Is There A Place For Rough Justice In The Law Of Constructive Trust?

Originally published at irvinschein.com

The recent case of Palkowski v. Ivancic provides an excellent illustration of the extent to which the court will strive to use all the tools at its disposal to create a result that is fair, even when neither party to the dispute deserves favourable treatment. 

In this case, the trial judge was required to decide between two parties, "neither of whom has demonstrated high moral fibre".  The Court found that the parties "worked together to create a sham transaction that was intended to defeat at least one of the plaintiffs' creditors...".  He observed that he "must decide between two parties to a decidedly dishonorable transaction in order to settle the equities as between them".  Accordingly, the judge concluded that he would choose "the least unjust remedy that [I] believe the authorities enable me to fashion...Justice, even rough justice, is better than none at all".