Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Greetings all,

I have just made available to everyone on this list a recent decision of the Ontario CA on constructive trusts: Barnabe v Touhey (1995) 26 OR (3d) 477. It is very brief but important, I think, at least for Canada. It holds that you cannot have a constructive trust imposed for no other purpose than to provide priority in a bankruptcy.

The decision says nothing of the facts, so if you want them you will have to read the trial judgment at (1994) 18 OR (3d) 370 (or you can rely on the summary at [1995] Restitution Law Review #111).

It might be of interest to know that one member of the panel (Catzman JA) is an authority on secured lending (he wrote the book in Ontario ... literally ... I think to a large extent he wrote the governing Act too). Although the judgment is given as "By the Court," I suspect he was the driving force.

To get the case, you need to send an email to our majordomo server, that is majordomo@majordomo.srv.ualberta.ca (not restitution@majordomo.srv.ualberta.ca, the address for postings). Leave the subject line blank and in the body of the message put

get restitution restfiles/barnabe.txt

You will get the case as an email. Let me know if there are any difficulties. By the way, for those who do not know about the Restitution Law Review, there is info on the Web at

http://gpu.srv.ualberta.ca/~liosmith/rlr.html

All the best,

Lionel