Dissenting view: focus on individual trustees
Justice Whata, in dissent, argued against reading HSWA as changing core trust law without clear wording. In his view, the law recognises trustees – and not the trust – as the parties who hold and manage trust assets. He stated that “individual trustees, and only individual trustees, ‘conduct’ business using trust assets in law and fact. ‘That is a matter of substance, not form. It is both the starting and end point of the analysis.’” On indemnity, Whata J took a different approach to the majority. Because “the trust is not a person” in orthodox terms, he considered that the statutory prohibition on one person indemnifying another for HSWA fines does not apply in the way the majority suggested. In his analysis, trustees paying fines from trust assets would be comparable to a sole trader meeting business liabilities out of business property, and he indicated that even if that view were incorrect, he would still allow a defendant “as trustee” to pay a fine from trust assets.