Scammell v Scammell, 2025 ABCA 425 (CanLII)
What is required for a Court to intercede and order the transfer of trust property? This case clarifies the high threshold for mandatory interlocutory injunctions and affirms that a Trustee’s removal is warranted where a demonstrated conflict of interest undermines the proper administration of the trust.
Background
In 2002, the Scammell Family Trust (the “Family Trust”) was settled to hold three quarter sections of land located in the municipal district of Provost, Alberta.[1] The Family Trust held certain associated surface leases and the settlor’s wife (the parties’ mother) was appointed as co-trustee with her children Wanda Scammell (“Wanda” or the “Appellant”) and Colin Scammell (“Colin” or the “Respondent”).[2] Together, the parties, their three siblings, and their mother were designated as beneficiaries of the Family Trust.[3]
In February 2003, the parties’ mother and Trustee of the Family Trust registered a caveat on title to the three Family Trust properties giving notice of her interest in each as Trustee under the Family Trust deed.[4]
In June 2013, the parties’ mother transferred one of the properties to Wanda with the transfer recorded as being for consideration in the amount of $40,000.[5] In August 2018, the mother executed transfers transferring the other two properties to the Appellant, with both transfers recorded as being for consideration in the amount of $1.[6]
In June 2019, the parties’ mother passed away.[7] Consequently, Wanda and Colin became co-Trustees of the Family Trust pursuant to the terms of the Family Trust deed.[8] In or around this time the Respondent says he first became aware the three trust properties had been transferred to the Appellant.
Trial
In June 2021, Colin commenced the underlying action against Wanda, alleging the transfers were not for fair market value and, therefore, were made in breach of Schedule F, clause 12.25 of the trust deed.[9]
Pursuant to clause 12.25 of Schedule F to the trust deed, trustees were authorized “to sell, convey or transfer any” property in the Trust Fund to “any person… who may be a Beneficiary” for “such consideration and at such prices…, not to be less than its fair market value, and subject to such terms and conditions as the Trustees shall, in their unfettered discretion determine advisable”.[10]
He also alleged Wanda was in breach of Family Trust as she treated the lands as her own, rather than as Family Trust property.[11] The Colin sought various relief, including the removal of Wanda as co-Trustee, and an order directing transfer of the lands into the names of the Trustees.[12]
Wanda asserted that the transfers were not made in breach of the Family Trust emphasizing Schedule E, clause 1 of the Family Trust deed Under the heading “Distribution of Trust Fund” which holds:
Trustees were given an “absolute discretion” to “pay and apply the whole” or part “of the income and capital of the Trust Fund” to whichever beneficiaries they “determine advisable for any reason”, “even to the complete exclusion of any one or more” of the beneficiaries. “Trust Fund” was defined to include the three properties and accumulated income from the properties.[13]
Accordingly, Wanda argued that her mother, as Trustee, had a “complete, absolute and unfettered discretion to distribute the assets of the trust” to her.[14]
In May 2023, the Colin applied to have Wanda removed as co-Trustee, sought to have their brother Randy Scammell (“Randy”) appointed instead, and sought an order transferring the three properties to the Respondent and to Randy as joint tenants.[15]
The Court of Appeal observed that although the relief sought in the filed application was unqualified, during oral submissions, counsel for the Respondent explained he was seeking only an “interim injunction”.[16] He relied on the test for a mandatory interlocutory injunction as set out in R v Canadian Broadcasting Corp.[17]
Interlocutory Relief at First Instance
The Court of Appeal reviewed the chambers judge holding, which found that the test for a mandatory interlocutory injunction was satisfied.[18] In doing so, the chambers judge had found that the Colin had established a strong prima facie case, seeing as the lands were transferred at considerably less than fair market value and the mother’s caveats from 2003 remained registered on title.[19] The chambers judge held that irreparable harm was made out on the basis of future “unquantifiable losses” and that the balance of convenience favoured an injunction.
