Bosa – BCSC considers that it lacked the jurisdiction to consider a request to rectify a clause in a family trust indenture whose interpretation was at issue in an impending TCC appeal

The petitioners were the beneficiaries of a family trust, who sought to rectify the terms of the Trust Indenture to clarify that the assets of the trust had vested indefeasibly in them on the date defined in the Trust Indenture as the "Distribution Date," which occurred approximately 10 months before the 21st anniversary of the formation of the trust.

CRA assessed the trust on the basis that its property had not been distributed on the Distribution Date and, therefore, was deemed to be disposed of under s. 104(4)(b) on the 21st anniversary. A six-day trial in the Tax Court to consider the trust’s appeal of the reassessments had been set down for May 2026.

In finding that she lacked the jurisdiction to grant the requested rectification order and related declarations, Shergill J. stated:

It is an established principle that where a provincial superior court has concurrent jurisdiction with the Tax Court, it should exercise this jurisdiction only over issues that are “ancillary” rather than “fundamental” to the Tax Court proceedings ... .

The interpretation of the Trust Indenture which they [the petitioners] urge me to adopt is based on the same arguments that the Reassessment officer considered and rejected. Those arguments are the subject of the appeal to the Tax Court … .

In further finding that, even if she had jurisdiction, rectification would not be appropriately granted, she stated, after referring to Collins Family Trust:

I consider the declarations that are being sought … to be an attempt to avoid an unintended tax liability. Equitable relief is not available in such a circumstance.

Neal Armstrong. Summary of Bosa v Canada, 2025 BCSC 1284 under General Concepts – Rectification.