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Unsettled Estates 51
The parties’ ambitions, therefore, were flatly contradictory, and when
Michael Chupryk sought a court order authorizing him, as life tenant, to
mortgage the fee simple, Sophie Haykowski countered by seeking an order for its
sale. All would have been relatively straightforward, and this contest of wills might
have been directly adjudicated on its merits, had the trust still been in existence,
and the property still “vested in trustees,” for s 58(1) of the Trustee Act
unequivocally authorized the Court of Queen’s Bench in such circumstances to
confer on the trustees the power necessary to effect the transaction, “whether a
sale, lease, mortgage... or other disposition,” provided only that it was deemed
“expedient” by the Court.
The problem was that the trust was no longer in existence, and although
Kroft J at first instance 3 showed great ingenuity and determination in asserting
that it could and should be resurrected and reconstituted, the Court of Appeal
took the contrary view. The trust, they said, was destroyed beyond recall, and
access to the powers under s 58 accordingly barred. Nor, said the Court of
Appeal, did it have any “inherent jurisdiction” as a court of equity to grant to
either litigant the orders they respectively sought.
Truth to tell, the Court of Appeal in Chupryk made no effort to conceal its
own agenda. It had concluded that after six years of litigation, the dispute
between these two elderly people should be brought to an end, and the long
deterioration of the property checked, by the prompt sale of the land, even
though this meant the ouster of Mr. Chupryk, now 87 years old, from the cottage
which had for decades been his and his late wife’s home. The Court found little
difficulty in rejecting any plausible argument which might enable them to order
the mortgage which Mr. Chupryk wanted. Without expressly saying so, they
clearly regarded his restoration plans as impractical and unrealistic, but preferred
to stress in their reasons the absence of any statutory mechanism (once the trust
was extinguished) to enable the authorization of a mortgage. There was, they said,
no Settled Land Act in Manitoba. That assertion will be critically examined below.
Why, at that stage, the Court did not simply dismiss both actions, is a good
question. The argument that is was confronted by a wasting asset seems plausible,
until one considers that the property had been valued seven years previously at
about $13 000, and could hardly be thought to have increased in value since that
time. It might, indeed be thought to have depreciated to an irreducible minimum,
at which “wasting” would scarcely be an issue. It was asserted by the Court that
the parties were now mutually prepared to acquiesce in a sale, but one wonders
how genuine this consensus could be on the part of Mr. Chupryk, who faced, at
his advanced age, the loss of his home. 4 If the alleged rapprochement were genuine,
3
4
Chupryk v Haykowski, (1979) 3 Man R (2d) 238 (QB).
It may be noted that Mr. Chupryk did not surrender passively to the Court of Appeal’s order,
but twice sought leave to appeal further, unsuccessfully to the Court of Appeal itself (supra note
1, 110 DLR (3d) 108n), then again (successfully this time) to a panel of the Supreme Court of