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242 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
duplex, little house and all, sold, with subsequent division of the proceeds. That
was the substance of the present phase of litigation. By what mechanism, if any,
could the life tenant Mr. Chupryk secure a mortgage for the fee simple over the
objections of his remainderperson
If the trust had been still in existence, an easy avenue would have been
available to resolve the issue; for by what was then 112 s 60(1) of the Trustee Act, 113
the Court of Queen’s Bench had general powers to confer on any trustee the
authority to make any mortgage or other disposition expedient for the good of the
property. Indeed, by s 60(3) the appropriate application might be made by “any
person beneficially interested” – but only if the property was “vested in trustees”.
Where did that leave Mr. Chupryk, now that the trust had been erased
Could he still, somehow, gain access to the section 60 powers In a judgment of
great resourcefulness, Kroft J, at first instance thought he could. The termination
of the trust had, in his view, been improper. So, though his Lordship didn’t quite
express it this way, he took the position that “equity looketh on that as undone
which ought not to have been done”, and deemed the shattered trust to be reconstituted,
with the Public Trustee in charge of it. He proceeded to deem the
Public Trustee to have made the appropriate application to authorize the desired
mortgage; and declared that it was just and equitable to do so. Mrs. Haykowski
appealed.
Her appeal was doubly successful. Mr. Chupryk was denied the approval he
needed to secure the mortgage, and a sale of the entire property was ordered,
under the “partition” sections of the Law of Property Act, at the behest of Mrs.
Haykowski, with the result, one must surmise, that old Michael Chupryk was
deprived of his modest home and almost certainly his independence. O’Sullivan,
JA, one must suppose in some ghastly spirit of consolation, noted that “In the
circumstances, Mr. Chupryk may have a claim against the executor for accounting
on the footing of wilful default.” 114 But the outcome was tragic for this elderly
man, whose only error had lain in making known and putting in issue his intent
to improve the property.
His failure to secure approval for the mortgage is a matter collateral to the
purpose of this article, and can be quickly explained. Kroft J’s ingenuity in
resurrecting the trust did not find favour in the Court of Appeal. 115 So the Trustee
Act powers must be considered to have passed irretrievably out of Mr. Chupryk’s
reach. Further, Kroft J’s belief that as a judge in equity he might possess inherent
112
113
114
115
Now CCSM, c T160, s 58(1) as of December 2 nd , 2011.
RSM 1970, c T160.
Supra note 69 at para 53.
Like the splendid but alas, apocryphal Lord Mildew, in Travers v Travers (unrep) cited by A.P.
Herbert, Codd’s Last Case (London: Methuen & Co Ltd, 1952) at 80: “There is too much of this
damned deeming.”