Acts and Regulations

2015, c.21 - Trustees Act

Section 78
Disposition versions

Full text
Exemption clauses
78(1)In this section, “exemption clause” means a provision of a trust instrument that excludes or restricts the liability of a trustee, including, without limitation, a provision that purports to
(a) make the enforcement of the liability of the trustee subject to restrictive or onerous conditions,
(b) permit a trustee to act despite a conflict between the trustee’s personal interest and the powers and duties of the office of trustee,
(c) exclude or restrict any right or remedy in respect of the liability of a trustee, or prejudice any person who pursues the right or remedy,
(d) exclude or restrict rules of evidence, or
(e) negate a duty that, in the absence of the provision, would otherwise be imposed on the trustee.
78(2)Subject to subsection (3), an exemption clause in a trust instrument is effective, according to its terms, to relieve a trustee of liability for a breach of trust.
78(3)The court may declare that any exemption clause contained in a trust instrument is ineffective in relation to a breach of trust, and that the liability of the trustee for breach of trust is as if the trust instrument did not contain the clause, if the court is of the opinion that the conduct of a trustee
(a) constitutes a breach of trust, and
(b) has been so unreasonable, irresponsible or incompetent that the trustee ought not to be relieved by the exemption clause from liability for the breach of trust.
Exemption clauses
78(1)In this section, “exemption clause” means a provision of a trust instrument that excludes or restricts the liability of a trustee, including, without limitation, a provision that purports to
(a) make the enforcement of the liability of the trustee subject to restrictive or onerous conditions,
(b) permit a trustee to act despite a conflict between the trustee’s personal interest and the powers and duties of the office of trustee,
(c) exclude or restrict any right or remedy in respect of the liability of a trustee, or prejudice any person who pursues the right or remedy,
(d) exclude or restrict rules of evidence, or
(e) negate a duty that, in the absence of the provision, would otherwise be imposed on the trustee.
78(2)Subject to subsection (3), an exemption clause in a trust instrument is effective, according to its terms, to relieve a trustee of liability for a breach of trust.
78(3)The court may declare that any exemption clause contained in a trust instrument is ineffective in relation to a breach of trust, and that the liability of the trustee for breach of trust is as if the trust instrument did not contain the clause, if the court is of the opinion that the conduct of a trustee
(a) constitutes a breach of trust, and
(b) has been so unreasonable, irresponsible or incompetent that the trustee ought not to be relieved by the exemption clause from liability for the breach of trust.