Can a Trustee Be Removed in Ontario, and How Does It Work?

If you are a beneficiary and you are worried about how a trustee is handling things, you may wonder whether the trustee can be replaced. Sometimes this can be done without court, and sometimes it needs a judge.

This article explains the main routes under Ontario's Trustee Act, how accounting can help you get answers first, and the time limits to keep in mind. Outcomes depend on the facts, so consider getting legal advice early.

Replacement without going to court

A new trustee may be appointed in writing where a trustee dies, stays out of Ontario for more than 12 months, refuses or is unfit to act, or is incapable of acting. The person nominated in the trust instrument appoints. If there is none, the surviving or continuing trustees, or the personal representatives of the last surviving trustee, appoint.

If a sole trustee dies, the personal representatives of that trustee may exercise the trustee's powers until new trustees are appointed. The sole or last surviving trustee may also appoint a successor trustee by will.

Note who holds this power: it is generally the person named in the document or the other trustees, not an individual beneficiary. A beneficiary who wants a change but has no such power will usually need to look at court.

Court appointment and removal

The Superior Court of Justice may appoint a new trustee or trustees, either replacing or adding to existing trustees, or even where no trustee exists. This is the court route for replacing a trustee.

For estate trustees, also called executors, the Trustee Act expressly lets the Superior Court of Justice remove them on any ground on which it could remove any other trustee and appoint someone else in their place. What grounds a judge will accept depends on the evidence in your case, and a lawyer can assess that.

Getting information first

Before seeking removal, many beneficiaries want to see what has happened to the property. A person who appears to have a financial interest in an estate may bring a motion for an order requiring the estate trustee to pass accounts.

On a passing of accounts, the notice of application and draft judgment are served on everyone with an interest. A beneficiary who objects to the accounts must serve and file a notice of objection at least 35 days before the hearing date. Where a trustee has been careless with money, a court review of the accounts can help show what happened.

• Write to the trustee and ask for information in a calm, specific way.
• Keep copies of all correspondence.
• Ask whether accounts have been prepared.
• Get advice on whether a passing of accounts or a removal application suits you.

Time limits

The general limitation period in Ontario is two years from the day a claim was discovered. A claim is discovered when the claimant knew, or reasonably ought to have known, of it. No proceeding may be started more than 15 years after the act or omission.

There are exceptions. The 15-year period does not run while the defendant wilfully conceals the loss, and the claimant must prove the concealment. The two-year period does not run while the claimant is a minor, or is incapable of starting a proceeding, and is not represented by a litigation guardian. Tort actions by or against a deceased person's executor or administrator must be brought within two years of the death. Because these rules interact, ask a lawyer about your deadline early.

What to do next

• Gather the will or trust document and any correspondence.
• Note dates when you learned of each concern.
• Request information and accounts from the trustee.
• Check whether the document names someone who can appoint a replacement.
• Speak with a lawyer about court options and deadlines.

Frequently asked questions