Soulos v. Korkontzilas, [1997] 2 SCR 217

Soulos v. Korkontzilas, [1997] 2 S.C.R. 217

Fotios Korkontzilas, Panagiota Korkontzilas

and Olympia Town Real Estate Limited                                           Appellants

v.

Nick Soulos                                                                                        Respondent

Indexed as:  Soulos v. Korkontzilas

File No.:  24949.

1997:  February 18; 1997:  May 22.

Present:  La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Trusts and trustees ‑‑ Constructive trust ‑‑ Agency ‑‑ Fiduciary duties ‑‑ Real estate agent making offer to purchase property on behalf of client ‑‑ Vendor rejecting offer but advising agent of amount it would accept ‑‑ Agent buying property for himself instead of conveying information to client ‑‑ Market value of property decreasing from time of agent’s purchase ‑‑ Whether constructive trust over property may be imposed and agent required to transfer property to client even though client can show no loss.

Real property ‑‑ Remedies ‑‑ Constructive trust ‑‑ Agency ‑‑ Real estate agent making offer to purchase property on behalf of client ‑‑ Vendor rejecting offer but advising agent of amount it would accept ‑‑ Agent buying property for himself instead of conveying information to client ‑‑ Market value of property decreasing from time of agent’s purchase ‑‑ Whether constructive trust over property may be imposed and agent required to transfer property to client even though client can show no loss.

K, a real estate broker, entered into negotiations to purchase a commercial building on behalf of S, his client.  The vendor rejected the offer made and tendered a counteroffer.  K rejected the counteroffer but “signed it back”.  The vendor advised K of the amount it would accept, but instead of conveying this information to S, K arranged for his wife to purchase to property, which was then transferred to K and his wife as joint tenants.  S brought an action against K to have the property conveyed to him, alleging breach of fiduciary duty giving rise to a constructive trust.  He asserted that the property held special value to him because its tenant was his banker, and being one’s banker’s landlord was a source of prestige in his community.  He abandoned his claim for damages because the market value of the property had decreased from the time of the purchase by K.  The trial judge found that K had breached a duty of loyalty to S, but held that a constructive trust was not an appropriate remedy because K had not been “enriched”.  The Court of Appeal, in a majority decision, reversed the judgment and ordered that the property be conveyed to S subject to appropriate adjustments.

Held (Sopinka and Iacobucci JJ. dissenting):  The appeal should be dismissed.

Per La Forest, Gonthier, Cory, McLachlin and Major JJ.:  The constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain.  While Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment, this should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized.  Under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, and to remedy unjust enrichment and corresponding deprivation.  While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.

The following conditions should generally be satisfied before a constructive trust based on wrongful conduct will be imposed:  (1) the defendant must have been under an equitable obligation in relation to the activities giving rise to the assets in his hands; (2) the assets in the hands of the defendant must be shown to have resulted from deemed or actual agency activities of the defendant in breach of his equitable obligation to the plaintiff; (3) the plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties; and (4) there must be no factors which would render imposition of a constructive trust unjust in all the circumstances of the case.

Here K’s breach of his duty of loyalty sufficed to engage the conscience of the court and support a finding of constructive trust.  First, K was under an equitable obligation in relation to the property at issue.  His failure to pass on to his client the information he obtained on his client’s behalf as to the price the vendor would accept on the property and his use of that information to purchase the property instead for himself constituted a breach of his equitable duty of loyalty.  Second, the assets in K’s hands resulted from his agency activities in breach of his equitable obligation to S.  Third, a constructive trust is required to remedy the deprivation S suffered because of his continuing desire to own the particular property in question.  A constructive trust is also required in cases such as this to ensure that agents and others in positions of trust remain faithful to their duty of loyalty.  Finally, there are no factors which would make imposition of a constructive trust unjust in this case.

Per Sopinka and Iacobucci JJ. (dissenting):  The ordering of a constructive trust is a discretionary matter and, as such, is entitled to appellate deference.  The trial judge’s decision not to order such a remedy should be overturned on appeal only if the discretion has been exercised on the basis of an erroneous principle.  The trial judge committed no such error here.  He considered the moral quality of K’s actions and there is thus no room for appellate intervention on this ground.  He was of the opinion that where there is otherwise no justification for ordering a constructive trust or any other remedy, the morality of the act will not alone justify such an order, which is a correct statement of the law.  The trial judge has a discretion to order a constructive trust, or not to order one, and this discretion should not be affected by the number of available remedies.  In this case, S withdrew his claim for damages.  While compensatory damages were unavailable since no pecuniary loss was suffered, S could have sought exemplary damages.  His decision not to do so should not bind the trial judge’s discretion with respect to the order of a constructive trust.  The trial judge also considered deterrence, but held that it alone could not justify a remedy in this case.

Even if appellate review were appropriate, the remedy of a constructive trust was not available on the facts of this case.  Recent case law in this Court is very clear that a constructive trust may only be ordered where there has been an unjust enrichment, and there was no enrichment, and therefore no unjust enrichment, here.  The unavailability of a constructive trust in the absence of unjust enrichment is consistent with the constructive trust’s remedial role and supported by specific consideration of the principles set out in Lac Minerals.  Deterrence does not suggest that a constructive trust should be available even where there is no unjust enrichment.  Despite considerations of deterrence, it is true throughout the private law that remedies are typically unavailable in the absence of a loss.  Courts have not held it to be necessary where a tort duty or a contractual duty has been breached to order remedies even where no loss resulted.  There is nothing which would justify treating breaches of fiduciary duties any differently in this regard.  In any event, the unavailability of a constructive trust in cases where there is no unjust enrichment does not have any significant effect on deterrence.  Exemplary damages are available if deterrence is deemed to be particularly important, and an unscrupulous fiduciary has to reckon with the possibility that if there were gains in value to the property, he or she would be compelled to pay damages or possibly give up the property.

Cases Cited

By McLachlin J.

Referred to:  Pettkus v. Becker, [1980] 2 S.C.R. 834; White v. Central Trust Co. (1984), 17 E.T.R. 78; Carl Zeiss Stiftung v. Herbert Smith & Co. (No. 2), [1969] 2 Ch. 276; Beatty v. Guggenheim Exploration Co., 122 N.E. 378 (1919); Neale v. Willis (1968), 19 P. & C.R. 836; Binions v. Evans, [1972] Ch. 359; Hussey v. Palmer, [1972] 1 W.L.R. 1286; Neste Oy v. Lloyd’s Bank Plc, [1983] 2 Lloyd’s Rep. 658; Elders Pastoral Ltd. v. Bank of New Zealand, [1989] 2 N.Z.L.R. 180; Mogal Corp. v. Australasia Investment Co. (In Liquidation) (1990), 3 N.Z.B.L.C. 101, 783; Re Goldcorp Exchange Ltd. (In Receivership), [1994] 2 All E.R. 806; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Meinhard v. Salmon, 164 N.E. 545 (1928); Ontario Wheat Producers’ Marketing Board v. Royal Bank of Canada (1984), 9 D.L.R. (4th) 729; MacMillan Bloedel Ltd. v. Binstead (1983), 14 E.T.R. 269.

By Sopinka J. (dissenting)

Donkin v. Bugoy, [1985] 2 S.C.R. 85; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; Pettkus v. Becker, [1980] 2 S.C.R. 834; Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426; Ontario Wheat Producers’ Marketing Board v. Royal Bank of Canada (1984), 9 D.L.R. (4th) 729; MacMillan Bloedel Ltd. v. Binstead (1983), 14 E.T.R. 269; Reading v. The King, [1948] 2 All E.R. 27, aff’d [1949] 2 All E.R. 68, aff’d [1951] 1 All E.R. 617; Canadian Aero Service Ltd. v. O’Malley, [1974] S.C.R. 592; Phipps v. Boardman, [1965] 1 All E.R. 849, aff’d [1966] 3 All E.R. 721; Lee v. Chow (1990), 12 R.P.R. (2d) 217.

Authors Cited

Birks, Peter.  An Introduction to the Law of Restitution.  Oxford:  Clarendon Press, 1985.

Dewar, John L.  “The Development of the Remedial Constructive Trust” (1982‑84), 6 Est. & Tr. Q. 312.

