What is the current state of the law on remedial constructive trust?

The remedial constructive trust did not exist at the time that Taylor v. Davies was decided. This type of constructive trust has its origins in Canadian jurisprudence and, as previously stated, requires a finding that there has been an enrichment of one party and a corresponding deprivation in another, for which there is no juristic reason. This type of constructive trust is as much a remedy as it is a cause of action hence its description as a “remedial constructive trust”. It is not like the type of constructive trust under consideration in Taylor v. Davies. Thus, in my view, Taylor v. Davies is not determinative of the constructive trust part of the proposed trust claims either.

As Taylor v. Davies is not binding and I do not find its reasoning persuasive, I decline to follow it. Accordingly, I would give s. 43(2) its plain meaning and hold that the proposed trust claims falls within the second exception in s. 43(2).