claim and the Beneficiary then sued Bird for breach of fiduciary duty in not informing it of the existence of the bond.
A majority of the Supreme Court of Canada agreed. It held that wherever a beneficiary would be unreasonably disadvantaged not to be informed of a trust’s existence, the trustee was obliged to disclose the existence of the trust.
For the majority, Justice Brown explained that “whether a particular disadvantage is unreasonable must be considered in light of the nature…of the trust and the…environment in which it operates, and in light of the beneficiary’s entitlement.” Here, Bird as a trustee should reasonably have made some efforts to notify beneficiaries of the existence of the bond. Here, the trustee did nothing, having filed the bond offsite, declining to post it, and telling nobody about it.
As such, the Supreme Court found that the Beneficiary had been unreasonably disadvantaged by the trustee’s failure to inform it of the trust’s existence. The expiry of the notice period had effectively prevented the Beneficiary from enforcing the trust. As a result, the Beneficiary was entitled to be compensated for the sum that it could have obtained under the terms of the trust, had it been aware of its rights. The quantum of damages was ordered remitted to the trial judge for adjudication.
Justice Karakatsanis offered a dissent. She found that a trustee was merely under an obligation to maintain and deliver the trust property, but not to provide notice of the trust to potential claimants. It was sufficient that Bird simply responded to any enquiries which may have been made about a bond.
While Valard Construction did not arise in the typical estate context, estate lawyers should pay attention to its implications when advising both trustees and beneficiaries alike. Future issues remain to be considered, such as what interests are “significant” enough to entitle a beneficiary to knowledge of a trust. For instance, the Supreme Court said that “where the interest of the beneficiary is remote in the sense that vesting is most unlikely” the beneficiary would likely not have suffered unreasonable disadvantage, even if uninformed of the trust’s existence.
James Steele is an lawyer with Robertson Stromberg LLP in Saskatoon, Saskatchewan. He practises in the area of estate litigation. The above constitutes general overview of the subject only, and readers are advised to consult a lawyer for specific advice.
|Did you know that Legal Sourcery welcomes submissions from lawyers? Well, we do on the following topics:
Continuing Professional Development (CPD) hours may be available to Law Society members who contribute to the blog. Please see our submissions guidelines for more information.
By Sarah Sutherland
Manager, Content and Partnerships
Canadian Legal Information Institute (CanLII)
Since CanLII’s founding, we have been working to make sure the law you need is available. As part of our project to add the Dominion Law Reports cases that have been cited in CanLII case collection that we announced last year, we are including historical cases that are foundational to understanding the context of Canadian law, including Browne v Dunn (1893), 6 R 67 (HL), which we are informed was the most requested case at the Law Society of Upper Canada’s Great Library (Thank you to David Whelan for letting us know this was the case and sharing the scanned copy from the Great Library’s print collection!).
Case Mail volume 19, no. 5 (March 1) is now available on the Law Society website. Produced by the Law Society Library, Case Mail is a free semi-monthly electronic newsletter of digests of Saskatchewan cases with links to fulltext decisions on CanLII. Previous digests are also searchable in our Saskatchewan Cases Databases. All digests that appear in Case Mail and numerous case digests and summaries from other jurisdictions are also available on CanLII Connects.
We at the library consider it a certainty that in due time all case law (as well as statutes and out-of-copyright textbooks) will eventually be available for free online. When exactly that happens in a particular case depends on many factors – the size of the collection, availability of copies, ownership of content, levels of interest, etc.
In the case of the Fisheries Pollution Reports, produced in five volumes from 1980 to 1992 by Environment Canada, the rarity of the reports has spawned their digitization. Digitization accomplishes two main goals: preservation and accessibility. A single copy of any rare book can feed the entire world.
Thus, with only a couple of copies remaining in Canadian libraries to serve all requests, the University of Toronto Bora Baskin Law Library and York University’s Osgoode Hall have partnered to make this endangered fish abundant once again.
The reports are hosted on Archive.org, a site created by Grateful Dead fans to share concert recordings online. But Archive.org has now become the De facto Internet archive, the default place where dead things come to life.
