Mayer v. Mayer, (2014) 359 B.C.A.C. 135 (CA)

• Judge: Bennett, Harris and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 30, 2014
• Jurisdiction: British Columbia
• Citations: (2014), 359 B.C.A.C. 135 (CA);2014 BCCA 293

Mayer v. Mayer (2014), 359 B.C.A.C. 135 (CA);

    615 W.A.C. 135

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. JL.048

Mhinder Mayer (appellant/petitioner) v. Bhora Mayer (respondent/respondent)

(CA041399; 2014 BCCA 293)

Indexed As: Mayer v. Mayer

British Columbia Court of Appeal

Bennett, Harris and Goepel, JJ.A.

July 21, 2014.

Summary:

The parties were engaged in a dispute over a family trust which had resulted in a number of proceedings. The applicant Mhinder Mayer sought a declaration under s. 86 of the Trustee Act that it was just and equitable that the trust be wound up in order to break a deadlock between the trustees.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1958, dismissed the application, indicating that, absent an express provision in the trust agreement or the consent of all of the beneficiaries, the court lacked jurisdiction to wind up a trust. Mhinder appealed, asserting that the court had erred in failing to find that it was an implied term of the trust that the trustees could wind up the trust.

The British Columbia Court of Appeal dismissed the appeal. The court could not make a declaration that the chambers judge below had jurisdiction to make an order winding up a trust because such a declaration required a finding that the trust contained an implied term authorizing the trustees to wind up the trust. That was a question for the court below. Mhinder was able to raise that issue in the court below.

Trusts - Topic 5910

The trustee - Deadlocked trustees - Jurisdiction of court - See paragraphs 21 to 26.

Trusts - Topic 8521

Termination of trusts - Revocation or dissolution - General - See paragraphs 21 to 26.

Cases Noticed:

Saunders v. Vautier (1841), 4 Beav. 115; 49 E.R. 282, affd. (1841), Cr. & Ph. 240; 41 E.R. 482 (Ch. D.), refd to. [para. 14].

Lomas v. Rio Algom Ltd. et al. (2010), 259 O.A.C. 333; 99 O.R.(3d) 161; 2010 ONCA 175, refd to. [para. 15].

Gaydon, Re, [2001] NSWSC 473, refd to. [para. 15].

Counsel:

G.B. Gomery, Q.C., and P.R. Senkpiel, for the appellant;

R.S. Fleming, for the respondent.

This appeal was heard at Vancouver, B.C., on May 30, 2014, by Bennett, Harris and Goepel, JJ.A., of the British Columbia Court of Appeal. On July 21, 2014, Goepel, J.A., delivered the following reasons for judgment for the court.