



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Price Security Holdings Inc. v.
Klompas & Rothwell,









2019 BCCA 36




Date: 20190131

Docket: CA45126

Between:

Price Security
Holdings Inc.

Respondent

(Plaintiff)

And

Klompas &
Rothwell

Appellant

(Defendant)




Before:



The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris

The Honourable Madam Justice Griffin




On appeal from:  An
order of the Supreme Court of British Columbia, dated
January 29, 2018 (
Price Security Holdings Inc. v. Klompas & Rothwell
,
2018 BCSC 129, Victoria Docket S171140).




Counsel for the Appellant:



S.C. Lyons





Counsel for the Respondent:



R.T. Ashmead





Place and Date of Hearing:



Victoria, British
  Columbia

December 10, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 31, 2019









Written Reasons by:





The Honourable Mr. Justice Tysoe





Concurred in by:





The Honourable Mr. Justice Harris

The Honourable Madam Justice Griffin








Summary:

The respondent was the
beneficiary of a trust that owned a commercial building and the appellant was a
tenant of some space in the building.  After the tenant had stopped paying its
rent, the respondent transferred its beneficial interest in the building,
together with the shares in the corporate trustee in whose name the building was
registered, to a third party.  The respondent beneficiary brought an action in
its own name against the tenant seeking judgment for the rent arrears, and the
matter proceeded by summary trial.  The judge concluded the respondent
beneficiary had satisfied three prerequisites permitting a departure from the
general rule that a beneficiary of a trust cannot directly sue a third party
debtor of the trust.  The judge awarded judgment for the rent arrears, interest
and costs.  Held: Appeal allowed.  The judge erred in concluding the respondent
satisfied the test for departure from the general rule that a beneficiary
cannot directly sue a third party debtor of the trust.  The test requires the
existence of special circumstances in addition to satisfaction of prerequisites,
but the judge failed to consider whether special circumstances existed.  The
judges order is set aside and a new trial is ordered.

Reasons for Judgment of the
Honourable Mr. Justice Tysoe:

Introduction

[1]

At issue in this appeal is whether a beneficiary of a trust which owned
a commercial building is entitled to directly sue a tenant of the building for
rent arrears that accumulated during the period immediately preceding the sale
of the building to a third party.

[2]

Following the hearing of a summary trial application under Rule 9-7 of
the
Supreme Court Civil Rules
, the summary trial judge found that the
beneficiary, Price Security Holdings Inc. (Price Security), could sue the
tenant, Klompas & Rothwell (the Tenant), for the rent arrears and awarded
judgment against the Tenant in favour of Price Security in the amount of
$144,094.29, plus interest at the prime interest rate of Bank of Montreal plus
3% and solicitor and own-client costs of the action pursuant to the provisions
of the last written lease executed by the Tenant.

[3]

The Tenant appeals the judges order.  In addition to challenging the standing
of Price Security to sue it, the Tenant questions the suitability of the matter
for a summary trial determination and the awards of interest and costs.

Background

[4]

At all material times Fort Quadra Holdings Ltd. (the Landlord) has
been the registered owner of a commercial building located at 895 Fort Street,
Victoria, B.C. (the Property).  Most of the building consists of office
space, and the Tenant, which is an accounting firm, has leased office space in
the building since 1985.  The Landlord and the Tenant entered into written
leases from time to time, the last of which was dated July 29, 2002 and covered
the period from September 1, 2002 to December 31, 2007 (the Lease).

[5]

In the period leading up to the Lease, the Tenant had been renting 1,600
square feet of space at a rent of $12.00 per square foot per year.  As the
Tenant was anticipating that an additional accountant would be joining the
firm, it requested an additional 592 square feet, with the Landlord paying for
the requisite leasehold improvements.  The annual rent under the Lease was
negotiated to be $12.50 a square foot per year for the first four months of the
term, $13.00 a square foot per year for 2003, $13.50 a square foot per year for
2004 and 2005, and $14.00 a square foot per year for 2006 and 2007.  The Tenant
says that the square footage price under the lease was above market rates and
that the above-market rent was to repay the Landlord for the leasehold
improvements.

[6]

Article 17.1 of the Lease gave the Tenant the right to renew for a
further term of five years at a rent equal to the greater of the then current
market rent and the rent payable in the last year of the Lease.  Article 5.10
of the Lease provided that if the Tenant continued occupying the space after
the expiration of the term without a further written agreement and without
objection by the Landlord, the Tenant would be a monthly tenant on the same
terms and conditions except that the monthly rent would be 150% of the rent for
the last month of the term.

[7]

Article 15.1 of the Lease provided that, if the Tenant was in default
under the Lease, it would be required to pay interest on overdue rent at a rate
of 3% per annum in excess of the prime interest rate of Bank of Montreal and it
would be required to reimburse the Landlord for its legal costs on a solicitor
and own-client basis.  The enurement clause in the Lease, Article 16.5, stated
that the Lease enured to the benefit of successors and assigns of the Landlord.

[8]

In 2006, prior to the expiry of the Lease, it appears that the
beneficial interest in the Property was sold to a party whose identity was not
established with certainty by the affidavit evidence but it may have been two
trusts related to Price Security.  Registered title of the Property remained in
the name of the Landlord, and it appears that the sale was effected by
transferring the shares in the Landlord to the purchaser and by having the beneficial
owner of the Property execute an unregistered transfer of the beneficial
interest in the Property to the purchaser.  This structure was deposed to be
used for tax purposes, which the Tenant says is the purpose of avoiding the
requirement to pay property transfer tax on the registration of a transfer in
the land title office (which was not denied by Price Security).