The reports, at first glance, are not easy to read – they display sideways, and the print is faint. Probably the best way to read them is to scroll down to the “Download Options” and click on PDF. There are other options, but that’s the one I chose. The file displays upright, and is clearly readable. You can also print pages, or download a copy to your computer, then open it in Adobe Reader.
If you know of other digitization projects that we should be talking about, please let us know.
The year was 1982 , and …
Time Magazine‘s Man of the Year was the computer,
Commodore 64 was the most popular home computer,
Sony Walkman was the hot new gadget,
the first movie with extensive 3D CGI Tron was released by Disney,
and mobile phone… no, there was no mobile phone yet. The first consumer mobile phone didn’t come out until the following year and weighed almost 2 lbs. and measured about 12 inches tall and 3.5 inches thick.
And what cool tools did we have in Saskatchewan for legal research in 1982?
In the early ’80s there was generally a 6 to 12 month delay for Saskatchewan cases to be picked up by printed law reporters. QL Systems (Quicklaw) was the only online service available and was already popular in courthouses. Searching QL back then was over a phone line dialing into Canada’s packet switched network Datapac using a modem or an acoustic coupler with a data transfer rate of 1000 baud (approximately 10 million times slower than the download speed of a high speed Internet connection these days). Remember WarGames? Finding caselaw and getting cases to the lawyers in a timely manner was problematic and expensive. There was a need to provide a local digesting service and This Week’s Law, commonly known as TWL, was the resulting product.
The first issue of TWL was released in 1982. One copy was produced on a Radio Shack TRS-80 computer. Copies for distribution were made on a photocopier because all office printers back then were dot matrix. They were slow, noisy, and they printed on fanfold paper. TWL was offered as a looseleaf subscription service with approximately nine releases a year. Over the years the contents of TWL expanded and many features were added. In 1998, the contents of TWL were imported into a new database platform that made searching on the Internet possible. This became the Saskatchewan Cases database. Data structure, search screens and reports were carefully designed to maximize the searchability of the contents and to take full advantage of the hypertext linking ability of HTML. In order to enable fulltext searching of the judgments, a separate Fulltext database was created and linked to the Cases database. The databases were initially available only for Law Society members for a subscription fee. At the end of 1999 the benchers decided to make the databases available to the members for free. A subsequent decision opened up the databases to the public. Since the databases were made available on the Internet and members have become more comfortable with computers and online searching , the demand for the printed TWL began to dwindle. In 2002, after completing the 20th Anniversary volume, the Library decided to discontinue TWL.
Saskatchewan was the first law society in Canada to initiate an Internet-based search service for judgments. Today, Saskatchewan Cases database is one of the most popular databases produced by the Law Society of Saskatchewan Library. It is being used over 3,500 times a month. From the database we produce Case Mail, a twice monthly electronic newsletter of case digests. We also provide our case digests to CanLII Connects. All these were started from a need to provide current case law for our members, a vision, and a few people quietly doing what needed to be done behind the scene to provide a great service.
UPDATE: A recent inventory indicates that the Law Society of Saskatchewan Library has contributed 18,639 case digests to CanLII Connects, making us one of the biggest contributors to the service.
The recent Supreme Court decision R v Jordan includes a summary of the new framework for calculating unreasonable criminal trial delay. For a summary of the decision, please see CanLII Connects for a commentary prepared by Drew Yewchuk (originally published on ABlawg.ca).
While there, check out the other numerous commentaries on CanLII Connects – including the entire Law Society of Saskatchewan case digest collection.
The February 15 issue of Case Mail (Volume 18, No. 4) is available on the Law Society website. It contains case digests from recent decisions from all levels of Saskatchewan court and links to the fulltext decisions on CanLII. Some of the highlights from this issue include a number of Family Law decisions (Loco Parentis, interim variations, support of adult children, to name a few), and also a wide variety of other topics, such as recent bankruptcies, civil procedure claims, criminal law issues and statute interpretation. Take a minute to check out what’s new! Our next issue will be available on March 1.