scholarly journals Constructive Trusts in Canada

1969 ◽  
Vol 37 (1) ◽  
pp. 173 ◽  
Author(s):  
Robert Chambers
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Breach Of Duty

In this article, the author discusses the role of constructive trusts in Canada, examining the connection between unjust enrichment and the constructive trust. In particular, the author focuses on the Supreme Court of Canada decision in Soulas v. Korkontzilas and argues that constructive trusts respond to two main categories of events, the acquisition of assets in breach of duty and intentions to benefit others.

scholarly journals The Role of the Supreme Court in the Development of a Canadian Law of Restitution

1994 ◽  
Vol 32 ◽  
pp. 557
Author(s):  
Nicholas Rafferty
Keyword(s):  
Supreme Court ◽  
General Principle ◽  
Supreme Court Of Canada ◽  
Significant Progress ◽  
Full Spectrum ◽  
Unjust Enrichment ◽  
Leading Role ◽  
Canadian Law ◽  
The Supreme Court

In this essay, the author examines the emerging law of restitution and the peculiar and powerful contribution of the Supreme Court of Canada to its development and maturation. It is argued that the Supreme Court has assumed a leading role in fashioning the modern law of restitution in the Commonwealth. The first part of the paper traces the adoption and elaboration by the Canadian courts of a general principle of unjust enrichment with respect to both personal and proprietary claims. This involves an examination of specific cases in which the Supreme Court has embraced both the principle of unjust enrichment and the independent nature of the law of restitution. The essay then analyzes the contribution of the Supreme Court in applying that general principle across the full spectrum of restitutionary liability. Particular attention is focused upon the recognition of a defence of change of position, the recovery of benefits conferred under mistake, contribution among concurrent wrongdoers and the development of the remedial constructive trust. The author concludes that, despite the significant progress made by the Supreme Court, there are a number of areas in which further work is required to develop fully the principle of unjust enrichment.

scholarly journals Fiduciary Law and the Constructive Trust: Perfecting the Fiduciary Undertaking

2012 ◽  
Vol 49 (3) ◽  
pp. 655 ◽  
Author(s):  
Ciara Toole
Keyword(s):  
Supreme Court ◽  
Fiduciary Duty ◽  
Supreme Court Of Canada ◽  
Best Interest ◽  
The Supreme Court ◽  
Fiduciary Obligations ◽  
Breach Of Duty ◽  
Fiduciary Relationships

Two recent unanimous decisions from the Supreme Court of Canada in Galambos v Perez and Alberta v Elder Advocates of Alberta Society have narrowed and refreshed the requirements for recognizing fiduciary relationships and obligations. All fiduciary obligations must be founded by an undertaking, either express or implied, on the part of the fiduciary to act in the best interest of the beneficiary. At the heart of the fiduciary obligation, the undertaking of a fiduciary may also serve as a foundation for the goals of fiduciary accountability. The developing “Galambos approach” remains incomplete in its application in this regard. In the spirit of Galambos and Elder Advocates, I propose that the undertaking of the fiduciary can provide principled guidance in the availability of gain-based relief for breach of fiduciary duty. Particularly, I suggest that the imposition of a constructive trust as proprietary gain-based relief may be rationalized under the objective of perfecting or enforcing the fiduciary undertaking. To demonstrate my proposal, I investigate three example undertakings and breaches of fiduciary duty in which the fiduciary acquires property through the breach of duty. By grounding this overall discussion towards a conceptual remedial goal of enforcing the fiduciary’s undertaking, Galambos may spark the development of a principled approach to understanding both the making and the breach of fiduciary obligations.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

scholarly journals The Impact of the Supreme Court of Canada on Intergovernmental Relations

Federalism-E ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Benjamin Goldlist
Keyword(s):  
Supreme Court ◽  
Intergovernmental Relations ◽  
Democratic Legitimacy ◽  
Supreme Court Of Canada ◽  
Political Resources ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Constitutional Adjudication ◽  
The Impact

The role of the Supreme Court in the practice of Canadian federalism, specifically the extent of its power and the effects of that power, is a hotly contested issue in Canadian political science. While some scholars have argued that the Court has taken on too political of a role that must be restricted, this paper develops the Court as a constitutional ‘umpire,’ whose rulings serve the important, but limited, functions of allocating political resources to incentivize negotiation, and establishing jurisdictional boundaries for said negotiations, leaving specific policy decisions to political, as opposed to legal, actors. Concerning the net outcome of the Court’s jurisprudence on the distribution of legislative powers, this paper illustrates the Court’s overall balancing approach, with grants of power to one level of government met with increases in authority to the other, in all major policy areas. Thus, ultimately shown to embrace both a limited and impartial approach to constitutional adjudication, the Court has done much to enhance its democratic legitimacy and constitutional utility.

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.47 Constitutional Principles in the Secession Reference

2017 ◽  
Author(s):  
Leclair Jean
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Over Time ◽  
Constitutional Changes ◽  
Political Compromises

In Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law, and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did.

Intergovernmental Relations‘ Third Wheel: The Role of the Supreme Court in an Era of Collaborative Federalism

Federalism-E ◽  
2009 ◽  
Vol 10 (1) ◽  
pp. 1-15
Author(s):  
Allison O‘Beirne
Keyword(s):  
Supreme Court ◽  
Intergovernmental Relations ◽  
Supreme Court Of Canada ◽  
Division Of Powers ◽  
The Supreme Court ◽  
The Way

The Supreme Court of Canada has an absolutely undeniable role in intergovernmental relations. As the country‘s only constitutionally entrenched body charged with the resolution of division-of-powers disputes, its decisions and rulings are always certain to influence the way in which governments interact with each other. Recently, however, the Supreme Court has come to be less highly regarded as a method of resolving the disputes that arise between governments [...]

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