A Proposal for Flexibility in Private and Public Express Trust Enforcement

AuthorMark Gillen
PositionProfessor, Faculty of Law, University of Victoria
(2016) 2(1) CJCCL
A Proposal for Flexibility in
Private and Public Express Trust
Mark Gillen*
e Uniform Trustee Act provides for the enforcement of certain non-charitable purpose
trusts. is paper draws on that concept but extends it by recommending an expansion
of the range of potential enforcement methods for all types of express trusts whether
they are for non-charitable purposes, charitable purposes or for persons. In particular,
it recommends that, for all types of express trusts, settlors be allowed to indicate
possible enforcers. It also recommends that courts be allowed, unless the settlor indicates
otherwise, to grant standing to persons to enforce express trusts whether for persons,
non-charitable purposes or charitable purposes. It further recommends allowing for
Crown enforcement of all types of express trusts (not just charitable purpose trusts)
in statutorily specied situations and it recommends extending the availability of cy-
près and administrative scheme orders to statutorily-identied non-charitable purpose
trusts. e paper also argues that with Crown enforcement of all types of express trusts
in statutorily specied situations, it is no longer necessary to retain several of the distinct
features of charitable purpose trusts, such as exclusivity, public benet and the invalidity
of political purpose trusts.
* Mark Gillen (B. Com, MBA, LL.B., LL.M.) is a professor of law at the
Faculty of Law, University of Victoria, Canada. He is co-author, with
Donovan WM Waters and Lionel D Smith, of Waters’ Law of Trusts in
Canada (Toronto: Carswell, 2012); co-editor (with Faye Woodman) and
co-author of e Law of Tr usts: A Contextual Approach, 3rd ed. (Toronto:
Emond Montgomery, 2015); author of Securities Regulation in Canada,
3rd ed. (Carswell, 2007); co-author of Corporations and Partnerships
in Canada (Wolters Kluwer Law & Business, 2014); and co-author of
Business Organizations: Principles, Policies and Practice (Toronto: Emond
Montgomery, 2007).
Gillen, Flexibility in Private and Public Express Trust Enforcement
I. I
II. R T L B
A. A Typology of Trusts: Express Trusts, Trusts by Operation of Law,
and Statutory Trusts
B. Invalidity of Non-Charitable Purpose Trusts
C. Validity and Enforcement of Charitable Purpose Trusts
1. Crown Enforcement of Charitable Purpose Trusts
2. Exclusivity and Enforcement of Charitable Purpose Trusts
3. Political Purposes and Charitable Purpose Trusts
III. T P P-P T O
A. Public Trusts and Private Trusts
B. e “Public” and “Private” Aspects of Charitable Purpose Truts
C. Potential “Public” Aspect for Trusts for Persons and Non-Charitable
Purpose Trusts
1. Express Trusts for Persons
2. Non-Charitable Purpose Trusts
IV. E P A A T T  E T
A. Addressing Enforcement Problems for Non-Charitable Purpose
B. Enforcement Problems for Charitable Purpose Trusts
C. Potential Enforcement Problems in Express Tr usts for Persons
V. E  R  P W C E E T
A. Proposed Enforcement of Certain Non-Charitable Purpose Trusts
under Section 74 of the Uniform Trustee Act
B. Allowing Settlor to Add Trust Enforcers
1. Express Trusts for Persons
2. Charitable Purpose Trusts
3. Non-Charitable Purpose Trusts
VI. A C  G S  P  E E
T  A T
VII. C E  S E T
VIII. D   D B N-C P 
C P T ( B P P T 
S I P P T)
A. Exclusivity
1. Dispensing with the Exclusivity Requirement
i. Reduction Unlikely
(2016) 2(1) CJCCL
ii. Increase or No Signicant Eect
2. Dispensing with an Exclusivity Requirement in a Regime
of Private vs. Statutorily Identied Public Purpose Trusts
B. Public Benet
C. Political Purposes
D. Perpetuity Exception
1. Abrogation of the Rule Against Perpetuities
2. Retention of the Rule Against Perpetuities
E. Certainty of Objects for Charitable Purpose Trusts
F. Eect on the Income Tax Act Approach to Registered Charities
IX. C
I. Introduction
Equity has long held, subject to limited exceptions, that non-charitable
purpose trusts are not legally valid trusts. While a provision in
Canadian wait-and-see perpetuities legislation1 provides that trusts for
specic non-charitable purposes are valid trusts, it provides for their
enforcement only as a power (i.e. the trustee may carry out the terms
of the non-charitable purpose trust but is not legally obliged to do so).
e Uniform Trustee Act (2012)
2 (“Uniform Trustee Act”) proposed by
the Uniform Law Conference of Canada in 2012 contains a provision
1. Wait-and-see perpetuity legislation modies the common law rules
against perpetuities. Many common law jurisdictions have enacted such
legislation including the provinces of Alberta (Perpetuities Act, RSA 2000,
c P-5 [Alberta Perpetuities Act]); British Columbia (Perpetuity Act, RSBC
1996, c 358 [BC Perpetuity Act]); Ontario (Perpetuities Act, RSO 1990,
c P.9 [Ontario Perpetuities Act]); Yukon Territories (Perpetuities Act, RSY
2002, c 168 [Yukon Perpetuities Act]); Northwest Territories (Perpetuities
Act, RSNWT 1988, c P-3 [NWT Perpetuities Act]); and Nunavut
(Perpetuities Act, RSNWT 1988, c P-3 (as duplicated for Nunavut by s
29 of the Nunavut Act, SC 1993, c 28) as amended by the Miscellaneous
Statutes Amendment Act, S Nu 2010, c 4, s 25 [Nunavut Perpetuities Act]).
See infra notes 34-36 and the accompanying text.
2. Uniform Trustee Act (2012) adopted by the Uniform Law Conference
of Canada, online: Uniform Law Conference of Canada
[Uniform Trustee Act].

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