[9]

What the affidavit evidence did establish with certainty is that the
Landlord executed a document dated as of December 31, 2009 entitled
Declaration of Bare Trust and Agency Agreement.  The document recited that
Price Security, which was incorporated on August 1, 2008, had acquired
beneficial ownership of the Property, and Price Security appointed the Landlord
as its bare trustee and agent to hold legal title to the Property.  The
Landlord acknowledged that it held legal title to the Property as bare trustee
and agent for Price Security.

[10]

The Lease expired at the end of 2007 without the right of renewal being
exercised, and no new lease for the space was entered into.  The Tenant
continued to occupy the space and still occupied it at the time of the summary
trial.  The Tenant was provided on at least two occasions with extension
agreements having the rent based on $14.00 per square foot per year, but it was
not prepared to sign them.  The Tenant was of the view that rent based on
$14.00 per square foot per year was above market rent, and the Tenant no longer
needed as much space because the accountant who joined the firm in 2002 had
left.

[11]

Even though the Tenant was not prepared to enter into the proposed
extension agreements, it continued for several years to pay rent based on
$14.00 a square foot per year for the larger space.  In July 2014, the Tenant
stopped paying the rent.  The Tenant says it did so in order to bring the
Landlord to the negotiating table, and it was motivated in part because it
believed it had been over-paying its rent for years.  The non-payment of the
rent did not have the desired effect.  The property manager sent correspondence
in August 2015 requesting payment of the rent arrears and, while the Tenant
gave indications that it was making arrangements to pay the arrears, it never
did.

[12]

By accepting an offer dated February 2, 2016 and corrected by an
addendum dated July 12, 2016 (the Sale Agreement), Price Security agreed to
sell the beneficial interest in the Property and the shares in the Landlord to
PC Urban (Acquisitions) Corp. (PC Urban) which, in turn, assigned the
accepted offer to Pacific Arbour Six Residences Ltd. (Pacific Arbour).  The Sale
Agreement contained the following provision dealing with adjustments:

3.3
Adjustments
. 
The Purchaser will be  entitled to receive all income relating to the Property
from and including the Closing Date  The Vendor shall not be credited with
arrears of rent and other charges owed by the tenant(s) under the Lease, but
the parties agree to co-operate with each other in respect of the collection of
the arrears.  The Vendors sole remedy, in any event, will be to sue a
defaulting tenant in a debt action for recovery of rent arrears.

[13]

One of the documents executed in connection with the closing of the sale
was a Direction to Trustee & Transfer of Beneficial Ownership by which
Price Security acknowledged and confirmed that the document transferring
ownership of the Property to Pacific Arbour would be effective to transfer not
only the Landlords interest as trustee but also the entire beneficial
ownership interest of Price Security in and to the Property.  Another one of
the closing documents was an Assignment of Lease(s) Agreement by which Price
Security and a company named 077056 B.C. Ltd. (which appears to have been a
predecessor in title to the Landlord) assigned to Pacific Arbour all of the
lease agreements relating to the Property and all covenants and rights
thereunder accruing after the date of the closing of the sale.

[14]

After the sale of the Property completed, Price Securitys property
manager emailed the Tenant requesting an update on the status of the payment of
the rent arrears.  The email pointed out the provisions of the Lease calling
for a 150% lease rate for an overholding, as well as interest on overdue rent at
3% above the prime interest rate.

[15]

The underlying action was commenced in March 2017.  In addition to the
Tenant, Price Security named the Landlord, PC Urban and Pacific Arbour as
defendants in the action.  The notice of civil claim requested judgment against
the Tenant for the rent arrears at the 150% overholding rate, interest at the
prime rate plus 3% and solicitor and own-client costs.  The notice of civil claim
asserted that Price Security had made written demands to Pacific Arbour that it
cooperate to enforce landlord rights against the Tenant, including the use of
the Landlord to sue the Tenant, and that Pacific Arbour had refused to
cooperate.  The relief sought against PC Urban and Pacific Arbour was for an
injunction for them to cooperate with Price Security to enforce the landlord
rights, the terms of the Lease, and to seek all available remedies in respect
of the rent arrears owing by the Tenant.  No relief was sought against the
Landlord.

[16]

The evidence at the summary trial did not include the written demands
referred to in the notice of civil claim.  The evidence did include the responses
of the lawyers acting for PC Urban and Pacific Arbour to Price Securitys
notice of application for the summary trial.  They stated that their clients
had no interest in the application and claimed no interest in the alleged rent
arrears owing by the Tenant.

[17]

At the summary trial, the judge gave the parties liberty to file
additional affidavits on the issue of Price Securitys standing to sue the
Tenant for the rent arrears.  Counsel for Price Security swore an affidavit
stating that he had sent requests in 2016 to the lawyer for the Landlord and
Pacific Arbour and the lawyer for PC Urban requesting cooperation in collecting
the rent arrears and that their clients refused to assist.  He also swore that
after the hearing of the summary trial, he sent a request to these lawyers
requesting evidence concerning their clients position.  The lawyer for the
Landlord and Pacific Arbour replied by way of a letter stating that his clients
would not cooperate in the collection of the rent arrears because they were not
advised that they were outstanding at the time of their purchase of the Property
and that it was up to Price Security as beneficial owner to take action to
collect the arrears notwithstanding that the Lease was in the name of the
Landlord.

Decision of the Summary Trial Judge

[18]

In her reasons for judgment indexed as 2018 BCSC 129, the summary trial
judge first reviewed the factual background and then dealt with the issue of
whether the matter was appropriate for a summary trial determination.  The
judge concluded that credibility was not a critical factor and that the
evidence was sufficient to enable a just determination (at para. 42).