Dixon, John.  “The Remedial Constructive Trust Based on Unconscionability in the New Zealand Commercial Environment” (1992-95), 7 Auck. U. L. Rev. 147.

Goff of Chieveley, Robert Goff, and Gareth Jones.  The Law of Restitution, 3rd ed.  London:  Sweet & Maxwell, 1986.

Goode, Roy.  “Property and Unjust Enrichment”.  In Andrew Burrows, ed., Essays on the Law of Restitution.  Oxford:  Clarendon Press, 1991.

Litman, M. M.  “The Emergence of Unjust Enrichment as a Cause of Action and the Remedy of Constructive Trust” (1988), 26 Alta. L. Rev. 407.

McClean, A. J.  “Constructive and Resulting Trusts ‑‑ Unjust Enrichment in a Common Law Relationship ‑‑ Pettkus v. Becker (1982), 16 U.B.C. L. Rev. 155.

Paciocco, David M.  “The Remedial Constructive Trust:  A Principled Basis for Priorities over Creditors” (1989), 68 Can. Bar Rev. 315.

Scott, Austin Wakeman.  The Law of Trusts, vol. V, 3rd ed.  Boston:  Little, Brown, 1967.

Sealy, L. S.  “Fiduciary Relationships”, [1962] Camb. L.J. 69.

Waters, D. W. M.  The Constructive Trust:  The Case for a New Approach in English Law.  London:  University of London, Athlone Press, 1964.

APPEAL from a judgment of the Ontario Court of Appeal (1995), 25 O.R. (3d) 257, 126 D.L.R. (4th) 637, 84 O.A.C. 390, 47 R.P.R. (2d) 221, reversing a decision of the Ontario Court (General Division) (1991), 4 O.R. (3d) 51, 19 R.P.R. (2d) 205, dismissing the respondent’s action against the appellants for conveyance of a property.  Appeal dismissed, Sopinka and Iacobucci JJ. dissenting.

Thomas G. Heintzman, Q.C., and Darryl A. Cruz, for the appellants.

David T. Stockwood, Q.C., and Susan E. Caskey, for the respondent.

The judgment of La Forest, Gonthier, Cory, McLachlin and Major JJ. was delivered by

McLachlin J. --

                                                 I

1                                          This appeal requires this Court to determine whether a real estate agent who buys for himself property for which he has been negotiating on behalf of a client may be required to return the property to his client despite the fact that the client can show no loss.  This raises the legal issue of whether a constructive trust over property may  be imposed in the absence of enrichment of the defendant and corresponding deprivation of the plaintiff.  In my view, this question should be answered in the affirmative. 

                                                                    II

2                                   The appellant Mr. Korkontzilas is a real estate broker.  The respondent, Mr. Soulos, was his client.  In 1984, Mr. Korkontzilas found a commercial building which he thought might interest Mr. Soulos.  Mr. Soulos was interested in purchasing the building.  Mr. Korkontzilas entered into negotiations on behalf of Mr. Soulos.  He offered $250,000.  The vendor, Dominion Life, rejected the offer and tendered a counter-offer of $275,000.  Mr. Soulos rejected the counter-offer but “signed it back” at $260,000 or $265,000.  Dominion Life advised Mr. Korkontzilas that it would accept $265,000.  Instead of conveying this information to Mr. Soulos as he should have, Mr. Korkontzilas arranged for his wife, Panagiota Goutsoulas, to purchase the property using the name Panagiot Goutsoulas.  Panagiot Goutsoulas then transferred the property to Panagiota  and Fotios Korkontzilas as joint tenants.  Mr. Soulos asked what had happened to the property.  Mr. Korkontzilas told him to “forget about it”; the vendor no longer wanted to sell it and he would find him a better property.  Mr. Soulos asked Mr. Korkontzilas whether he had had anything to do with the vendor’s change of heart.  Mr. Korkontzilas said he had not.

3                                   In 1987 Mr. Soulos learned that Mr. Korkontzilas had purchased the property for himself.  He brought an action against Mr. Korkontzilas to have the property conveyed to him, alleging breach of fiduciary duty giving rise to a constructive trust.  He asserted that the property held special value to him because its tenant was his banker, and being one’s banker’s landlord was a source of prestige in the Greek community of which he was a member.  However, Mr. Soulos abandoned his claim for damages because the market value of the property had, in fact, decreased from the time of the Korkontzilas purchase.

4                                   The trial judge found that Mr. Korkontzilas had breached a duty of loyalty to Mr. Soulos, but held that a constructive trust was not an appropriate remedy because Mr. Korkontzilas had purchased the property at market value and hence had not been  “enriched”:  (1991), 4 O.R. (3d) 51, 19 R.P.R. (2d) 205 (hereinafter cited to O.R.).  The decision was reversed on appeal, Labrosse J.A. dissenting:  (1995), 25 O.R. (3d) 257, 126 D.L.R. (4th) 637, 84 O.A.C. 390, 47 R.P.R. (2d) 221 (hereinafter cited to O.R.). 

5                                   For the reasons that follow, I would dismiss the appeal.  In my view, the doctrine of constructive trust applies and requires that Mr. Korkontzilas convey the property he wrongly acquired to Mr. Soulos. 

                                                                   III 

6                                   The first question is what duties Mr. Korkontzilas owed to Mr. Soulos in relation to the property.  This question returns us to the findings of the trial judge.  The trial judge rejected the submission of Mr. Soulos that an agreement existed requiring Mr. Korkontzilas to present all properties in the Danforth area to him exclusively before other purchasers.  He found, however, that Mr. Korkontzilas became the agent for Mr. Soulos when he prepared the offer which Mr. Soulos signed with respect to the property at issue.  He further found that this agency relationship extended to reporting the vendor’s response to Mr. Soulos.  This relationship of agency was not terminated when the vendor made its counter-offer.  The trial judge therefore concluded that Mr. Korkontzilas was acting as Mr. Soulos’ agent at all material times.

7                                   The trial judge went on to state that the relationship of agent and principal is fiduciary in nature.  He concluded that as agent to Mr. Soulos,  Mr. Korkontzilas owed Mr. Soulos a “duty of loyalty”.  He found that Mr. Korkontzilas breached this duty of loyalty when he failed to refer the vendor’s counter-offer to Mr. Soulos. 

8                                   The Court of Appeal did not take issue with these conclusions.  The majority did, however, differ from the trial judge on what consequences flowed from Mr. Korkontzilas’ breach of the duty of loyalty.

                                                                   IV

9                                   This brings us to the main issue on this appeal: what remedy, if any, does the law afford Mr. Soulos for Mr. Korkontzilas’ breach of the duty of loyalty in acquiring the property in question for himself rather than passing the vendor’s statement of the price it would accept on to his principal, Mr. Soulos?

10                               At trial Mr. Soulos’ only claim was that the property be transferred to him for the price paid by Mr. Korkontzilas, subject to adjustments for changes in value and losses incurred on the property since purchase.  He abandoned his claim for damages at an early stage of the proceedings.  This is not surprising, since Mr. Korkontzilas had paid market value for the property and had, in fact, lost money on it during the period he had held it.  Still, Mr. Soulos maintained his desire to own the property.

11                               Mr. Soulos argued that the property should be returned to him under the equitable doctrine of constructive trust.  The trial judge rejected this claim, on the ground that constructive trust arises only where the defendant has been unjustly enriched by his wrongful act.  The fact that damages offered Mr. Soulos no compensation was of no moment:  “It would be anomalous to declare a constructive trust, in effect, because a remedy in damages is unsatisfactory, the plaintiff having suffered none” (p. 69).  Furthermore, “it seems simply disproportionate and inappropriate to utilize the drastic remedy of a constructive trust where the plaintiff has suffered no damage” (p. 69).  The trial judge added that nominal damages were inappropriate, damages having been waived, and that Mr. Soulos had mitigated his loss by buying other properties.

