Varying Charitable Purpose Trusts: Application of Cy-près and Administrative Scheme Making Powers in British Columbia

May 6, 2016 | Sarah Fitzpatrick

In The Sidney and North Saanich Memorial Park Society v. British Columbia (Attorney General), 2016 BCSC 589 (“Sidney“), Madam Justice Dardi of the British Columbia Supreme Court clarified when the Court can apply its cy-près and administrative scheme making powers to vary a charitable purpose trust. A charitable purpose trust is established where the settlor of the trust dedicates property to the pursuit of a charitable purpose. Unless expressly allowed by the instrument creating the trust, there is no ability to amend the terms of the trust.  Because charitable purpose trusts can continue into perpetuity, over time, the terms of the trust can become difficult to carry out as a result of changing circumstances. The British Columbia Supreme Court, however, can amend charitable trusts if the cy-près or the administrative scheme making doctrines are engaged.

The cy-près doctrine can be used to vary a trust where it has become impossible or impracticable to achieve the original charitable purpose of that trust. Where this is the case, the court can alter the purposes of the trust to ones that are possible for the trustees to carry out, but are as close as possible to the original purposes. For example, where the purpose of the trust was to build and maintain a house of worship for a specific church, but the church no longer exists, cy-près may be used to vary the trust so that the trust property can be used to build and maintain a church building for a different, but similar, church.  

In addition to altering the purposes of charitable purpose trusts, the Courts have applied cy-près to vary the administrative terms of such trusts. This has been done where, due to current circumstances, the administrative provisions set out in a trust document make it impossible to sustain its charitable purposes. For example, where trustees of a charitable purpose trust are only permitted to pay income out of the trust every year, provided that the trust is also a registered charity, a Court may permit the trustees to encroach on the capital of the trust where a low investment return does not generate enough income in the trust to meet the disbursement quota applicable to registered charities. In Sidney, Madam Justice Dardi affirmed that cy-près can be applied to alter a trust’s administrative terms as the charitable purposes of the trust should not be frustrated by the trust’s administrative provisions.

Courts can also intervene to vary trust instruments under the administrative scheme making power. The administrative scheme making power is invoked generally to address the inadequacy of the administrative terms of a trust to achieve its charitable purposes. Traditionally, this power has been used only where the trust deed did not include adequate administrative terms or the terms that were included had become obsolete. For example, if the purpose of the trust was to build a building for a church, but the trustees had no power to hire contractors, the court could make an order to provide the trustees with that power. In contrast to the cy-près power, the court may only add terms that assist the trustees in meeting the existing charitable purpose, it cannot input any terms that may alter the charitable purposes of the trust. Recent Nova Scotia and Ontario cases have differed on the application of the administrative scheme making power in the context of endowment funds. The Nova Scotia courts, for instance, have permitted trustees to make disbursements out of capital in addition to income under the administrative scheme making power where it is in the interest of the beneficiaries and the administration of the trust. In contrast, the Ontario courts have commented that the administrative scheme making power cannot be used to permit capital distributions as it would undermine the charitable purpose of having a permanent endowment fund.

In Sidney, the relevant trust had been settled in 1965 and, since its establishment, pertinent circumstances had changed substantially. Accordingly, the trustees were having difficulty maintaining one of the trust properties, a community centre. The trust instrument permitted the trustees to grant leases (which could be used to generate much needed income), however the leases could only be short-term and the residents of Saanich had the authority to terminate the leases without cause.  As a result, trustees could not find any tenants willing to enter into leases for the property. In addition, the trust instrument required the trustees to use proceeds received from any property expropriated by the government for substitute land only. Land in the trust had been so expropriated. The expenses of the property that was substituted for the expropriated property were minimal and the trustees wanted to use the excess funds from the expropriation to maintain the community centre.

Madam Justice Dardi found that the provisions at issue involved the administrative machinery of the trust, not the purposes themselves; therefore, she found that the trust could be varied using the cy-près doctrine. If the trustees continued to manage the trust as required by the trust instrument it would become economically impracticable to achieve its charitable purposes in the future. Madam Justice Dardi further found that the Court had the power to amend the trust under the administrative scheme making power to modernize the provisions. The provisions at issue were not essential to carrying out the paramount purpose of the trust (to maintain lands for the residents of the Saanich community for cultural, athletic and recreational purposes) and therefore any amendments to them did not amend the purposes of the trust itself.


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