Accordingly, the chambers judge ordered the three properties to be transferred to the Colin and Randy “pending the ultimate determination of this matter”.[20]
Additionally, the chambers judge exercised her discretion to remove the Wanda as trustee, on the basis that the “underlying litigation” put Wanda’s “personal interests in conflict with the interests of the trust”.[21]
The Appeal
The Appellant appeals the decision removing her as co-trustee of the Family Trust and the order directing her to transfer three parcels of land to her Randy and Colin, in their capacities as the current Trustees of the Family Trust. The Appellant submits the following grounds for her basis of appeal:
The appellant submits the chambers judge erred by failing to undertake a sufficiently extensive review of the merits of the respondent’s case, finding irreparable harm where the only potential harm was compensable in damages, and holding the balance of convenience favoured an injunction where the risk to the appellant’s livelihood far outweighed any inconvenience suffered by the other beneficiaries.[22]
Analysis – Injunctions Directing Transfers of Land
The Court of Appeal begins by reviewing the application of the law by the judge at first instance as it pertains to mandatory interlocutory injunctions. The Court of Appeal found that the chambers judge correctly identified the three branches of analysis as set out in Canadian Broadcasting,[23] and Avmax Aircraft Leasing Inc v Air X Charter Limited.[24]
The applicant must demonstrate:
a) a strong prima facie case;
b) irreparable harm if the relief is not granted; and
c) the balance of convenience favours granting the injunction.[25]
With respect to “strong prima facie case”, the Court of Appeal notes that the finding of transfers below market value should not have been the end of the inquiry given that a strong prima facie case requires a “strong likelihood in the law and evidence presented at trial”.[26] The Court of Appeal found that the allegations, in conjunction with the facts of the matter at hand, required an analysis regarding whether the transfers were made in breach of trust, whether the appellant was unjustly enriched, and whether the appellant accepted the transfer as trustee.[27]
Ultimately, in terms of a “strong prima facie case” the Court of Appeal found that the chambers judge erred in finding a strong prima facie case without adequately analyzing the trust deed’s provisions, particularly the interplay between the trustee’s discretion and the requirement for fair market value in property transfers.
Further, the Court of Appeal notes that the chambers judge made a reviewable error in assessing irreparable harm.[28] The Court of Appeal noted the following:
Generally, irreparable harm refers to harm that either cannot be quantified in monetary terms or that cannot be cured, for example where one party will not be able to collect damages from the other.[29]
The Respondent submitted that the properties were unique because of the significant number of surfaces leases, and accordingly there would be irreparable harm if the Appellant sold the properties. The chambers judge rejected this argument.[30]
The Court of Appeal cites Lubicon Lake Band v Norcen Energy Resources Ltd, stating:
the “irreparable harm” criterion serves to remind courts and litigants of the extraordinary nature of granting injunctive relief on an interlocutory basis:
… an interim injunction is emergent relief. The claimant seeks a remedy without proof of his claim. This inversion should only be considered in cases where the harm is of such seriousness and of such a nature that any redress available after trial would not be fair or reasonable. This hurdle must be met before the balance of convenience is weighed.[31]
Accordingly, the Court of Appeal found that the chambers judge erred by misinterpreting the irreparable harm requirement.
Based on their analysis, the Court of Appeal held that the granting of the mandatory injunction on an interlocutory basis was not just and equitable in the circumstances of the case.
Analysis – Removal as Trustee
The court begins by citing Wood’s Homes Society v Selock,[32] and sections 14-16 of the Trustee Act,[33] noting that the Court has statutory and inherent jurisdiction to remove and substitute a trustee.[34]
In terms of disqualifying conflicts of interest, the Court of Appeal relies on Webster v Lappas,[35] and Warren Estate (Re) at para 25,[36] to note that:
A trustee should not be required to “weigh [their] personal interests against the interests of the beneficiaries. When it is difficult to accept that a trustee could deal with the interests of the beneficiaries in an objective manner, the trustee must be removed”[37]
The Court of Appeal then moves to the facts of the case to note that:
While the question of ownership has yet to be determined in the underlying litigation, there is evidence that when the appellant has been called upon to weigh her “personal interests against the interests of the beneficiaries”, she has prioritized her own interests, including in relation to the renegotiation of surface leases and by withholding certain records related to the leases. These decisions have the potential to jeopardize any assets of the trust or prevent the trust from being properly executed.[38]
Ultimately, the Court of Appeal does not find any reviewable error by the chambers judge in their finding of a disqualifying conflict of interest.
Final Remarks
This decision underscores that Courts will approach mandatory interlocutory injunctions, particularly those compelling the transfer of trust property, with exceptional caution. A finding that assets were transferred for less than fair market value is not, on its own, sufficient to establish a strong prima facie case. Rather, Courts must engage in a substantive analysis of the trust instrument, the scope of any discretionary powers, and determine whether the impugned transactions plausibly constitute a breach of trust, unjust enrichment, or an improper acceptance of trust property.