[19]

The judge next dealt with the issue of contractual privity.  She
concluded that none of the exceptions to the doctrine of privity (agency, trust
and the principled exception discussed in
Fraser River Pile & Dredge
Ltd. v. Can-Dive Services Ltd.
, [1999] 3 S.C.R. 108) had been established
(at para. 73).

[20]

The judge then considered the issue of exceptions to the general rule
that beneficiaries of a trust cannot directly sue a third party debtor of the
trust.  She stated that Price Security may be able to advance a claim against
the Tenant if it continued to hold a beneficial interest in the Property.  She
then considered the decision of
Stoney First Nation v. Imperial Oil
Resources Limited
, 2014 ABQB 408, which she interpreted to stand for the
proposition that a beneficiary is entitled to sue a third party debtor of the
trust as long as three prerequisites are satisfied: the trustee refused the
request of the beneficiary to sue; the trustee was named as a party in the
action suing the third party debtor; and the beneficiary exhausted its remedies
against the trustee (at para. 75).

[21]

The judge reviewed the documentation and concluded that, despite the
wording of the direction executed by Price Security at the time of the closing
of the sale, the Sale Agreement demonstrated an intention of the parties for Price
Security to continue to hold a beneficial interest in the Property; namely, the
amounts alleged to be owed by the Tenant (at para. 90).  The judge then
reviewed the three prerequisites set out in
Stoney First Nation
and
concluded that Price Security had satisfied all of them (at paras. 92-94).

[22]

The judge rejected the claim for the 50% increase in rent for the
overholding tenancy on the basis of estoppel (at para. 105), and she also
rejected a limitation defence raised by the Tenant (at para. 119). 
Neither of these points are in issue on this appeal.

[23]

The reasons for judgment concluded with the judge holding that Price
Security was entitled to interest at the prime interest rate plus 3% and
solicitor and own-client costs pursuant to the terms of the Lease which
continued to apply to the overholding tenancy (at paras. 120-121).

On Appeal

[24]

The Tenants grounds of appeal raise the following questions:

(a) Was the
matter suitable for resolution by summary trial?

(b) Did Price
Security have standing to directly sue the Tenant for the rent arrears?

(c) Should
contractual interest and solicitor and own-client costs have been awarded?

[25]

In addition to joining issue with the Tenant on these questions, Price
Security seeks to support the summary trial judges order on the basis that these
circumstances do constitute a principled exception to the doctrine of privity
such that it is entitled to the benefits of the Lease (and the overholding
tenancy which is subject to the provisions of the Lease).  Price Security
relies on this exception in respect of the rent arrears, interest and legal
expenses, but says that the exception provides the preferable way to analyze
its entitlement to the interest and legal expenses.  I presume it is considered
the preferable way because part of the interest and all of the legal expenses
accrued or were incurred after the sale of the Property and after the Lease was
assigned to Pacific Arbour.

Discussion

[26]

As I regard the issue of the suitability of the matter for resolution by
summary trial to be a threshold issue, I will discuss it first.  I will then
address the privity issue because, if Price Security is correct in its
position, the appeal should be dismissed without the necessity of dealing with
the remaining questions.

a)
Summary Trial Suitability

[27]

In considering this issue, the summary trial judge referred to the
factors discussed in the seminal decision of
Inspiration Mgmt. Ltd. v.
McDermid St. Lawrence Ltd.
(1989), 36 B.C.L.R. (2d) 202 (C.A.), and
concluded that it would not be unjust to give judgment by way of summary trial
because credibility was not a critical factor.

[28]

The Tenant says the judge erred in exercising her discretion because it
was denied the full benefits of document exchange, examinations for discovery
and cross-examination.  It goes on to submit that, as in
Edward Jones v.
Mirminachi
, 2011 BCCA 493, it can be an error to proceed by summary trial
in situations where the interpretation of a contract requires extrinsic
evidence.  However, unlike
Edward Jones
, the Tenant does not point to
any extrinsic evidence that would assist in the interpretation of the Lease
and, in particular, Article 5.10 which created the overholding tenancy. 
Indeed, the judge did not even appear to rely on Article 5.10 in finding there
to be an overholding tenancy.  Rather, she relied on the decision of
AIM
Health Group Inc. v. 40 Finchgate Limited Partnership
, 2012 ONCA 795, which
dealt with the creation of overholding tenancies at common law.

[29]

Next, the Tenant says that not all of the documentation was before the
court in relation to the prerequisite referred to in
Stoney First Nation
that the Landlord had refused a request by Price Security to sue the Tenant for
the rent arrears.  However, there was no conflict in the documentation that was
before the court and it was open to the Tenant to argue, as I believe it did at
trial and as it did on this appeal, that the documentation in evidence was
insufficient to establish that the prerequisite had been met.

[30]

Finally, the Tenant says that there was conflicting affidavit evidence
about the market rents in Victoria around the time the term of the Lease
expired.  It is true that the parties had differing views on the market rents,
but nothing turns on it.  The Tenant did not exercise its option to renew but,
even if it had, the renewal rent would have been the greater of the then current
market rent and the rent during the last year of the Lease.  The Tenants view
that it was paying above-market rent during the overholding tenancy did not
give it the right to stop paying the rental charges while continuing to occupy
the office space.  If the Tenant believed the rental rate to be excessive, its
remedy was to find other premises at market rent and vacate the Property.