12                               The majority of the Court of Appeal took a different view.  Carthy J.A. held that the award of an equitable remedy is discretionary and dependent on all the facts before the court.  In his view, however, the trial judge had exercised his discretion on a wrong principle.  Carthy J.A. asserted that the moral quality of the defendant’s act may dictate the court’s intervention.  Most real estate transactions involve one person acting gratuitously for the purchaser, while seeking commission from the vendor.  The fiduciary duties of the agent would be meaningless if the agent could simply acquire the property at market value, and then deny that he or she is a constructive trustee because no damages are suffered.  In such circumstances, equity will “intervene with a proprietary remedy to sustain the integrity of the laws which it supervises” (p. 261).  Carthy J.A. conceded that Mr. Soulos’ reason for desiring the property may seem “whimsical”.  But viewed against the broad context of real estate transactions, he found that the remedy of constructive trust in these circumstances serves a “salutary purpose”.   It enables the court to ensure that immoral conduct is not repeated, undermining the bond of trust that enables the industry to function.  The majority accordingly ordered conveyance of the property subject to appropriate adjustments.

13                               The difference between the trial judge and the majority in the Court of Appeal may be summarized as follows.  The trial judge took the view that in the absence of established loss, Mr. Soulos had no action.  To grant the remedy of constructive trust in the absence of loss would be “simply disproportionate and inappropriate”, in his view.  The majority in the Court of Appeal, by contrast,   took a broader view of when a constructive trust could apply.  It held that a constructive trust requiring reconveyance of the property could arise in the absence of an established loss in order to condemn the agent’s improper act and maintain the bond of trust underlying the real estate industry and hence the “integrity of the laws” which a court of equity supervises. 

14                               The appeal thus presents two different views of the function and ambit of the constructive trust.  One view sees the constructive trust exclusively as a remedy for clearly established loss.  On this view, a constructive trust can arise only where there has been “enrichment” of the defendant and corresponding “deprivation” of the plaintiff.  The other view, while not denying that the constructive trust may appropriately apply to prevent unjust enrichment, does not confine it to that role. On this view, the constructive trust may apply absent an established loss to condemn a wrongful act and maintain the integrity of the relationships of trust which underlie many of our industries and institutions.

15                               It is my view that the second, broader approach to constructive trust should prevail.  This approach best accords with the history of the doctrine of constructive trust, the theory underlying the constructive trust, and the purposes which the constructive trust serves in our legal system.

                                                                    V

16                               The appellants argue that this Court has adopted a view of constructive trust based exclusively on unjust enrichment in cases such as Pettkus v. Becker, [1980] 2 S.C.R. 834.  Therefore, they argue, a constructive trust cannot be imposed in cases like this where the plaintiff can demonstrate no deprivation and corresponding enrichment of the defendant.

17                               The history of the law of constructive trust does not support this view.  Rather, it suggests that the constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain.  This served the end, not only of doing justice in the case before the court, but of protecting relationships of trust and the institutions that depend on these relationships.  These goals were accomplished by treating the person holding the property as a trustee of it for the wronged person’s benefit, even though there was no true trust created by intention.  In England, the trust thus created was thought of as a real or “institutional” trust.  In the United States and recently in Canada, jurisprudence speaks of the availability of the constructive trust as a remedy; hence the remedial constructive trust.

18                               While specific situations attracting a constructive trust have been identified, the older English jurisprudence offers no satisfactory limiting or unifying conceptual theory for the constructive trust.  As D. W. M. Waters, The Constructive Trust (1964), at p. 39, puts it, the constructive trust “was never any more than a convenient and available language medium through which . . . the obligations of parties might be expressed or determined”.  The constructive trust was used in English law “to link together a number of disparate situations . . . on the basis that the obligations imposed by law in these situations might in some way be likened to the obligations which were imposed upon an express trustee”: J. L. Dewar, “The Development of the Remedial Constructive Trust” (1982-84), 6 Est. & Tr. Q. 312, at p. 317, citing Waters, supra.

19                               The situations in which a constructive trust was recognized in England include constructive trusts arising on breach of a fiduciary relationship, as well as trusts imposed to prevent the absence of writing from depriving a person of proprietary rights, to prevent a purchaser with notice from fraudulently retaining trust properties, and to enforce secret trusts and mutual wills.  See Dewar, supra, at p. 334.  The fiduciary relationship underlies much of the English law of constructive trust.  As Waters, supra, at p. 33, writes:  “the fiduciary relationship is clearly wed to the constructive trust over the whole, or little short of the whole, of the trust’s operation”. At the same time, not all breaches of fiduciary relationships give rise to a constructive trust.  As L. S. Sealy, “Fiduciary Relationships”, [1962] Camb. L.J. 69, at p. 73, states:

The word “fiduciary,” we find, is not definitive of a single class of relationships to which a fixed set of rules and principles apply.  Each equitable remedy is available only in a limited number of fiduciary situations; and the mere statement that John is in a fiduciary relationship towards me means no more than that in some respects his position is trustee-like; it does not warrant the inference that any particular fiduciary principle or remedy can be applied.  [Emphasis in original.]

Nor does the absence of a classic fiduciary relationship necessarily preclude a finding of a constructive trust; the wrongful nature of an act may be sufficient to constitute breach of a trust-like duty:  see Dewar, supra, at pp. 322-23.

20                                      Canadian courts have never abandoned the principles of constructive trust developed in England.  They have, however, modified them.  Most notably, Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment.  It is now established that a constructive trust may be imposed in the absence of wrongful conduct like breach of fiduciary duty, where three elements are present: (1) the enrichment of the defendant; (2) the corresponding deprivation of the plaintiff; and (3) the absence of a juristic reason for the enrichment:  Pettkus v. Becker, supra.

21                               This Court’s assertion that a remedial constructive trust lies to prevent unjust enrichment in cases such as Pettkus v. Becker should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized.  The language used makes no such claim.  A. J. McClean, “Constructive and Resulting Trusts -- Unjust Enrichment in a Common Law Relationship -- Pettkus v. Becker” (1982), 16 U.B.C. L. Rev. 155, at p. 170, describes the ratio of Pettkus v. Becker as  “a modest enough proposition”.  He goes on: “It would be wrong . . . to read it as one would read the language of a statute and limit further development of the law”.

22                               Other scholars agree that the constructive trust as a remedy for unjust enrichment does not negate a finding of a constructive trust in other situations.  D. M. Paciocco, “The Remedial Constructive Trust: A Principled Basis for Priorities over Creditors” (1989), 68 Can. Bar Rev. 315, at p. 318, states:   “the constructive trust that is used to remedy unjust enrichment must be distinguished from the other types of constructive trusts known to Canadian law prior to 1980".  Paciocco asserts that unjust enrichment is not a necessary condition of a constructive trust (at p. 320):

... in the largest traditional category, the fiduciary constructive trust, there need be no deprivation experienced by the particular plaintiff.  The constructive trust is imposed to raise the morality of the marketplace generally, with the beneficiaries of some of these trusts receiving what can only be described as a windfall.

23                               Dewar, supra, holds a similar view (at p. 332):

                   While it is unlikely that Canadian courts will abandon the learning and the classifications which have grown up in connection with the English constructive trust, it is submitted that the adoption of the American style constructive trust by the Supreme Court of Canada in Pettkus v. Becker will profoundly influence the future development of Canadian trust law.

Dewar, supra, at pp. 332-33, goes on to state:  “In English and Canadian law there is no general agreement as to precisely which situations give rise to a constructive trust, though there are certain general categories of cases in which it is agreed that a constructive trust does arise”.  One of these is to correct fraudulent or disloyal conduct. 

24                               M. M. Litman, “The Emergence of Unjust Enrichment as a Cause of Action and the Remedy of Constructive Trust” (1988), 26 Alta. L. Rev. 407, at p. 414, sees unjust enrichment as a useful tool in rationalizing the traditional categories of constructive trust.  Nevertheless he opines that it would be a “significant error” to simply ignore the traditional principles of constructive trust.  He cites a number of Canadian cases subsequent to Pettkus v. Becker, supra, which impose constructive trusts for wrongful acquisition of property, even in the absence of unjust enrichment and correlative deprivation, and concludes that the constructive trust “cannot always be explained by the unjust enrichment model of constructive trust” (p. 416).  In sum, the old English law remains part of contemporary Canadian law and guides its development.  As La Forest J.A. (as he then was) states in White v. Central Trust Co. (1984), 17 E.T.R. 78 (N.B.C.A.), at p. 90, cited by Litman, supra, the courts “will not venture far onto an uncharted sea when they can administer justice from a safe berth”. 

