Dear colleagues,

 

I write with the sad news of the passing, after a brief illness, of Donovan Waters, QC, FRSC.

 

Over a career spanning more than six decades, Donovan had a tremendous impact on the Canadian law of trusts and unjust enrichment. He took the BA and BCL at Oxford in the early 50’s and then his PhD at the University of London in 1963. His thesis became his important monograph, The constructive trust: the case for a new approach in English law (1964). The careful legal history in this book, including of the law of mortgages in the C19, still repays study.

 

Along with several other common law scholars, Donovan was recruited to McGill University when the Faculty of Law began to teach the common law in 1968, in what was known as the National Programme (since it qualified graduates to practise in any Canadian province). He arrived from the UK with his wife Maryla, and it was at McGill that he wrote the first edition of The Law of Trusts in Canada, published in 1974, which was for many decades the only Canadian textbook on the subject. Although it took account of leading cases from other jurisdictions, Donovan’s vision from the beginning was that the book would be robustly based on Canadian sources and would reflect the distinctiveness of Canadian law. As one who participated in later editions of the book, I can attest to the challenge this creates: there are twelve common law jurisdictions in Canada, each with its own Trustee Act and, in many cases, other pertinent legislation. Donovan also took seriously his title, and his place in Montreal: his book was very unusual in including, from the beginning, a chapter on the Quebec law of trusts.

 

Shortly thereafter Donovan and Maryla moved to Victoria, BC, often described as the ‘most English city in Canada’. The University of Victoria was in fact founded as an affiliated college of McGill (a fact still reflected in its arms), but had become fully independent in 1963. Donovan would teach there for the remainder of his long career, his informal style beloved of generations of U Vic graduates. He was a prolific scholar, and was very active not only in BC but on the national stage in the reform of trust law; in addition to many BC statutory reforms, he influenced the Uniform Law Conference of Canada’s Uniform Trustee Act (2012), versions of which are now in force in Alberta and New Brunswick. He was Canada’s delegate to the meetings of the Hague Conference on Private International Law that produced the Hague Trusts Convention of 1985. The civil law of trusts was a matter of enduring interest for him, and he lectured on this at the Hague Academy in 1995. Throughout his career he was a consultant to practising lawyers (for the last many years, to the Victoria firm Horne Coupar), which meant that his knowledge of the evolving law of trusts was always informed by developments in practise. I recall, as a young law clerk in 1990, watching him address the Supreme Court of Canada in his erudite way at the hearing of Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534, an important decision on compensation for breach of a fiduciary duty of disclosure.

 

Donovan continued to participate actively in the production of what is now Waters’ Law of Trusts in Canada when the current 5^th edition (2021) was being prepared. His scholarship will live on, not only in this book but in the very wide range of his contributions over many decades. RIP Donovan.

 

Lionel