In Canadian Law, a “trustee de son tort” or “trustee by his own wrong” is an individual who assumes the role of a trustee without formal appointment. Doing so requires the individual to incur fiduciary duties and liabilities because of their actions. A finding of a trustee de son tort does not necessarily require there to be a formal finding of incapacity. However, it can be extremely difficult to establish one without it. The Ontario Superior Court recently had to grapple with the requirements for a trustee de son tort in the recent decision of McGrath v. Effinger et al.[1]
Background
In 2009, at the age of 65, Catherine Rozon (“Ms. Rozon”) voluntarily moved to the Canadian Divine Mercy Centre (“the Centre”), a private Christian centre situated in Lanark, Ontario. The Centre is a non-profit corporation built by Willy and Theresa Effinger (“the Respondents”). The Centre provided visitors with religious education and contemplation, though required full-time residents, like the Respondents and Ms. Rozon, to take a vow of poverty and commit to a life devoted to prayer and reflection.
Prior to moving to the Centre, Ms. Rozon had survived breast cancer and decided to move in to live a more contemplative life. Ms. Rozon ultimately moved into her own cabin on the property, paying the costs of renovating and maintaining it. Additionally, Ms. Rozon paid the Centre a monthly fee of $600-$1000.
In 2016, Ms. Rozon’s breast cancer returned. She opted to remain at the Centre during her treatment and as a result, called on the Respondents and other residents of the Centre to assist her with travel to medical appointments, home support, and the purchase of groceries, medications, and other necessities. In September of 2021, Ms. Rozon’s daughter, Pauline McGrath (the “Applicant”) concerned for her mother’s health, retrieved her from the Centre.
3 years later, on July 2, 2024, the Applicant brought an application for a passing of accounts from the Respondents in relation to Ms. Rozon’s banking transactions between 2011 and 2021, alleging a misappropriation of an estimated $260,000. As part of this application, the Applicant sought a declaration that the Respondents owed a fiduciary duty to Ms. Rozon and acted as her trustees de son tort. The Applicant held a continuing power of attorney in relation to Ms. Rozon, who was now 82 years old at the time of the application.
The Respondents challenged the application, claiming that the Applicant did not have standing to bring the application, and further denied that they were ever in a trust relationship with Ms. Rozon to warrant a passing of accounts. Furthermore, they argued that the Applicant was barred from launching the application under the Limitations Act[2] as the limitations period to bring the claim had expired. Notably, no finding of incapacity had been made with regards to Ms. Rozon.
Issues
- Did the Applicant, who was a non-lawyer non-litigant, have standing based on the continuing power of attorney to bring the application?
- Was the application statute barred under the Limitations Act, 2002?
- Were the Respondents attorneys or guardians of property for Ms. Rozon to warrant a passing of accounts under s.42(1) of the Substitute Decisions Act (“SDA”)[3]
- Were the Respondents ever trustees de son tort or constructive trustees to warrant an order for the passing of accounts?
Issue 1: Standing
On December 4th, 2023, Ms. Rozon granted the Applicant a Continuing Power of Attorney for Property (CPOAP). The Court here accepted that CPOAP as valid and directly referenced the SDA, noting the difference between a Power of Attorney and a CPOAP. In examining the CPOAP document, the Court held that it began its effect on the day it was signed, and did not require a finding of incapacity, though it did reference that it will continue to remain in effect, even if Ms. Rozon is found incapable.
As the CPOAP was found to be valid, the Court referenced Part I of it where it stated:
Subject to any conditions and restrictions contained herein, I authorize my attorney to do on my behalf, anything that I can lawfully do by an attorney, and specifically, anything in respect of property that I could do if capable of managing property, except make, modify or revoke a will. My attorney shall have the authority to act as my litigation guardian, if one is required to commence, continue, defend or represent me in any court proceeding. [Emphasis added][4]
Therefore, the court found that the Applicant did have sufficient standing to bring the application.
Issue 2: Limitation
The Applicant alleged that the misappropriation or “wrong” occurred between 2011 and September of 2021. The Respondents argued that since the application wasn’t brought until 2024, the two-year limitation period set out int in the Limitations Act statutorily bars the Applicant from bringing the application. Additionally, there was adduced evidence showing that the Applicant had reviewed her mother’s bank account statements in November of 2021 and February of 2022, so the wrong would have been discovered at the latest in February of 2022, meaning an application filed on July 2, 2024, would still be in violation of the limitation period.
