McLennan Ross Achieves Favourable Decision for Client
On November 14, 2022, the Alberta Court of Appeal (the “ABCA”) made a determination concerning the 1985 transfer of assets from one trust (the 1982 Sawridge Band Trust) to another trust (the 1985 Sawridge Band Inter Vivos Settlement).
The 1982 Trust stated that the beneficiaries were “all members, present and future, of the Band”. In 1985, s. 15 of the Canadian Charter of Rights and Freedoms came into effect. The federal government introduced Bill C-31, which restored band membership to women who had married non-First Nations men and their children. This meant that the number of Sawridge members, and eligible beneficiaries, was to increase substantially. To not dilute the benefit to the original beneficiaries, the Sawridge Band created a new trust (the 1985 Trust) under which the beneficiaries would only be “all those who qualified as members in accordance with the Indian Act two days prior to Bill C-31”. This transfer was approved in a 2016 Consent Order. The case management judge determined that the 2016 Consent Order “should be interpreted as meaning that it approved transfer of legal title in the 1982 Trust assets to the 1985 Trustees but that it did not approve transfer of the beneficial interest in those trust assets to the 1985 Beneficiaries”.
Appeals were launched by the Office of the Public Guardian and Trustee and by Catherine Twinn, a former trustee and current beneficiary of the 1985 Trust. Catherine Twinn was represented by Crista Osualdini and David Risling of McLennan Ross LLP. The appellants successfully argued that the case management judge overstepped his mandate by raising issues about the validity of the 1985 transfer of trust assets 34 years after that transfer occurred. The appellants were also successful in arguing that, the order under appeal in effect amounts to a collateral attack on the 1985 Resolution that transferred the trust assets, through an indirect collateral attack on the 2016 Consent Order. In allowing the appeals, the ABCA sided with the appellants and set aside the order of the case management judge under appeal.
A special thanks to Aaron Mann, Student-at-Law for providing the case summary.