This article was published in the July 2011 issue of the Association of Contentious Trust and Probate Specialists (ACTAPS) Newsletter
The law of Ontario is "reasonably clear" that trustees are under a duty to provide beneficiaries regularly with accurate information, and to make trust documents available for inspection by beneficiaries.1 'Reasonably clear' of course means that it is not particularly clear.
Unquestionably a trustee owes a fundamental and comprehensive fiduciary duty to the beneficiaries of the trust. As D.W.M. Waters states in The Law of Trusts in Canada, 2nd ed. (1984), at p.31,
"The hallmark of a trust is the fiduciary relationship which it creates between the trustee and the beneficiary. The whole purpose of a trustee's existence is to administer property on behalf of another, to hold it exclusively for the other's enjoyment. The express trustee is expected to put the interests of the trust and the beneficiaries first in his thinking whenever he is exercising the powers or performing the duties of his office. His duty is one of selfless service."2
The rationale for granting beneficiaries access to trust information, is that it is necessary to enable beneficiaries to ascertain the purposes and expectations of the settlor, so that they may be in a position to monitor and enforce the performance of the trustee's duties.
The countervailing tension is that an unfettered right to disclosure of trust information would not be in the best interests of the trust. The disclosure of some confidential information might lead to discord among the beneficiaries. The right not to disclose trust information can promote the due administration of trusts. It can reduce the scope for litigation regarding the rationality of the exercise by trustees of their discretions. It encourages suitable candidates to accept the office of trustee by insulating their decisions from beneficiary scrutiny.
In this paper the "privilege" a trustee enjoys refers to the trustee's right not to disclose trust information on the basis of confidentiality, and on the basis of legal privilege.
Writers on this subject3 have identified three main types of information that beneficiaries may wish to have disclosed: (1) information about the existence of the trust, (2) information about the trust accounts, and (3) information about trustee's decisions, which could include, agendas for trustee meetings, copies of legal opinions obtained by the trustees, as well as certain written communications. What is the scope of the beneficiary's right to disclosure of this information? What is the trustee's duty?
This paper seeks to answer these questions. It concludes by offering some practical guidance for legal practitioners and trustees.
BENEFICIARIES' RIGHTS TO DISCLOSURE OF INFORMATION FROM A TRUSTEE
The Traditional Rule: Beneficiaries have a Proprietary Right to Inspect Documents Relating to the Trust
The theoretical basis of the beneficiary's entitlement to inspect trust documents stems from O'Rourke v. Darbishire4, where Lord Wrenbury explained that the beneficiary's right to inspect documents relating to the trust is founded on a "proprietary right" of the beneficiary to the documents themselves:
The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in this sense his own. Action or no action, he is entitled to access to them. This has nothing to do with discovery. The right to discovery is a right to see someone else's documents. The proprietary right is a right to access documents which are your own.5
Thus, the beneficiary is entitled to see documents obtained or prepared by the trustee in the administration of the trust and in the course of the trustee carrying out his or her duties as trustee. As David A. Steele commented in "Disclosure of Trust Documents Revisited"6:
"[d]ocuments connected with the trust's administration are said to be "trust documents" and, prima facie, are the property of the beneficiaries and, hence, available for their inspection."
