Removal of trustees is unfortunately a regrettable action that courts must take on occasion. They are reluctant to remove a trustee but will do so when necessary. The reasons for the removal vary from case to case, but the fundamental principle that guides the courts is the welfare of the beneficiaries.
Clayton v Clayton is a recent example and is instructive on the tests the courts will apply when considering removal. It is a decision of Justice Sylvia Corthorn, and her Honour has provided us with very thorough reasons in which she discusses the tests in detail as she applies them to the facts.
2. The Facts
Gerald Clayton died in 2002, survived by his wife, Shirley, and their three children, Karen, Patricia, and Daniel, as well as the children of each of them. Gerald had amassed a sizable estate of more than $8 million, most of which was concentrated in a personal holding company. Gerald left a Primary and a Secondary Will. The Primary Will established a Family Trust, while the Secondary Will created ‘the Wife’s Trust’ for Shirley. Gerald appointed Shirley, Karen, and Patricia as the Executors of his Estate and the Trustees of both trusts. The Trustees could make decisions by majority, but Shirley had to be a member of the majority. As authorized by the Wills, the Trustees allocated approximately 25% of the shareholder’s equity in the holding company to the Wife’s Trust and 75% to the Family Trust. The Family Trust also held title to a home in Florida. On Shirley’s death, the Wife’s Trust would be collapsed and the assets remaining in it would then be added to the Family Trust. The estate would then be distributed equally among the three children, with a gift over to a child’s children if the child predeceased Shirley.
Both Wills gave wide powers to the Trustees with respect to paying income or capital the beneficiaries. Thus, for example, paragraph 5(b) of the Primary Will included phrases such as ‘uncontrolled discretion’ and ‘absolute discretion’. Similarly, the Trustees had absolute discretion under paragraph 6(m) to make advances or loans to any person with or without security. However, Paragraph 5(b) did not give the Trustees discretion to make advances to the spouses of grandchildren.
Daniel brought this application in 2016 for removal of the Trustees and their replacement with BMO Trust Company. He alleged that:
- The Trustees failed to keep adequate records and to provide an accounting when he asked them to do so;
- The Trustees acted in bad faith in the way in which they attempted to address the passing of accounts between 2004 and 2014;
- The Trustees acted outside the scope of their authority when they sought to dictate the terms of Dan’s will and to give them free rein over the management of the Trusts;
- Karen and Patricia were negligent in failing to address the decline in Shirley’s cognitive function, which began in 2018, when she could no longer fulfill her role as a trustee;
- The Trustees made unsecured and undocumented loans or advances from the Family Trust more than $3 m to Karen, Patricia and their adult children; and
- There is such a degree of hostility between the Trustees and Dan that it will be impossible for Trustees to carry out their duties and treat Dan fairly.
The Trustees were advised by Gerald’s long-time accountant and his associate, and by the lawyer who drafted Gerald’s two Wills.
The Trustees made monthly payments of $5,000 to Daniel since 2004 but stopped making the payments in 2015. However, they resumed the payments when Daniel brought this application. They also lent him money from time to time for the purchase and renovation of a home and for a mortgage registered against it. The Trustees also made loans and advances to Karen and Patricia and to their children. None of them were secured, even when the funds were used for the purchase of a home. Nor were the loans and advances made to Karen and Patricia and their children reduced to writing. Instead, the Trustees relied on oral agreements with each of Karen, Patricia, their spouses, their children, and their children’s spouses. The Trustees also failed pass their accounts, and they did they not take any steps to obtain an order to pass the accounts until recently, when they brought the application to do so. It has not yet been heard.
3. The Law
[I]f it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee … it seems to their Lordships that the Court might think it proper to remove him.
. . .
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on the details often of great nicety.
Her Honour noted that the court’s jurisdiction to remove a trustee is inherent, and that, if the trustee is also an executor, that power runs in parallel with the court’s power under the Trustee Act to remove an executor.
