Monday, October 10, 2011

Sledin Estate v. Rusin

In a decision last month, Mr. John Rusin was ordered to pay the estate of Johanna Sledin over $800,000 in damages as compensation for funds she invested in companies, the shares of which he owned, and for the transfer of her house to him. In this case, Sledin Estate v. Rusin, 2011 BCSC 1207, Mr. Justice Gaul held that the nature of Mr. Rusin’ relationship was such that he owed fiduciary duties, in other words a duty of loyalty, to Mrs. Sledin, and that by his conduct he was in breach of his fiduciary duties.

Mr. Rusin met Mrs. Sledin and her husband in 1971. He was 32 and she 69. After her husband died in 1975, she became reliant on a small circle of friends, including Mr. Rusin, to assist her. She did not have a drivers licence.

Mrs. Sledin invested in various companies that were controlled by Mr. Rusin. The Court found that she received interest payments, but that she reinvested them with Mr. Rusin, who often did not keep records of the funds she provided.

In 1994, she sold her house to Mr. Rusin for $270,000 receiving a debenture from one of Mr. Rusin’s companies in the amount of $260,000 in return. She did not receive any legal advice on the sale of her home. Mr. Rusin sold the house a couple of months later at a profit for $311,000. The company was later struck from the Registrar of Company because Mr. Rusin’s did not keep the required filings up to date. As a result, Mrs. Sledin received only a small amount of interest, and none of the principal of the $260,000 debenture.

Mr. Rusin’s companies were engaged in real estate speculation and were not successful, several having been struck for failing to file annual reports.

Ms. Sledin suffered a stroke in 1996, following which her nephew Gordon Drewitz was appointed by the Supreme Court of British Columbia as her committee (or guardian). He demanded an accounting from Mr. Rusin of Ms. Sledin’s investments, but Mr. Rusin would not provide any.

On her death on September 11, 2000, Ms. Sledin had cash of $31,000, a Guaranteed Investment Certificate of $12,400 and a Term Investment of $10,000. She had invested large amounts of money with Mr. Rusin. After Ms. Sledin’s death, Mr. Drewitz as her executor sued Mr. Rusin.

Mr. Rusin sought to portray Ms. Sledin as a savvy investor, who knew what she was doing when she invested in his companies. To succeed, Mr. Drewitz needed to do more than show that his aunt made unsuccessful investments in Mr. Rusin’s companies. You can’t successfully sue the principal of a company in which you have invested just because you lost your investment. Mr. Drewitz needed to show that Mr. Rusin had a legal duty to Ms. Sledin, and that he breached that duty. He argued that in the circumstances Mr. Rusin had fiduciary duties Ms. Sledin to protect her interests, and that Mr. Rusin did not do so.

In determining whether Mr. Rusin had fiduciary duties to Ms. Sledin, Mr. Justice Gaul considered the legal principles as follows:

[64] Certain relationships on account of their very nature result in fiduciary obligations for one of the parties. For example, a lawyer has a fiduciary obligation to his or her client and a trustee has a similar duty to his or her beneficiary. These types of relationships are generally referred to as per se fiduciary relationships. 
[65] An ad hoc fiduciary relationship is one that does not fall within the traditional categories of fiduciary relationships. Instead, it is one that arises out of the specific circumstances and dynamics of the particular relationship.
[66] In dissenting reasons in Frame v. Smith, [1987] 2 S.C.R. 99 at para. 60, Wilson J. described what she considered to be the general characteristics of a fiduciary obligation as follows:
1. The fiduciary has scope for the exercise of some discretion or power.
2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
[67] These observations of Madam Justice Wilson were later endorsed in Lac Minerals v. International Corona Resources Ltd., [1989] 2 S.C.R. 574.
[68] The Supreme Court of Canada revisited the issue of fiduciary obligations and the constituent elements of such relationships in Hodgkinson v. Simms, [1994] 3 S.C.R. 377, and Galambos v. Perez, 2009 SCC 48.
[69] While the characteristics of a fiduciary relationship articulated in Frame continue to be relevant in determining whether such a relationship exists, the more recent case authorities have recast those characteristics and added to them.
[70] It is now clear that for an ad hoc fiduciary relationship to exist, the court must be satisfied that one party undertook, either expressly or by implication, to act for the benefit and best interest of another party: Galambos, at para. 66.
[71] Moreover, a relationship whose distinguishing feature is only the vulnerability or power imbalance of one party vis à vis another will not, without any additional features, meet the threshold of a fiduciary relationship: Galambos, at paras. 67 and 74.

Applying these criteria, Mr. Justice Gaul held that Mr. Rusin had fiduciary duties to Ms. Sledin. He undertook to look after her financial well being. He made decisions for her as to which companies to direct her investments, and what type of security if any to giver her. She trusted him to act in her best interest. She was vulnerable, being dependant on his for a significant portion of her income.

Mr. Justice Gaul found that Mr. Rusin had breached his fiduciary duties to Ms. Sledin. He failed to properly record her investments. He provided inadequate or worthless security to her for the investments. He allowed some of the companies to be struck from the Corporate Registry without telling her. He failed to repay principal amounts she invested with him.

Mr. Justice Gaul agree with Mr. Drewitz’s lawyer’s description of Mr. Rusin’s dealings with Ms. Sledin as a “variation of an unsophisticated, limited investor ‘Ponzi scheme’, an investment operation that pays returns to investors out of the money paid by subsequent investors rather than from profit. Mrs. Sledin was both the initial and the subsequent investor”.

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