Evidence supporting finding of trust was ambiguous

Estates and Trusts - Trusts – Express trust

Prior to its insolvency, realty company engaged agents to perform listing and selling activities that generated trades in real estate and realty company's entitlement to commissions. Under agreements with agents, realty company was required to pay specific portion of commissions earned and received to agents. In June 2018, receiver was appointed due to realty company's insolvency and at that time there were commissions owed on transactions scheduled to close between then and 2023. Receiver brought motion for advice and directions concerning whether commissions were to be held in trust for agents. Motion judge found there was no certainty of intention to create trust. Agents appealed. Appeal dismissed. Agreements with agents did not provide for creation of trust. Financial statements showed agents' commissions as assets in “Cash and cash equivalents” category and not in “Restricted cash” category which was specifically held in trust. Motion judge held that evidence supporting finding of trust was ambiguous.

Firepower Debt GP Inc. v. TheRedPin, Inc. (2019), 2019 CarswellOnt 18625, 2019 ONCA 903, P. Lauwers J.A., Fairburn J.A., and B. Zarnett J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 22482, 2018 ONSC 7182, Penny J. (Ont. S.C.J.).

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