McEwan Partners successful in arguing that bond subscription funds did not constitute “deposits” or trust funds under the Real Estate Development Marketing Act

Markin v. Fasken Martineau DuMoulin LLP, 2019 BCCA 275

Ken McEwan, K.C., Emily Kirkpatrick and Kelly Ann Maw were successful in arguing that bond subscription funds did not constitute “deposits” or trust funds under the Real Estate Development Marketing Act, S.B.C. 2004, c. 41 [REDMA] and upholding the trial judgment which dismissed the claim against their client. The appeal involved issues of both statutory interpretation of the proper construction of provisions of REDMA and contract interpretation of the agreements entered into by the parties. While the parties provided submissions on multiple issues and arguments on the appeal including the proper interpretation of the definition of “deposit” and s. 18 “Handling deposits” under REDMA, as well as s. 96 “Jurisdiction of court to relieve trustee of breach of trust” under the Trustee Act, [RSBC 1996] c. 464 , the unamimous Court found in favour of the respondent on the threshold issue and dismissed the appeal on that basis. The Court concluded that the bond subscription funds that were deposited in trust with Fasken Martineau DuMoulin LLP and then released to the developer for use in the construction of the Oak Bay Beach Hotel, were not in the nature of deposits under REDMA. See the Reasons for Judgment here.