[31]

In my opinion, the Tenant has not established that the judge erred in
principle or was clearly wrong in exercising her discretion to determine the
action on a summary trial application.  Accordingly, her exercise of discretion
is entitled to deference: see
Edward Jones
at para. 25.

b)
Privity of Contract

[32]

The doctrine of privity of contract stipulates that only the parties to
the contract are entitled to the benefits of it and are subject to the
obligations under it.  As a result, a person who is not a party to a contract
cannot sue or be sued on the contract or otherwise take advantage of the
provisions of the contract.  Until the decision in
London Drugs Ltd. v.
Kuehne & Nagel International Ltd.
, [1992] 3 S.C.R. 299, there were only
two generally accepted exceptions to the doctrine; namely, agency and trust:
see
Greenwood Shopping Plaza Ltd. v. Beattie
, [1980] 2 S.C.R. 228 at 237-240. 
In the present case, the summary trial judge held that neither of these
exceptions applied because Price Security was incorporated after the Lease was
executed and after the overholding tenancy was created.

[33]

In
London Drugs
, the issue was whether employees of an employer
owning a warehouse were entitled to the benefit of a limitation of liability
clause contained in a warehousing contract between the employer and the
plaintiff.  The Supreme Court of Canada noted that the doctrine of privity had
come under criticism by commentators (at 422) and concluded that the doctrine
should be relaxed in the circumstances of that case (at 446).

[34]

The Supreme Court of Canada revisited the issue in
Fraser River Pile
. 
It held that
London Drugs
was not intended to be limited to situations
involving employer-employee relationships (at para. 31) and that,
extrapolating from the requirements set out in
London Drugs
, the
determination of whether there should be a principled exception to the doctrine
of privity should be made on the basis of the following factors:

[32]       (a) Did the parties
to the contract intend to extend the benefit in question to the third party
seeking to rely on the contractual provision? and (b) Are the activities
performed by the third party seeking to rely on the contractual provision the
very activities contemplated as coming within the scope of the contract in
general, or the provision in particular, again as determined by reference to
the intentions of the parties?

[35]

In the case at bar, the summary trial judge held the Tenant could not
have intended to extend the benefit of the Lease and the overholding tenancy to
Price Security because it was not incorporated when they came into existence.  Relying
primarily on the decision of
Brown v. Belleville (City)
, 2013 ONCA 148,
Price Security says the judge erred in two respects.  It submits that the judge
failed to take into account the enurement clause contained in the Lease and
that the judge failed to consider whether Price Security fell within a class of
persons the parties intended to have the benefit of the Lease.

[36]

In
Brown
, a municipality agreed in a contract with the owner of a
farm to perpetually maintain and repair a storm sewer drainage system it
constructed on the farm property.  The farm passed to the farmers heirs and it
was subsequently sold on two occasions.  The contract was not registered and it
was not assigned to the purchasers.

[37]

The Ontario Court of Appeal upheld a determination by a motion judge
that the current owners of the farm were entitled to enforce the contract
despite the lack of privity.  The Court first agreed with the motion judge that
the current owners were successors of the owner who entered into the contract
with the municipality within the meaning of the enurement clause contained in
the contract (at para. 81), and held that relaxing the doctrine of
privity did not frustrate the reasonable expectations of the parties (at para. 85).

[38]

The Court went on to consider whether the test for the application of
the principled exception to the privity rule was met.  It noted the repeated
academic and judicial criticism of the doctrine of privity, and stated that the
doctrine is of considerably diminished force in Canada (at para. 79).  In
concluding that a principled exception to the doctrine had been established,
the Court was of the view that the original contracting parties clearly
intended to extend the benefit of the contract to an ascertainable group or
class of persons that included subsequent owners of the farm (at para. 101).

[39]

Price Security maintains that it is an assignee of the Landlord within
the meaning of the enurement clause of the Lease because the overholding
tenancy was effectively assigned to it.  It says this occurred at least by
2012 because it was dealing with all leasing matters through a property
management company by that year or, alternatively, it occurred at the time of
the sale of the Property as a result of the Sale Agreement providing that Price
Security was to have the benefit of the provisions of the Lease up to the
closing date of the sale.

[40]

In my opinion, neither of these things constituted an assignment of the
overholding tenancy to Price Security.  The fact that Price Security was
dealing directly with the property manager, rather than doing it through the
Landlord, does not demonstrate that the overholding tenancy was assigned to it. 
It simply means that Price Security was ignoring the formalities of the trust
for the sake of its own convenience.  There is no evidence that the Landlord
intended to assign the overholding tenancy to Price Security while it continued
to hold legal title to the Property.

[41]

Nor did the Sale Agreement serve as an assignment of the Lease to Price
Security.  The provision in the accepted offer relied upon by Price Security in
this regard (Article 3.3) was only dealing with adjustments, and confirmed that
Price Security was entitled to rent arrears accruing prior to the closing of
the sale.  As the Landlord was not a party to the Sale Agreement, the document
could not have effected an assignment of the overholding tenancy, in whole or
in part, from the Landlord to Price Security.

[42]

I turn now to the principled exception to the doctrine of privity. 
Price Security says that it falls within the class of persons to which the
parties to the Lease intended to extend the Landlords benefits under the
Lease, and that it is irrelevant that it was not incorporated when the Lease or
the overholding tenancy came into existence.

[43]

I agree with Price Security that the fact it was incorporated after the
Lease and the overholding tenancy were created is not determinative of the
matter.  Using
Brown
as an example, the parties to the contract intended
the benefit of the contract to extend to all subsequent owners of the farm, and
there was no requirement that any such subsequent owner had to have been born
or otherwise in existence at the time the contract was entered into.