The Applicant argued that the limitation period does not apply to an order for the passing of accounts, relying on the Ontario Court of Appeal decision in Armitage v. The Salvation Army.[5]
The Court ultimately held that the application was statute-barred. In doing so, the Court distinguished Armitage v. The Salvation Army on the basis that the relief sought by the Applicant went beyond the scope of a mere passing of accounts. The Applicant sought declarations of trustee status, unjust enrichment findings, and restitution. That combination transformed the proceeding into a “claim” under the Limitations Act and therefore it was subject to the 2-year period from discoverability. [6]
Issue 3: Were the Respondents attorneys or guardians of property?
The Applicant argued that the Respondents owed a duty to pass accounts in their capacity as landlords, caregivers, and spiritual directors over Ms. Rozon. If they were found to be attorneys or guardians of property, they would be required to pass accounts pursuant to s. 42(1) of the SDA:
Passing of accounts
- The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed. 1992, c. 30, s. 42 (1).
Attorney’s accounts
- An attorney, the grantor or any of the persons listed in subsection (4) may apply to pass the attorney’s accounts. 1992, c. 30, s. 42 (2).
Guardian’s accounts
- A guardian of property, the incapable person or any of the persons listed in subsection (4) may apply to pass the accounts of the guardian of property. 1992, c. 30, s. 42 (3).
Others entitled to apply
(4) The following persons may also apply:
- The grantor’s or incapable person’s guardian of the person or attorney for personal care.
- A dependant of the grantor or incapable person.
- The Public Guardian and Trustee.
- The Children’s Lawyer. 5. A judgment creditor of the grantor or incapable person. 6. Any other person, with leave of the court[7]
The Court rejected the Applicant’s argument, finding no basis to compel a passing of accounts under s.42(1). There had been no tenancy agreement establishing landlord accounting obligations, and any assistance rendered fit a non-fiduciary, community-based friendship pattern with transactions done at the grantor’s direction.
Notably, a key point of fact leading to the Court’s decision here was the absence of a finding of incapacity. They maintained that all assistance provided by the Respondent’s was done at Ms. Rozon’s specific direction. Had there been a finding of incapacity during the time that Ms. Rozon stayed at the Centre, then the holding may have been different.[8]
Issue 4: Trustees de son tort
The Applicant argued that even if the Respondents were not named as attorneys for the purposes of s.42(1) of the SDA, there was evidence that they had sufficient care and control over Ms. Rozon’s finances and personal needs such that they can be found to be trustees de son tort. The Applicant claimed that this evidence included the fact that the Respondents took money out of Ms. Rozon’s bank account, that they spent her money on food and cash donations to the Centre, and that, between 2016 and 2021, they were responsible for Ms. Rozon’s personal and financial needs. The root of the Applicant’s argument is that the Respondents, through this conduct, implicitly took on the role of a trustee in relation to Ms. Rozon, whether expressly or otherwise, and therefore should be open to liability.
The Court held that a finding for trust or fiduciary relationship does not require proof of incapacity or a formal trust relationship.[9] A finding of a trustee de son tort is a fact specific determination dependent on multiple factors, including the level of intrusion into the person’s affairs.[10] To establish liability under this doctrine, the Court held that it was the Applicant’s burden to prove that the evidence established that the Respondents took it upon themselves to act as a trustee, or to possess and administer trust property.[11]
The Court ultimately found that the Respondents were not in a trust relationship.[12] While they cared for her and engaged in various financial tasks when Ms. Rozon was ill, they did so as a friend and, again, at her direction. Importantly, there was no evidence that Ms. Rozon lacked cognitive capacity at the time of the alleged misappropriation. Additionally, while not an express issue in the holding, the Court mentioned that there is no evidence that the Respondents even engaged in any dishonest or fraudulent conduct in their assistance to Ms. Rozon, indicating that even if they were found to be trustees, the application likely would have failed on its merits. [13]
Takeaway
The Court here is clear that for a finding of Trustee de son tort, a finding of incapacity is not required. However, given this holding, it begs the question as to how narrow of a circumstance could result in that finding. Throughout the decision, the court’s holding seemed to hinge on the fact that Ms. Rozon was capable and was able to direct the Respondents. This appears to be the key consideration of the Court. Certainly, if she was found incapable, the decision could have very well gone the other way. At the end of the day, this decision emphasizes that, while a finding of incapacity may not be strictly required, a potential applicant should seriously consider their case when making a claim for trustee de son tort without one, as it appears that that would be an uphill battle.
