



COURT OF APPEAL FOR ONTARIO

CITATION: Carroll v. Toronto-Dominion Bank,
    2021 ONCA 38

DATE: 20210121

DOCKET: C68245

Tulloch, Miller and Paciocco
    JJ.A.

BETWEEN

Marian L. Carroll

Applicant (Appellant)

and

The Toronto-Dominion Bank c.o.b.
    TD Bank Group, TD Waterhouse Private Investment Counsel Inc., TD Asset
    Management Inc. as Trustee of the TD Mutual Funds Trust and the TD Private
    Funds Trust

Respondents (Respondents)

Joseph Groia, David Sischy and Dawit
    Debssou, for the appellant

Linda Fuerst and Erika Anschuetz, for
    the respondents

Heard: November 18, 2020 by video conference

On appeal from the order of Justice Cory
    A. Gilmore of the Superior Court of Justice, dated March 17, 2020, with reasons
    reported at 2020 ONSC 1629.

Paciocco J.A.:


OVERVIEW

[1]

Marion Carroll was formerly employed by the Toronto-Dominion
    Bank (TD Bank) as a highly placed manager. She was responsible for the compliance
    of a group of TD Banks subsidiaries with legal and regulatory obligations, and
    internal policies, relating to the management of mutual funds.

[2]

In that capacity, Ms. Carroll claims to have
    exposed regulatory non-compliance and breaches of mutual fund trusts by TD
    Banks subsidiaries. She contends that this misconduct unjustly enriched TD Bank
    as well as its subsidiaries (jointly, TD). She claims that TD has succeeded
    in suppressing the full extent of its wrongdoing and its enrichment, including
    by wrongfully dismissing her from her employment in 2014.

[3]

Within two years of her dismissal, in 2016, Ms.
    Carroll launched a wrongful dismissal lawsuit which is still pending. In 2018, she
    began making whistleblower complaints to TD officials and to government
    regulators about the misconduct she allegedly uncovered. In September 2019,
    approximately five years after her dismissal, Ms. Carroll also launched the
    civil proceedings that are the subject of this appeal. Specifically, she issued
    an application seeking orders that would result in the disclosure, discovery,
    and redress of financial irregularities and misconduct, if any, by TD relating
    to its role as Trustee of designated mutual funds.

[4]

The application was dismissed pursuant to r. 21.01
    of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194
. The motion judge found that Ms. Carrolls
    application could not possibly succeed because Ms. Carroll lacks standing to
    bring the application. Ms. Carroll now appeals that ruling.

[5]

For reasons that follow, I would dismiss Ms.
    Carrolls appeal. I agree with the motion judge that Ms. Carroll required standing
    to bring the application, notwithstanding that the application relates to an
    alleged breach of trust. I also agree with the motion judge that Ms. Carroll
    lacks the standing required to maintain her application for any of the relief
    she seeks.

MATERIAL FACTS

[6]

Between August 8, 2011 and October 20, 2014, Ms.
    Carroll was employed by TD as a Senior Manager, Compliance. In this position,
    she carried primary responsibility for overseeing compliance by certain TD
    subsidiaries with their legal and regulatory obligations and internal policies
    relating to the management of mutual funds.

[7]

She contends that during her employment she made
    persistent efforts, despite reprisals, to identify and redress regulatory
    infractions and trust breaches committed by TD in the administration of TDs
    mutual fund products. Most significantly, she alleges that she discovered that TD
    unjustly enriched itself by more than $50 million by purchasing mutual fund
    units that were not in the best interest of unit holders in order to maximize undisclosed
    internal fees. She contends that her efforts ultimately required TD to
    self-report regulatory breaches that it had committed to the Ontario Securities
    Commission (OSC).

[8]

On October 20, 2014, while the OSC investigation
    was ongoing, Ms. Carroll was dismissed from her employment by TD. She
    attributes her dismissal to her efforts to expose and remedy TDs misconduct
    relating to its mutual fund products.

[9]

Approximately two weeks after her dismissal, TD
    finalized a settlement of more than $14 million with the OSC. Ms. Carroll
    maintains that the settlement agreement understates the nature and extent of
    the wrongdoing, as TD misled the OSC by failing to make full disclosure.

