Gordon v. Venables

What happens when people bring court proceedings relating to an estate in two different provinces?

This is what happened in a recent case of Gordon v. Venables, 2008 BCSC 501.

Percival Gordon created a trust in his will. He directed his trustees to invest his estate, and pay the income to his daughter Helen Venables for her life. On her death, the will left the capital of the trust fund to his two grandsons, Peter Gordon and Michael Venables. He named his daughter as his trustee, and Peter Gordon as the alternate trustee in case his daughter was not able to act.

After Percival Gordon’s death in 1975, his daughter acted as the trustee with the assistance of a trust management company. She lived and managed the trust in the province of Ontario.

Helen Venables suffered a stroke in 2005, and became incapable of continuing to act as the trustee.

Peter Gordon, who lived in British Columbia, then became the trustee. He moved the trust assets to British Columbia employing a management company in British Columbia handle the investments.

Michael Venables and Helen Venables brought proceedings in Ontario to remove Peter Gordon as a trustee and to require him to pass his accounts in that province. They alleged that he had acted improperly.

Peter Gordon brought proceedings in British Columbia seeking approval of fees for his handling of the trust. It is not clear whether he was seeking legal fees as a lawyer or trustee fees, or both.

Michael Venables and Helen Venables brought an application to the Supreme Court of British Columbia asking the court to decline jurisdiction, or in other words, decline to allow Peter Gordon’s application to go forward. They argued that it would be more appropriate for the disputes to be decided in Ontario.

Mr. Justice Metzger held that it was more appropriate for the matter to be heard in Ontario. He considered the factors set out in s. 11 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, which reads as follows:

11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.
(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including
(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
(b) the law to be applied to issues in the proceeding,
(c) the desirability of avoiding multiplicity of legal proceedings,
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient working of the Canadian legal system as a whole.

Although there was some connection to British Columbia because Peter Gordon was managing the trust in British Columbia, Mr. Justice Metzger considered this in relation to the whole of the life of the trust. For most of the life of the trust, it was administered in Ontario. The court would need to consider any entitlement of Helen Venables to remuneration in determining Peter Gordon’s claim, and this would require hearing from witnesses who lived in Ontario. Mr. Justice Metzger wrote at paragraph 36,

With respect to the broader “ends of justice” analysis under s. 11, I note that the petitioner became the Trustee approximately one and a half years ago. He transferred the assets to British Columbia approximately one year ago. In my view, it would be contrary to the ends of justice for this court to rely on the petitioner’s own residency status and his own actions in moving trust assets in order to accede to his submission that British Columbia is the appropriate forum for the resolution of these disputes. I reach this conclusion because the changes that he brought about were extremely recent developments in the life of the Trust.