How have the Master applied the first test for a rule 45.02 order, involving the right to a specific fund?

Ontario, Canada

The following excerpt is from American Axle & Manufacturing, Inc. v. Durable Release Coaters Limited, 2007 CanLII 20094 (ON SC):

In applying the first test for a rule 45.02 order, involving the right to a specific fund, the Master was of the view that the terms of the Agreement made it clear that any refund that the defendant obtained belonged to the plaintiff. Although the Agreement did not expressly refer to trust, the Master held that the circumstances surrounding the refund application were such that any refund moneys obtained were trust funds for the plaintiff. The Master rejected the defendant's argument that there was no specific fund because the refund had been deposited by the defendant into its bank account and was no longer available. He regarded the defendant's actions as a breach of trust and held that the defendant's wrongdoing should not defeat the motion. Finally, relying on Leung Estate v. Leung, [2004] O.J. No. 1417, 130 A.C.W.S. (3d) 218 (S.C.J.), the Master held that notwithstanding that the specific fund had been spent, the court could order the defendant to restore the fund and pay the proceeds into court.

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