Zeidler v. Campbell et al., (1988) 91 A.R. 394 (CA)

• Judge: Lieberman, Foisy and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 07, 1988
• Citations: (1988), 91 A.R. 394 (CA)

Zeidler v. Campbell (1988), 91 A.R. 394 (CA)

MLB headnote and full text

Margaret L. Zeidler and Zeidler Holdings Ltd. (appellants) v. Kenneth F. Campbell, Zeidler Forest Industries Ltd., Margaret E. Campbell, Shaunna Campbell and Tani Campbell (respondents)

Indexed As: Zeidler v. Campbell et al.

Alberta Court of Appeal

Lieberman, Foisy and Côté, JJ.A.

November 7, 1988.

Summary:

Zeidler owned all the shares of Zeidler Forest Industries. In 1984 Zeidler executed an irrevocable "voting trust agreement" appointing her son-in-law (Campbell) to vote her shares. The agreement provided for termination of the trust only upon the happening of certain events. Zeidler applied under s. 42 of the Trustee Act to cancel the trust agreement.

The Alberta Court of Queen's Bench in a judgment reported 88 A.R. 321, dismissed the application, because the voting trust agreement was not a trust within the meaning of the Act. Zeidler appealed.

The Alberta Court of Appeal dismissed the appeal. The Court of Appeal assumed, for the sake of argument, that a trust was created. The court held that Zeidler still could not cancel the trust, because Campbell had a beneficial interest in the trust and his consent to cancellation was needed under s. 42.

Trusts - Topic 424

Creation of trust - Transfer of property to trustee - Requirement of - A shareholder transferred the right to vote her shares to Campbell under an irrevocable voting trust agreement - The shareholder applied under s. 42 of the Trustee Act to cancel the trust agreement - The Albert Court of Queen's Bench dismissed the application because a trust was not created - The Alberta Court of Appeal assumed, for the sake of argument, that a trust was created - The Court of Appeal would also dismiss the application, but for the reason that Campbell, having a beneficial interest in the trust, did not consent to the cancellation.

Trusts - Topic 8445

Termination of trusts - By request of beneficiary - On agreement of all beneficiaries - Zeidler owned all the shares in a company - Pursuant to an irrevocable voting trust agreement, Zeidler transferred all voting shares to her son-in-law - Zeidler later applied under s. 42 of the Trustee Act to terminate the trust - The Alberta Court of Appeal, assuming that the voting trust created a trust within the meaning of the Act, held that Zeidler could not terminate the trust without the consent of Campbell, because Campbell had a beneficial interest in the trust and s. 42 required his consent.

Cases Noticed:

Saunders v. Vautier, [1835-42] All E.R. 58; (1841), Cr. & Ph. 240; 41 E.R. 482, refd to. [para. 7].

Berry v. Green, [1938] A.C. 575, refd to. [para. 14].

Statutes Noticed:

Trustee Act, R.S.A. 1980, c. T-10, sect. 42(6) [para. 10]; sect. 42(7) [para. 17].

Authors and Works Noticed:

Waters, Law of Trusts in Canada (2nd Ed. 1984), p. 965 [para. 14].

Pettit, Equity and the Law of Trusts (5th Ed. 1984), p. 325 [para. 14].

Trusts, Ontario Law Reform Commission Report (1984), vol. 2, p. 329ff [para. 14].

Counsel:

R.A. McLennan, Q.C., and M.G. Stevens-Guille, Q.C., for the appellant;

S.F. Goddard, Q.C., P.E.J. Curran and R. Feraco, for the respondents.

This appeal was heard before Lieberman, Foisy and Côté, JJ.A., of the Alberta Court of Appeal.

On November 7, 1988, Côté, J.A., delivered the following judgment for the Court of Appeal.