[10]

In 2016, Ms. Carroll commenced a lawsuit for
    wrongful dismissal, which is unrelated to the current appeal. She has also
    taken steps to expose TDs alleged malfeasance. In November 2018, four years
    after her dismissal, she sent a whistleblower complaint letter to the Chair
    of the Audit Committee and General Counsel of TD. Then, in September 2019, she
    sent whistleblower material to three bodies carrying regulatory
    responsibility relating to TDs mutual fund enterprises: the OSC, the United
    States Securities and Exchange Commission, and the Office of the Superintendent
    of Financial Institutions. Finally, and of most relevance to this appeal, she launched
    a civil proceeding against TD, by way of application, that is structured to
    uncover and remedy the wrongdoing she alleges.

[11]

The relief Ms. Carroll claims against TD is set
    out in her Fresh as Amended Application, issued on October 18, 2019.
    Specifically, Ms. Carroll:

·

sought standing and leave to apply for a passing
    of accounts pursuant to statute and the common law;

·

requested a declaration, if necessary, that she has
    standing to apply to compel a passing of accounts to remedy the reputational,
    financial, and personal harm caused to her by TDs misconduct;

·

asked for an order compelling TD to pass its
    accounts relating to designated mutual fund trusts, without notice to the
    unitholders who are the beneficiaries of those trusts;

·

sought the appointment of an independent
    accounting firm to conduct a full investigation of the trust accounts;

·

requested an order directing TD to disclose any
    breach of trust, financial irregularity or misconduct to beneficiaries and
    securities regulators relating to its role as trustee;

·

asked for an order indemnifying her from
    liability relating to any breach of trust found through the passing of
    accounts;

·

sought an order for an accounting and payment to
    beneficiaries of the trust for amounts equal to TDs wrongful gains; and

·

requested a declaration that TD had been unjustly
    enriched.

[12]

In response, TD brought a successful r. 21.01
    motion to dismiss the application. The motion judge ruled that it was plain and
    obvious that no reasonable cause of action had been pleaded because Ms. Carroll
    did not have standing to bring the application.

THE ISSUES

[13]

Ms. Carroll does not appeal the motion judges
    decision that she lacks standing to pass accounts pursuant to the
Substitute
    Decisions Act
, 1992
, S.O. 1992, c. 30, or any of the
Rules of
    Civil Procedure
. Nor does she take issue with the motion judges
    articulation of the test to be applied under r. 21.01, or with the propriety of
    dismissing an application under that rule where a proceeding is brought without
    standing. Her appeal is confined to the motion judges conclusion that Ms. Carroll
    clearly lacked standing. I would state the issues that Ms. Carroll raises as
    follows, and approach them in the following order:

A.

Did the motion judge err by failing to invoke the courts inherent
    jurisdiction to supervise trusts?

B.

Did the motion judge err by applying the wrong standing test?

C.

Did the motion judge err by finding that Ms. Carroll had not pleaded
    facts establishing a
prima

facie

case of standing?

D.

Did the motion judge err by failing to consider all aspects of the
    relief sought when determining Ms. Carrolls standing?

[14]

As I conclude that the motion judge made none of
    these errors, I would dismiss the appeal.

ANALYSIS

A.

Did the Motion Judge Err by failing to invoke
    the courts inherent jurisdiction to supervise trusts?

[15]

Ms. Carroll argues that the inherent
    jurisdiction of courts to administer trusts makes standing subordinate, and
    largely irrelevant, where allegations of fraudulent or improper misconduct are
    made against a trustee. As I understand her argument, Ms. Carroll maintains
    that once a court receives allegations that a trust has been breached, the role
    of the courts as the guardian of trusts is triggered, regardless of who
    initiated the application, thereby obliging the courts to resolve the
    litigation. Hence, in Ms. Carrolls view, the motion judge erred in requiring her
    to satisfy legal standing tests.

[16]

Relatedly, Ms. Carroll appears to be suggesting
    that the motion judge also erred by abdicating her judicial responsibility to
    address the alleged breaches of trust by giving weight to the fact that there
    are alternative means available for trust breaches to be addressed.

