In a recent judgment, the Ontario Superior Court of Justice considered whether joint account holders owe a fiduciary duty with respect to the management and operation of a joint account.

The facts of MacKay Estate v MacKay, 2015 ONSC 7429 are not unusual. Dawn MacKay (“Dawn”) was married to Tom MacKay (“Tom”) one of Annie MacKay’s (“Annie”) three sons. Annie and Dawn had a very close relationship. In early 1999, Annie made a Power of Attorney for Property in favour of Tom. Shortly thereafter, Annie, with Tom’s assistance, named Dawn as joint bank account holder. At trial, Dawn advised that she and Annie had agreed that Dawn would assist Annie with her banking and her care, as well as provide companionship, in exchange for compensation. There were no specific terms agreed to at the time.

Around 2003, Dawn began making transfers from the joint account to herself. She stated that the transfers were in the nature of compensation and were loosely based around payment of $250.00 per week for services provided. After Dawn and Tom separated in 2008, Tom commenced an action as Annie’s litigation guardian seeking an accounting, payment of monies found due, damages for breach of trust, and punitive damages. After Annie died in 2010, in 2012, Tom, as Estate Trustee, continued the action on behalf of Annie’s estate.

The main issues considered by the court were (1) whether Dawn, as a joint account holder, owed a fiduciary duty to Annie in the management and operation of the joint bank account; (2) whether Dawn breached her fiduciary duty by making payments to herself from the account; and (3) whether Dawn was liable to repay the amount of the payments made.

To determine whether there was a fiduciary relationship, the court followed the guide from Frame v Smith, [1987] 2 SCR 99, to consider whether:

i. the fiduciary has scope for the exercise of some discretion or power;
ii. the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and
iii. the beneficiary is vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Based on these indicia, the court found that Dawn did owe a fiduciary duty to Annie and that Dawn had acted as a trustee de son tort. The court also found that in making the payments to herself out of the joint bank account, Dawn had not breached her fiduciary duty and that, in fact, the payments were reasonable in the circumstances.

Although this case seems to establish that it is possible for a joint bank account holder to owe a fiduciary duty, it is not entirely clear from the decision whether this finding will apply only in the context of a non-contributing individual who is added to a pre-existing account in order to assist the account holder, or whether this may apply to all those who hold bank accounts jointly.

Thanks for reading.

Ian Hull