The traditional proprietary right analysis has been criticised. For example, Steele has commented that in Ontario (Attorney General) v. Ballard Estate7, Lederman J. in an analysis of a solicitor-client privilege dispute about access by beneficiaries, "concluded that Lord Wrenbury's use of the term "proprietary" in this context was intended to be colloquial rather than technical."8 Justice Lederman stated as follows:
When Lord Wrenbury used the phrase "proprietary right" he was saying no more than the documents in question are in a sense the beneficiary's and is therefore entitled to access them. They are said to belong to the beneficiary not because he or she literally has an ownership interest in them but, rather, because the very reason that the solicitor was engaged and advice taken by the trustees was for the due administration of the estate and for the benefit of all beneficiaries who take or may take under the will or trust.9
Lederman J. noted deficiencies with a proprietary right analysis and cautioned against allowing a trustee to rely on the doctrine of privilege to deny access to information regarding the administration of a trust:
A property right analysis unfortunately leads one astray and to the illogical conclusion that a potential beneficiary has to wait until the completion of the administration of the estate and until there is specific property available to him or her before he or she can see information that the trustees have gathered. In a hypothetical case, it may be that in the end, the residual legatee will receive nothing because the executors or trustees have not acted in good faith or breached their fiduciary duty. It is untenable that in such circumstances, a trustee can invoke the doctrine of privilege merely because the residual legatee has received or will receive nothing under the trustee's administration when the reason for that outcome may be the trustee's own misconduct. The right to actual property therefore cannot be determinant of whether that individual is entitled to the information.10
With this analysis firmly in mind, Lederman J. held that in the circumstances of Ballard Estate, "beneficiary" includes one who merely has a contingent or residual interest under the will or trust.11
More recently, the Privy Council in Schmidt v. Rosewood Trust Ltd12 rejected the property right analysis and replaced the proprietary test with a balancing of interests test. In Schmidt, their Lordships were in general agreement with the approach adopted in the judgments of Kirby P and Sheller JA in the Court of Appeal of New South Wales in Hartigan Nominees Pty Ltd v Rydge 29 NSWLR 405 where Kirby P, at pp. 421-422 of the decision, stated that the approach taken in O'Rourke is "unsatisfactory":
Access should not be limited to documents in which a proprietary right may be established. Such rights may be sufficient; but they are not necessary to a right of access which the courts will enforce to uphold the cestui que trust's entitlement to a reasonable assurance of the manifest integrity of the administration of the trust by the trustees...The beneficiary's rights to inspect trust documents are founded therefore not upon any equitable proprietary right which he or she may have in respect of those documents but upon the trustee's fiduciary duty to keep the beneficiary informed and to render accounts. It is the extent of that duty that is in issue.13
In rejecting the proprietary right analysis, the Privy Council's decision in Schmidt has changed the general rule that a beneficiary's entitlement to trust information and documents is based on some form of proprietary right. As will be discussed below, from the cases that have considered or followed Schmidt thus far, it appears that the courts in Canada generally support the view that a balancing approach is required, and the nature of a beneficiary's interest will be one factor for consideration in determining whether or not it is appropriate to disclose information to that individual. However, the courts in Canada, have yet to let go of a proprietary right analysis in its entirety in determining whether a beneficiary is entitled to information or documents relating to a trust.
Exceptions to the Traditional Rule
The right of a beneficiary to inspect trust documents is not unqualified. In Patrick v. Telus Communications Inc.14, Justice Rogers of the British Columbia Supreme Court at paragraph 35 of the decision considered Rouse v. IOOF Australia Trustees Ltd. (1999), 73 S.A.S.R. 484 (Australia S.C.), for standing as the proposition that a beneficiary does not have an absolute right to inspect trust documents. The Court said:
The fact that the trust is one in which numerous beneficiaries have an interest, and the further fact that those beneficiaries may have differing views about the wisdom of the course of action being pursued by the trustee, only serve to emphasise, in my opinion, the need for the law to recognise some scope for a trustee to refuse to disclose information on the grounds that it is confidential and on the further ground that the disclosure is not in the interests of the beneficiaries as a whole.
What follows is a survey of such "qualifications" or "exceptions" to the traditional rule with a view of offering some guidance to trustees as to when they can withhold information and documents from beneficiaries on the basis of confidentiality or legal privilege.
Trustees are not bound to disclose reasons for exercise of discretion (taken in good faith).
Londonderry's Settlement, Re; Peat v. Walsh,15 stands for the proposition that while beneficiaries are entitled based on a proprietary right to inspect trust documents, they are not entitled to inspect documents bearing on the deliberations of trustees leading to their decisions, taken in good faith, which will reveal the basis for the exercise of their discretionary powers.16
Steele has written that Londonderry's Settlement, "exempts from disclosure the following types of documents: (i) documents that record the trustees' deliberations regarding the manner of exercising their discretions; (ii) documents that record behind the exercise of a particular discretion; and (iii) documents upon which such reasons were or might have been based."17 The rationale for precluding such disclosure is that "[t]raditionally...to require a trustee to make such disclosure would render it too difficult for trustees to make sensitive decisions."18 In various offshore jurisdictions such as Jersey, Guernsey and the Turks and Caicos Islands, trust legislation has in fact codified this principle.19
The facts of Londonderry's Settlement, are briefly as follows: a beneficiary requested that the trustees release minutes of trustee meetings and correspondence between the trustees and other beneficiaries. The court concluded that because of the confidentiality which attached to the trustees' reasons for exercising their discretion in the way which they had, any document which would reveal such reasons should be barred from disclosure.