[17]

I would firmly reject Ms. Carrolls submissions.
    There is no support for the claim that the inherent jurisdiction of courts to supervise
    or administer trusts makes standing a subordinate or largely irrelevant
    consideration where allegations of fraudulent or improper misconduct are made
    against a trustee. This claim misconceives the true nature of the inherent
    jurisdiction of courts to supervise or administer trusts and is contrary to basic
    trust principles.

[18]

Courts assumed inherent jurisdiction to supervise
    and administer trusts so that trusts could be given legal force: Donovan W.M.
    Waters, Q.C., Mark R. Gillen & Lionel D. Smith, eds.,
Waters Law of
    Trusts in Canada
, 4th ed. (Toronto: Thomson Reuters, 2012), at pp. 1165-66;
    Daniel Clarry,
The Supervisory Jurisdiction Over Trust Administration
(Oxford: Oxford University Press, 2018), at para. 2.11. The enforcement of
    trusts was not achieved by empowering courts to act as roving commissions of
    inquiry into their proper performance, but by empowering courts to assist those
    with an interest in trusts in enforcing and compelling the performance of those
    trusts.

[19]

Initially, the inherent jurisdiction to
    supervise and administer trusts was recognized primarily to protect the
    interest of beneficiaries:
Crociani v. Crociani
, [2014] UKPC 40, at
    para. 36. Without the assumption of jurisdiction by courts, beneficiaries would
    lack legal authority to enforce trusts because trustees are the legal owners of
    trust property, and therefore hold the bundle of enforceable legal rights that
    property enjoyment entails. The only way to ensure that beneficiaries can enjoy
    trust property they do not own is for courts to take jurisdiction and impose
    personal obligations on trustees to use the legal rights they hold for the
    benefit of the beneficiaries, according to the terms of the trust:
McLean v.
    Burns Philp Trustee Co. Pty. Ltd.
(1985), 2 N.S.W.L.R. 637 (S.C.), at p.
    933.

[20]

Given that trusts are enforced by imposing
    personal obligations on trustees, if courts did not intervene, a trust would
    fail where a trustee would not or could not discharge their personal
    obligations because of refusal or incapacity. Courts therefore accepted the
    inherent jurisdiction to assume the administration of such trusts, based on the
    maxim of equity that no trust should fail for want of a trustee:
Clarry
, at para. 1.04.

[21]

In this way, courts of equity claimed the
    inherent jurisdiction at the behest of beneficiaries to supervise, and where
    appropriate intervene in, the administration of a trust where there is no
    trustee to carry it on, or where the trustee wrongfully declines to act or
    refuses to disclose trust accounts and supporting information or is otherwise
    acting improperly:
Halsburys Laws of England
, Vol. 98, 
Trusts
    and Powers
 (London: LexisNexis, 2019), at para. 626.

[22]

Given the significant obligations that courts
    impose on trustees and the desire to enable practical effect to be given to a
    trust, courts have also recognized the inherent jurisdiction to assist
    trustees in the administration of trusts where such assistance is required:
MF
    Global UK Ltd. (In Special Administration), Re
, [2013] EWHC 1655 (Ch.), at
    paras. 26, 32. For example, there is inherent jurisdiction to assist trustees where
    difficulties have arisen which cannot be removed without the assistance of the
    court, or where the decision of the court on a doubtful question connected with
    the trust or on its proper administration is sought by the trustee:
Halsburys
,

Vol. 98, at para. 626;
Waters
    Law of Trusts
, at pp. 1165-66.

[23]

To be sure, on occasion access to the inherent
    jurisdiction of courts has been extended to others who have an interest in a trust,
    such as creditors or those with contingent interests, particularly where that
    jurisdiction is supported by statute: see
McLean v. Burns Philp; Waters
    Law of Trusts
, at p. 1122. However, it can readily be seen that the
    inherent jurisdiction to supervise and administer trusts exists to assist the
    parties to the trust relationship or those who are interested in the trusts. As
    such, the inherent jurisdiction of courts to supervise and administer trusts is
    not inconsistent with the imposition of standing requirements. To the contrary,
    it is entirely in keeping with the role inherent jurisdiction performs to ensure
    that those who seek to invoke the inherent jurisdiction to supervise or
    administer trusts have an interest in the trusts they seek to enforce.

