Estates and Trusts – Trusts - Express trust
In 1960, unincorporated association acquired 95-acre parcel of land to use for boy scout camp pursuant to transfer from original owner requiring it to be used “only for the purpose of promoting youth welfare”. Because it was unincorporated entity, association arranged for title to be held by three trustees. In 1971, land was transferred to local service club as trustee with consent of original owner and on same condition. In 1983, at direction of association, and with consent of original owner and on same condition, service club transferred land to provincial corporation related to registered charity, incorporated pursuant to act of Parliament, in order to acquire tax exempt status. Affidavits sworn by charity’s counsel after transfer affirmed charity was bare trustee and association was beneficial owner, responsible for camp’s operation and costs. In 2013, charity asked association to report on camp’s compliance with certain standards. Association refused and brought application for declaration charity held land in trust for it as beneficial owner and that it was entitled to terminate trust and vest title to land in its name or, alternatively, for declaration vesting title in it as original settlor of trust. Charity brought counter-application for declaration it held absolute legal title to land or, alternatively, held title to land as trustee pursuant to terms of charitable trust. Application dismissed; counter-application granted. Although association was incorporated in 2015, it was unincorporated at time of transfers in 1960, 1971 and 1983 with no separate legal personality or capacity to be beneficiary of any trust. Association’s argument that it was original settlor of trust could not overcome that incapacity. In order to settle property in trust, settlor had to either own or have interest in property. Unincorporated association could do neither. While 1960 transfer could not, therefore, establish private trust in association’s favour, it did have certainty of intention, subject matter and objects sufficient to establish valid charitable purpose trust which was continued with 1971 transfer. 1983 transfer omitted any reference to trust and provided charity, through related corporation, with full legal title to land. Affidavits were inconsistent with and not relevant to interpretation of deed. Association was to be commended for work it had done to secure and maintain camp for benefit of local youth but it was not entitled to any beneficial interest in land.
Tillsonburg Scout Association v. Scouts Canada (2020), 2020 CarswellOnt 1422, 2020 ONSC 747, K. Tranquilli J. (Ont. S.C.J.).
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