Equitable Crime and Constructive Punishment: Deemed and Actual Agency Gains in Canadian Law
This article deals with the test for whether proprietary relief is warranted by way of constructive trust, as set out in Roy Goode’s essay “Property and Unjust Enrichment” and later adopted by the Supreme Court of Canada in Soulos v. Korkontzilas. The article hones in on the second element of the Soulos test — the deemed agency gain — proposing that there cannot be a deemed agency gain where the wrong committed was not connected to an action authorized by the plaintiff. Therefore, the article proposes that deemed agency gains cannot exist in cases involving bribery or other corruption, and as such cannot be used to obtain a constructive trust in these cases, unless the specific act of corruption was in fact authorized by the plaintiff.
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