When the BCLRC recommended that the distinction between express and constructive trusts be abolished for limitation purposes, does the distinction take into account the remedial constructive trust?

The trial judge recounted this legislative history and observed that these recommendations, which were adopted in the Act of 1975, predated the decision in Pettkus v. Becker, supra, which was the first judicial recognition of the remedial constructive trust in Canada. Thus, the recommendation of the BCLRC that the distinction between express and constructive trusts be abolished for limitation purposes cannot be said to have taken into account the remedial constructive trust. As the trial judge noted, however, s. 7(1) of the Interpretation Act provides that the meaning of the words of an enactment are not frozen at a particular moment in time, but that an enactment is always speaking. In our view, this principle, although not determinative, tends to support the plaintiffs’ view that the words “constructive trust” in the definition of “trust” in s. 1 of the Act should be read to include remedial constructive trusts.