[24]

The position advanced by Ms. Carroll during the
    oral hearing, that courts of equity have liberated the inherent jurisdiction
    from standing requirements in order to protect the interests of incapacitated
    beneficiaries who cannot effectively sue to enforce trust obligations, is also
    inaccurate.

[25]

In fact, courts of equity have done the
    opposite. They have protected the interests of the incapacitated through the
    conventional means of granting standing to others to enforce trusts on their
    behalf, including guardians and personal representatives. There are now
    appointed officials who have also been given statutory authority to enforce
    trusts. For example, the Childrens Lawyer can enforce trusts:
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, s. 89(3). So, too, can the Public
    Guardian and Trustee:
Substitute Decisions Act, 1992
;
Public
    Guardian and Trustee Act
, R.S.O. 1990, c. P.51; and see
Waters Law of
    Trusts
, at p. 133; and Eileen E. Gillese,
The Law of Trusts
, 3rd
    ed. (Toronto: Irwin Law Inc., 2014), at p. 40. There is a narrow statutory
    exception that dispenses with private interest standing by enabling anybody to
    propose an arrangement for the variation of a trust for an incapacitated beneficiary:
Variation of Trusts Act
, R.S.O. 1990, c. V.1; Gillese, at p. 99. But
    this exception proves the rule. Simply put, the methods used to protect
    incapacitated beneficiaries do not support Ms. Carrolls position. They
    contradict it.

[26]

Not surprisingly, Ms. Carroll produced no
    authority to support her position that standing is subordinate and largely
    irrelevant in breach of trust cases. To the contrary, the authorities put
    before this court include illustrations of courts considering whether litigants
    have the standing required to raise such claims:
McLean v. Burns Philp
; and see
Gallant v. Gaudet

(1996),
    149 Nfld. & P.E.I.R. 31 (P.E.S.C.T.D.), at para. 25.

[27]

The position advanced by Ms. Carroll not only
    lacks support, it is also contrary to basic trusts principles. The logical
    implication of her position is that even if capacitated beneficiaries choose
    not to enforce the trust benefits that they are entitled to, strangers to the
    trust may do so. This outcome is not only unwarranted, it is contrary to the
    essential character of a trust, namely, an enforceable personal obligation owed
    by a trustee to the beneficiary, respecting property: see David Hayton, Paul
    Matthews & Charles Mitchell, eds.,
Underhill and Hayton: Law of Trusts
    and Trustees
, 18th ed. (London: LexisNexis, 2010), at p. 2; Gillese, at p.
    5. Simply put, if a beneficiary with capacity does not wish to enjoy the
    benefits of the personal obligation owed by the trustee, that obligation should
    not be enforced.

[28]

It is also contrary to the beneficiary
    principle, that, subject to exception, to be valid, trusts must have a
    beneficiary capable of enforcing the trust:
Morice v. Bishop of Durham
(1804), 32 E.R. 656 (Ch.), affd (1805) 32 E.R. 947 (Ch.);
In re Astors
    Settlement Trusts
, [1952] Ch. 534 (Eng.). The theory underlying the
    beneficiary principle is that trusts are, by definition, enforceable equitable
    obligations, and, without a beneficiary, there would be no-one with the
    standing to enforce the trust, thereby defeating the very existence of a trust:
    see
Astors
, at pp. 546-47, 549;
Philip H.
    Pettit,
Equity and the Law of Trusts
, 12th ed. (Oxford: Oxford University Press, 2012), at pp. 59-60
. If non-beneficiaries could enforce trusts, the beneficiary
    principle would not have developed. It would also be possible to create enforceable,
    non-charitable, impersonal purpose trusts, something the law in fact disallows.

[29]

The motion judge was therefore correct in not
    accepting Ms. Carrolls claim that standing is a secondary, if not irrelevant,
    consideration in trust litigation. Standing is required to sue for breaches of
    trust.

B.

Did the Motion Judge err by Applying the Wrong
    Standing test?