—
[1] McGrath v. Effinger et al, 2025 ONSC 6439
[2] Limitations Act, 2002, S.O. 2002, c. 24, Sched. B
[3] Substitute Decisions Act, 1992, S.O. 1992, c. 30
[4] Supra note 1 at para 66
[5] Armitage v. The Salvation Army 2016 ONCA 971, 406 D.L.R. (4th) 563
[6] Supra note 1 at para 76
[7] Supra note 3 s.42(1)
[8] Supra note 1 at para 97
[9]Maki v. Cammaert et al., 2024 ONSC 6711 at paras 34 and 46
[10] Chambers v. Chambers, 2013 ONCA 511, 367 D.L.R. (4th) 151, at paras. 75-77
[11] Humphreys-Saude v. Pavao, 2022 ONSC 4982, at paras. 61-63.
[12] Supra note 1 at para 102
[13] Ibid
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Written by: Mark Polese
Posted on: December 22, 2025
Categories: Commentary, WEL Newsletter
In Canadian Law, a “trustee de son tort” or “trustee by his own wrong” is an individual who assumes the role of a trustee without formal appointment. Doing so requires the individual to incur fiduciary duties and liabilities because of their actions. A finding of a trustee de son tort does not necessarily require there to be a formal finding of incapacity. However, it can be extremely difficult to establish one without it. The Ontario Superior Court recently had to grapple with the requirements for a trustee de son tort in the recent decision of McGrath v. Effinger et al.[1]
Background
In 2009, at the age of 65, Catherine Rozon (“Ms. Rozon”) voluntarily moved to the Canadian Divine Mercy Centre (“the Centre”), a private Christian centre situated in Lanark, Ontario. The Centre is a non-profit corporation built by Willy and Theresa Effinger (“the Respondents”). The Centre provided visitors with religious education and contemplation, though required full-time residents, like the Respondents and Ms. Rozon, to take a vow of poverty and commit to a life devoted to prayer and reflection.
Prior to moving to the Centre, Ms. Rozon had survived breast cancer and decided to move in to live a more contemplative life. Ms. Rozon ultimately moved into her own cabin on the property, paying the costs of renovating and maintaining it. Additionally, Ms. Rozon paid the Centre a monthly fee of $600-$1000.
In 2016, Ms. Rozon’s breast cancer returned. She opted to remain at the Centre during her treatment and as a result, called on the Respondents and other residents of the Centre to assist her with travel to medical appointments, home support, and the purchase of groceries, medications, and other necessities. In September of 2021, Ms. Rozon’s daughter, Pauline McGrath (the “Applicant”) concerned for her mother’s health, retrieved her from the Centre.
3 years later, on July 2, 2024, the Applicant brought an application for a passing of accounts from the Respondents in relation to Ms. Rozon’s banking transactions between 2011 and 2021, alleging a misappropriation of an estimated $260,000. As part of this application, the Applicant sought a declaration that the Respondents owed a fiduciary duty to Ms. Rozon and acted as her trustees de son tort. The Applicant held a continuing power of attorney in relation to Ms. Rozon, who was now 82 years old at the time of the application.
The Respondents challenged the application, claiming that the Applicant did not have standing to bring the application, and further denied that they were ever in a trust relationship with Ms. Rozon to warrant a passing of accounts. Furthermore, they argued that the Applicant was barred from launching the application under the Limitations Act[2] as the limitations period to bring the claim had expired. Notably, no finding of incapacity had been made with regards to Ms. Rozon.
Issues
Issue 1: Standing
On December 4th, 2023, Ms. Rozon granted the Applicant a Continuing Power of Attorney for Property (CPOAP). The Court here accepted that CPOAP as valid and directly referenced the SDA, noting the difference between a Power of Attorney and a CPOAP. In examining the CPOAP document, the Court held that it began its effect on the day it was signed, and did not require a finding of incapacity, though it did reference that it will continue to remain in effect, even if Ms. Rozon is found incapable.
As the CPOAP was found to be valid, the Court referenced Part I of it where it stated:
Subject to any conditions and restrictions contained herein, I authorize my attorney to do on my behalf, anything that I can lawfully do by an attorney, and specifically, anything in respect of property that I could do if capable of managing property, except make, modify or revoke a will. My attorney shall have the authority to act as my litigation guardian, if one is required to commence, continue, defend or represent me in any court proceeding. [Emphasis added][4]
Therefore, the court found that the Applicant did have sufficient standing to bring the application.
Issue 2: Limitation
The Applicant alleged that the misappropriation or “wrong” occurred between 2011 and September of 2021. The Respondents argued that since the application wasn’t brought until 2024, the two-year limitation period set out int in the Limitations Act statutorily bars the Applicant from bringing the application. Additionally, there was adduced evidence showing that the Applicant had reviewed her mother’s bank account statements in November of 2021 and February of 2022, so the wrong would have been discovered at the latest in February of 2022, meaning an application filed on July 2, 2024, would still be in violation of the limitation period.