Further, the Court of Appeal reaffirmed that “irreparable harm” requires more than speculative or compensable loss, emphasizing the extraordinary and emergent nature of interlocutory relief.
Lastly, this decision confirms that trustee removal is governed by a distinct analysis: where evidence shows a trustee has placed personal interests ahead of the beneficiaries’ interests in a manner that jeopardizes the proper administration of the trust, Courts may intervene and order removal even while the underlying ownership dispute remains unresolved.
—
[1] Scammell v Scammell, 2025 ABCA 425 (CanLII), at para 1. (“Scammell”)
[2] Ibid.
[3] Ibid.
[4] Ibid., at para 5
[5] Ibid., at para 6
[6] Ibid.
[7] Ibid., at para 7
[8] Ibid.
[9] Ibid., at para 8.
[10] Ibid., at para 4.
[11] Ibid., at para 8.
[12] Ibid.
[13] Ibid., at paras 9 and 3.
[14] Ibid., at para 9.
[15] Ibid., at para 10
[16] Ibid., at para 10
[17] Ibid.; R v Canadian Broadcasting Corp, 2018 SCC 5. (“Canadian Broadcasting”)
[18] Ibid., at para 11.
[19] Ibid.
[20] Ibid.
[21] Ibid., at para 12.
[22] Ibid., at para 13.
[23] Canadian Broadcasting, at para 15.
[24] Avmax Aircraft Leasing Inc v Air X Charter Limited, 2022 ABCA 252, at para 69.
[25] Scammell, at para 16.
[26] Ibid., at para 20.
[27] Ibid.
[28] Ibid., at para 24.
[29] Ibid.; citing RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 341, 1994 CanLII 117 (SCC).
[30] Scammell, at paras 25-26.
[31] Lubicon Lake Band v Norcen Energy Resources Ltd, 1985 ABCA 12 at para 33.
[32] Wood’s Homes Society v Selock, 2021 ABCA 431 at para 17.
[33] Trustee Act, SA 2022, c T‑8.1, at sections 14-16.
[34] Scammell, at para 35.
[35] Webster v Lappas, 2022 ABCA 403 at para 14.
[36] Warren Estate (Re), 2015 ABQB 420, at para 25.
[37] Scammell, at para 37.
[38] Ibid., at para 39.
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Written by: Grant Swedak
Posted on: February 6, 2026
Categories: Commentary
Scammell v Scammell, 2025 ABCA 425 (CanLII)
What is required for a Court to intercede and order the transfer of trust property? This case clarifies the high threshold for mandatory interlocutory injunctions and affirms that a Trustee’s removal is warranted where a demonstrated conflict of interest undermines the proper administration of the trust.
Background
In 2002, the Scammell Family Trust (the “Family Trust”) was settled to hold three quarter sections of land located in the municipal district of Provost, Alberta.[1] The Family Trust held certain associated surface leases and the settlor’s wife (the parties’ mother) was appointed as co-trustee with her children Wanda Scammell (“Wanda” or the “Appellant”) and Colin Scammell (“Colin” or the “Respondent”).[2] Together, the parties, their three siblings, and their mother were designated as beneficiaries of the Family Trust.[3]
In February 2003, the parties’ mother and Trustee of the Family Trust registered a caveat on title to the three Family Trust properties giving notice of her interest in each as Trustee under the Family Trust deed.[4]
In June 2013, the parties’ mother transferred one of the properties to Wanda with the transfer recorded as being for consideration in the amount of $40,000.[5] In August 2018, the mother executed transfers transferring the other two properties to the Appellant, with both transfers recorded as being for consideration in the amount of $1.[6]
In June 2019, the parties’ mother passed away.[7] Consequently, Wanda and Colin became co-Trustees of the Family Trust pursuant to the terms of the Family Trust deed.[8] In or around this time the Respondent says he first became aware the three trust properties had been transferred to the Appellant.