[30]

Ms. Carroll argues that if standing is required,
    the motion judge was obliged to apply a flexible, discretionary, purposive
    approach to standing that asks whether there is a real and legitimate basis
    for asking the court to adjudicate legal issues. Ms. Carroll contends that the
    motion judge erred by not applying this test, and that, had she done so, Ms.
    Carroll would have been found to have standing given that she is a
    whistleblower who has sacrificed a great deal, thereby acquiring a genuine
    interest and real stake in the outcome of the proceedings.

[31]

I do not agree with Ms. Carrolls conception of
    the test to be used in determining her standing. As I will explain, where
    legislation does not provide standing, there are two paths to securing standing
    to initiate proceedings, private interest standing and public interest
    standing. These paths are distinct. Ms. Carroll does not seek public interest
    standing since it is clearly unavailable in her case. Instead, she argues that
    public interest standing principles should inform whether she has private
    interest standing. I do not agree with this proposition. Public interest
    standing principles do not apply where the private interest standing test
    governs. The motion judge would have erred had she applied the standing test
    Ms. Carroll proposes.

[32]

I will begin by describing the tests for private
    interest and public interest standing.

[33]

To have private interest standing, a person must
    have a personal and direct interest in the issue being litigated:
Campisi
    v. Ontario (Attorney General)
, 2018 ONCA 869, 144 O.R. (3d) 638, at para.
    4, leave to appeal refused, [2019] S.C.C.A. No. 52. They must themselves be
    specifically affected by the issue:
Canada (Attorney General) v. Downtown
    Eastside Sex Workers United Against Violence Society
, 2012 SCC 45, [2012]
    2 S.C.R. 524, at para. 1. It is not enough that the person has a sense of
    grievance or will gain the satisfaction of righting a wrong or is upholding
    a principle or winning a contest:
Finlay v. Canada (Minister of Finance)
,
    [1986] 2 S.C.R. 607, at para. 21, citing
Australia Conservation Foundation
    Inc. v. Commonwealth of Australia
(1980), 28 A.L.R. 257 (H.C.A.), at p. 270.
    As it is sometimes put, to have private interest standing, a person must have a
    personal legal interest in the outcome:
Landau v. Ontario (Attorney
    General)
, 2013 ONSC 6152, 293 C.R.R. (2d) 257, at para. 16. Where the
    party initiating the litigation has a personal legal interest in the outcome,
    standing exists as of right:
Landau
, at para. 21. An appeal of a private
    interest standing decision is therefore evaluated using a correctness standard:
Miner v. Kings (County)
, 2017 NSCA 5, 60 M.P.L.R. (5th) 1, at para.
    23.

[34]


In public law cases
, however, Canadian
    courts have relaxed these limitations on standing and have taken a flexible,
    discretionary approach to public interest standing, guided by the purposes
    which underlie the traditional limitations (emphasis added):
Downtown
    Eastside
, at paras. 1, 22. This more flexible approach is warranted to
    ensure that legislation is not immunized from challenge:
Downtown Eastside
,
    at para. 33, citing
Canadian Council of Churches v. Canada (Minister of
    Employment and Immigration)
, [1992] 1 S.C.R. 236, at p. 256. As Cromwell
    J. explained in
Downtown

Eastside
, at para. 37:

In exercising the discretion to grant
    public interest standing
, the court must consider
    three factors: (1) whether there is a serious justiciable issue raised;
    (2) whether the plaintiff has a real stake or a genuine interest in it;
    and (3) whether, in all the circumstances, the proposed suit is a reasonable
    and effective way to bring the issue before the courts. The plaintiff seeking
    public interest standing must persuade the court that these factors, applied
    purposively and flexibly, favour granting standing. [Emphasis added, citations
    omitted.]

[35]

I have added emphasis to the above passages from
Downtown Eastside
to reinforce that the flexible, discretionary,
    purposive approach that has been adopted applies only in public interest
    litigation. Similar developments have not occurred in private law proceedings. There
    are good reasons why this is so.

[36]

First, the reasons for liberating standing
    requirements in public interest litigation do not apply in the same degree to
    private litigation. For example, there will invariably be greater justification
    for using public legal resources to address matters of public interest than
    there will be for using public legal resources to vindicate private interests
    that the parties affected are not seeking to vindicate.