25                               I conclude that the law of constructive trust in the common law provinces of Canada embraces the situations in which English courts of equity traditionally found a constructive trust as well as the situations of unjust enrichment recognized in recent Canadian jurisprudence. 

                                                                   VI

26                               Various principles have been proposed to unify the situations in which the English law found constructive trust.  R. Goff and G. Jones, The Law of Restitution (3rd ed. 1986), at p. 61, suggest that unjust enrichment is such a theme.  However, unless “enrichment”  is interpreted very broadly to extend beyond pecuniary claims, it does not explain all situations in which the constructive trust has been applied.  As McClean, supra, at p. 168, states: “however satisfactory [the unjust enrichment theory] may be for other aspects of the law of restitution, it may not be wide enough to cover all types of constructive trust”.  McClean goes on to note the situation raised by this appeal:  “In some cases, where such a trust is imposed the trustee may not have obtained any benefit at all; this could be the case, for example, when a person is held to be a trustee de son tort.  A plaintiff may not always have suffered a loss.”  McClean concludes (at pp. 168-69):  “Unjust enrichment may not, therefore, satisfactorily explain all types of restitutionary claims”.

27                               McClean, among others, regards the most satisfactory underpinning for unjust enrichment to be the concept of “good conscience” which lies at “the very foundation of equitable jurisdiction” (p. 169):

“Safe conscience” and “natural justice and equity” were two of the criteria referred to by Lord Mansfield in Moses v. MacFerlan (1760), 2 Burr. 1005, 97 E.R. 676 (K.B.) in dealing with an action for money had and received, the prototype of a common law restitutionary claim.  “Good conscience” has a sound basis in equity, some basis in common law, and is wide enough to encompass constructive trusts where the defendant has not obtained a benefit or where the plaintiff has not suffered a loss.  It is, therefore, as good as, or perhaps a better, foundation for the law of restitution than is unjust enrichment.

28                               Other scholars agree with McClean that good conscience may provide a useful way of unifying the different forms of constructive trust.  Litman, supra, adverts to the “natural justice and equity” or “good conscience” trust “which operates as a remedy for wrongs which are broader in concept than unjust enrichment” and goes on to state that this may be viewed as the underpinning of the various institutional trusts as well as the unjust enrichment restitutionary constructive trust (at pp. 415-16).

29                               Good conscience as the unifying concept underlying constructive trust has attracted the support of many jurists.  Edmund Davies L.J. suggested that the concept of a “want of probity” in the person upon whom the constructive trust is imposed provides “a useful touchstone in considering circumstances said to give rise to constructive trusts”: Carl Zeiss Stiftung v. Herbert Smith & Co. (No. 2), [1969] 2 Ch. 276 (C.A.), at p. 301.  Cardozo J. similarly endorsed the unifying theme of good conscience in Beatty v. Guggenheim Exploration Co., 122 N.E. 378 (1919), at p. 380:

                   A constructive trust is the formula through which the conscience of equity finds expression.  When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.  [Emphasis added.]

30                               Lord Denning M.R. expressed similar views in a series of cases applying the constructive trust as a remedy for wrong-doing: see Neale v. Willis (1968), 19 P. & C.R. 836; Binions v. Evans, [1972] Ch. 359; Hussey v. Palmer, [1972] 1 W.L.R. 1286.  In Binions, referring to the statement by Cardozo J., supra,  Denning M.R. stated that the court would impose a constructive trust “for the simple reason that it would be utterly inequitable for the plaintiffs to turn the defendant out contrary to the stipulation subject to which they took the premises” (p. 368).  In Hussey, he said the following of the constructive trust (at pp. 1289-90):  “By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it”.

31                               Many English scholars have questioned Lord Denning’s expansive statements on constructive trust.  Nevertheless, he is not alone:  Bingham J. similarly referred to good conscience as the basis for equitable intervention in Neste Oy v. Lloyd’s Bank Plc, [1983] 2 Lloyd’s Rep. 658.

32                               The New Zealand Court of Appeal also appears to have accepted good conscience as the basis for imposing a constructive trust in Elders Pastoral Ltd. v. Bank of New Zealand, [1989] 2 N.Z.L.R. 180.  Cooke P., at pp. 185-86, cited the following passage from Bingham J.’s reasons in Neste Oy, supra, at p. 666:

Given the situation of [the defendants] when the last payment was received, any reasonable and honest directors of that company (or the actual directors had they known of it) would, I feel sure, have arranged for the repayment of that sum to the plaintiffs without hesitation or delay.  It would have seemed little short of sharp practice for [the defendants] to take any benefit from the payment, and it would have seemed contrary to any ordinary notion of fairness that the general body of creditors should profit from the accident of a payment made at a time when there was bound to be a total failure of consideration.  Of course it is true that insolvency always causes loss and perfect fairness is unattainable.  The bank, and other creditors, have their legitimate claims.  It nonetheless seems to me that at the time of its receipt [the defendants] could not in good conscience retain this payment and that accordingly a constructive trust is to be inferred.   [Emphasis added.]

Cooke P. concluded simply (at p. 186): “I do not think that in conscience the stock agents can retain this money.”   Elders has been taken to stand for the proposition that even in the absence of a fiduciary relationship or unjust enrichment, conduct contrary to good conscience may give rise to a remedial constructive trust: see Mogal Corp. v. Australasia Investment Co. (In Liquidation) (1990), 3 N.Z.B.L.C. 101, 783; J. Dixon, “The Remedial Constructive Trust Based on Unconscionability in the New Zealand Commercial Environment” (1992-95), 7 Auck. U. L. Rev. 147, at pp. 157-58.  Although the Judicial Committee of the Privy Council rejected the creation of a constructive trust on grounds of good conscience in Re Goldcorp Exchange Ltd. (In Receivership), [1994] 2 All E.R. 806, the fact remains that good conscience is a theme underlying constructive trust from its earliest times. 

33                               Good conscience addresses not only fairness between  the parties before the court, but the larger public concern of the courts to maintain the integrity of institutions like fiduciary relationships which the courts of equity supervised.  As La Forest J. states in Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at p. 453:

The law of fiduciary duties has always contained within it an element of deterrence.  This can be seen as early as Keech in the passage cited supra; see also Canadian Aero, supra, at pp. 607 and 610; Canson, supra, at p. 547, per McLachlin J.  In this way the law is able to monitor a given relationship society views as socially useful while avoiding the necessity of formal regulation that may tend to hamper its social utility.

The constructive trust imposed for breach of fiduciary relationship thus serves not only to do the justice between the parties that good conscience requires, but to hold fiduciaries and people in positions of trust to the high standards of trust and probity that  commercial and other social institutions require if they are to function effectively.

34                               It thus emerges that a constructive trust may be imposed where good conscience so requires. The inquiry into good conscience is informed by the situations where constructive trusts have been recognized in the past.  It is also informed by the dual reasons for which constructive trusts have traditionally been imposed: to do justice between the parties and to maintain the integrity of institutions dependent on trust-like relationships.  Finally, it is informed by the absence of an indication that a constructive trust would have an unfair or unjust effect on the defendant or third parties, matters which equity has always taken into account.  Equitable remedies are flexible; their award is based on what is just in all the circumstances of the case.

35                               Good conscience as a common concept unifying the various instances in which a constructive trust may be found has the disadvantage of being very general.  But any concept capable of embracing the diverse circumstances in which a constructive trust may be imposed must, of necessity, be general.  Particularity is found in the situations in which judges in the past have found constructive trusts.  A judge faced with a claim for a constructive trust will have regard not merely to what might seem “fair” in a general sense, but to other situations where courts have found a constructive trust.  The goal is but a reasoned, incremental development of the law on a case-by-case basis.

36                               The situations which the judge may consider in deciding whether good conscience requires imposition of a constructive trust may be seen as falling into two general categories. The first category concerns property obtained by a wrongful act of the defendant, notably breach of fiduciary obligation or breach of duty of loyalty.  The traditional English institutional trusts largely fall under but may not exhaust (at least in Canada) this category.  The second category concerns situations where the defendant has not acted wrongfully in obtaining the property, but where he would be unjustly enriched to the plaintiff’s detriment by being permitted to keep the property for himself.  The two categories are not mutually exclusive.  Often wrongful acquisition of property will be associated with unjust enrichment, and vice versa.  However, either situation alone may be sufficient to justify imposition of a constructive trust.

