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application was heard, an order had been made that enjoined the foundation from dispersing money
it had raised while it was a specific fundraiser for the applicants to any other entity.
[65] The applicant made a number of arguments to support its claim, described at para. 69 of
the decision. The application judge, at para. 86, concluded that the Charities Accounting Act deems
property received by a charity to be trust property and “the CAA deems a charity to be a trustee
and its directors to be fiduciaries for the implementation of a charity’s objects and the management
and disbursement of donations both in accordance with the directions of donors as well as the
representations made by the charity to the public about how donations are sought and how they
are used”. The application judge exercised the Court’s broad inherent jurisdiction in charitable
matters to order the transfer of the foundation’s assets to the applicant in trust to be used in
accordance with the foundation’s original objects. Zentner submits, on the authority of Victoria
Order of Nurses, that it is not plain and obvious that the fiduciary duty claim will fail.
[66] Victoria Order of Nurses is not authority for the proposition that money or other property
donated to a charity is, as a matter of law, property held by the charity in trust and recoverable by
donors. The application judge, at para. 72, cited the Christian Brothers decision, and the decision
in Rowland v. Vancouver College Ltd., [2000] 8 W.W.R. 85 (B.C.S.C.), affirmed 205 D.L.R. (4
th
)
193 (B.C.C.A.) that followed it, as affirming “the principle that a charitable corporation holds its
corporate assets beneficially to be used only and strictly in accordance with its charitable objects”.
The decision in Victoria Order of Nurses is an example of Court’s exercise of powers, confirmed
in Christian Brothers, to continue to ensure that gifts made with charitable intent will not fail if
the gift is directed to a charitable corporation which no longer exists. This decision is not authority
for the proposition that a donor who makes an unencumbered gift to a charity has a legal right to
recover the amount gifted where the charity misuses or misappropriates the amounts gifted.
[67] In his oral reply submissions, counsel for Zentner drew a distinction between a “property-
based claim” and a “tort claim”, and he submitted that where a charity has misappropriated donors’
money, the donors may not have a proprietary claim for the return of donated money, but they
would still have a legal right to sue for misappropriation of donated funds in tort. Counsel submits
that there is no immunity conferred on charities from tort claims.
[68] In support of this submission, counsel relies on a case cited by GFA Canada, Bacic v.
Millennium Educational & Research Charitable Foundation, 2014 ONSC 5875. In Bacic, an estate
brought a motion appealing the disallowance of its claim against a bankrupt estate. The estate
argued that gifts by the deceased to a charity failed and must be returned to his estate in priority to
claims of creditors and other claimants. The motion judge, at para. 30, held that “[s]ubject to
conditions, a gift, once complete, cannot be undone”. Counsel for Zentner accepts this judicial
finding as correct. Counsel refers to para. 93 of Bacic where the motion judge held that a charity
is not immune from liability to those who suffered at its hand, and that assets of the charity are
available to respond to those liabilities. The motion judge noted that the applicants “have numerous
potential claims against the charity which include misappropriation and conversion of their
money”. The estate had asserted that the deceased, as donor, intended to create a trust. The motion
judge held that there was no evidence of an intention to create a trust, and the estate has no equal
right to share in the consolidated remaining assets in the charity. The motion by the estate was
dismissed. The motion judge did not conclude that a donor of money to a charitable corporation