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www.canlii.org/...2009canlii60408.html - Cached - Annotated View

David Scrimshaw's personal annotations on this page

dscrimshaw
Dscrimshaw bookmarked on 2009-11-06 Law Construction Lien Trust accounts Payment

Construction Lien Trust [11] That decision makes the point that where a breach of trust is alleged, the initial onus is on the plaintiff to prove the existence of the trust by showing three elements:
(a) the owner received money on account of the project;
(b) that the plaintiff supplied materials on that project; and
(c) the plaintiff was not paid.

  • [32]      In my view the defendants
    cannot be allowed to benefit from their refusal to supply the plaintiff with the
    required information. It would be deleterious to provide an incentive to
    trustees to avoid keeping beneficiaries informed, despite their requests. The
    defendants should not benefit when the beneficiaries act reasonably in the face
    of an information gap created by the defendants. The advantage of this principle
    is that it provides an incentive for the contractor or owner to be forthcoming
    in the provision of information, but still requires the supplier or
    subcontractor to be proactive in making information requests. In other words if
    there is a duty imposed on the one party to inquire, there is a like duty on the
    other party to answer

This link has been bookmarked by 1 people . It was first bookmarked on 06 Nov 2009, by David Scrimshaw.

  • 06 Nov 09
    dscrimshaw
    David Scrimshaw

    Construction Lien Trust [11] That decision makes the point that where a breach of trust is alleged, the initial onus is on the plaintiff to prove the existence of the trust by showing three elements:
    (a) the owner received money on account of the project;
    (b) that the plaintiff supplied materials on that project; and
    (c) the plaintiff was not paid.

    Law Construction Lien Trust accounts Payment

    • [32]      In my view the defendants
      cannot be allowed to benefit from their refusal to supply the plaintiff with the
      required information. It would be deleterious to provide an incentive to
      trustees to avoid keeping beneficiaries informed, despite their requests. The
      defendants should not benefit when the beneficiaries act reasonably in the face
      of an information gap created by the defendants. The advantage of this principle
      is that it provides an incentive for the contractor or owner to be forthcoming
      in the provision of information, but still requires the supplier or
      subcontractor to be proactive in making information requests. In other words if
      there is a duty imposed on the one party to inquire, there is a like duty on the
      other party to answer