Trial
In June 2021, Colin commenced the underlying action against Wanda, alleging the transfers were not for fair market value and, therefore, were made in breach of Schedule F, clause 12.25 of the trust deed.[9]
Pursuant to clause 12.25 of Schedule F to the trust deed, trustees were authorized “to sell, convey or transfer any” property in the Trust Fund to “any person… who may be a Beneficiary” for “such consideration and at such prices…, not to be less than its fair market value, and subject to such terms and conditions as the Trustees shall, in their unfettered discretion determine advisable”.[10]
He also alleged Wanda was in breach of Family Trust as she treated the lands as her own, rather than as Family Trust property.[11] The Colin sought various relief, including the removal of Wanda as co-Trustee, and an order directing transfer of the lands into the names of the Trustees.[12]
Wanda asserted that the transfers were not made in breach of the Family Trust emphasizing Schedule E, clause 1 of the Family Trust deed Under the heading “Distribution of Trust Fund” which holds:
Trustees were given an “absolute discretion” to “pay and apply the whole” or part “of the income and capital of the Trust Fund” to whichever beneficiaries they “determine advisable for any reason”, “even to the complete exclusion of any one or more” of the beneficiaries. “Trust Fund” was defined to include the three properties and accumulated income from the properties.[13]
Accordingly, Wanda argued that her mother, as Trustee, had a “complete, absolute and unfettered discretion to distribute the assets of the trust” to her.[14]
In May 2023, the Colin applied to have Wanda removed as co-Trustee, sought to have their brother Randy Scammell (“Randy”) appointed instead, and sought an order transferring the three properties to the Respondent and to Randy as joint tenants.[15]
The Court of Appeal observed that although the relief sought in the filed application was unqualified, during oral submissions, counsel for the Respondent explained he was seeking only an “interim injunction”.[16] He relied on the test for a mandatory interlocutory injunction as set out in R v Canadian Broadcasting Corp.[17]
Interlocutory Relief at First Instance
The Court of Appeal reviewed the chambers judge holding, which found that the test for a mandatory interlocutory injunction was satisfied.[18] In doing so, the chambers judge had found that the Colin had established a strong prima facie case, seeing as the lands were transferred at considerably less than fair market value and the mother’s caveats from 2003 remained registered on title.[19] The chambers judge held that irreparable harm was made out on the basis of future “unquantifiable losses” and that the balance of convenience favoured an injunction.
Accordingly, the chambers judge ordered the three properties to be transferred to the Colin and Randy “pending the ultimate determination of this matter”.[20]
Additionally, the chambers judge exercised her discretion to remove the Wanda as trustee, on the basis that the “underlying litigation” put Wanda’s “personal interests in conflict with the interests of the trust”.[21]
The Appeal
The Appellant appeals the decision removing her as co-trustee of the Family Trust and the order directing her to transfer three parcels of land to her Randy and Colin, in their capacities as the current Trustees of the Family Trust. The Appellant submits the following grounds for her basis of appeal:
The appellant submits the chambers judge erred by failing to undertake a sufficiently extensive review of the merits of the respondent’s case, finding irreparable harm where the only potential harm was compensable in damages, and holding the balance of convenience favoured an injunction where the risk to the appellant’s livelihood far outweighed any inconvenience suffered by the other beneficiaries.[22]
Analysis – Injunctions Directing Transfers of Land
The Court of Appeal begins by reviewing the application of the law by the judge at first instance as it pertains to mandatory interlocutory injunctions. The Court of Appeal found that the chambers judge correctly identified the three branches of analysis as set out in Canadian Broadcasting,[23] and Avmax Aircraft Leasing Inc v Air X Charter Limited.[24]
The applicant must demonstrate:
a) a strong prima facie case;
b) irreparable harm if the relief is not granted; and
c) the balance of convenience favours granting the injunction.[25]
With respect to “strong prima facie case”, the Court of Appeal notes that the finding of transfers below market value should not have been the end of the inquiry given that a strong prima facie case requires a “strong likelihood in the law and evidence presented at trial”.[26] The Court of Appeal found that the allegations, in conjunction with the facts of the matter at hand, required an analysis regarding whether the transfers were made in breach of trust, whether the appellant was unjustly enriched, and whether the appellant accepted the transfer as trustee.[27]
Ultimately, in terms of a “strong prima facie case” the Court of Appeal found that the chambers judge erred in finding a strong prima facie case without adequately analyzing the trust deed’s provisions, particularly the interplay between the trustee’s discretion and the requirement for fair market value in property transfers.
Further, the Court of Appeal notes that the chambers judge made a reviewable error in assessing irreparable harm.[28] The Court of Appeal noted the following:
Generally, irreparable harm refers to harm that either cannot be quantified in monetary terms or that cannot be cured, for example where one party will not be able to collect damages from the other.[29]
The Respondent submitted that the properties were unique because of the significant number of surfaces leases, and accordingly there would be irreparable harm if the Appellant sold the properties. The chambers judge rejected this argument.[30]
The Court of Appeal cites Lubicon Lake Band v Norcen Energy Resources Ltd, stating:
the “irreparable harm” criterion serves to remind courts and litigants of the extraordinary nature of granting injunctive relief on an interlocutory basis:
… an interim injunction is emergent relief. The claimant seeks a remedy without proof of his claim. This inversion should only be considered in cases where the harm is of such seriousness and of such a nature that any redress available after trial would not be fair or reasonable. This hurdle must be met before the balance of convenience is weighed.[31]
Accordingly, the Court of Appeal found that the chambers judge erred by misinterpreting the irreparable harm requirement.
