Law Society of BC v Brito 2018 BCCA 407 held inter aiia by the BC Appeal Court that the intention to create a trust is a question of fact.
The trial judge had been asked to determine whether the parties funding agreements amounted to loans which give rise to a creditor debtor relationship, and not to a trust.
The judge had found that the first of the three certainties required to constitute a trust, namely certainty of intention to create a trust, was not made out on the evidence.
The appellant had argued that the judge’s reasons for judgment were deficient but the appeal court stated that reasons for judgment must be read as a whole, in the context of the evidence, the issues and the arguments the trial, together with an appreciation of the purposes of functions for which they are delivered–R. v Villaroman 2016 SCC 33 at para 15.
In Norman Estate v Watch Tower Bible and Tract Society of Canada 2014 BCCA at paragraph 14 , the appeal court held that the interpretation of instruments such as agreements and wills, may raise questions of both fact and law. The court went on to write that the issue of intention to create a trust is a question of fact ( at paragraph 17)
The exercise is akin to the interpretation of a contract, which generally involves questions of mixed fact and law, and which is reviewable only were the first instance judges committed a palpable and overriding error— Sattva Capital Corporation v Creston Molly Corp 2014 SCC 53
In the Britto decision the court stated that in light of the standard of review of palpable and overriding error in the largely factual nature of the judge’s findings, it was not open to this court to set aside the judgment simply because we might interpret the parties agreements differently -Rosas v Toca 2018 BCCA 191 at para. 34.