With respect to the effect of language such as ‘absolute discretion’ and ‘uncontrolled discretion’, Justice Corthorn referred to another leading case, Gisborne v Gisborne, which holds that so long as the trustee, who has been given such discretion, has acted without mala fides, the court should not intervene. However, as her Honour rightly noted in para 57 such phrases do not by themselves absolve the trustees from complying with their common law duties, such as the duty to maintain an even hand (i.e., to act impartially). To achieve that result, the trust must say so expressly. But even then, her Honour noted in para 58, the court will intervene:
- If the decision of the trustee is “so unreasonable that no honest or fair-dealing trustee” could have come to the same decision;
- The trustee ignored relevant factors or took into account factors which are irrelevant to the exercise of their discretion in making the specific decision; or
- The trustee did nothing and, having failed to act, is unable to demonstrate that they properly considered whether or not they should have acted.
Her Honour concluded that, even if they were relieved of their common law duties, the Trustees ‘engaged in unreasonable conduct and acted in a manner in which no honest or fair-dealing trustee would act’, and further that they failed to act impartially and with an even hand. She examined this under the following headings:
(a) Financial Management, Including the Passing of Accounts
Her Honour noted that the Trustees did not provide Daniel with any documents evidencing their administration between 2002 and 2014. Nor did they take any steps to pass their accounts until 2014. The financial documents that were provided to him then consisted of a Notice to Reader level of documents (the lowest level of review conducted by an accountant), and the accountants did not seem to appreciate that there was a difference between such documents and those required for a passing of accounts. There was a meeting between Daniel and his wife and the two accountants in 2014, but Daniel was not provided with accurate information. Moreover, the accountants insisted on his signing a release, the terms of which were not adequately explained to him, but which would have released the Trustees from any liability with respect to a passing of accounts before 2014. Further, the Trustees did not understand their obligations with regard to providing correct accounts and the passing of the accounts. Her Honour characterized the Trustees actions and failures as so unreasonable as to amount to conduct in which no honest or fair-dealing trustee would have engaged.
(b) The Trustees’ Conduct in 2015 – Dan’s Will and Free Rein Over Trusts
In their negotiations with Daniel in 2015, the Trustees insisted that they would continue their monthly payments to him only if he entered into a written agreement with them that would give them free rein in administering the trust and would waive any statutory or common law rights he might otherwise have as a beneficiary. Her Honour described the Trustees’ actions in this regard as conduct in which no honest or fair-dealing trustee would engage. Further, she found that the Trustees’ attempt to dictate the terms of Daniel’s will to be unreasonable conduct in which no honest or fair-dealing trustee would engage.
(c) The Decline of Shirley’s Cognitive Abilities
Her Honour concluded that Karen and Patricia would not have been able to set aside the fact that the trustee whose cognitive issues were of concern was their mother. And viewed in that light, their conduct could not be considered so unreasonable that no honest or fair-dealing trustee would have addressed the matter as they did.
(d) The Loans
Her Honour noted that the loans made by the Trustees to Karen, Patricia, and their children represented more than 50% of the value of the Family Trust in 2014, that the grandchildren made only interest payments on them at a low rate, and that there was no written agreement with any of the grandchildren. She found that the Trustees, knowing that some of the loans to the grandchildren would be applied to the purchase of a matrimonial home, failed to take steps to protect the Trust’s assets. Consequently, more than $1.6 m were at risk. Thus, she held that the Trustees acted unreasonably and engaged in conduct in which no honest or fair-dealing trustee would engage.
Although the Trustees had absolute discretion to make loans to any person (though not to spouses of grandchildren), Justice Corthorn found that there was nothing in the language of the Primary Will that relieved the Trustees of their common law duties. She concluded that the Trustees favoured Karen’s and Patricia’s children and their spouses over other potential beneficiaries. Thus, they did not act impartially and with an even hand.
With respect to the loans and advances made to Karen and Patricia, Justice Corthorn noted that there was no documentation to evidence the terms of any of the loans. She concluded that in this respect too, the Trustees engaged in unreasonable conduct in which no honest or fair-dealing trustee would engage, and they failed to fulfill their common law duties to act impartially and with an even hand.
Justice Corthorn also found that the Trustees ignored the advice of their accountant and lawyer. Moreover, they failed to consider the potential that the status quo in the family on which they relied for the fulfillment of the terms of the various oral agreements might change. It could easily change in consequence of the breakdown of a marriage and any resulting discord, financial difficulties such as bankruptcy, or the death of one of the trustees. Thus, her Honour held that in this respect too, the Trustees engaged in unreasonable conduct in which no honest or fair-dealing trustee would engage.
