COURSE DESCRIPTION
This course considers foundational issues in the law of trusts such as the nature of a trust; formal requirements of trusts; constitution of trusts; secret trusts; trusts, powers and purposes; certainties; property-holding by unincorporated associations; charitable trusts and cy-près; resulting trusts; some aspects of trustees’ powers and duties; variation of trusts; the principles of constructive trusts; remedies, including some aspects of tracing; the intersection of trusts doctrine and the law of unjust enrichment. The course does not extend to tax treatment of trusts.
CLASSES
Tuesdays & Thursdays, 11:30 am – 1:00 pm, Law Building, Lecture Hall 3
Will lectures be recorded? No. If you become ill or experience some extenuating circumstance that prevents your attendance at class, a recorded lecture is a poor substitute for getting help from your instructor. Please contact me and I would be pleased to meet with you to discuss the materials.
MATERIALS
Casebook: Oosterhoff on Trusts, Tenth Student Edition (2024).
PLEASE NOTE: the University bookstore does not stock the book. It may be ordered from the publisher – there is a 20% discount using the code 2STUDENT20.
ASSESSMENT
100% three-hour open-book final examination.
TOPICS & READING LIST – FALL TERM 2026
‘cb’ refers to Oosterhoff on Trusts. Unless specifically directed, it is not intended that you read the “Notes and Questions” sections following text and cases.
September 10, 2026
Overview. No reading.
[you may wish to read the following non-examinable background:
Historical background – cb, pp. 2-11
Definitions – cb, pp. 15-20
Classification of Trusts v 20-26]
September 15, 2026
I. INTRODUCTION AND THE TRUST AS AN INSTITUTION
The Fiduciary Principle:
Alberta v Elder Advocates of Alberta Society, 2011 SCC 24
Paddy-Cannon v. Canada (Attorney General), 2025 ONCA 394
September 17, 2026
Trust and Agency – cb, pp. 73-77
Trust and Contract – cb, pp. 77-82
Trust and Debt – cb, pp. 82-89
Trust and Bailment – cb, pp. 91-93
September 22, 2026
II. POWERS OF APPOINTMENT
Powers of Appointment – cb, pp. 150-155, 157-163
III. FORMALITIES OF EXPRESS AND SECRET TRUSTS
Formalities – cb, pp. 292-294, 297-298, 300-301
Part Performance: 2730453 Ontario Inc. v. 2380673 Ontario Inc., 2025 ONCA 112 (Ont. C.A.)
Secret and Semi-Secret Trusts – cb, pp. 915-927
September 29, 2026
IV. ‘THE THREE CERTAINTIES’
Introduction – cb, pp. 184-185
Certainty of Intention – cb, pp. 185-189, 195-197
Certainty of Subject-Matter – cb, pp. 198-204, 209-211
Certainty of Objects – cb, pp. 215-218, 218-220
Constitution – cb, pp. 242-251, 252-256, 258-263, 271-275
October 1, 2026
V. THE BENEFICIARY PRINCIPLE AND PURPOSE TRUSTS; GIFTS TO UNINCORPORATED ASSOCIATIONS
Trusts for Persons – cb, pp. 555-558
Gifts To Unincorporated Associations – cb, pp. 558-564
VI. VARIATION OF TRUSTS
Variation of Trusts – cb, pp. 331-335, 344-345, 345-347, 352-363, 365-370
October 6, 2026
VII. CHARITABLE TRUSTS
The Advantages of Charity – cb, pp. 379-382
Meaning of ‘Charity’ – cb, pp. 386-406
Public Benefit – cb, pp. 386-392, 397-406
The Heads of Charity – cb, pp. 407-420, 423-432, 434-437, 438-455
October 6, 2026
Cy-Pres – cb, pp. 467-476, 479-485, 487-491, 493-498, 500-501 (note 12)
Public Appeals – cb, pp. 552-554
VIII. RESULTING TRUSTS; QUISTCLOSE TRUSTS
The Resulting Trust – cb, pp. 575-582
Failure of the Express Trust – cb, pp. 582-587, 605-608
October 8, 2026
Apparent Gifts – cb, pp. 609-610
The Resulting Trust as a Family Law Device – cb, pp. 614-620
Purchase Money Resulting Trusts – cb, pp. 620-621, 622-627
Gratuitous Transfers – cb, pp. 634-638, 641-655
October 13, 2026
Quistclose Trusts – cb, pp. 543-550
October 15, 2026
No class
October 20, 2026
IX. TRUSTEESHIP AND THE ADMINISTRATION OF TRUSTS
Trustee Act, R.S.O. 1990, c. T.23 (Really. Please read the statute.)
The Nature of the Court’s Jurisdiction: Carroll v. Toronto-Dominion Bank, 2021 ONCA 38 (Ont. C.A.), paras. 15-29
Appointment – cb, pp. 937-944; 947
Retirement – cb, pp. 948-952
Removal / Passing Over – cb, pp. 953-959, 962-964 and Gonder v. Gonder Estate, 2010 ONCA 172
Powers/Duties of the Trustee – cb, pp. 966-971
October 22, 2026
Delegation – cb, pp. 974-979
Review of Exercise of Discretionary Powers – cb, pp. 979-981, 981-982, 985-986, 986-987, 987-988, 988-990, 993-995, 998-1003
Investment – cb, pp. 1007-1011
Even Hand – cb, pp. 1013—1014 and The Canada Trust Company v. Browne, 2012 ONCA 862
Compensation – cb, pp. 1037-1039, 1039-1043
Indemnification – cb, pp. 1047-1049
October 27, 2026
X. INTRODUCTION TO CONSTRUCTIVE TRUSTS AND UNJUST ENRICHMENT
Introduction and History – cb, pp. 694-698
Unjust Enrichment – cb, pp. 727-731 and Garland v. Consumers’ Gas Co., 2004 SCC 25
The Conscience Standard – cb, pp. 709-720
October 29, 2026
XI. CONSTRUCTIVE TRUST AND EQUITABLE WRONGS
Breach of Confidence – cb, pp. 755-759, 760-775
November 3 & 5, 2026
No classes
November 10, 2026
Breach of Fiduciary Duty – cb, pp. 775-786, 794-799, 801 (note 1), 806-808, 813-815, 834-837
November 12, 2026
XII. TRUSTEE AND THIRD PARTY LIABILITY
Personal Liability of Trustees – cb, pp. 1068-1076, 1079-1096, 1104-1108
Trustees’ Defences – cb, pp. 1113-1118, 1122-1123, 1152-1157
Exculpation – cb, pp. 1140-1151
November 17 -19, 2026
Third Party Liability – cb, pp.1164, 1165-1183, 1195-1211
Trustee de son tort – cb, pp. 1223-1225
Tracing – Easy Loan Corporation v Wiseman, 2017 ABCA 58
I have left some classes clear in case of illness. Ideally we will have a review and finish early given the compressed time between the end of lectures and examinations.