[44]

But I do not agree with Price Security that it can be found that the
Landlord and Tenant intended to extend the Landlords benefits under the Lease
(and the overholding tenancy) to beneficiaries of trusts of which the Landlord may
be or become the trustee.  There is nothing in the Lease to evince such an
intention, and there was no extrinsic evidence that such an intention existed
at the time the Lease was entered into.  The mere possibility that the Landlord
held, or may in the future hold, the Property in trust for another person is
not sufficient, in my view, to establish an intention on the part of the
contracting parties to extend the benefits of the Lease to the beneficiary of
the trust.

[45]

Price Security submits the doctrine of privity should be relaxed in the
circumstances of this case to conform with commercial reality and justice and
notes, among other things, the lack of prejudice to the Tenant.  Price Security
takes this concept of commercial reality and justice from
London Drugs
,
but the Supreme Court of Canada in that case did not hold that the concept
dictated the abolishment of the doctrine.  Rather, the Court used the concept
to make an incremental change to the law; namely, the establishment of a
principled exception to the doctrine, as was amplified in para. 32 of
Fraser
River Pile
quoted above.  Price Security does not meet the test for the
principled exception.

[46]

It may be that the relaxation of the doctrine of privity will not
prejudice the Tenant.  However, it must be borne in mind that Price Security
made the decision to have the Property held in trust for it by the Landlord. 
It admits that it did so to achieve tax savings.  If it wishes to take
advantage of a trust structure, it should be prepared to accept the limitations
of such a structure, particularly when it was open to it to ameliorate those limitations.
 As pointed out by the summary trial judge, Price Security could have made
different collection arrangements with the purchaser of the Property (for
example, by taking from the Landlord an assignment of the chose in action in
respect of the rent arrears).  The lawyer for Pacific Arbour has stated in a
letter that his client had no knowledge of rent arrears owing by the Tenant at
the time of the purchase of the Property (and the Assignment of Lease(s)
Agreement contained a representation by Price Security that there were no rent
arrears except those accepted in writing by Pacific Arbour).  It is not known
whether Price Security did not pursue different collection arrangements for
strategic reasons or through oversight.

[47]

I would not accede to Price Securitys argument that the present
circumstances meet the test for a principled exception to the doctrine of
privity.  I will next address the Tenants ground of appeal that the summary
trial judge erred in holding that Price Security met the test under
Stoney
First Nation
for permitting a beneficiary of a trust to directly sue a
third party debtor of the trust.

c)
Suing a Third Party Debtor of a Trust

[48]

I wish to make two points before reviewing the case authorities.  The
first point is that this topic engages both trust and privity of contract
principles.  It is a general principle of the privity doctrine that only a
party to the contract may sue on the contract.  It is a general trust principle
that it is the trustee of the trust, and not its beneficiaries, who is the
appropriate party to sue to enforce rights of the trust.  Both of these
principles were involved in the cases discussed in
Greenwood Shopping Plaza
as illustrations of the trust exception to the privity doctrine.

[49]

It is important to bear in mind that there are other types of situations
involving the issue of whether a beneficiary of a trust can sue a third party
where only trust principles are engaged and the doctrine of privity does not
stand in the way of the beneficiary being able to sue directly (e.g., a suit by
a beneficiary to recover trust property or a suit by a beneficiary in respect
of negligence on the part of a third party causing loss of, or damage to, trust
property).  Cases involving those situations should not necessarily be regarded
as precedent for the present situation in which the doctrine of privity also
plays a part.

[50]

The second point is that the summary trial judge considered it to be a
prerequisite for Price Security being able to directly sue the Tenant that it
continued to hold a beneficial interest in the Property.  I am unclear why she
considered it to be a prerequisite, and neither of the parties on appeal
addressed the point other than saying that they did not regard it to be
important.  It may be the judge believed that Price Security needed to hold a
continuing beneficial interest in the Property in order to pursue the chose in
action in respect of the rent arrears.  However, that chose in action belonged
to the trust at the time of the sale of the Property, and it is clear from the
Sale Agreement that the chose in action was not acquired by the purchaser.  I
make the point because, although it does not affect the outcome of this matter,
I do not regard the retention of the chose in action after the sale of the
Property to constitute a continuing beneficial interest in the Property.

[51]

In holding that Price Security had standing to sue the Tenant for the
rent arrears, the summary trial judge relied solely on the decision of
Stoney
First Nation
.  Before discussing this decision, it will be useful to review
the authorities leading up to it.

[52]

Although it is not the earliest authority,
Sharpe v. San Paulo
Railway Co.
(1873), L.R. 8 Ch. App. 597 is regularly cited in later cases. 
In holding that one of several beneficiaries could not, on an allegation that
the trustee had refused to take proceedings, sue a debtor of the trust, Lord
Justice James said the following (at 609-610):

I had lately occasion to
consider that question, and I came to the conclusion, very clearly, that a
person interested in an estate or a trust fund could not sue a debtor to that
trust fund, or sue for that trust fund, merely on the allegation that the
trustee would not sue; but that if there was any difficulty of that kind, if
the trustee would not take the proper steps to enforce the claim, the remedy of
the
cestui que

trust
was to file his bill against the trustee for
the execution of the trust, or for the realization of the trust fund, and then
to obtain the proper order for using the trustees name, or for obtaining a
receiver to use the trustees name, who would, on behalf of the whole estate,
institute the proper action, or the proper suit in this Court. That view I
still adhere to, and I say it would be monstrous to hold that wherever there is
a fund payable to trustees for the purpose of distribution amongst a great
number of persons, every one of those persons could file a separate bill of
equity, merely on the allegation that the trustees would not sue.