Steele noted that not only did the Court of Appeal in Londonderry's Settlement take the position that the beneficiary had no right to disclosure, all three judges of the Court of Appeal were of the view that the minutes and correspondence were not in fact "trust documents."20 Essentially, the Court of Appeal preferred to base their decision on the principle that, whether or not any particular category were trust documents, the trustees' duty to keep certain decisions confidential trumped the prima facie right of the beneficiaries to production of them.
Danckwerts L.J., referring to O'Rourke stated that "it is quite a simple matter to make general observations on the right of beneficiaries to inspection of trust documents, but it does not carry one any further until one knows what is meant by "trust documents".21 Salmon L.J. provided the following definition of "trust documents", noting that "trust documents" have the following common characteristics: "(1) they are documents in the possession of the trustees as trustees; (2) they contain information about the trust which the beneficiaries are entitled to know; (3) the beneficiaries have a proprietary interest in the documents and, accordingly, are entitled to see them."22 Unfortunately, these characteristics do not offer much assistance in identifying a trust document.23 For instance, Steele expressed that "To date, the case law does not provide a comprehensive definition of "trust documents" but one commentator has suggested that "trust documents" ought, in principle, to be all documents which relate either to the trust property or to the administration of the trust."24 After the ruling in Schmidt, which will be discussed in greater detail below, one questions the necessity of such a definition as the Privy Council held that the true basis for ordering disclosure of trust information was the court's inherent jurisdiction to supervise; however, guidance on this issue would produce much needed certainty.25
Harman and Danckwerts LL.J. also observed that even if the documents at issue were trust documents, they should not be subject to inspection by the beneficiaries:
It seems to me there must be cases in which documents in the hands of trustees ought not to be disclosed to any of the beneficiaries who desire to see them...to disclose such documents might cause infinite trouble in the family, out of all proportion to the benefit which might be received from the inspection of the same.26
Further, Harman J indicated that trustees exercising a discretionary power are not bound to disclose to their beneficiaries the reasons activating them in coming to a decision but if they do give reasons, their soundness can be considered by the court:
This is a long standing principle and rests largely, I think, on the view that nobody could be called upon to accept a trusteeship involving the exercise of a discretion unless, in the absence of bad faith, he was not liable to have his motives or his reasons called in question either by the beneficiaries or by the court. To this is added a rider, namely that if trustees do give reasons, their soundness can be considered by the court.27
Londonderry's Settlement, was considered in Ballard Estate28 where, as summarized by Steele, "Mr. Lederman observed that the tension between the principle of broad disclosure and the need to preserve the confidentiality of trustee deliberations "is by no means static and the balancing of interests may well call for a different result depending on the circumstances."29 Steele has interpreted Mr. Justice Lederman's dictum as suggesting that Londonderry's Settlement "may not be interpreted in Canadian jurisdictions as a general statement of a blanket right of trustees to refuse to provide their written reasons for the exercise or non-exercise of a discretionary power; rather it may be read as a statement that, in certain circumstances, as, for example, where a discretion involves sensitive matters such as an assessment of the worthiness of particular individuals to benefit from an advancement, trustees may not be required to provide documents which evidence such deliberations to the beneficiaries. If this is the case, Londonderry's Settlement may provide very insubstantial protection for trustees in Canadian jurisdictions."30
Accordingly, while Canadian courts have considered and referred to the reasoning in Londonderry's Settlement, they have yet to explicitly follow and endorse its reasoning and policy, as Steele wrote in 2001, "The strength and extent of the Londonderry's Settlement principle is somewhat uncertain."31 It remains so today.
