O. Reg. 4/01: APPROVED ACTS OF EXECUTORS AND TRUSTEES

Charities Accounting Act

ONTARIO REGULATION 4/01

approved acts of executors and trustees

Historical version for the period January 17, 2001 to March 21, 2018.

No amendments.

This is the English version of a bilingual regulation.

Approval of Specified Acts

1. (1) The acts authorized by this Regulation that would otherwise require the approval of the Superior Court of Justice in the exercise of its inherent jurisdiction in charitable matters shall be treated, for all purposes, as though they had been so approved.  O. Reg. 4/01, s. 1 (1).

(2) Subsection (1) does not constitute authorization of an act that conflicts with one of the following in a particular case:

1. The will or the instrument in writing relating to the property.

2. A court order relating to the will or instrument or relating to the property.  O. Reg. 4/01, s. 1 (2).

(3) An executor or trustee must maintain records demonstrating that he, she or it has complied with the requirements of this Regulation when engaging in an act that is authorized under subsection (1).  O. Reg. 4/01, s. 1 (3).

(4) An executor or trustee is not required by virtue of this Regulation to give any indemnity or to make any payment.  O. Reg. 4/01, s. 1 (4).

Authorization to Indemnify

2. (1) In the circumstances and subject to the restrictions set out in this section, an executor or trustee and, if the executor or trustee is a corporation, each director or officer of the corporation may be indemnified for personal liability arising from their acts or omissions in performing their duties as executor, trustee, director or officer.  O. Reg. 4/01, s. 2 (1).

(2) An executor, trustee, director or officer cannot be indemnified for liability that relates to their failure to act honestly and in good faith in performing their duties.  O. Reg. 4/01, s. 2 (2).

(3) In the circumstances and subject to the restrictions set out in this section, insurance may be purchased to indemnify the executor, trustee, director or officer for the personal liability described in subsection (1).  O. Reg. 4/01, s. 2 (3).

(4) The terms of the indemnity or insurance policy must not impair a person’s right to bring an action against the executor, trustee, director or officer.  O. Reg. 4/01, s. 2 (4).

(5) The executor or trustee or, if the executor or trustee is a corporation, the board of directors of the corporation shall consider the following factors before giving an indemnity or purchasing insurance:

1. The degree of risk to which the executor, trustee, director or officer is or may be exposed.

2. Whether, in practice, the risk cannot be eliminated or significantly reduced by means other than the indemnity or insurance.

3. Whether the amount or cost of the insurance is reasonable in relation to the risk.

4. Whether the cost of the insurance is reasonable in relation to the revenue available to the executor or trustee.

5. Whether it advances the administration and management of the property to give the indemnity or purchase the insurance.  O. Reg. 4/01, s. 2 (5).

(6) The purchase of insurance must not, at the time of the purchase, unduly impair the carrying out of the religious, educational, charitable or public purpose for which the executor or trustee holds the property.  O. Reg. 4/01, s. 2 (6).

(7) No indemnity shall be paid or insurance purchased if doing so would result in the amount of the debts and liabilities exceeding the value of the property or, if the executor or trustee is a corporation, render the corporation insolvent.  O. Reg. 4/01, s. 2 (7).

(8) The indemnity may be paid or the insurance purchased from the property to which the personal liability relates and not from any other charitable property.  O. Reg. 4/01, s. 2 (8).

(9) If the executor, trustee, director or officer is deceased, the indemnity or the proceeds of the insurance may be paid to his or her estate.  O. Reg. 4/01, s. 2 (9).

Combining Property Held for Restricted or Special Purposes

3. (1) In this section,

“contributed property” means, in respect of an individual property, additional property that is added to, and forms part of, a pre-existing individual property.  O. Reg. 4/01, s. 3 (1).

(2) In the circumstances and subject to the restrictions described in this section, an executor or trustee may combine property received by the executor or trustee for a restricted or special purpose with other property received by the executor or trustee for another restricted or special purpose and may hold the combined property in one account in a financial institution or invest it as if it were a single property.  O. Reg. 4/01, s. 3 (2).

(3) The property may be combined only if it advances the administration and management of each of the individual properties to do so.  O. Reg. 4/01, s. 3 (3).

(4) All gains, losses, income and expenses must be allocated rateably, on a fair and reasonable basis, to the individual properties in accordance with generally accepted accounting principles.  O. Reg. 4/01, s. 3 (4).

(5) The executor or trustee must maintain the following records for each of the individual properties, in addition to such other records as may be required by law:

1. The value of the individual property immediately before it becomes part of the combined property, and the date on which it becomes part of the combined property.

2. The value of any portion of the individual property that does not become part of the combined property.

3. The source and the value of contributed property relating to an individual property, and the date on which the contributed property is received.

4. The value of the contributed property immediately before it becomes part of the combined property, and the date on which it becomes part of the combined property.

5. The amount of the revenue received by the combined property that is allocated to the individual property, and the date of each allocation.

6. The amount of the expenses paid from the combined property that are allocated to the individual property, and the date of each allocation.

7. The value of all distributions from the combined property made for the purposes of the individual property, and the purpose and date of each distribution.  O. Reg. 4/01, s. 3 (5).

(6) The executor or trustee must maintain the following records for the combined property, in addition to such other records as may be required by law:

1. The value of each individual property that becomes part of the combined property, and the date on which it becomes part of the combined property.

2. The value of contributed property that becomes part of the combined property, the date on which it becomes part of the combined property, and details of the individual property to which the contributed property relates.

3. The amount of the revenue received by the combined property, the amount allocated to each individual property and the date of each allocation.

4. The amount of the expenses paid from the combined property, the amount allocated to each individual property and the date of each allocation.

5. The value of all distributions from the combined property made for the purposes of an individual property and the purpose and date of each distribution.  O. Reg. 4/01, s. 3 (6).