This passage was quoted with approval by the Ontario
Court of Appeal in
Norfolk v. Roberts
(1913), 13 D.L.R. 463 (Ont. S.C.
(A.D.)).

[53]

The next important decision is
Hayim v. Citibank N.A.
, [1987]
A.C. 730 (P.C.), which may have led to some confusion in the jurisprudence.  It
involved two trusts, referred to as the Hong Kong trust and the American trust,
with the beneficiary of the Hong Kong trust being the trustee of the American
trust.  The Hong Kong trust owned a property and the provisions of the American
trust provided that the trustee had no obligation to require the sale of the
Hong Kong property until two named persons had died.  The beneficiaries under
the American trust sued the trustee of the Hong Kong trust for breach of trust
in delaying the sale of the property until those two persons had died.  The
Privy Council dismissed an appeal from the Court of Appeal of Hong Kong holding
that there had not been a breach of trust by the trustee of the Hong Kong trust. 
The Privy Council relied on a provision in the American trust stating that its
trustee had no responsibility in respect of the Hong Kong property while either
of those two persons were alive, and held that this provision meant that the
trustee under the American trust owed no duty to the beneficiaries of the trust
and was entitled to have instructed the trustee of the Hong Kong trust to delay
the sale of the property.

[54]

Although the Privy Council reviewed authorities involving the issue of
whether a beneficiary of a trust could sue a third party, the case did not
involve that issue and the Privy Council was not bringing about a change in the
law on the issue.  Rather, the issue was whether the beneficiaries of the trust
had greater rights than the trustee, and the comments by the Privy Council
about the authorities were
obiter dicta
.  This is clear from the
statement made by Lord Templeman immediately prior to his review of the
authorities (at 747):

The authorities cited by [counsel
for the beneficiaries under the American trust] only demonstrate that when a
trustee commits a breach of trust or is involved in a conflict of interest and
duty or in
other exceptional circumstances
a beneficiary may be allowed
to sue a third party in the place of the trustee.

[Emphasis added.]

[55]

Lord Templeman then reviewed several authorities, including
Sharpe
and two other decisions stating that a mere refusal by the trustee to sue did
not entitle a beneficiary to sue a third party in his own name (
Yeatman v.
Yeatman
(1877), 7 Ch.D. 210, and
Meldrum v. Scorer
(1887), 56 L.T.
471 (Ch.)).  He also referred to
Travis v. Milne
(1851), 9 Hare 141 at
150, 68 E.R. 449 (Ch.), where it was held that beneficiaries under a will of a
deceased partner could only sue the surviving partners in special
circumstances  where the relation between the executors and the surviving
partners is such as to present a substantial impediment to the prosecution by
the executors of the rights of the parties interested in the estate against the
surviving partners.  Special circumstances were found in that case because the
executors were accused of breach of trust in carrying on business with the
surviving partners.

[56]

Lord Templeman summarized the authorities as follows (at 748):

These authorities demonstrate that a
beneficiary has no cause of action against a third party
save in special
circumstances
which embrace a failure, excusable or inexcusable, by the
trustees in the performance of the duty [owed] by the trustees to the
beneficiary to protect the trust estate or to protect the interests of the
beneficiary in the trust estate.

[Emphasis added.]

In my view, Lord Templeman was not endeavouring to say anything
different in this passage than he said in the passage preceding his review of
the authorities; namely, a beneficiary of a trustee is not permitted to
directly sue a third party except in special circumstances.  Given Lord
Templemans reference to
Sharpe
,
Yeatman
and
Meldrum
, he
cannot be taken to have meant that a refusal of the trustee to sue the third
party constitutes a special circumstance.

[57]

Interestingly, all the other relevant authorities are decisions of the
Alberta courts.  In
Vogel v. Hall
, 2001 ABCA 188 (
sub nom.

Remmers
v. Lipinski
) (
Remmers
), leave to appeal refd [2001] S.C.C.A. No. 502,
the Alberta Court of Appeal summarized the law as follows:

[57]

Generally, while beneficiaries
have an
in personam
action against trustees for breach of trust, they
cannot sue the debtor of a trust fund.
Sharpe v. San Paulo Railway
(1873), L.R. 8 Ch. 597. Although beneficiaries may sue to recover trust
property, this is not a trust property action but a claim for damages based on
gross negligence. D.W.M. Waters,
The Law of Trusts in Canada
, 2nd ed.
(Toronto: Carswell, 1984) at 984.

[58]

In
Kwinter v. Metrowest Development Ltd.
, 2007 ABQB 713, the defendants
applied to strike the statement of claim for want of standing.  The plaintiff
was a beneficiary under a family trust which held the common shares of a
corporation, and she sued for oppression and breach of trust in respect of a
transfer of preferred shares of the corporation to her sister.  In holding that
it was not plain and obvious that the beneficiary lacked standing, Justice
Horner made reference to
Sharpe
,
Waters Law of Trusts in Canada
and
Halsburys Laws of England
in connection with the general proposition
that beneficiaries cannot directly sue third parties, and she continued as
follows:

[36]      The following possible exceptions relevant to the
case at bar have been identified:

1. Where there is alleged to
be fraud or collusion between the trustee and the third person (
Halsburys
),

2. Where by reason of conflict of
interest or duty it is impossible or difficult for the trustees to sue (
Halsburys
),

3. Where there is a failure by the
trustees in performing their duties as trustees to protect the trust estate or
to protect the interests of the beneficiary in the trust estate (
Hayim v.
Citibank N.A.
[[1987] 3 W.L.R. 83 (Eng. Prob. Ct.)])

