31420-12-1 SAWRIDGE, Indian vs. ROLAND, Twinn et al

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F53 1 MyLord, was a very conditional basis on which those issues would be raised. They will 2 3 only be raised if they don’t tread into the territory of membership. 4 They will also be raised in the manner that the Sawridge trustees determine to be 5 appropriate; and again with the greatest of respect, there is sufficient information before 6 this Court to at least raise the question of a perceived conflict of interest. And I want -- I 7 hope I’ve been clear, we are in no way trying to suggest that any of the individual 8 trustees are misbehaving or behaving inappropriately. What we are referring to, My Lord, 9 and I won’t read you the quotes, but the Court summarizes the concepts very well in 10 11 H.M.L.K. Estate, which we’ve included at Tab 3 of our reply. 12 The obligations on a trustee, as I’m sure this Court appreciates, are not just to avoid a 13 conflict of interest, but to avoid any perception of a conflict of interest. It’s not this good 14 faith that’s utmost good faith; and so, as I listened to some of the submissions around -- I 15 think the concept that was being proffered was that there really isn’t a conflict of interest 16 or it’s not serious enough for this Court to be concerned, I was having a great deal of 17 difficulty tying that into the stringent standard of conduct that applies to all trustees; and 18 if anything, My Lord, I would suggest it may have reinforced the fact that there may be a 19 need for an independent litigation representative for these minors. And I must say, My 20 Lord, if there’s an option that’s more appropriate than the Public Trustee and that can be 21 an independent and objective litigation representative, I don’t think you’d hear my client 22 23 oppose that appointment; but we haven’t had such a option presented at this point. 24 And in relation to the suggestion that -- I heard different terms used, but some of it was 25 offensive or condescending to suggest that the impact on a $2 million share, and perhaps 26 a great deal more than $2 million, we’re not quite sure, could not possibly affect the 27 judgment of either a trustee or a parent or someone else who’s currently a beneficiary. I 28 29 would suggest it’s not offensive, My Lord. It’s realistic. 30 Human beings are human beings. It doesn’t constitute a judgment of a parent or of a 31 trustee as being an immoral person. The reality is when we’re dealing with these kinds of 32 figures being split between, at the moment, 41 individuals, I would suggest it would be 33 naive to suggest that there’s no risk of that impacting decisions and judgments about how 34 35 the minors’ interest might be accommodated in all of this. 36 And in that regard, while the Sawridge trustees are offering a very interesting concept of, 37 you know, We’ll take away beneficiary status but, it’s okay, we’ll pay them the same 38 benefits they would have gotten until they were 18 anyway, I -- actually Mr. Godfrey was 39 reminding me of an excellent quote, and I think it was, Trust but verify. There’s no 40 obligation on the Sawridge trustees to do that; and in fact, if you examine that trust 41 instrument carefully, My Lord, I’m not even sure there’s a right to take the corpus of the
F54 1 2 trust and use it for the benefit of any individual who’s not entitled to be a beneficiary. 3 Soit’s a lovely concept, but it may not be a legal one; and that’s a whole other issue that 4 5 would have be examined in the main application. But I make that -- 6THE COURT: 7 So just -- 8MS. HUTCHISON: 9 Yeah. 10 THE COURT: -- so I am making sure I capture that point; so 11 basically, under the trustee, unless the person in question is recognized as a beneficiary 12 13 within the definition of beneficiary under the trust -- 14 MS. HUTCHISON: 15 I -- 16 THE COURT: 17 -- the trustees are not in a position to -- 18 MS. HUTCHISON: 19 I question how -- 20 THE COURT: 21 Okay. 22 MS. HUTCHISON: -- it would be, My Lord. I’ve -- now, I’ve 23 looked at the trust instrument. As I read it, it’s very much crafted solely to benefit 24 beneficiaries. Idid not find provisions in that trust document that suggested there’s some 25 26 residual discretion to benefit whomever the trustees choose to benefit. 27 THE COURT: So your position is they probably cannot 28 29 unilaterally benefit minors during, what I would call, the gap years? 30 MS. HUTCHISON: 31 I think there’s a real issue to be -- 32 THE COURT: 33 Mm-hm. 34 MS. HUTCHISON: -- examined there, yes, My Lord, and, you 35 know, it raises the -- again, it raises the question of do the minors need to have somebody 36 independent of all the other issues? I mean, I think there’s a real desire within the 37 community to start to use these funds, understandably, and for very admirable purposes. 38 We’re not suggesting otherwise, but it still has to be legal. It still has to comply with the 39 requirements of the trust, and anyway, I sort of got -- I’m getting a little off track, My 40 41 Lord, so I’ll go --
Page 4 and 5:
P01 Clerk’s Stamp: COURT FILE NUM
Page 6 and 7:
P03 10. The minors affected by this
Page 8 and 9:
F01 Action No.: 1103 14112 E-File N
Page 10 and 11: F03 1Proceedings taken in the Court
Page 12 and 13: F05 1THE COURT: 2 3 Submissions by
Page 14 and 15: F07 1 2 The only other point I woul
Page 16 and 17: F09 1 point the Court to the author
Page 18 and 19: F11 1 inL.C. as to what exactly the
Page 20 and 21: F13 1 entire history of the members
Page 22 and 23: F15 1 make the sorts of inquiries w
Page 24 and 25: F17 1 aside this money, and now we
Page 26 and 27: F19 1 Certainly we would say that t
Page 28 and 29: F21 1 Sothat -- Imean, that’s one
Page 30 and 31: F23 1 2 Wehave, in our brief, set o
Page 32 and 33: F25 1 Ifwelook at the Caron case, w
Page 34 and 35: F27 1 that exemption. Ithink that,
Page 36 and 37: F29 1 resources, have no significan
Page 38 and 39: F31 1 2 Where we look at the L.C. c
Page 40 and 41: F33 1 the, what I’ll call, the ol
Page 42 and 43: F35 1 that they have. And I’ll ju
Page 44 and 45: F37 1 she had a concern, the approp
Page 46 and 47: F39 1 Court to seek judicial review
Page 48 and 49: F41 1 Certificate of Record 2 3 I,
Page 50 and 51: F43 1Proceedings taken in the Court
Page 52 and 53: F45 1 rights, which was fundamental
Page 54 and 55: F47 1MR. MOLSTAD: Yeah. They were o
Page 56 and 57: F49 1 2 ifIcould? 3THE COURT: 4 All
Page 58 and 59: F51 1THE COURT: -- be a party? 2 3M
Page 62 and 63: F55 1THE COURT: 2 Yes. Just -- 3MS.
Page 64 and 65: F57 1 2THE COURT: 3 -- you know. 4M
Page 66 and 67: F59 1 evidence before you in this a
Page 68 and 69: F61 1THE COURT: Just so you are --
Page 70 and 71: F63 1 anyone who isn’t a benefici
Page 72 and 73: F65 1 2MR. PORETTI: -- your attenti
Page 74 and 75: F67 1 Certificate of Record 2 3 I,A
Page 76 and 77: F69 Transcript Mangement Services W
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31420-12-1 SAWRIDGE, Indian vs. ROLAND, Twinn et al

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