The Applicant argued that the limitation period does not apply to an order for the passing of accounts, relying on the Ontario Court of Appeal decision in Armitage v. The Salvation Army.[5]
The Court ultimately held that the application was statute-barred. In doing so, the Court distinguished Armitage v. The Salvation Army on the basis that the relief sought by the Applicant went beyond the scope of a mere passing of accounts. The Applicant sought declarations of trustee status, unjust enrichment findings, and restitution. That combination transformed the proceeding into a “claim” under the Limitations Act and therefore it was subject to the 2-year period from discoverability. [6]
Issue 3: Were the Respondents attorneys or guardians of property?
The Applicant argued that the Respondents owed a duty to pass accounts in their capacity as landlords, caregivers, and spiritual directors over Ms. Rozon. If they were found to be attorneys or guardians of property, they would be required to pass accounts pursuant to s. 42(1) of the SDA:
Passing of accounts
Attorney’s accounts
Guardian’s accounts
Others entitled to apply
(4) The following persons may also apply:
The Court rejected the Applicant’s argument, finding no basis to compel a passing of accounts under s.42(1). There had been no tenancy agreement establishing landlord accounting obligations, and any assistance rendered fit a non-fiduciary, community-based friendship pattern with transactions done at the grantor’s direction.
Notably, a key point of fact leading to the Court’s decision here was the absence of a finding of incapacity. They maintained that all assistance provided by the Respondent’s was done at Ms. Rozon’s specific direction. Had there been a finding of incapacity during the time that Ms. Rozon stayed at the Centre, then the holding may have been different.[8]
Issue 4: Trustees de son tort
The Applicant argued that even if the Respondents were not named as attorneys for the purposes of s.42(1) of the SDA, there was evidence that they had sufficient care and control over Ms. Rozon’s finances and personal needs such that they can be found to be trustees de son tort. The Applicant claimed that this evidence included the fact that the Respondents took money out of Ms. Rozon’s bank account, that they spent her money on food and cash donations to the Centre, and that, between 2016 and 2021, they were responsible for Ms. Rozon’s personal and financial needs. The root of the Applicant’s argument is that the Respondents, through this conduct, implicitly took on the role of a trustee in relation to Ms. Rozon, whether expressly or otherwise, and therefore should be open to liability.
The Court held that a finding for trust or fiduciary relationship does not require proof of incapacity or a formal trust relationship.[9] A finding of a trustee de son tort is a fact specific determination dependent on multiple factors, including the level of intrusion into the person’s affairs.[10] To establish liability under this doctrine, the Court held that it was the Applicant’s burden to prove that the evidence established that the Respondents took it upon themselves to act as a trustee, or to possess and administer trust property.[11]
The Court ultimately found that the Respondents were not in a trust relationship.[12] While they cared for her and engaged in various financial tasks when Ms. Rozon was ill, they did so as a friend and, again, at her direction. Importantly, there was no evidence that Ms. Rozon lacked cognitive capacity at the time of the alleged misappropriation. Additionally, while not an express issue in the holding, the Court mentioned that there is no evidence that the Respondents even engaged in any dishonest or fraudulent conduct in their assistance to Ms. Rozon, indicating that even if they were found to be trustees, the application likely would have failed on its merits. [13]
Takeaway
The Court here is clear that for a finding of Trustee de son tort, a finding of incapacity is not required. However, given this holding, it begs the question as to how narrow of a circumstance could result in that finding. Throughout the decision, the court’s holding seemed to hinge on the fact that Ms. Rozon was capable and was able to direct the Respondents. This appears to be the key consideration of the Court. Certainly, if she was found incapable, the decision could have very well gone the other way. At the end of the day, this decision emphasizes that, while a finding of incapacity may not be strictly required, a potential applicant should seriously consider their case when making a claim for trustee de son tort without one, as it appears that that would be an uphill battle.
—
[1] McGrath v. Effinger et al, 2025 ONSC 6439
[2] Limitations Act, 2002, S.O. 2002, c. 24, Sched. B
[3] Substitute Decisions Act, 1992, S.O. 1992, c. 30
[4] Supra note 1 at para 66
[5] Armitage v. The Salvation Army 2016 ONCA 971, 406 D.L.R. (4th) 563
[6] Supra note 1 at para 76
[7] Supra note 3 s.42(1)
[8] Supra note 1 at para 97
[9]Maki v. Cammaert et al., 2024 ONSC 6711 at paras 34 and 46
[10] Chambers v. Chambers, 2013 ONCA 511, 367 D.L.R. (4th) 151, at paras. 75-77
[11] Humphreys-Saude v. Pavao, 2022 ONSC 4982, at paras. 61-63.
[12] Supra note 1 at para 102
[13] Ibid
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