Does the limitation period apply to fiduciary obligations?

Although both parties referred to M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, I fail to see its relevance to the matters in issue. M.(K.) v. M.(H.) dealt with the question of limitation periods in relation to fiduciary obligations; counsel for both parties in M.(K.) v. M.(H.) conceded that the limitations legislation did not apply to fiduciary obligations. At para. 87 of that decision, La Forest J. noted that Part II of the Act does not encompass fiduciary obligations. He cites Taylor v. Davies at the end of that paragraph only as support for the statement that cases considering the scope of the term “trustee” in s. 43 have limited its application to express or constructive trustees. There is no consideration of the issues raised on this appeal.

It is apparent that there is no clear, general answer to the question of whether claims to land based on resulting or constructive trust are subject to a statutory limitation period and, if so, whether the exceptions in s. 43(2) apply to all trustees who hold property by way of resulting or constructive trust. In the case at bar, however, if the statutory limitation period does apply to such claims, for the reasons already given, I am not bound to apply Taylor v. Davies. I would give a plain reading to s. 43(2) with the result that the proposed trust claims fall within the second exception.