Based on their analysis, the Court of Appeal held that the granting of the mandatory injunction on an interlocutory basis was not just and equitable in the circumstances of the case.
Analysis – Removal as Trustee
The court begins by citing Wood’s Homes Society v Selock,[32] and sections 14-16 of the Trustee Act,[33] noting that the Court has statutory and inherent jurisdiction to remove and substitute a trustee.[34]
In terms of disqualifying conflicts of interest, the Court of Appeal relies on Webster v Lappas,[35] and Warren Estate (Re) at para 25,[36] to note that:
A trustee should not be required to “weigh [their] personal interests against the interests of the beneficiaries. When it is difficult to accept that a trustee could deal with the interests of the beneficiaries in an objective manner, the trustee must be removed”[37]
The Court of Appeal then moves to the facts of the case to note that:
While the question of ownership has yet to be determined in the underlying litigation, there is evidence that when the appellant has been called upon to weigh her “personal interests against the interests of the beneficiaries”, she has prioritized her own interests, including in relation to the renegotiation of surface leases and by withholding certain records related to the leases. These decisions have the potential to jeopardize any assets of the trust or prevent the trust from being properly executed.[38]
Ultimately, the Court of Appeal does not find any reviewable error by the chambers judge in their finding of a disqualifying conflict of interest.
Final Remarks
This decision underscores that Courts will approach mandatory interlocutory injunctions, particularly those compelling the transfer of trust property, with exceptional caution. A finding that assets were transferred for less than fair market value is not, on its own, sufficient to establish a strong prima facie case. Rather, Courts must engage in a substantive analysis of the trust instrument, the scope of any discretionary powers, and determine whether the impugned transactions plausibly constitute a breach of trust, unjust enrichment, or an improper acceptance of trust property.
Further, the Court of Appeal reaffirmed that “irreparable harm” requires more than speculative or compensable loss, emphasizing the extraordinary and emergent nature of interlocutory relief.
Lastly, this decision confirms that trustee removal is governed by a distinct analysis: where evidence shows a trustee has placed personal interests ahead of the beneficiaries’ interests in a manner that jeopardizes the proper administration of the trust, Courts may intervene and order removal even while the underlying ownership dispute remains unresolved.
—
[1] Scammell v Scammell, 2025 ABCA 425 (CanLII), at para 1. (“Scammell”)
[2] Ibid.
[3] Ibid.
[4] Ibid., at para 5
[5] Ibid., at para 6
[6] Ibid.
[7] Ibid., at para 7
[8] Ibid.
[9] Ibid., at para 8.
[10] Ibid., at para 4.
[11] Ibid., at para 8.
[12] Ibid.
[13] Ibid., at paras 9 and 3.
[14] Ibid., at para 9.
[15] Ibid., at para 10
[16] Ibid., at para 10
[17] Ibid.; R v Canadian Broadcasting Corp, 2018 SCC 5. (“Canadian Broadcasting”)
[18] Ibid., at para 11.
[19] Ibid.
[20] Ibid.
[21] Ibid., at para 12.
[22] Ibid., at para 13.
[23] Canadian Broadcasting, at para 15.
[24] Avmax Aircraft Leasing Inc v Air X Charter Limited, 2022 ABCA 252, at para 69.
[25] Scammell, at para 16.
[26] Ibid., at para 20.
[27] Ibid.
[28] Ibid., at para 24.
[29] Ibid.; citing RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 341, 1994 CanLII 117 (SCC).
[30] Scammell, at paras 25-26.
[31] Lubicon Lake Band v Norcen Energy Resources Ltd, 1985 ABCA 12 at para 33.
[32] Wood’s Homes Society v Selock, 2021 ABCA 431 at para 17.
[33] Trustee Act, SA 2022, c T‑8.1, at sections 14-16.
[34] Scammell, at para 35.
[35] Webster v Lappas, 2022 ABCA 403 at para 14.
[36] Warren Estate (Re), 2015 ABQB 420, at para 25.
[37] Scammell, at para 37.
[38] Ibid., at para 39.
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