Overview of the course:
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.
Assessment: 100% Open-book Final Examination.
Casebook: Oosterhoff on Trusts: Text, Commentary and Materials, 9th edition (2019)
Classes: Tuesdays & Thursdays, 8:30-10:00am, Room 201
TOPICS, LECTURE SCHEDULE, & READING LIST
Page numbers refer to Oosterhoff on Trusts, 9th Edition
Please note: The schedule of readings will probably change for two factors: the natural speed at which we go through the materials, and, the use of some classes to tackle problem questions. It may also be some classes may be cancelled for health or other reasons.
September 5, 2023
Overview. No reading.
[you may wish to read the following as background after class:
Historical background: 3-13
Definitions: 17-22
Classification of Trusts: 22-28]
September 7, 2023
I. INTRODUCTION AND THE TRUST AS AN INSTITUTION
The Fiduciary Principle: 128-134
Alberta v Elder Advocates of Alberta Society, 2011 SCC 24
Lectures Notes (1) – The Fiduciary Principle
September 12, 2023
Trust and Agency: 73-77
Trust and Contract: 77-83
Trust and Debt: 83-89
Trust and Bailment: 91-93
Estate Trusts: 94-99
Trusts and Gifts: 103-107
Lectures Notes (2) – Trust and Other Characterizations
September 14, 2023
II. POWERS OF APPOINTMENT
Powers: 145-156
September 21, 2023
III. FORMALITIES OF EXPRESS AND SECRET TRUSTS
Formalities: 277-286
Secret Trusts: 830-848
Lectures Notes (3) – Powers; Formalities
IV. ‘THE THREE CERTAINTIES’
Introduction: 175-178
Certainty of Intention: 178-185
Lectures Notes (4) – The Three Certainities (I)
September 26, 2023
Certainty of Subject-Matter: 185-202
Certainty of Objects: 158-169, 202-227
Constitution: 229-236, 238-266
September 28, 2023
V. THE BENEFICIARY PRINCIPLE AND PURPOSE TRUSTS; GIFTS TO UNINCORPORATED ASSOCIATIONS
Trusts for Persons: 533-536
Angus v The Corporation of the Municipality of Port Hope, 2016 ONSC 4343 (Ont. S.C.J.)
Gifts To Unincorporated Associations: 536-548
Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22
October 3, 2023
VI. VARIATION OF TRUSTS
Variation of Trusts: 328-361
October 5, 2023
VII. CHARITABLE TRUSTS
The Advantages of Charity: 366-372
Meaning of ‘Charity’: 372-383 Public Benefit: 383-392
The Heads of Charity: 393-440
October 10, 2023
Public Appeals: 530-532
Cy-Pres: 451-484
October 12, 2023
VIII. RESULTING TRUSTS; QUISTCLOSE TRUSTS
The Resulting Trust: 553-561
Failure of the Express Trust: 562-589
Apparent Gifts: 589-666
Kent v. Kent, 2020 ONCA 390 (Ont. C.A.)
October 17, 2023
Quistclose Trusts: 521-528
October 19-24, 2023
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.)
Appointment: 874-885
Retirement: 885-890
Removal / Passing Over: 890-900
Gonder v. Gonder Estate, 2010 ONCA 172
Powers/Duties of the Trustee: 901-943
Walters v. Walters, 2022 ONCA 38 (Ont. C.A.)
October 26, 2023
X. INTRODUCTION TO CONSTRUCTIVE TRUSTS GENERALLY AND UNJUST ENRICHMENT
Introduction and History: 674-700
Nature of the Constructive Trust: 700-704
Constructive Trusts and the Evolving Jurisdiction in Unjust Enrichment: 705-721
Garland v. Consumers’ Gas Co., 2004 SCC 25
October 26, 2023
XI. CONSTRUCTIVE TRUST AND EQUITABLE WRONGS
Breach of Confidence: 729-781
November 2, 2023
Breach of Fiduciary Duty: 752-802
November 7 and 9, 2023
No classes.
November 14, 2023
XII. TRUSTEE LIABILITY, CONSTRUCTIVE TRUSTS, AND REMEDIES FOR WRONGDOING
Liability and Remedies: 1003-1048
November 16, 2023
XII. TRUSTEE LIABILITY, CONSTRUCTIVE TRUSTS, AND REMEDIES FOR WRONGDOING
Liability and Remedies: 1003-1048
November 21, 2023
Defences: 1048-1075
Exculpation: 1076-1087
Third Parties: 1097-1153