Disclosure required if trustee's reasons could be relevant to question of whether discretion was exercised for an improper purpose.
If the beneficiary challenges the trustee's bona fides in the exercise of his or her discretion, the trustee may have to disclose trust documents. This proposition was explored by Salmon L.J. in Londonderry's Settlement, where he found that while the trustee was not bound to disclose the reasons for the exercise of discretion:
The position is quite different where the beneficiary seeks disclosure of documents from the trustees in the air, as in this case, from the position where the beneficiary seeks discovery of documents in an action in which allegations are being made against the bona fides of the trustees. If the documents in question are in the possession or power of the trustees and are relevant to the issues in the action, they must be disclosed whether or not they are trust documents.32
The policy supporting such disclosure has been described by Master Joyce in Froese v. Montreal Trust Co. of Canada33 as a means of enabling the plaintiff to determine the strength of a breach of trust claim from the outset of the action in order to promote efficiency and justice:
In my view, to require the plaintiff to pursue and complete an action to determine this preliminary issue before documents relevant to the issue of the breach of the alleged trust can be produced would not promote the economical and expeditious resolution of disputes and would not be in the interests of justice.34
In Ballard Estate, the court compelled disclosure as the trustees' reasons could be relevant to the question of whether discretion was exercised for an improper purpose. Justice Lederman held "the cases have stated that, whatever approach to the claim of privilege is taken, in actions where the beneficiary is alleging lack of good faith or breach of fiduciary duty, this information is to be made available to him or her."35
Similarly, in Barkin v. Royal Trust Co.36 the beneficiaries applied for the trust company to produce for inspection documents relating to the administration of estates upon discovering that a trust officer, while employed with the trust company was convicted of breach of trust in different estate matters, was actively involved in the administration of the deceased's estate. As explained in Widdifield on Executors and Trustees, 6th ed.37: "The court held that documents bearing on the deliberations of trustees leading to their decisions were available to be inspected by beneficiaries and explained that when a beneficiary alleges mala fides or breach of fiduciary duty, it would be unfair to require the beneficiary to first establish entitlement before disclosing information required to substantiate the beneficiary's claim."
In Patrick, Justice Rogers found that the plaintiffs' pleadings raised the bona fides of the defendant's exercise of discretion against them and accordingly, the documents sought were producible by the defendant even if they had to do with the defendant's exercise of that discretion. Justice Rogers explained that:
Once a suit has been launched...the conventional rules of discovery engage and trust documents of whatever stripe must be produced provided they are relevant to an issue raised in the pleadings and are not subject to a legally recognized privilege.38
There is certainly merit behind the argument that supports the proposition that disclosure must be made to a beneficiary when a claim of breach of trust has been advanced in order for the beneficiary to be in a position to reasonably allege bad faith against the trustee. However, if a beneficiary is entitled to disclosure "as of right" once a claim of breach of trust is made, this may produce an unfair result to the trustee or to the other beneficiaries. For instance, what if the beneficiary has a weak claim for breach of trust? If the court orders disclosure on a frivolous claim the harm will likely outweigh the benefit and result in confidential and/or commercially sensitive information being divulged and potential family discord. Although there is little case law directly on point on this issue, it appears that safeguards in the form of redactions or confidentiality agreements can be ordered by the court to protect misuse of such information.
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1. Barkin v Royal Trust Co., 45 E.T.R. (2d) 1, 2002 CarswellOnt 669 at para 14 (Sup Ct J) Pitt J. [Barkin].
2. D.W. M. Waters, Law of Trusts in Canada, 2d ed (Toronto: The Carswell Company Limited, 1984) at 31.
3. Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters' Law of Trusts in Canada, 3d ed (Toronto: Thomson Canada Limited, 2005) at 1068-1069.
4.  A.C. 581 HL (Eng) [O'Rourke].
5. O'Rourke v. Darbishire,  A.C. 581 HL (Eng) [O'Rourke] at pp. 626-7.
6. David A. Steele, "Disclosure of Trust Documents Revisited" (1995-1996) 15 Est. & Tr. J. 218 at 218 (HeinOnline).
7. Ontario (Attorney General) v Ballard Estate, 6 E.T.R. (2d) 34, 119 D.L.R. (4th) 750, 1994 CarswellOnt 579 (Ct J (Gen Div) Commercial List) Lederman J. [Ballard Estate].