37                               In England the law has yet to formally recognize the remedial constructive trust for unjust enrichment, although many of Lord Denning’s pronouncements pointed in this direction.  The courts do, however, find constructive trusts in circumstances similar to those at bar.  Equity traditionally recognized the appropriateness of a constructive trust for breach of duty of loyalty simpliciter.  The English law is summarized by Goff and Jones, The Law of Restitution, supra, at p. 643:

A fiduciary may abuse his position of trust by diverting a contract, purchase or other opportunity from his beneficiary to himself.  If he does so, he is deemed to hold that contract, purchase, or opportunity on trust for the beneficiary.

P. Birks, An Introduction to the Law of Restitution (1985) (at pp. 330; 338-43) agrees.  He suggests that cases of conflict of interest not infrequently may give rise to constructive trust, absent unjust enrichment.  Birks distinguishes between anti-enrichment wrongs and anti-harm wrongs (at p. 340).  A fiduciary acting in conflict of interest represents a risk of actual or potential harm, even though his misconduct may not always enrich him.  A constructive trust may accordingly be ordered.

38                               Both categories of constructive trust are recognized in the United States; although unjust enrichment is sometimes cited as the rationale for the constructive trust in the U.S., in fact its courts recognize the availability of constructive trust to require the return of property acquired by wrongful act absent unjust enrichment of the defendant and reciprocal deprivation of the plaintiff.  Thus the authors of Scott on Trusts (3rd ed. 1967), vol. V, at p. 3410, state that the constructive trust “is available where property is obtained by mistake or by fraud or by other wrong”.  Or as Cardozo C.J. put it, “[a] constructive trust is, then, the remedial device through which preference of self is made subordinate to loyalty to others”: Meinhard v. Salmon, 164 N.E. 545 (1928), at p. 548, cited in Scott on Trusts, supra, at p. 3412.  Scott on Trusts, supra, at p. 3418, states that there are cases “in which a constructive trust is enforced against a defendant, although the loss to the plaintiff is less than the gain to the defendant or, indeed, where there is no loss to the plaintiff”.

39                               Canadian courts also recognize the availability of constructive trusts for both wrongful acquisition of property and unjust enrichment.  Applying the English law, they have long found constructive trusts as a consequence of wrongful acquisition of property, for example by fraud or breach of fiduciary duty.  More recently, Canadian courts have recognized the availability of the American-style  remedial constructive trust in cases of unjust enrichment: Pettkus v. Becker, supra.  However, since Pettkus v. Becker Canadian courts have continued to find constructive trusts where property has been wrongfully acquired, even in the absence of unjust enrichment.  While such cases appear infrequently since few choose to litigate absent pecuniary loss, they are not rare.

40                               Litman, supra, at p. 416, notes that in “the post-Pettkus v. Becker era there are numerous cases where courts have used the institutional constructive trust without adverting to or relying on unjust enrichment”.  The imposition of a constructive trust in these cases is justified not on grounds of unjust enrichment, but on the ground that the defendant’s wrongful act requires him to restore the property thus obtained to the plaintiff.

41                               Thus in Ontario Wheat Producers’ Marketing Board v. Royal Bank of Canada (1984), 9 D.L.R. (4th) 729 (Ont. C.A.), a constructive trust was imposed on a bank which received money with actual knowledge that it belonged to someone other than the depositor.

42                               Again, in MacMillan Bloedel Ltd. v. Binstead (1983), 14 E.T.R. 269 (B.C.S.C.), a constructive trust was imposed on individuals who knowingly participated in a breach of fiduciary duty despite a finding that unjust enrichment would not warrant the imposition of a trust because the plaintiff company could not be said to have suffered a loss or deprivation since its own policy precluded it from receiving the profits.  Dohm J. (as he then was) stated that the constructive trust was required “not to balance the equities but to ensure that trustees and fiduciaries remain faithful and that those who assist them in the breaches of their duty are called to account” (p. 302).

43                               I conclude that in Canada, under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, as well as to remedy unjust enrichment and corresponding deprivation.  While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground: where there is a wrongful act but no unjust enrichment and corresponding deprivation; or where there is an unconscionable unjust enrichment in the absence of a wrongful act, as in Pettkus v. Becker, supra.  Within these two broad categories, there is room for  the law of constructive trust to develop and for greater precision to be attained, as time and experience may dictate. 

44                               The process suggested is aptly summarized by McClean, supra, at pp. 169-70:

                   The law [of constructive trust] may now be at a stage where it can distill from the specific examples a few general principles, and then, by analogy to the specific examples and within the ambit of the general principle, create new heads of liability.  That, it is suggested, is not asking the courts to embark on too dangerous a task, or indeed on a novel task.  In large measure it is the way that the common law has always developed.

                                                                   VII

45                               In Pettkus v. Becker, supra, this Court explored the prerequisites for a constructive trust based on unjust enrichment.  This case requires us to explore the prerequisites for a constructive trust based on wrongful conduct.  Extrapolating from the cases where courts of equity have imposed constructive trusts for wrongful conduct, and from a discussion of the criteria considered in an essay by Roy Goode, “Property and Unjust Enrichment”, in Andrew Burrows, ed., Essays on the Law of Restitution (1991), I would identify four conditions which generally should be satisfied:

(1)   The defendant must have been under an equitable obligation, that is, an obligation of the type that courts of equity have enforced, in relation to the activities giving rise to the assets in his hands;

(2)   The assets in the hands of the defendant must be shown to have resulted from deemed or actual agency activities of the defendant in breach of his equitable obligation to the plaintiff;

(3)   The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties and;

(4)   There must be no factors which would render imposition of a constructive trust unjust in all the circumstances of the case; e.g., the interests of intervening creditors must be protected.

                                                                  VIII

46                               Applying this test to the case before us, I conclude that Mr. Korkontzilas’ breach of his duty of loyalty sufficed to engage the conscience of the court and support a finding of constructive trust for the following reasons.

47                               First, Mr. Korkontzilas was under an equitable obligation in relation to the property at issue.  His failure to pass on to his client the information he obtained on his client’s behalf  as to the price the vendor would accept on the property and his use of that information to purchase the property instead for himself constituted breach of his equitable duty of loyalty.  He allowed his own interests to conflict with those of his client.  He acquired the property wrongfully, in flagrant and inexcusable breach of his duty of loyalty to Mr. Soulos.  This is the sort of situation which courts of equity, in Canada and elsewhere, have traditionally treated as involving an equitable duty, breach of which may give rise to a constructive trust, even in the absence of unjust enrichment.

48                               Second, the assets in the hands of Mr. Korkontzilas resulted from his agency activities in breach of his equitable obligation to the plaintiff.  His acquisition of the property was a direct result of his breach of his duty of loyalty to his client, Mr. Soulos.

49                               Third, while Mr. Korkontzilas was not monetarily enriched by his wrongful acquisition of the property, ample reasons exist for equity to impose a constructive trust.  Mr. Soulos argues that a constructive trust is required to remedy the deprivation he suffered because of his continuing desire, albeit for non-monetary reasons, to own the particular property in question.  No less is required, he asserts, to return the parties to the position they would have been in had the breach not occurred.  That alone, in my opinion, would be sufficient to persuade a court of equity that the proper remedy for  Mr. Korkontzilas’ wrongful acquisition of the property is an order that he is bound as a constructive trustee to convey the property to Mr. Soulos. 

50                               But there is more.  I agree with the Court of Appeal that a constructive trust is required in cases such as this to ensure that agents and others in positions of trust remain faithful to their duty of loyalty:  see Hodgkinson v. Simms, supra, per La Forest J.  If real estate agents are permitted to retain properties which they acquire for themselves  in breach of a duty of loyalty to their clients provided they pay market value, the trust and confidence which underpin the institution of real estate brokerage will be undermined.  The message will be clear: real estate agents may breach their duties to their clients and the courts will do nothing about it, unless the client can show that the real estate agent made a profit.  This will not do.  Courts of equity have always been concerned to keep the person who acts on behalf of others to his ethical mark; this Court should continue in the same path.

