Sunday, February 28, 2021

West Vancouver (District) v. British Columbia (Attorney General)


You might own a unique piece of land that you want preserved for the public well after your death. Perhaps there is a heritage building on the land, or perhaps you value the land because of its natural beauty. You could look at leaving the land the municipality or regional district in which the land is located. If so, I am guessing you probably don’t want the municipality to sell the land to the highest bidder to use the land for the construction of massive buildings. Accordingly, you might but conditions on the use of the land through imposing a trust.  In contrast to most trusts, a charitable trust can continue forever. Think about it: if the municipality accepts the land, you may be able to require that as trustee the municipality must preserver it in natural state a thousand years from now.

It is good policy to allow people to create trusts imposing conditions on the use of the land when leaving it to a municipality. By allowing people to impose conditions on the use of the land, people are encouraged to gift land to the public for worthwhile activities. The municipality does not have to accept the gift of land if the conditions are too onerous, but if it does accept the land, then it should honour the terms of the trust.

The difficulty is that something that makes good sense now, might be less beneficial in changing circumstances in even twenty years from now, let alone a hundred or a thousand. Municipalities are governed by elected councils who try to carry out the interests of the community in changing circumstances. They may consider, for example, that it would be better to sell the land, and use the funds to purchase other lands as a park, or perhaps something quite different such as providing low-cost housing.  How does the law balance the competing interests of honouring commitments to the person who gave the land to the municipality and the changing needs of the community?

Charitable trust law in British Columbia employs a couple of different methods that allow some flexibility in limited circumstances. One is called “cy-près,” which means as near as possible. If the purpose of the trust has become impossible or impracticable, the trustees of a charitable trust may apply to court to allow the trust to be varied so that it may be used for some other, but similar, purpose. For example, if trust were created solely to fund research to prevent small pox, and there are still funds left after small pox was eradicated, the trustee could apply to court to vary the trust so that the funds could be used for research to eradicate some other infectious disease.

Impossibility or impracticability is a fairly tough threshold to meet, and rightly so. There is another tool for varying charitable trust, and this the court’s power to make an administrative scheme. The court may vary the trust to provide a better means to achieving the purposes of the trust. On the one hand the threshold is not as high as for cy-près, but on the other it must be consistent with the purposes of the settlor or will-maker who created the trust. I previously wrote about The Sidney and North SaanichMemorial Park Society v. British Columbia (Attorney General) in which Madam Justice Dardi applied the administrative scheme-making power to allow the Park Society to change the terms of the trust to provide more flexibility in leasing land it owned, in generating revenue form the lands, and in the application of funds from expropriated lands, in order to better carry out the purposes of the trust.

The cy-près and administrative scheme-making powers are common law tools to provide some flexibility. Additionally, British Columbia has legislation allowing municipalities, regional districts and certain other organizations to apply to court to vary trusts, ant it is to the legislation to which I will turn.

In her will, Clara Brissenden left 2.4 acres of land with a house on it to the District of West Vancouver (the “District”) “to be used and maintained by it for public park purposes and I express the wish that in developing the said Amended Lots as a public park the trees and natural growth be preserved as far as may be practical.” Ms. Brissenden died in 1990, and the District accepted the land. The District rented out the house to a caretaker and named it Brissenden Park, but did not develop any of the land as a park until 2018. The park was a neighbourhood park with a fairly small amount of traffic. A trail counter at one entrance in 2019 indicated an average amount of visitors of 6 per day.

In 2017 the Council of the District resolved to try to change the terms of the trust for the property to allow it to subdivide the property and keep the northern half as a park, and to sell the southern half, and then use the sale proceeds to purchase waterfront properties to add to another busier park on the waterfront. The plan the District Council ultimately adopted would see the sale of 43 percent of the land, which would be subdivided into three residential lots, each with a covenant protecting the trees on the northern 10 feet. The District would name the two properties it intended to purchase with the sale proceeds “Brissenden Waterfront Park.”

The District petitioned the court to allow it to vary the trust to facilitate its plan to sell a portion of the Brissenden Park to allow the purchase of waterfront land. Carrying out the terms of the trust clearly did not meet the threshold of impossibility or impracticability in order to apply cy-près. The District sought to vary the trust by asking the court to apply its administrative scheme power and it also relied on section 184(2) and (3) of the Community Charter which says:

(2) If, in the opinion of a council, the terms or trusts imposed by a donor, settlor, transferor or will-maker are no longer in the best interests of the municipality, the council may apply to the Supreme Court for an order under subsection (3).

(3) On an application under subsection (2), the Supreme Court may vary the terms or trusts as the court considers will better further both the intention of the donor, settlor, transferor or will-maker and the best interests of the municipality.

The Attorney General of British Columbia was named as the respondent in the petition. The Attorney General, who has a responsibility to enforce charitable purpose trusts, opposed the application.