[37]

As well, public interest litigation tends to
    affect the interests of many, particularly where laws are being challenged. In
    contrast, the outcome of private litigation has a unique impact on those whose
    legal interests are directly affected by the litigation. They are therefore the
    ones who should carry out the litigation so that they can make decisions
    relating to the protection of their interests.

[38]

Ms. Carrolls proposed action illustrates the
    point. She is suing for an investigation and for the passing of accounts
    without notice to the unitholders and has requested that unitholders be
    compensated. If she were to be granted standing, the private information of
    unitholders would be accessed for the lawsuit without their input. Further, if she
    were to be given standing to litigate, she would not only control the tactical
    choices made during litigation but would also have standing to settle the
    litigation. Despite her lack of personal legal interest in the outcome, she would
    be empowered to manage the litigation in ways that could potentially compromise
    the financial interests of the unitholders, who hold the personal legal
    interests in question.

[39]

Finally, and most profoundly, the driving
    consideration in using flexible standing standards in public interest
    litigation does not apply to private litigation. Specifically, there is not the
    same concern that, without a flexible standing test, wrongdoing will
    effectively be immunized. In private law cases, if the parties with a personal
    legal interest that is affected by wrongdoing forego their right to sue or
    raise an issue, thereby immunizing the wrongdoing, this is a private matter,
    not one of public concern.

[40]

Of course, where the private wrongdoing occurs
    in a regulated enterprise and contravenes the law, there will be a public
    interest in intervening, but that public interest is to be protected by
    regulatory enforcement, not through the surrogacy of civil suits initiated by
    strangers to the private rights at stake.

[41]

Ms. Carroll has provided us with no authority
    applying the public interest standing principles articulated in
Downtown
    Eastside
to private interest standing. For the reasons I have provided, I
    am not persuaded that such crosspollination should start here. In my view, the
    refinement of the public interest standing principles in
Downtown Eastside
has
    not altered the law of private interest standing.

[42]

If Ms. Carrolls position is the more modest one
    that the principles from
Downtown Eastside
should be applied exceptionally
    where a knowledgeable whistleblower seeks to launch a lawsuit to expose
    wrongdoing in a private institution, I am equally unpersuaded. I appreciate
    that it has long been recognized that there is a public interest in exempting
    whistleblowers from confidentiality obligations, so that they can expose
    misconduct that should be exposed in the public interest:
Initial Services
    Ltd. v. Putterill and Another
, [1968] 1 Q.B. 396 (C.A.). However, there is
    a difference between suppressing confidentiality obligations in the public
    interest, and empowering whistleblowers who have no legal interest in the
    outcome of litigation to initiate such litigation. There is good reason for the
    former but no reason for the latter. A whistleblower can expose misconduct
    without commencing private litigation involving the legal rights of others. As
    TD noted before us, subject to the law of privilege, nothing prevented Ms.
    Carroll from sharing her inside information with regulators, and there is
    nothing preventing her from sharing her intelligence with unitholders, or from
    appearing as a witness should the unitholders choose to sue.

[43]

In my view, the motion judge considered the
    correct standing tests in determining whether Ms. Carroll had standing. She determined
    that the statutory standing provisions that govern standing to pass accounts do
    not apply, and she considered whether Ms. Carroll had a personal legal interest
    in the litigation that could support private interest standing. She also
    considered and correctly rejected Ms. Carrolls contention that her status as a
    knowledgeable whistleblower gave her standing to bring the application, or that
    more generous standing rules apply in breach of trust cases. I would therefore reject
    this ground of appeal.

C.

Did the motion judge err by finding that Ms.
    Carroll had not pleaded facts establishINg a
prima facie
case of
    standing?

[44]

The party initiating civil proceedings has the
    burden of establishing their standing by pleading facts that would support
    standing:
The Polish National Catholic Church of Canada v. Polish National
    Church,
2014 ONSC 4501, at para. 41. Ms. Carroll has not pled facts
    that could disclose a
prima

facie

case that the
    application she initiated would affect her personal legal interests. I would
    therefore dismiss this ground of appeal.

