Actions didn’t result in wrongful taking where consistent with purpose of trust

Estates and Trusts — Trusts — Express trust

M, J and B were adult siblings. Mother, ER, did not have capacity to manage property. In 1969, ER's late husband purchased 10 percent interest in joint venture which owned land, and remaining 90 percent was owned by developer. Parents intended that three children each have one-third of shares of 10 percent interest. For tax purposes, B disclaimed her interest. M sold his interest to developer in 2013. Developer made distributions in 2014 and these amounts were paid to ER and deposited into her two bank accounts since B's beneficial interest resulted back to ER. Application judge rejected B's claim to funds in accounts based on gift from mother of all future distributions. B appealed. Appeal allowed. Bare trust was established over funds in bank accounts, held by ER for benefit of B and J in equal shares. Since B's husband A dealt with funds in manner consistent both with purpose of trust and with B's beneficial interest, his actions did not result in wrongful taking, and findings of liability against A were set aside. ER did not hold half of future distributions from joint venture as bare trustee for B.

Rubner v. Bistricer (2019), 2019 CarswellOnt 14766, 2019 ONCA 733, K. Feldman J.A., S.E. Pepall J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 4501, 2018 ONSC 1934, F.L. Myers J. (Ont. S.C.J.).

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