8. David A. Steele, "The Beneficiary's Right to Know", (Paper delivered at the Fourth Annual Estates and Trusts Forum, Toronto, Law Society of Upper Canada, 20 November 2001), at Tab 5-15.
9. Ontario (Attorney General) v Ballard Estate, 6 E.T.R. (2d) 34, 119 D.L.R. (4th) 750, 1994 CarswellOnt 579 (Ct J (Gen Div) Commercial List) Lederman J. [Ballard Estate] at para. 6.
10. Ontario (Attorney General) v Ballard Estate, 6 E.T.R. (2d) 34, 119 D.L.R. (4th) 750, 1994 CarswellOnt 579 (Ct J (Gen Div) Commercial List) Lederman J. [Ballard Estate] at para. 13.
11. Ontario (Attorney General) v Ballard Estate, 6 E.T.R. (2d) 34, 119 D.L.R. (4th) 750, 1994 CarswellOnt 579 (Ct J (Gen Div) Commercial List) Lederman J. [Ballard Estate] at para. 3.
12.  2 A.C. 709,  3 All ER 76 (PC) [Schmidt].
13. Schmidt v Rosewood Trust Ltd.,  2 A.C. 709,  3 All ER 76 (PC) [Schmidt] at para. 52. The problems with the proprietary right approach were laid out by Kirby P at para. 52 of Schmidt:
The equation of the right to inspect trust documents with the beneficiary's equitable proprietary rights gives rise to unnecessary and undesirable consequences. It results in the drawing of virtually incomprehensible distinctions between documents which are trust documents and those which are not; it casts doubt upon the rights of beneficiaries who cannot claim to have an equitable proprietary interest in the trust assets, such as the beneficiaries of discretionary trusts; and it may give trustees too great a degree of protection in the case of documents, artificially classified as trust documents, and beneficiaries too great a right to inspect the activities of trustees in the case of documents which are, equally artificially, classified as trust documents.
14. 2005 BCSC 1762, 49 C.C.P.B. 305,  B.C.W.L.D. 1265, 2005 CarswellBC 3086, [Patrick].
15.  Ch. 918 (Eng. C.A.) [Londonderry's Settlement].
16. In Froese v Montreal Trust Co. of Canada, 1993 CarswellBC 2482 (BC Master) [Froese], Master Joyce held at paragraph 22 of the decision, that Londonderry's Settlement stood for the exception to the general "proprietary right" rule:
In that case it was held that the general rule that beneficiaries were entitled as a matter of proprietary right to inspect the trust documents did not encompass documents bearing on the deliberations of the trustees leading to their decisions, taken in good faith, as to the exercise of discretionary powers.
17. David A. Steele, "The Beneficiary's Right to Know", (Paper delivered at the Fourth Annual Estates and Trusts Forum, Toronto, Law Society of Upper Canada, 20 November 2001), at Tab 5-18.
18. David A. Steele, "The Beneficiary's Right to Know", (Paper delivered at the Fourth Annual Estates and Trusts Forum, Toronto, Law Society of Upper Canada, 20 November 2001), at Tab 5-17.
19. David A. Steele, "Disclosure of Trust Documents Revisited" (1995-1996) 15 Est. & Tr. J. 218 at 218 (HeinOnline). Steele outlined that Article 25 of the Trusts (Jersey) Law 1984 provides as follows:
Subject to the terms of the trust and subject to any order of the court, a trustee shall not be required to disclose to any person, any document which-
(a) discloses his deliberations as to the manner in which he has exercised a power or discretion or performed a duty conferred or imposed upon him; or
(b) discloses the reason for any particular exercise of such power or discretion or performance of duty or the material upon which such reason shall or might have been based;or
(c) relates to the exercise or proposed exercise of such power or discretion or the performance or proposed performance of such duty; or
(d) relates to or forms part of the accounts of the trust,
unless, in a case to which subparagraph (d) applies, that person is a beneficiary under the trust not being a charity, or a charity which is referred to by name in the terms of the trust as a beneficiary under the trust.