51                               I come finally to the question of whether there are factors which would make imposition of a constructive trust unjust in this case.  In my view, there are none.  No third parties would suffer from an order requiring Mr. Korkontzilas to convey the property to Mr. Soulos.  Nor would Mr. Korkontzilas be treated unfairly.  Mr. Soulos  is content to make all necessary financial adjustments, including indemnification for the loss Mr. Korkontzilas has sustained during the years he has held the property.

52                              I conclude that a constructive trust should be imposed.  I would dismiss the  appeal and confirm the order of the Court of Appeal that the appellants convey the property to the respondent, subject to appropriate adjustments.  The respondent is entitled to costs throughout.

The reasons of Sopinka and Iacobucci JJ. were delivered by

53                               Sopinka J. (dissenting) -- I have read the reasons of my colleague McLachlin J.  While I agree with her conclusion that a breach of a fiduciary duty was made out herein, I disagree with her analysis concerning the appropriate remedy.  In my view, she errs in upholding the decision of the majority of the Court of Appeal to overturn the trial judge and impose a constructive trust over the property in question.  There are two broad reasons for my conclusion.  First, the order of a constructive trust is a discretionary matter and, as such, is entitled to appellate deference.  Given that the trial judge did not err in principle in declining to make such an order, appellate courts should not interfere with the exercise of his discretion.  Second, even if appellate review were appropriate in the present case, a constructive trust as a remedy is not available where there has been no unjust enrichment.  The main source of my disagreement with McLachlin J. arises in consideration of the second point, but in order to address the reasons of the majority in the court below as well, I will consider both of these issues in turn.

Standard of Review and the Exercise of Discretion

54                               It is a matter of settled law that appellate courts should generally not interfere with orders exercised within a trial judge’s discretion.  Only if the discretion has been exercised on the basis of an erroneous principle should the order be overturned on appeal: see Donkin v. Bugoy, [1985] 2 S.C.R. 85.  As acknowledged by the majority in the Court of Appeal ((1995), 25 O.R. (3d) 257, at p. 259), the decision to order a constructive trust is a matter of discretion.   In Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, the majority held that the order of a constructive trust in response to a breach of a fiduciary duty would depend on all the circumstances.  La Forest J. stated at p. 674:

In the case at hand, the restitutionary claim has been made out.  The Court can award either a proprietary remedy, namely that Lac hand over the Williams property, or award a personal remedy, namely a monetary award.... [A constructive trust] is but one remedy, and will only be imposed in appropriate circumstances.

The discretionary approach to constructive trusts is also consistent with the approach to equitable remedies generally: see Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534, at p. 585.

55                               Given that ordering a constructive trust is a discretionary matter, it is necessary to show an error in principle on the part of the trial judge in order to overturn the judge’s decision not to order such a remedy.  In my view, the trial judge committed no such error.

56                               The majority of the Court of Appeal apparently found that the trial judge erred in failing to consider the moral blameworthiness of the appellants’ actions.  Similarly, McLachlin J. would hold that a constructive trust was appropriate in the present case simply because of considerations of “good conscience”.  In my view, the trial judge considered the moral quality of the appellants’ actions and thus there is no room for appellate intervention on this ground.  He stated ((1991), 4 O.R. (3d) 51, at p. 69) that, while “[n]o doubt the maintenance of commercial morality is an element of public policy and a legitimate concern of the court”, morality should generally not invite the intervention of the court, except where it is required in aid of enforcing some legal right.  Put another way, in my view the trial judge was of the opinion that where there is otherwise no justification for ordering a constructive trust or any other remedy, the morality of the act will not alone justify such an order, which statement of the law is in my view correct.

57                               The majority of the Court of Appeal stated (at pp. 259-60) that the principles set out by the trial judge may be applicable where there are alternative remedies, but are questionable where only one remedy is available, as in the present case.  I do not accept this contention.  If a constructive trust is held to be inappropriate where there are a variety of remedies available, I cannot understand the principle behind the conclusion that such a remedy may be appropriate where it is the only remedy available.  The trial judge has a discretion to order a constructive trust, or not to order one, and this discretion should not be affected by the number of available remedies.  In the present case, the plaintiff withdrew his claim for damages.  While compensatory damages were unavailable since the plaintiff suffered no pecuniary loss (which I will discuss further below in assessing whether a constructive trust could have been ordered), the plaintiff could have sought exemplary damages ^__ his decision not to do so should not bind the trial judge’s discretion with respect to the order of a constructive trust.

58                               The trial judge put significant emphasis on the absence of pecuniary gains in concluding that he would not order a constructive trust.  For the reasons which I set out in detail below, I am of the opinion that the trial judge was correct in this regard.  On the other hand, the majority of the Court of Appeal and McLachlin J. hold that the trial judge erred in improperly appreciating the deterrence role of a constructive trust in the present case.  In my view, consideration of deterrence fails to disclose any error in principle on the part of the trial judge.  Deterrence, like the morality of the acts in question, may be relevant to the exercise of discretion with respect to the remedy for a breach of a fiduciary duty (see, e.g., Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at pp. 421 and 453), but the trial judge in the present case did not fail to consider deterrence in deciding whether to order a constructive trust.  As noted above, he stated that while “maintenance of commercial morality is ... a legitimate concern of the court” (p. 69), it would not alone justify ordering a remedy in the present case.  In my view, his mention of the “maintenance of commercial morality” indicates that the judge considered deterrence, but held that it alone could not justify a remedy in the present case.  Thus, even if failure to consider deterrence could be considered an error in principle, the trial judge in the present case did not so err.

59                               In my view, the trial judge committed no error in principle which could justify a decision to set aside his judgment and order a constructive trust.  Even if the trial judge did commit some error in principle, however, in my view the remedy of a constructive trust was not available on the facts of the present case.  That is, even if no deference is owed to the trial judge, the majority below erred in ordering a constructive trust and the appeal should be allowed.  The following are my reasons for this conclusion.

Unjust Enrichment and the Availability of a Constructive Trust

60                               McLachlin J. would hold that there are two general circumstances in which a constructive trust may be ordered: where there has been unjust enrichment and where there has been an absence of “good conscience”.  While unjust enrichment and the absence of “good conscience” may both be present in a particular case, McLachlin J. is of the view that either element individually is sufficient to order a constructive trust.  By failing to consider the “good conscience” ground on its own, McLachlin J. finds that the trial judge erred.  I respectfully disagree with this finding.  In my view, recent case law in this Court is very clear that a constructive trust may only be ordered where there has been an unjust enrichment.  For example, passages in Lac Minerals, supra, set out the circumstances in which an order of a constructive trust might be appropriate.  In my opinion, it is clear from that decision that a constructive trust is not available as a remedy unless there has been an unjust enrichment.  La Forest J. stated at pp. 673-74:

This Court has recently had occasion to address the circumstances in which a constructive trust will be imposed in Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426.  There, the Chief Justice discussed the development of the constructive trust over 200 years from its original use in the context of fiduciary relationships, through to Pettkus v. Becker, [[1980] 2 S.C.R. 834], where the Court moved to the modern approach with the constructive trust as a remedy for unjust enrichment.  He identified that Pettkus v. Becker, supra, set out a two-step approach.  First, the Court determines whether a claim for unjust enrichment is established, and then, secondly, examines whether in the circumstances a constructive trust is the appropriate remedy to redress that unjust enrichment.  In Hunter Engineering Co. v. Syncrude Canada Ltd., a constructive trust was refused, not on the basis that it would not have been available between the parties (though in my view it may not have been appropriate), but rather on the basis that the claim for unjust enrichment had not been made out, so no remedial question arose.

In the case at hand, the restitutionary claim has been made out.  The Court can award either a proprietary remedy, namely that Lac hand over the Williams property, or award a personal remedy, namely a monetary award.  While, as the Chief Justice observed, “The principle of unjust enrichment lies at the heart of the constructive trust”: see Pettkus v. Becker, at p. 847, the converse is not true.  The constructive trust does not lie at the heart of the law of restitution. [Emphasis added.]

La Forest J. added at p. 678:

Much of the difficulty disappears if it is recognized that in this context the issue of the appropriate remedy only arises once a valid restitutionary claim has been made out.   The constructive trust awards a right in property, but that right can only arise once a right to relief has been established. [Emphasis added.]

61                               In Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87, the majority cited some of the passages above from Lac with approval and held at p. 96 that, “[t]he requirement of unjust enrichment is fundamental to the use of a constructive trust.”

