I do not read the statement of Rothstein J. in Nolan v. Kerry (Canada) Inc. as limiting the statement of Cullity J. in Sutherland that there are two kinds of cases in which costs can be ordered to be paid from a trust fund. Those two types of cases were also referred to by Gillese J.A. in Burke, being cases in which proceedings are brought (i) to ensure the due administration of a pension trust fund or (ii) for the benefit of all of the beneficiaries. In particular, I do not read the authorities as requiring that an application must have been brought to benefit all beneficiaries in order for costs to be paid from the trust fund. Otherwise, the statement of Cullity J. in Sutherland that there are two kinds of cases would no longer be applicable, and I do not read Rothstein J. as purporting to so limit the statement of Cullity J. Rather, after quoting the statement of Cullity J., Rothstein J. stated that it helpfully defined the circumstances in which costs should be awarded from a pension trust fund.
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