Similarly, Article 38 of the Trusts (Guernsey) Law 2007, provides a similar limitation on disclosure and additionally provides for the confidentiality of letters of wishes.
20. David A. Steele, "Disclosure of Trust Documents Revisited" (1995-1996) 15 Est. & Tr. J. 218 at 225 (HeinOnline).
21. Londonderry's Settlement, Re; Peat v. Walsh,  Ch. 918 (Eng. C.A.) [Londonderry's Settlement] at p. 935.
22. Londonderry's Settlement, Re; Peat v. Walsh,  Ch. 918 (Eng. C.A.) [Londonderry's Settlement] at p. 938
23. David A. Steele, "Disclosure of Trust Documents Revisited" (1995-1996) 15 Est. & Tr. J. 218 at 226 (HeinOnline). Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters' Law of Trusts in Canada, 3d ed (Toronto: Thomson Canada Limited, 2005) at 1072.
24. David A. Steele, "The Beneficiary's Right to Know", (Paper delivered at the Fourth Annual Estates and Trusts Forum, Toronto, Law Society of Upper Canada, 20 November 2001), at Tab 5-15.
25. Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters' Law of Trusts in Canada, 3d ed (Toronto: Thomson Canada Limited, 2005) at 1075: "Though trustees, with or without a previous request, always have a right to seek judicial advice and direction if they are in doubt whether they should disclose written information, this process means added costs and frequently delays, while a right rationale as to "trust documents" – somewhat nebulous though that term at present may be – does offer guidance to trustees and beneficiaries, and a level of certainty that the face value of Ontario (Attorney General) v Ballard Estate and Schmidt v Rosewood Trust Ltd. denies."
26. Londonderry's Settlement, Re; Peat v. Walsh,  Ch. 918 (Eng. C.A.) [Londonderry's Settlement] at 935-6.
27. Londonderry's Settlement, Re; Peat v. Walsh,  Ch. 918 (Eng. C.A.) [Londonderry's Settlement] at 928-9.
28. Ontario (Attorney General) v Ballard Estate, 6 E.T.R. (2d) 34, 119 D.L.R. (4th) 750, 1994 CarswellOnt 579 (Ct J (Gen Div) Commercial List) Lederman J. [Ballard Estate].
29. David A. Steele, "Disclosure of Trust Documents Revisited" (1995-1996) 15 Est. & Tr. J. 218 at 228 (HeinOnline).
30. David A. Steele, "Disclosure of Trust Documents Revisited" (1995-1996) 15 Est. & Tr. J. 218 at 228 (HeinOnline).
31. David A. Steele, "The Beneficiary's Right to Know", (Paper delivered at the Fourth Annual Estates and Trusts Forum, Toronto, Law Society of Upper Canada, 20 November 2001), at Tab 5-19.
32. Londonderry's Settlement, Re; Peat v. Walsh,  Ch. 918 (Eng. C.A.) [Londonderry's Settlement] at p. 938.
33. Froese v Montreal Trust Co. of Canada, 1993 CarswellBC 2482 (BC Master) [Froese].
34. Froese v Montreal Trust Co. of Canada, 1993 CarswellBC 2482 (BC Master) [Froese] at para. 26.
35. Ontario (Attorney General) v Ballard Estate, 6 E.T.R. (2d) 34, 119 D.L.R. (4th) 750, 1994 CarswellOnt 579 (Ct J (Gen Div) Commercial List) Lederman J. [Ballard Estate] at para. 14.
36. Barkin v Royal Trust Co., 45 E.T.R. (2d) 1, 2002 CarswellOnt 669 at para 14 (Sup Ct J) Pitt J. [Barkin].
37. Confidentiality of Trustee's Reasons, Widdifield on Executors and Trustees, 6th Ed. 8.9.
38. Patrick v. Telus Communications Inc., 2005 BCSC 1762, 49 C.C.P.B. 305,  B.C.W.L.D. 1265, 2005 CarswellBC 3086, [Patrick] at para. 39.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.