62                               Citing only Pettkus, supra, specifically, McLachlin J. states at para. 21 that it and other cases should not be taken to expunge from Canadian law the constructive trust in circumstances where there has not been unjust enrichment.  With respect, I do not see how statements such as “[t]he requirement of unjust enrichment is fundamental to the use of a constructive trust” could do anything but expunge from Canadian law the use of constructive trusts where there has been no enrichment.  Unjust enrichment has been repeatedly stated to be a requirement for a constructive trust; thus to order one where there has been no unjust enrichment would clearly depart from settled law. 

63                               Even aside from the case law, in my view, the unavailability of a constructive trust in the absence of unjust enrichment is consistent with the constructive trust’s remedial role.  The respondent submitted that if no remedy is available in the present case, there would inappropriately be a right without a remedy.  I disagree.  Clearly, the beneficiary has a right to have the fiduciary adhere to its duty, and if damages are suffered, the beneficiary has a right to a remedy.  In my view, this is analogous to remedial principles found elsewhere in the private law.  Even if a duty is owed and breached in other legal contexts, there is no remedy unless a loss has been suffered.  I may owe a duty to my neighbour to shovel snow off my walk, and I may breach that duty, but if my neighbour does not suffer any loss because of the breached duty, there is no tort and no remedy.  Similarly, I may have a contractual duty to supply goods at a specific date for a specific price, but if I do not and the other party is able to purchase the same goods at the contract price at the same time and place, the party has not suffered damage and no remedy is available.  It is entirely consistent with these rules to state that even if a fiduciary breaches a duty, if the fiduciary is not unjustly enriched by the breach, there is no remedy.

64                               Remedial principles generally thus support the rule against a constructive trust where there has been no unjust enrichment.  The rule is also supported, in my view, by specific consideration of the principles governing constructive trusts set out in Lac Minerals.  In Lac Minerals, La Forest J. stated that, even where there has been unjust enrichment, the constructive trust will be an exceptional remedy; the usual approach would be to award damages.  He stated at p. 678:

In the vast majority of cases a constructive trust will not be the appropriate remedy.  Thus, in Hunter Engineering Co. v. Syncrude Canada Ltd., supra, had the restitutionary claim been made out, there would have been no reason to award a constructive trust, as the plaintiff’s claim could have been satisfied simply by a personal monetary award; a constructive trust should only be awarded if there is reason to grant to the plaintiff the additional rights that flow from recognition of a right of property. [Emphasis added.]

65                               La Forest J. thus held that generally an aggrieved beneficiary will only be entitled to damages, not to the property itself.  This implies that the beneficiary does not generally have a right to the property in question, but rather has a right to receive the value of the gains resulting from the acquisition of the property.  Following this reasoning, if the value of the gains is zero, that is, there is no unjust enrichment, the beneficiary will not have a right to a remedy.  Consequently, where there has been no unjust enrichment, there is no right to a constructive trust or any other remedy.

66                               While, in my view, recent decisions of this Court and the principles underlying them settle the matter, McLachlin J. cites other Canadian case law in concluding that constructive trusts may be ordered even where there has not been unjust enrichment.  She cites three lower court decisions which she claims involved the award of a constructive trust absent unjust enrichment.  With respect, I do not read any one of these cases as supporting her claim.  An unjust enrichment exists where there has been an enrichment of the defendant, a corresponding deprivation experienced by the plaintiff and the absence of any juristic reason for the enrichment: Pettkus v. Becker, [1980] 2 S.C.R. 834; Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426.  McLachlin J. fails to cite a case where a remedial constructive trust was ordered absent such an enrichment.

67                               In Ontario Wheat Producers’ Marketing Board v. Royal Bank of Canada (1984), 9 D.L.R. (4th) 729 (Ont. C.A.), a constructive trust was imposed on a bank which received money with actual knowledge that it belonged to someone other than the depositor.  The bank was a secured creditor of the depositor, which depositor was in financial difficulty at the time of the deposits.  Clearly, this case involved an unjust enrichment: the bank benefitted by gaining rights over the deposited money, as well as by increasing the likelihood of repayment of the depositor’s credit; the plaintiff (a corporation whose agent, the depositor, breached his fiduciary obligations) was deprived of its right to its money; and there was no juristic reason for the enrichment.  Thus, the order of a constructive trust responded to an unjust enrichment, whether or not the court adverted to such doctrine.

68                               MacMillan Bloedel Ltd. v. Binstead (1983), 14 E.T.R. 269 (B.C.S.C.) is also, in my view, a case of unjust enrichment.  In this case, a fiduciary to a corporation breached his duty by engaging in self-dealing without disclosing his interest.  A constructive trust was imposed over the secret profits even though the plaintiff organization, because of its internal policy, could not have realized the profits itself.  While the fiduciary was plainly enriched, the trial judge and McLachlin J. conclude that since the plaintiff could not have realized the profits, there was no “corresponding deprivation” and therefore no unjust enrichment. 

69                               I disagree with McLachlin J. that there was no unjust enrichment in Binstead.  First of all, courts have consistently treated fiduciaries’ profits explicitly as unjust enrichment, whether or not the beneficiary could have earned the profits itself.  For example, in Reading v. The King, [1948] 2 All E.R. 27 (K.B.D.), aff’d [1949] 2 All E.R. 68 (C.A.), aff’d [1951] 1 All E.R. 617 (H.L.), Denning J. stated at p. 28:

It matters not that the master has not lost any profit nor suffered any damage, nor does it matter that the master could not have done the act himself.  If the servant has unjustly enriched himself by virtue of his service without his master’s sanction, the law says that he ought not to be allowed to keep the money.... [Emphasis added.]

In Canadian Aero Service Ltd. v. O’Malley, [1974] S.C.R. 592, at pp. 621-22, Laskin J., as he then was, stated:

Liability of O’Malley and Zarzycki for breach of fiduciary duty does not depend upon proof by Canaero that, but for their intervention, it would have obtained the Guyana contract; nor is it a condition of recovery of damages that Canaero establish what its profit would have been or what it has lost by failing to realize the corporate opportunity in question.  It is entitled to compel the faithless fiduciaries to answer for their default according to their gain.  Whether the damages awarded here be viewed as an accounting of profits or, what amounts to the same thing, as based on unjust enrichment, I would not interfere with the quantum. [Emphasis added.]

Reading and O’Malley are clear: the characterization of the profits earned by a fiduciary in breach of duty is one of unjust enrichment, whether or not the corporation could have earned the profits itself.  Thus, Binstead involved unjust enrichment, contrary to McLachlin J.’s assertion.

70                               I wish to add that the treatment of the profits as unjust enrichment in Reading, O’Malley, and Binstead is not inconsistent with the general rules governing unjust enrichment.  The plaintiff in each case had a right to have the fiduciary adhere to his duty.  When the defendant breached that duty, the profits earned as a result of that breach are essentially treated in equity as belonging to the corporation, whether or not the corporation could have earned those profits in the absence of the breach.  As an example of the proprietary analogy, Denning M.R. stated at p. 856 in Phipps v. Boardman, [1965] 1 All E.R. 849 (C.A.), aff’d [1966] 3 All E.R. 721 (H.L), that:

[W]ith information or knowledge which he has been employed by his principal to collect or discover, or which he has otherwise acquired, for the use of his principal, then again if he turns it to his own use, so as to make a profit by means of it for himself, he is accountable ... for such information or knowledge is the property of his principal, just as much as an invention is.... [Italics in original; underlining added.]

71                               Thus, in Binstead, the retention of the profits by the fiduciary would have deprived the corporation of its right to the profits.  The deprivation is represented by the monies obtained by the fiduciary as a result of infringing the rights of the plaintiff.  In order for there not to have been deprivation and unjust enrichment in circumstances otherwise similar to Binstead, the self-dealing could not have resulted in any secret profits ^__ if a remedy were awarded in a case without profit, thus no enrichment nor deprivation, McLachlin J. could well point to the case for support.  Given that there was profit in Binstead, however, there was unjust enrichment which justified the order of a constructive trust, whether or not the court explicitly relied upon unjust enrichment.

