Hyperlawhypertext legal database Minister of Revenue (Ontario) v. McCreath [1977] 1 SCR 2

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Minister of Revenue (Ontario) v. McCreath

[1977] 1 SCR 2 Court SCC Decision date 1976-02-25 English

PartiesMinister of Revenue for the Province of Ontario (Plaintiff) Appellant·James Scott McCreath, Michelle A. McCreath, Martin R. McCreath, Ralph Scott McCreath, Paul C. McCreath and Annie Franceschini (Defendants) Respondents

Counsel (6)
Blemus Wright, and Graham Stoodley, for the appellant.
J.J. Robinette, Q.C., for the respondents.
E.M. Henry, Q.C., for Michelle McCreath.
Solicitor for the appellant: F.W. Callaghan, Toronto.
Solicitors for the respondents: Ongley & Blair, Toronto.
Solicitor for the respondent, Michelle McCreath: E.M. Henry, Official Guardian, Toronto.

Judges Laskin, Bora; Martland, Ronald; Judson, Wilfred; Spence, Wishart Flett; Dickson, Robert George Brian

Delivered by Majority

On appeal from Ontario

Subjects Taxation

Contents

The judgment of Laskin C.J. and Martland, Spence and Dickson JJ. was delivered by

The Settlor shall forthwith after the receipt thereof deliver to the Trustee a voting trust certificate representing 99,986 common shares in the capital stock of Mount Royal Paving & Supplies Limited and the Trustee shall receive such voting trust certificate to constitute a trust fund to be held, applied and dealt with by the Trustee upon the following trusts:
(a) During the lifetime of the Settlor to pay or apply the whole net income of the trust fund in each year to or for the benefit of the Settlor, and her issue from time to time alive or some one or more of the Settlor and her said issue as the Trustee may from time to time in its absolute discretion determine and if paid or applied to or for the benefit of more than one of them to pay or apply the same in such proportions as the Trustee may from time to time in its absolute discretion determine.
(b) On the death of the Settlor, if she shall die leaving issue her surviving, to hold the trust fund in trust for the issue of the Settlor or such one or more of them and in such proportions and subject to such terms and conditions as the Settlor may by will direct and in default of such direction or insofar as the same may be void or shall not extend or take effect to pay or transfer the trust fund to the issue of the Settlor who shall be living at her death and if more than one in equal shares per stirpes.

[Page 6]

(Paragraphs 1(c) and 1(d) relate to the eventuality of the Settlor dying without children.)

If any person should become entitled to any share in the capital of the trust fund before attaining the age of twenty-one years the share of such person shall be held and kept invested by the Trustee and the income and capital or so much thereof as the Trustee in its absolute discretion considers necessary or advisable shall be used for the benefit of such person until she or he attains the age of twenty-one years.
The Trustee may make any payments for any person under the age of twenty‑one years to the parent or guardian of any such person whose receipt shall be a sufficient discharge to the Trustee.
The Trustee and any successor trustee shall be entitled at any time to resign on thirty days’ notice in writing to the Settlor or upon such shorter notice as the Settlor may accept as sufficient. In the event of any such resignation, the Settlor shall by instrument in writing forthwith appoint another trustee to fill the vacancy resulting. At any time or from time to time the Settlor during her lifetime may remove the Trustee and appoint another trustee in its place. Such removal and appointment may be made by instrument in writing signed by the Settlor. The trustee hereunder shall at all times be a trust company having a paid up capital and surplus of not less than $5,000,000 and with an office in the City of Toronto.
The said voting trust certificate and all other securities or sums of money constituting the trust fund shall be registered or deposited in the name of the Trustee.
The Trustee shall be entitled to be reimbursed for all expenses incurred by it hereunder and shall be entitled to reasonable remuneration for its services under this agreement and as may from time to time be agreed upon with the Trustee by the Settlor. The Settlor agrees to pay such remuneration. Provided that after the death of the Settlor the remuneration payable to the Trustee shall be such remuneration as may be allowed by a Judge of the Surrogate Court of the County of York and shall be payable out of the income from the trust fund received by the Trustee.
Notwithstanding anything in this agreement contained, if under the provisions of the voting trust agreement the voting trust certificate constituting the trust fund becomes exchangeable for any shares, securities or other assets of any nature whatsoever, the Trustee shall be entitled to surrender the said voting trust certificate and to receive in exchange therefor such shares, securities or other assets which

Footnotes

  1. [1] [1973] 3 O.R. 413n, [1976] C.T.C. 178.
  2. [2] (1887), 19 Q.B.D. 326.
  3. [3] [1931] 1 K.B. 81 (C.A.).
  4. [4] [1968] A.C. 553 (H.L.).
  5. [5] [1970] 1 All E.R. 297 (C.A.).
  6. [6] [1969] 3 All E.R. 919 (Ch.).
  7. [7] [1905] 2 I.R. 626, affd. [1906] 2 I.R. 200.
  8. [8] [1943] A.C. 425 (P.C.)
  9. [9] [1952] A.C. 15 (H.L.).
  10. [10] [1954] A.C. 57.
  11. [11] [1949] S.C.R. 127.
  12. [12] [1962] S.C.R. 363.
  13. [13] (1949), 335 U.S. 632.
  14. [14] [1968] A.C. 553.
  15. [15] [1970] 1.All E.R. 297.

Statutes and regulations cited

  • Unresolved citations