[45]

As the motion judge found, Ms. Carroll was not a
    unitholder in the trust and had no financial interest in the outcome of the
    litigation she commenced, and, despite her role as a whistleblower, she lacked a
    direct personal interest in the litigation. She pleaded no facts that could
    disclose a personal legal interest in the trusts that were allegedly breached.

[46]

The motion judge was also correct in rejecting Ms.
    Carrolls contention that she could sustain a standing claim based on her
    potential liability as a constructive trustee. There are three possible avenues
    to personal liability as a constructive trustee:

·

As a knowing assister, who knowingly or
    wilfully blindly encouraged or assisted in a dishonest and fraudulent breach of
    trust:
Air Canada v. M & L Travel Ltd
.
, [1993] 3 S.C.R.
    787, at pp. 809-11;

·

As a knowing receiver, who knowingly, or
    wilfully blindly, or with knowledge of facts which would put an honest person
    on inquiry, received trust property in their own capacity in breach of trust:
Air
    Canada
, at pp. 810-13; or

·

As a
trustee
de son tort
, who assumed the role of trustee without proper appointment
    and then breached the trust:
Air Canada
,
at pp. 808-9.

[47]

The motion judge addressed the first avenue of
    potential liability, knowing assistance, and dismissed it because there was
    no evidence before her that Ms. Carroll participated in any breaches of trust.
    Indeed, the pleadings before the motion judge maintained that Ms. Carroll made
    efforts to prevent and remedy any alleged wrongdoing.

[48]

Ms. Carroll argues on appeal that, despite this,
    it is not plain and obvious that she would not be exposed to personal liability
    as a constructive trustee, given her role as a corporate officer of the Trustee
    at the time the maladministration occurred. I disagree. The motion judge was
    correct in finding that there was no foundation that could support Ms.
    Carrolls liability as a knowing assister. There was no need for the motion
    judge to address knowing receiver or
trustee
de son tort

liability, as neither form of liability is even hinted
    at in the pleadings. Absolutely no suggestion is made that Ms. Carroll received
    trust property, and there is no indication that she assumed the role of
    trustee.

[49]

In these circumstances, the fact that Ms.
    Carroll sought indemnity in her application does not provide a path for her
    standing. It is incumbent on the claimant to clearly plead the facts upon
    which it relies in making its claim:
R. v. Imperial Tobacco Canada
, 2011
    SCC 42, [2011] 3 S.C.R. 45, at para. 22. Ms. Carroll has pled no facts
    that could support such relief.

[50]

I would therefore reject Ms. Carrolls
    contention that the motion judge erred in finding that she had not pleaded
    facts establishing a
prima

facie

case of standing. That
    decision was correct.

D.

DID THE MOTION JUDGE ERR BY FAILING TO CONSIDER
    ALL ASPECTS OF THE RELIEF SOUGHT WHEN DETERMINING MS. CARROLLS STANDING?

[51]

Ms. Carroll argues that the motion judge erred
    by focusing entirely on whether she had standing to pass accounts, disregarding
    the other relief she requested. I would not give effect to this ground of
    appeal, either.

[52]

First, I am not persuaded that the motion judge considered
    only the relief related to the passing of accounts. As just described, the
    motion judge considered the relief Ms. Carroll claimed in relation to her
    potential liability as a constructive trustee. The motion judges careful
    decision is responsive to the arguments made. I would not be prepared to find
    that because the motion judge did not expressly mention some of the specific
    relief requested, she must have failed to consider that relief in coming to the
    decision that she did.

[53]

In any event, the motion judges holding that
    Ms. Carroll did not have statutory or private interest standing was correct and
    prevents Ms. Carroll from seeking any of the relief she claims. Even had the
    motion judge failed to consider all the relief requested, it would have made no
    difference to the outcome.

CONCLUSION

[54]

I would dismiss the appeal. If agreement is not
    reached as to costs, I would invite the parties to provide costs submissions of
    no more than 3 pages, accompanied by bills of costs. The respondent is to
    provide their costs documentation within 10 business days following the release
    of this decision. I would require the appellant to respond within 5 business
    days.

Released: January 21, 2021 MT

David
    M. Paciocco J.A.

I
    agree. M. Tulloch J.A.

I
    agree. B.W. Miller J.A.