72                               In summary, McLachlin J. fails to refer to a single Canadian case where a constructive trust was ordered despite the absence of unjust enrichment.  Given this conclusion and given that recent cases of this Court unambiguously foreclose the possibility of ordering a constructive trust in the absence of unjust enrichment, in my view McLachlin J. is in error in concluding that a constructive trust may be ordered in the absence of unjust enrichment.

73                               Aside from Canadian case law, McLachlin J. attempts to rely on various scholars and foreign case law as providing support for her conclusion.  Because of the clear statement of the law recently set out by this Court, in my view the scholarly writings and foreign cases are only useful in so far as the policy they set out suggests that the law in Canada should be modified.  I will therefore simply address the policy upon which McLachlin J. relies, rather than each case and each article she cites. 

74                               Simply put, McLachlin J., reasoning similarly to the majority below, concludes that to fail to permit the order of a constructive trust where there has been a breach of a fiduciary duty, but no unjust enrichment, would inadequately safeguard the integrity of fiduciary relationships.  She says at para. 33 that ordering a constructive trust simply on the basis of “good conscience”

addresses not only fairness between the parties before the court, but the larger public concern of the courts to maintain the integrity of institutions like fiduciary relationships which the courts of equity supervised.... The constructive trust imposed for breach of fiduciary relationship thus serves not only to do the justice between the parties that good conscience requires, but to hold fiduciaries and people in positions of trust to the high standards of trust and probity that commercial and other social institutions require if they are to function effectively.

According to McLachlin J., then, deterrence of faithless fiduciaries requires the availability of constructive trust as a remedy even where there has been no unjust enrichment.

75                               In my view, deterrence is not a factor which suggests modifying the law of Canada and permitting the order of a constructive trust even where there has been no unjust enrichment.  As noted above, despite considerations of deterrence, it is true throughout the private law that remedies are typically unavailable in the absence of a loss.  Courts have not, because of concern about protecting the integrity of these duties, held it to be necessary where a tort duty, or a contractual duty, has been breached to order remedies even where no loss resulted.  I fail to see what distinguishes the role of fiduciary duties from the very important societal roles played by other legal duties which would justify their exceptional treatment with respect to remedy.

76                               In any event, the unavailability of a constructive trust in cases where there is no unjust enrichment does not, in my opinion, have any significant effect on deterring unfaithful fiduciaries and protecting the integrity of fiduciary relationships.  First, if deterrence were deemed to be particularly important in a case, the plaintiff may seek and the trial judge may award exemplary damages; a constructive trust is not necessary to preserve the integrity of the relationship, even if this integrity were of particular concern in a given case.  The fact that exemplary damages were not sought in the present case should not compel this Court to order a constructive trust in their place.  Second, even if a remedy were unavailable in the absence of unjust enrichment, which is not true given exemplary damages, deterrence is not precluded.  Taking a case similar to the present appeal, while an unscrupulous fiduciary would know that he or she would not be compelled to give up the surreptitiously obtained property if there were no gains in value to the property, he or she must also reckon with the possibility that if there were gains in value, and therefore unjust enrichment, he or she would be compelled to pay damages or possibly give up the property.  Thus, if the fiduciary were motivated to breach his or her duty because of the prospect of pecuniary gains, which would, I imagine, be the typical, if not the exclusive, motive for such a breach, not ordering a constructive trust where there have been no pecuniary gains does not affect deterrence.  I therefore disagree with McLachlin J. that deterrence suggests that a constructive trust should be available even where there is no unjust enrichment.

77                               As is clear, I cannot agree with McLachlin J. that a constructive trust could be ordered, and indeed should have been ordered, in the present case even if there was no unjust enrichment.  In order to decide whether such a remedy could be ordered, in my view, it must be decided whether there was unjust enrichment in the present case.

Was There Unjust Enrichment?

78                               In my opinion, there was no enrichment and therefore no unjust enrichment in the present case.  It is first of all plain that there were no pecuniary advantages accruing to the appellants from the purchase of the property.  The trial judge stated (at p. 68):

I now consider the facts of the case at bar.  The nature of the duty and of the breach have already been discussed.  At an interlocutory stage, the plaintiff abandoned any claim for damages. This step involved no sacrifice because the plaintiff could not have proved any. [Emphasis added.]

Any enrichment from the purchase of the property was not pecuniary, which would suggest that there has in fact been no enrichment and therefore no unjust enrichment.

79                               It could, perhaps, be argued that if the property were unique or otherwise difficult to value, the defendant’s pecuniary gains may not represent the enrichment of the defendant or the deprivation of the plaintiff.  Analogizing to the award of specific performance in contract, where property that is the subject of a contract is unique or otherwise difficult to value, and the contract is breached, it may be held that monetary damages are inadequate and thus a remedy of specific performance must be ordered to compensate the plaintiff adequately.  In such cases, pecuniary damages may not represent the loss to the plaintiff or the gain to the defendant from the breach.  Thus, perhaps, an enrichment could be found in the absence of a change in market price if the property were unique or otherwise difficult to value.

80                               Whether or not such considerations could be relevant to a finding of an enrichment, the property in question was not found to be unique or otherwise difficult to value in a manner relevant to the remedy.  The trial judge noted that the respondent had asserted that the property in question had special value to him given its tenant, a bank, and the significance of being a landlord to a bank in the Greek community.  The trial judge (at p. 69) held that such a factor should not be taken into account any more than personal attachment in an eminent domain case.  In other words, while there may have been personal motivation for the purchase, this was not relevant to an assessment of the value of the property.  This indicates, in my view, that the trial judge did not view the property to be unique in a manner meaningful to the remedial analysis.  Such a conclusion is plain in the trial judge’s analysis of Lee v. Chow (1990), 12 R.P.R. (2d) 217 (Ont. S.C.).  In Lee, a constructive trust was declared in a property that had been purchased surreptitiously by an agent in a situation similar to the present case.  The trial judge in the instant appeal distinguished Lee in the following way (at p. 70):

[The circumstances in Lee] included the following: a degree of dependence by the plaintiff which, in my view, is lacking in the case at bar; that it was a residential property meeting the specific requirements of the plaintiff, rather than a commercial property having value only as an investment; and that it appeared probable that the acquisition price represented a bargain, while the property at issue in the case at bar did not. [Emphasis added.]

In Lee there were pecuniary gains, thus an enrichment, and the property had unique qualities which helped justify a constructive trust.  In the present case there were no pecuniary gains, and the trial judge did not find any meaningful non-pecuniary advantages associated with the property ^__ the property had value “only as an investment”.  In my view, given the absence of both pecuniary and non-pecuniary advantages from the property, there was no enrichment and therefore no unjust enrichment.

81                               In the absence of unjust enrichment, in my view the trial judge was correct not to order the remedy sought, a constructive trust.  The trial judge stated (at p. 69):

A constructive trust was deemed appropriate in LAC Minerals, supra, because damages were deemed to be unsatisfactory.  It would be anomalous to declare a constructive trust, in effect, because a remedy in damages is unsatisfactory, the plaintiff having suffered none.

The trial judge, in the absence of pecuniary damages which might have indicated unjust enrichment, declined to order a constructive trust.  Neither the majority of the Court of Appeal nor McLachlin J. raise an error in principle in the trial judge’s reasons; indeed, in my view they err in concluding that a constructive trust is available in the present case.  Even if the trial judge ignored factors such as the moral quality of the defendants’ acts and deterrence, which he did not, and even if this could be construed as an error in principle, the factors to be considered in ordering a constructive trust only become relevant at the second stage of the inquiry when it is decided what remedy is appropriate.  Unless unjust enrichment is made out at the first stage of the inquiry, there is no need to consider the factors relevant to ordering a constructive trust. The majority of the Court of Appeal erred in interfering with the trial judge’s discretion and in deciding that a constructive trust may be ordered in the absence of unjust enrichment.

Conclusion

82                               Since the trial judge did not err in not ordering a constructive trust, but rather the majority of the Court of Appeal did in ordering one, I would allow the appeal, set aside the judgment of the Court of Appeal and reinstate the judgment of the trial judge. In the circumstances, I would not award costs to the appellants either here or in the Court of Appeal.

Appeal dismissed with costs, Sopinka and Iacobucci JJ. dissenting.

Solicitors for the appellants:  McCarthy Tétrault, Toronto.

Solicitors for the respondent:  Stockwood, Spies & Campbell, Toronto.