4.  Where the beneficiaries
are suing to recover trust property (as opposed to suing debtors of the trust)
(
Remmers v. Lipinski
(2001), 293 A.R. 156 (Alta. C.A.), leave to appeal
to S.C.C. refused, (2002), [2001] S.C.C.A. No. 502 (S.C.C.)).

To this list I would add
statutory exceptions, such as those in the [
Business Corporations Act
]
allowing a beneficial owner of securities of a corporation to bring certain
actions.

Justice Horner did not use the term special
circumstances or exceptional circumstances but it appears that her
exceptions (or at least the first three of them) were intended to constitute
such circumstances.  In dismissing the application to strike, she held it was
not clear that the beneficiarys claims did not fall under one of these
exceptions.

[59]

The next set of decisions involved the Stoney First Nation.  There was
the decision of
Stoney First Nation
relied upon by the summary trial
judge, which was an appeal from the decision of a master in
Stoney Tribal
Council v. Imperial Oil Resources Limited
, 2012 ABQB 557.  The Stoney were
suing Imperial Oil in respect of royalty payments payable by it to the federal
Crown in connection with lands surrendered by the Stoney to the federal Crown
in trust to lease.  Imperial Oil applied to dismiss the claim on the basis
that the Stoney had no standing to bring the action.

[60]

Master Hanebury granted the application and dismissed the action.  After
making reference to
Remmers
, the Master said the following:

[67]      Exceptions to this general rule [that beneficiaries
cannot sue a third party debtor of a trust] require that the beneficiary first
meet certain prerequisites and that there be
special circumstances
:
Kwinter
v. Metrowest Development Ltd.
, 2007 ABQB 713, para. 36.

[68]      Imperial argues that it is plain and obvious these
prerequisites have not been met
nor are there the requisite special
circumstances
, with the result that there is no genuine issue for trial.

[69]      There are three prerequisites to a beneficiarys
action against a third party owing money to a trustee that could be an
impediment to the Stoney bringing this action: the beneficiary must first ask
the trustee to bring the action and be refused; the beneficiary must name the
trustee as a defendant if it sues the third party; and, the beneficiary must
exhaust its remedy against the trustee, in this case the Crown.

[Emphasis
added.]

I note that Master Hanebury interpreted
Kwinter
in
the same fashion as I have.

[61]

In the result, Master Hanebury concluded that the Stoney had not
exhausted its recourse against the federal Crown because she was of the view
that the royalties the Stoney were claiming from Imperial Oil could be or could
have been recovered from the federal Crown.  As she held that one of the three
prerequisites had not been satisfied, it was not necessary for her to consider
whether special circumstances existed.

[62]

The appeal from Master Haneburys decision was dismissed in
Stoney
First Nation
.  At para. 24, Justice Mahoney quoted para. 69 of
Master Haneburys reasons setting out the three prerequisites.  In dealing with
the issue of standing, he said the following:

[53]      I also agree with the Master that the Stoney do not
have standing to pursue their claim against Imperial. The Master correctly
identified the general rule set out in
Remmers v Lipinski
, 2001 ABCA 188
at para 57 that while beneficiaries have an
in personam
action against
trustees for breach of trust, they cannot sue the debtor of a trust fund. The
Master also correctly identified the exceptions to this legal rule set out in
Kwinter
v Metrowest Development Ltd
, 2007 ABQB 713, which require that the
beneficiary first meet certain prerequisites and that
there be special
circumstances
for a beneficiary to sue a third party.

[Emphasis
added.]

[63]

Justice Mahoney then quoted para. 36 of
Kwinter
(set out
above) and discussed whether the Stoney satisfied any of the 
Kwinter
exceptions. 
He concluded that none of the exceptions had been established or, in other
words, there were no special circumstances.  Near the end of his reasons (at para. 78),
he expressed his agreement with Master Haneburys conclusion that the Stoney
had not met the three prerequisites required for a beneficiary to bring an
action against a third party debtor of the trust, and he set out those
prerequisites.

[64]

As mentioned above, the summary trial judge relied on
Stoney First
Nation
in concluding that Price Security had standing to sue the Tenant for
the rent arrears.  At para. 75 of her reasons, she set out the three
prerequisites referred to in para. 78 of
Stoney First Nation
(and para. 69
of
Stoney Tribal Council
).  At paras. 91 to 99, she set out her
reasons for concluding that the three prerequisites had been satisfied. 
However, the judge never considered whether there were special circumstances
justifying a departure from the general rule that a beneficiary cannot directly
sue a third party debtor of the trust, as required in
Stoney First Nation
and the preceding authorities to which I have referred.  In my opinion, the
judge erred in that regard.

[65]

Before I deal with the consequences of the judges error, I wish to
comment on another Alberta decision that was apparently not provided to the
summary trial judge,
Stoney Tribal Council v. Shell Canada Limited
, 2017
ABQB 314 (
sub nom. Bearspaw, Chiniki and Wesley Bands v. Shell Canada Ltd.
)
(
Bearspaw
).  The action was similar to the one in
Stoney First
Nation
because the three bands were the same ones as had been represented
by the Stoney Tribal Council and the claim against Shell Canada was for
royalties that they alleged should have been paid to the federal Crown as their
fiduciary.  However, the result was different than in
Stoney First Nation
because Justice Poelman dismissed the application of Shell Canada for dismissal
of the claim for lack of standing.

