Sidney and North v British Columbia 2016 BCSC 589

SIDNEY AND NORTH SAANICH MEMORIAL PARK SOCIETY

V

BRITISH COLUMBIA (ATTORNEY GENERAL)

Analysis

The petitioner, a non-profit society, became the trustee (T) of a charitable purpose trust of land and premises. T sought construction and amendment of the trust deed.

The trust deed provided, inter alia, that a certain portion of the land in the trust known as the Cenotaph Area be held in trust as a site solely for the purposes of a memorial cairn for Canadian soldiers killed in World War I. If any part of the lands in the trust were expropriated, the trustee was to use any expropriation proceeds to purchase other land and hold the balance of the proceeds in trust for the maintenance and improvement of the substituted premises.

In 1969, the government of British Columbia expropriated the portion of the lands which constituted the Cenotaph Area, and the memorial was moved to a new location in the town of Sidney. In 1983, the town of Sidney expropriated a portion of the lands and paid the sum of approx. $500,000 in compensation. T used some of that money to purchase more land and in 2001, opened a new community centre on the trust property and installed a memorial cenotaph and reflection pool with sculptures in remembrance of Canadian soldiers that died in service.

T had approx. $380,000 left of the expropriation funds, which, according to the terms of the trust, could only be used to maintain and improve the substitute property purchased.

T asked the court to give declaratory relief as to the trust deed and amendment of the trust terms dealing with the following issues: provisions of the trust regarding leases, T’s ability to use expropriation funds to maintain and improve any lands (not just substitute lands), inclusion of specific provision empowering T to carry out business activities on the lands and inclusion of a provision that the memorial cenotaph be on a place accessible to the public, rather than be in the Cenotaph Area which had long been expropriated.

The Attorney General (AG) did not oppose the declaratory relief or proposed amendments, but expressed concern as to whether there was a proper basis upon which the court should order the amendments to the power to lease sought by T.

Held:

  1. 1) The administrative terms of a trust support the advancement and achievement of the charitable purposes of the trust. If such terms cause impracticability in achieving those charitable purposes, the court may utilise its cy-près jurisdiction to amend the terms.
  2. 2) The Court has inherent jurisdiction for administrative scheme-making for charitable trusts. In cases where it has not become sufficiently impracticable or impossible to invoke the cy-près doctrine, the courts may instead invoke the administrative scheme-making jurisdiction to vary the administrative terms of a trust to enable continuance of the charitable purposes.
  3. 3) The variations sought by T were amendments to the administrative machinery of the trust. In all the circumstances, the cy-près doctrine or the administrative scheme-making jurisdiction could be invoked.
  4. 4) Amendments approved (Re Killam Estate (1999) 185 NSR (2d) 201, Ns SC and Toronto Aged Men’s and Women’s Homes v Loyal True Blue and Orange Home (2003) 68 OR (3d) 777, Ont SCJ distinguished).
  5. 5) As this case did not involve an endowment trust, it was unnecessary to resolve the conflict in Canadian authorities as to the boundaries of the jurisdiction.
JUDGMENT DARDI J I. INTRODUCTION [1] The Sidney and North Saanich War Memorial Park Society (the SNSWMP Society) settled a charitable purpose trust in 1965. The current trustee, the Sidney and North Saanich Memorial Park Society, seeks declaratory relief regarding the proper construction of the operative trust deed. It also seeks an order that the …
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Counsel Details

H Fisher (Horne Coupar, 3rd Floor, 612 View Street, Victoria, BC V8W 1J5) and D Waters QC (Donovan W.M. Waters, Q.C., 1031 Falkland Road, Victoria, BC V8S 4M3) for the petitioner.

V Jackson and S Kirkpatrick (Ministry of Justice, 4th Floor – 1675 Douglas Street, PO Box 9289 Stn Prov Govt, Victoria, BC V8W 2G5) for the respondent.

Cases Referenced

  • Dominion Students' Hall Trust, Re [1947] Ch 183.
  • Fenton Estate, Re 2014 BCSC 39.
  • (
  • Johnston Estate 2008 BCSC 1185, (2008) 42 ETR (3d) 286, BC SC.
  • Kenney v Loewen [1999] BCJ No 363, BC SC.
  • Laing (JW) Trust, Re, Steward's Co v A-G [1984] 1 All ER 50, [1984] Ch 143.
  • Lysaght, Re, Hill v Royal College of Surgeons [1965] 2 All ER 888, [1966] Ch 191.
  • Rizzo & Rizzo Shoes Ltd, Re [1998] 1 SCR 27, Can SC.
  • Rowland v Vancouver College Ltd 2001 BCCA 527, (2001) 94 BCLR (3d) 249, BC CA.
  • Royal Society's Charitable Trusts, Re [1955] 3 All ER 14, [1956] Ch 87.
  • Souch v Johnson 2014 BCSC 1889, BC SC.
  • (
  • Sprott Estate, Re 2011 NSSC 327, (2011) 307 NSR (2d) 107, NS SC.
  • Toronto Aged Men's and Women's Homes v Loyal True Blue and Orange Home (2003) 68 OR (3d) 777, Ont SCJ.
  • Vancouver Opera Foundation, Re 2015 BCSC 390, BC SC.
  • (

Legislation Referenced

  • Constitution Act, RSBC 1960, c71
  • Income Tax Act, RSC 1985, c1
  • Society Act, RSBC 1996, c433