Justice Edelmann, in West Vancouver (District), v. British Columbia (Attorney General), declined to apply the scheme-making power to this trust. He found that Ms. Brissenden’s specific intention was to preserve the specific property Ms. Brissenden left to the District rather than a broader purpose of contributing to public parks. The District’s proposal would alter the purpose of the trust. He wrote:

[54]       The District’s application before me turns on the characterization of the plan and whether the very specific directions from Ms. Brissenden in her will should be considered the object or charitable purpose of the trust, or whether they are merely administrative in nature.

[55]       As set out above, in my view both the will itself as well as the context of its drafting indicate that the purpose of the trust was to preserve the Brissenden Property, with its trees and natural growth if practical, for use by the community as a park. It is clear from the terms of Ms. Brissenden’s will that she felt the Brissenden Property itself, and in particular the mature trees on the Brissenden Property, had an inherent value for the community that warranted protection. The representatives of the District around the time of the gift appear to have explicitly agreed with that assessment. The proposed plan would be contrary to this direction from Ms. Brissenden, as a significant portion of the trees and natural growth would be removed for development, and the proposed “Brissenden Waterfront Park” would appear to have neither mature trees nor substantial natural growth. I do not find that the direction to preserve the trees and natural growth is a mere administrative matter, and in my view, it is much more appropriately characterized as part of the charitable purpose of the trust.

Justice Edelmann then considered whether he should vary the trust under section 184 of the Community Charter. He found that the legislation was intended to modify the common law and “allow greater flexibility in varying trusts for which the municipality is the trustee.” The wording of the legislation implies that there must also be a change in circumstances since the trust came into effect.

The legislation balances the intention of the settlor or will-maker on the one hand, and the best interests of the municipality. Justice Edelmann wrote:

[99]       I agree with the District’s submission that the clause read in context implies a conflict between the intention of the settlor and the best interests of the municipality. There are at least two indications of this. First, if the variation independently furthered the “intention of the settlor”, there would not appear to be any impediment to its implementation by the municipality as trustee under existing trust mechanisms. Secondly, an application can come before the court only in circumstances where the municipality is of the opinion there is a conflict between the “terms or trusts” and the best interests of the municipality.

[100]    The question of whether the variation is one “the court considers will better further both” the intention of the settlor and the best interests of the municipality would therefore indicate an assessment of both elements together rather than independently. Ultimately, this Court must consider the impact of the proposed variation for both the intention of the settlor and the interests of the municipality. 

Mr. Justice Edelmann held that it was appropriate to vary the terms of the trust to allow the District to sell part of the property and use the proceeds to purchase the waterfront property for parkland. Although the plan did not reflect Ms. Brissenden’s specific intention for the property to become a park, her “intentions can be framed more broadly in terms of development of park space in which residents of the District will have access to more natural environment.” The plan was consistent with her broader charitable purpose.

He also agreed that the plan was in the best interests of the District.

[112]    A substantial amount of documentation was placed before the Court indicating that the current proposal was developed following extensive consideration and consultation by the District. There is no dispute that the waterfront parks surrounding the Argyle properties are regularly used by many thousands of residents of the District. The parks in question are a destination for visitors from the surrounding region and beyond. As noted earlier in these reasons, I accept that the proposed plan takes into consideration the multiple factors that converge in managing a park system for a large urban community. It is a well-documented plan that has been subject to extensive study and consultation, taking into consideration the other park space available to residents in the various parts of the District. I accept that the proposed plan is in the best interests of the District and its residents.

Circumstances had changed since Ms. Brissenden and her husband Pearly Brissenden (who died before her) had discussed leaving the property to the District. Justice Edelmann noted:

[117]    I accept that there have been relevant changes in the circumstances since the time when the District had discussions with the Brissendens about donating their property. In addition to the substantial increase in the cost of acquiring waterfront property, which has limited the ability of the District to pursue the Argyle Acquisition Policy, there have also been significant changes in the population of the District that would inevitably impact the usage of the park system. It is in the context of the current circumstances that the District is of the opinion that strict adherence to the terms of the trust are no longer in its best interest.

Justice Edelmann was alive to the risk that allowing trusts to be varied could discourage gifts of property to municipalities. He noted a distinction between a chilling effect for a specific municipality if it does not abide by the terms of trusts set out by those gifting property to it, and a broader chilling effect if the court allows the trusts to be varied too readily. He wrote:

[120]    In my view there is an important distinction to be made between the broader chilling effects of a low threshold for s. 184(3) variation, such that it would discourage charitable gifts to any municipality in trust, and the chilling effect in relation to the specific municipality before the court. In my view, the petitioning municipality is in a position to consider the chilling effect of the variation it is seeking on the future gifts it might receive in trust, and deference should be afforded to that assessment.

[121]    With regard to the broader chilling effect, there is presumably some risk inherent in varying the terms of a trust in a manner that deviates from settled law such that potential donors may consider the terms of their gifts less secure. However, if the legislature’s intention to expand the scope of possible variations is to be given effect, that inherent risk cannot be an impediment to any variation outside of existing trust law principles. The court should seek to strike an appropriate balance in demonstrating respect for the terms and trusts established by the settlor in the context of an expanded scope for variation.  

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