(e) The ‘Virk Factors’
Justice Corthorn held in the alternative that if she was wrong in holding that the Trustees should be removed for unreasonable conduct, they could be removed on the basis of what she called ‘The “Virk Factors” ’. It is a reference to a non-exhaustive list of factors made by Richetti J in Virk v Brar, which reads as follows:
a) the court will not lightly interfere with the testator’s choice of estate trustee;
b) there must be a “clear necessity” to interfere with the discretion of the testator;
c) removal of an estate trustee should only occur in the clearest of evidence that there is no other course to follow;
d) the court’s main guide is the welfare of the beneficiaries;
e) it must be shown that the non-removal of the trustee will prevent the proper execution of the trust; and
f) the removal of an estate trustee is not intended to punish for past misconducts; rather it is only justified if past misconduct is likely to continue and the estate assets and interests of the beneficiaries must be protected.
Based on this list, her Honour concluded that: (a) it was clearly necessary to interfere with the discretion conferred by the testator; (b) the Trustees failed to take the welfare of the beneficiaries into account; and (c) the non-removal of the Trustees will prevent the proper execution of the Trusts. The Trustees failed from the outset to appreciate the significance of their obligations and that failure continued. This was evident in the fact that they overlooked the possibility that the status quo might not be maintained and that, if it did not, they would be prevented from distributing the estate in accordance with the Primary Will. Further, the friction between the Trustees and Daniel had reached a level that it prevented and would likely continue to prevent the proper administration of the Trusts. It would also make it difficult for the Trustees to act with impartiality.
Consequently, Justice Corthorn held that Daniel had met the high standard for the removal of trustees and therefore ordered the removal of the Trustees.
The case thus highlights the fiduciary obligations of trustees and executors. What is particularly troubling is that the Trustees had access to the lawyer’s services but did not always avail themselves of them (see, e.g., para 93). In fact, the Trustees did not engage the lawyer in ‘an overall general retainer’ (para 99). Although the lawyer did review the Trustees’ duties with them (and the court did not fault him in that regard), if they had engaged him in a general overall retainer, they might well have been able to avoid making the errors that led to their removal. This suggests that lawyers engaged by trustees should be more proactive in recommending a full retainer and then providing advice to the trustees on an ongoing basis.
 2021 ONSC 5811, 70 ETR 4th 42.
 (1881), 9 AC 371 (PC).
 Ibid., at pp 386-87.
 It is in this case, but the court also has statutory powers to remove trustees under s. 5 of the Trustee Act, RSO 1990, c T.23.
 Ibid, s. 37.
 (1877), 2 App Cas 300 (HL).
 For an example of language that absolved trustees of some of their duties, see Hayim v City Bank NA,  UKPC 11,  AC 730. In it the testator directed that his executors and trustees had no duty or responsibility with respect to a house. The beneficiaries wanted the trustees to sell the house for a good price, but the trustees refused to do so until a few years later. By then the price had dropped significantly. However, in the beneficiaries’ action against the trustees, the Privy Council advised that the trustees were not liable, because they had no duty with respect to the house.
 Referring to Martin v Banting (2001), 37 ETR 2d 270 para 25, which quoted from an earlier edition of Waters Law of Trusts in Canada. See now Waters’ Law of Trusts in Canada, 5th ed by Donovan WM Waters, Mark R Gillen, and Lionel D Smith (Toronto: Thomson Reuters, 2021), p 1054.
 Referring to Banton v. Banton (1998), 164 DLR 4th)176 (Ont. Gen. Div.), at p. 234, citing Fox v Fox Estate (1996), 28 OR 3d 496 (CA), leave to appeal refused  SCCA No 241.
 Referring to Martin v Banting, supra at para 25, which also quoted from an earlier edition of Waters Law of Trusts in Canada. See now Waters, 5th ed, supra, loc cit.
 Para 6(c) of the Primary Will did contain such language with respect to investment in, inter alia, mortgages. However, it did not apply since the Trustees did not treat any of the loans as mortgages.
 2014 ONSC 4611, 1 ETR 4th 241 at para 48.