Kingsdale Securities Co. Ltd. v. The Queen, 74 DTC 6674, [1975] CTC 10 (FCA)

Since the settlors lacked the requisite intention prior to the execution of settled trusts, the execution of the trust deeds did not have retrospective effect to the time of alleged settlement, notwithstanding a clause in the deed purporting to make the trust effective on a date prior to its execution.

An alleged settlement of trusts (prior to the date of execution of the trust deeds) did not occur due to the lack of the requisite certainty of intention on the part of the settlors.

The court should not consider an argument that is raised for the first time after the cases for both parties have been closed at trial "unless it is satisfied beyond all reasonable doubt that all requisite evidence had been adduced to enable the Defendant to rebut the Plaintiff's new position." Here, the Court of Appeal was not satisfied that the Crown had adduced all requisite evidence bearing on the taxpayer's fresh contention that alleged trusts were declaratory trusts rather than settled trusts.

The court should not consider an argument that is raised for the first time after the cases for both parties have been closed at trial "unless it is satisfied beyond all reasonable doubt that all requisite evidence had been adduced to enable the Defendant to rebut the Plaintiff's new position." Here, the Court of Appeal was not satisfied that the Crown had adduced all requisite evidence bearing on the taxpayer's fresh contention that alleged trusts were declaratory trusts rather than settled trusts.

Urie, J. indicated that trusts per se are not legal persons and cannot become partners.