Guaranty Trust Co. of Canada v. Berry Estate and Berry, (1980) 33 N.R. 271 (SCC)

• Judge: Ritchie, Dickson, Estey, McIntyre and Chouinard, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 07, 1980
• Jurisdiction: Canada (Federal)
• Citations: (1980), 33 N.R. 271 (SCC);33 NR 271;5 ACWS (2d) 260;[1980] 2 SCR 931;[1980] 2 SCR 493;19 CPC 157;54 CCC (2d) 289;7 ETR 287;1980 CanLII 43 (SCC);[1980] 2 SCR 355;1980 CanLII 52 (SCC);116 DLR (3d) 276;115 DLR (3d) 513;1980 CanLII 40 (SCC)

Guaranty Trust v. Berry Estate (1980), 33 N.R. 271 (SCC)

MLB headnote and full text

Guaranty Trust Company of Canada v. Berry Estate and Berry Public Trustee and Guaranty Trust Company of Canada and Berry

Indexed As: Guaranty Trust Co. of Canada v. Berry Estate and Berry

Supreme Court of Canada

Ritchie, Dickson, Estey, McIntyre and Chouinard, JJ.

October 7, 1980.

Summary:

This case arose out of an action by a trust company against itself as an executor of an estate. The trust company was subsequently granted permission to withdraw as executor of the estate. Before trial the representatives of the estate alleged that the writ of summons which commenced the action by the trust company against the estate was a nullity. The Ontario Supreme Court held that the action commenced by the trust company was a nullity.

On appeal to the Ontario Court of Appeal the writ of summons commencing the action was held to be only irregular and capable of rectification.

On appeal to the Supreme Court of Canada the appeal was dismissed.

Ritchie, J., dissenting, in the Supreme Court of Canada, would have allowed the appeal and would have held that the writ of summons was a nullity.

Practice - Topic 2393

Writ of summons - Nullities and irregularities - What constitutes an irregularity - A trust company accepted an appointment as executor of an estate and later commenced an action against the same estate (the trust company was subsequently granted permission to withdraw as executor of the estate) - Representatives of the estate alleged that the writ of summons which commenced the action against the estate was a nullity - The Supreme Court of Canada held that the portions of the writ dealing with the claim by the trust company against itself in a representative capacity constituted an irregularity capable of rectification (see paragraph 15).

Executors and Administrators - Topic 5214

Actions against executors - Action by trust company against itself as executor in a representative capacity - Doctrine of merger - The Supreme Court of Canada stated that the doctrine of merger was not applicable in Ontario to an action by an executor against itself as an executor in a representative capacity (see paragraphs 11 and 13).

Practice - Topic 3

Policy of practice rules - The Supreme Court of Canada stated that the courts should not adopt invariable practice rules which lead to harsh results (see paragraph 16).

Cases Noticed:

Neale v. Turton (1827), 4 Bing, 149; 130 E.R. 725, dist. [para. 4].

Boyce v. Edbrooke, [1903] 1 Ch. 836, dist. [para. 4].

Ellis v. Kerr, [1910] 1 Ch. 529, dist. [para. 4].

Ontario Bank v. O'Reilly (1906), 12 O.L.R. 420, refd to. [para. 5].

Re MacNaughton (1973), 17 C.B.R. (N.S.) 211, refd to. [para. 5].

Glatt v. Glatt, [1935] 4 D.L.R. 99; [1936] O.R. 75; [1937] S.C.R. 347, refd to. [para. 5].

Thompson and Norris v. Chartered Trust and Executor Co. and Thompson and Lamport, [1945] S.C.R. 343, refd to. [para. 5].

Martin v. Martin et al., [1937] O.W.N. 444, refd to. [para. 5].

In re Phillips, [1931] W.N. 271, refd to. [para. 5].

Woodward v. Darcy (1555), 1 Plowd. 184; 75 E.R. 282, refd to. [para. 7].

Attorney General v. Jackson, [1932] A.C. 365, refd to. [para. 7].

Boyd v. Brooks (1865), 34 L.J.N.S. Ch. 605, refd to. [para. 8].

Kline v. Kline (1871), 3 U. C. Ch. 161, refd to. [paras. 9 and 31].

Loane v. Casey (1775), 96 E.R. 569, refd to. [para. 10].

Re Compton, Norton v. Compton (1885), 30 Ch. D. 15, refd to. [para. 10].

Bray v. Ford, [1896] A.C. 44, refd to. [paras. 14 and 30].

Ex parte James (1803), 8 Ves. 337, refd to. [para. 14].

Boardman v. Phipps, [1967] 2 A.C. 46, refd to. [para. 14].

Canadian Aero Service Limited v. O'Malley, [1974] S.C.R. 592, refd to. [para. 14].

Holder v. Holder, [1968] 1 Ch. D. 353, refd to. [para. 14].

Vyse v. Foster (1874), L.R. 7 H.L. 318, refd to. [para. 14].

Re Mulholland's Will Trusts, [1949] 1 All E.R. 460, refd to. [para. 14].

Vachon v. Attorney General of Quebec, 25 N.R. 399; [1979] 1 S.C.R. 555, refd to. [para. 16].

Re Pritchard, [1963] 1 Chancery 503, refd to. [para. 26].

Ryan v. Charlesworth, [1930] S.C.R. 427, refd to. [para. 31].

Statutes Noticed:

Trustee Act, R.S.O. 1970, c. 470, sect. 38(2) [para. 11]; sect. 50(1) [para. 8].

Authors and Works Noticed:

Wegenast, Canadian Companies (1931), page 772 [para. 6].

Archbold's Practice in the Queen's Bench Division (14 ed.), page 445 [para. 25].

Williams on Executors, Administrators and Probate, page 703 [para. 28].

Counsel:

J.E. Sexton, Q.C. and Andrew J. Pirie, for the appellant Public Trustee;

D.C. McTavish, Q.C. and M.A. Porjes, for the respondent Guaranty Trust;

Robert E. Barnes, Q.C., for E.T. Berry.

This appeal was heard by RITCHIE, DICKSON, ESTEY, McINTYRE and CHOUINARD, JJ. of the Supreme Court of Canada at Ottawa, Ontario on June 18, 1980.

The judgment of the Supreme Court of Canada was delivered on October 7, 1980 and the following opinions were filed:

ESTEY, J. - see paragraphs 1 to 17.

RITCHIE, J., dissenting - see paragraphs 18 to 34.

DICKSON, McINTYRE and CHOUINARD, JJ. concurred with ESTEY, J.