[66]

At para. 40 of his reasons, Poelman J. set out what he considered
to be the distinguishing features of the case from
Stoney First Nation
,
including the fact that, unlike
Stoney First Nation
, the federal Crown
had been added as a defendant to the action and the federal Crown had not taken
action against the oil company.  At para. 42, Poelman J. quoted the following
passage from Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, eds.,
Waters
Law of Trusts in Canada
, 4th ed. (Toronto: Carswell, 2012) at 1265:

What if the trustee cannot or
will not enforce this claim for the benefit of the trust?  A recalcitrant trustee
who has rights against a third party but will not enforce them can simply be
joined as a defendant to the beneficiarys action which also names the third
party as a defendant.

I note that the decision footnoted at the end of this
sentence in
Waters
was
Shell U.K. Ltd. & Ors. v. Total UK Ltd.
& Ors
(
sub nom.

Colour Quest Ltd. v. Total Downstream UK Plc.
),
[2010] EWCA Civ 180 at paras. 111-144, which involved a claim for economic
loss in respect of trust property that had been damaged.

[67]

After also quoting the above passage from
Hayim
at 748, Poelman
J. discussed whether the plaintiffs had satisfied the prerequisite of
exhausting their remedies against the federal Crown.  He concluded the
prerequisite was satisfied because the federal Crown had been at least a
recalcitrant trustee and had failed to perform its duty of securing
additional royalties (at para. 43).  He also held that it would be overly
inefficient to require the plaintiffs to sue the federal Crown through judgment
before suing Shell Canada (at para. 44).

[68]

Justice Poelman next turned to a consideration of the 
Kwinter
exceptions.  He concluded that the exception based on
Hayim
applied because
there was a failure by the trustee in performing its duty as trustees to
protect the trust of the estate or to protect the interest of the beneficiary
in the trust estate.  He observed that this was essentially the same as the
requirement that a beneficiary exhaust its remedies against the trustee (at para. 47).

[69]

It appears that Poelman J. used the correct test as set out in
Stoney
First Nation
(with one exception which I will discuss below).  However, it
is my view that the manner in which he applied the test effectively did away
with the requirement for special circumstances.  He equated the failure of the
federal Crown to sue Shell Canada with the special circumstance of a trustee
failing in its duty to protect the trust or to protect the interests of the
beneficiaries.  The effect of his decision is that a beneficiary would have
standing to sue a third party debtor of the trust in all cases where the
trustee has merely refused to sue.  He relied on
Hayim
to come to this
conclusion but, as I have illustrated above, the authorities reviewed in
Hayim
do not support such a conclusion.

[70]

As the judge in the present case erred by failing to consider whether
special circumstances existed, it is my view that her order cannot stand.  As
the evidence at the summary trial was in the form of affidavits which are
before us, it is open to this Court to decide whether special circumstances did
exist and thereby avoid the expense of a new trial: see
McGarry v.
Co-operators Life Insurance Co.
, 2011 BCCA 214 at para. 81. 
However, it is my view that this is not an appropriate case for this Court to
decide the issue of special circumstances.

[71]

At the hearing of this appeal, we were advised that the issue of the
standing of Price Security in the underlying action was raised for the first
time during the course of the summary trial.  The issue was not fully canvassed
at the summary trial, and there may have been additional evidence introduced at
the summary trial if it had been previously raised.  Detailed submissions on the
issue of whether special circumstances existed were not made to us.  In these
circumstances, the appropriate remedy is to order a new trial.

[72]

I wish to make a few comments about the new trial.  As there will likely
be additional evidence at the new trial, the determination of the suitability
of a summary trial will not be binding on the new trial judge if the new trial
is in the form of a summary trial.  In addition, in view of my conclusion with
respect to the error made by the summary trial judge, it is not necessary for
this Court to consider the three prerequisites mentioned in
Stoney Tribal
Council
and
Stoney First Nation
or the issues relating to interest
and solicitor and own-client costs, and the summary trial judges findings in
those regards should not be considered to be binding on the new trial judge.

[73]

Finally, I wish to comment on the third prerequisite mentioned in
Stoney
Tribal Council
and
Stoney First Nation
that the beneficiary must have
exhausted its remedies against the trustee before suing the third party in its
own name.  No authority was cited in either of those decisions for this
prerequisite, and it is my view that in introducing it, Master Hanebury may
have conflated the situation of the beneficiary suing in its own name and the
situation of the beneficiary taking steps to sue in the trustees name.  If
there are special circumstances, the beneficiary may sue in its own name, and
there would not seem to be any need for the beneficiary to first take steps
against the trustee, especially in view of the second prerequisite that the
trustee be named as a defendant in the action against the third party.  But, in
the absence of special circumstances, the above-quoted passage from
Sharpe
explains
the avenue open to the beneficiary of obtaining an order to sue in the
trustees name or to have a receiver appointed to use the trustees name.  Another
potential avenue is an application for the appointment of a new trustee or a
judicial trustee under ss. 30 and 97 of the
Trustee Act
, R.S.B.C.
1996, c. 464.  In my view, these avenues are what may be envisaged by a
requirement for the beneficiary to pursue remedies against the trustee in the
absence of special circumstances.  In
Bearspaw
, Poelman J. almost
totally discounted this prerequisite, and I consider it to be an open question
whether it is an appropriate prerequisite of general application when there are
special circumstances.

Conclusion

[74]

I would allow the appeal, set aside the order of the summary trial judge
and direct that there be a new trial.

The Honourable Mr. Justice Tysoe

I AGREE:

The
Honourable Mr. Justice Harris

I AGREE:

The Honourable Madam Justice Griffin


