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33. Bridge, supra note 3, s 15-113.
34. Atlas, supra note 12 at para 24 emphasis added.
The point that the trust might be called either constructive
or resulting is noted in Waters’ Law of Trusts
in Canada, supra note 29, Chapter 11.I, n 154 and
accompanying text. See to the same effect Ogle v
Ogle, 2003 SKQB 19 at para 20, aff’d 2005 SKCA
14 at para 19.
35. See Snell’s Equity, supra note 4, s 21-026. See also
Ford & Lee, supra note 6 at ss 22.160, 21.300. It is
not clear if the latter section is correct.
36. See Oosterhoff on Trusts, 9th ed (Toronto: Thomson
Reuters, 2019) at 724.
37. See Re Ellingsen, 2000 BCCA 458 at para 15,
where the court held that if money is paid under a
voidable contract, it is held under a constructive trust
(although the court did not say if it was substantive or
remedial).
38. WA Lee states in “Purifying the Dialect of Equity”
(2009) 7 Trust Quarterly Review 12:
Furthermore, an intention to transfer may be conditional.
It is arguable that when a person pays a
tax that is unlawfully demanded the intention in
making the payment is conditional upon the legal
propriety of the demand. If that propriety is later
shown to be unfounded the condition has not
been met: there is no intention to pay and no
‘basis’, that is, no justification, for the taxing
authority to retain the unjustifiable enrichment. In
any case, the law cannot allow an unlawful tax
demand to stand, unless there is a specific statutory
provision.
It might also give rise to a remedial constructive trust
where there is no wrongdoing but simply unjust
enrichment. See Kerr, supra note 30 at para 31.
39. Sarah Worthington, “The Proprietary Consequences
of Rescission” 2002 Restitution Law Review 28 at
37–38. In Twinsectra Ltd v Yardley, 1999
EWCA Civ 1290 at para 99 (rev’d on other grounds
2002 2 All ER 377 (HL)), Potter LJ referred to a
“constructive (resulting) trust”. See also London
Allied Holdings Ltd v Lee, 2007 EWHC 2061 at
para 276 (Ch).
40. See BNSF, supra note 21 at para 3, citing Westdeutsche
Landesbank Girozentrale v Islington London
Borough Council, 1996 AC 669 at 714 (HL).
See also Atlas, supra note 12 at para 37.
41. See Rawluk v Rawluk, 1990 1 SCR 70 at para 19.
42. The automatic retroactivity of a substantive constructive
trust provides the claimant with protection in case
the transferee becomes bankrupt or provides the
right to trace the property if the transferee disposes
of it. See Ben McFarlane, Hayton and Mitchell on the
Law of Trusts & Equitable Remedies, 14th ed (London:
Sweet & Maxwell, 2015), s 14-008.
43. BNSF Railway Company v Teck Metals Ltd, 2021
BCSC 1559 at para 109.
44. Nouhi v Pourtaghi, 2019 BCSC 794 at para 26.