Legal Blog:

Krystyne Rusek Elected to the Trusts and Estates Section Executive of the OBA

Speigel Nichols Fox LLP is delighted to announce that Krystyne Rusek has been elected to the Trusts and Estates Section Executive of the Ontario Bar Association.  A record number of members stepped forward for the 2025–2026 Section Executive nominations, so this win is especially meaningful.  Krystyne will be serving as a member at-large and continuing her work as the Section Liaison for the OBA’s Civil Rules Review Working Group.  Krystyne has served four previous terms on the Executive, as Public Affairs Liaison and as Technology Liaison.  Congratulations again to Krystyne on her election!

Resulting Trust (2)

We have previously discussed resulting trusts several times (e.g. see February 2025 and October 2023 newsletters) – because a trust normally means that what a creditor sees does not reflect the true state of affairs. A creditor will be disappointed if the debtor is shown to be an owner on title, but, because of a trust, is not the true owner. Conversely, a creditor will be pleased if it can demonstrate that a debtor, though not shown on title, is the true beneficial owner because of a trust.

When a purchaser or transferor gratuitously arranges for the registration of another person on title, the law presumes that this person, who has contributed nothing, holds the property in trust for the purchaser or transferor who paid everything. This is known as a resulting trust.

The concept of resulting trust was discussed in two 2024 cases in the Ontario Court of Appeal: Bradshaw v. Hougassian and Falsetto v. Falsetto.

Contributory Fault

Everyone knows about contributory negligence. The Negligence Act (s. 3) spells it out. In an action founded on the negligence of a defendant or group of defendants, if a plaintiff’s negligence contributes to the damages that the plaintiff incurs, then the court is to apportion the damages among all parties, including the plaintiff. But what happens if the action is not based on negligence; rather, it is based on a breach of contract? This was the crucial issue in Arcamm Electrical Services Ltd. v. Avison Young Real Estate 2024 ONCA 925.

The Problem

A sudden electrical failure caused a complete power outage at the owner’s property. The owner, through its property manager, hired the electrical contractor to restore power to the property on an emergency basis. The contractor de-energised the two semi-fried transformers, removed them from the grid, stored them in the electrical room of the property, and installed temporary generators to restore power. The parties had hoped that the electrical contractor would be able to replace the damaged electrical switchgear and thus make the transformers usable again.