1. Introduction
A. Constitutional Structure
Canada is a federal country made up of ten provinces and three
territories, the latter being subject to federal suzerainty but
largely under local administration. All jurisdictions, except
Quebec, follow a common-law tradition.
The currency is the Canadian dollar (CAD).
B. Legal Systems
I. Common Law
Although contemporary trust law in common-law Canada generally
follows Commonwealth doctrinal tradition, it has been influenced by
American law. Unjust enrichment decisions, the remedial
constructive trust and fiduciary obligations law, as well as
legislation in the area of trustee investment law (the modern
portfolio theory), owe their inspiration to American ideas.
The Canadian Charter of Rights and Freedoms, part of
the Constitution of Canada, applies only to persons, not to
property. Consequently, it has not been applied in the field of
trust law in common-law Canada or to the operation of the Quebec
fiducie.
Ii. Quebec
French immigrants from Normandy in the 17th century brought to
Quebec their language, religion and law, based on the Coutume
de Paris, which contained no trust law. In 1888, legislation
recognising a trust as a mode of property-holding was introduced
into the former civil code. Quebec, as a civil-law jurisdiction,
has no doctrine of estates. In 1994, a new codification was enacted
– the Civil Code of Québec (Code) – when the Quebec
legislature adopted different thinking with a fiducie
based on the 19th-century concept of a patrimoine
d’affectation (property dedicated to a mode of user, but owned
by no one). Quebec is unique among civil-law jurisdictions in
possessing a complete trust concept.
Michael Cadesky TEP
Cadesky and Associates LLP, Toronto,
Canada
Robert Carrothers TEP
Legacy Tax + Trust Lawyers, Vancouver,
Canada
Grace Chow TEP
Cadesky and Associates LLP, Toronto,
Canada
Elaine Blades TEP
Scotia Private Client Group, Toronto,
Canada
Louise Houle TEP
Heenan Blaikie LLP, Montreal, Canada