Legal counsel required when trustee files action on trust’s behalf, court says
The Court of Appeal of Quebec recently dismissed an application for leave to appeal in a case involving representation of a trust. The appeal court’s ruling confirmed that the trust required representation by legal counsel.
The case arose when a family trust brought a lawsuit against numerous respondents for flood damage to a property owned by the trust. The trust’s lawyer withdrew from the proceeding. The applicant in this case, who was a trustee and beneficiary, wanted to represent the trust before the court without legal representation.
The applicant argued that, under article 1291 of the Civil Code of Quebec, he could act on the trust’s behalf without a lawyer. Alternatively, he claimed that his personal interest in the matter allowed him to intervene in the proceedings without legal representation.
Last May, the Quebec Superior Court dismissed this application and held that the trust’s application could be subject to dismissal if the applicant could not appoint a lawyer representing the trust within 10 days.
This unfavourable decision prompted the applicant to take the case to the appeal court. The issue was whether the applicant, as a trustee and beneficiary, could represent the trust in court without a lawyer.
In Shaulov c. Ville de Sainte-Marthe-sur-le-Lac, 2024 QCCA 987, the Quebec Court of Appeal dismissed the application for leave to appeal upon finding that the appeal lacked a reasonable prospect of success.
The appeal court ordered the applicant to appoint a lawyer to represent the trust within 10 days from the date of the judgment and to pay costs.
The appeal court’s judgment cited the principles in the Civil Code of Quebec and the Code of Civil Procedure. A trust has a separate patrimony, the appeal court noted. When a trustee brings an action on the trust’s behalf, article 87(6) of the Code of Civil Procedure requires the representation of a lawyer to protect the interests of all concerned, the appeal court stressed.
The appeal court rejected the applicant’s argument invoking article 1291 of the Civil Code of Quebec, which allows a court to authorize a beneficiary or another interested person to act in the trustee’s place. The appeal court emphasized that the person stepping into the trustee's role would be representing the trust and would also need legal representation.
