Coopers & Lybrand Ltd. v. Canada
T-48-94
Hargrave P.
22/7/94
10 pp.
Practice-Statement of claim referring to relocation of Kwanlin Dun Indian Band to subdivision in Whitehorse-Band incorporating Tagish Kwan Corporation for which Coopers & Lybrand trustee in bankruptcy-Statement of claim alleging defendant, as settlor, constituting trusts for benefit of Kwanlin Dun Band pursuant to March 1986 agreement-Agreement including provisions to designate, hold, transfer title to Band or Band-owned corporation as Band might direct-Corporation allegedly forced into bankruptcy by reason of breach of agreement or breach of fiduciary duties-Plaintiff seeking either declaration as to ownership of lands, or damages for unjust enrichment equal to unpaid unsecured claims of Corporation's unsecured creditors for improvements to land-Defendant admitting agreement for transfer of land to Band or to Band-owned corporation, and not transferring title in lands-Motion to strike trusts, fiduciary duty allegations on ground paragraph stating defendant has general fiduciary duty owed to members of Band to protect them in enjoyment of Aboriginal rights and in possession, use of lands by laws of Canada pleading conclusion of law-Even if duty exists, owed to individual members, none of whom party to action-Defendant also submitting paragraphs setting out circumstances leading up to 1986 agreement immaterial, or likely to embarrass fair trial-By pleading agreement plaintiff precluded by parol evidence rule from tendering any evidence in support thereof-Plaintiff submitting pleadings asserting duty, alleged breach, damages so as to disclose reasonable cause of action-Submitting fiduciary duty one imposed by common law when fiduciary having discretionary power, can unilaterally exercise power to affect beneficiaries, beneficiaries vulnerable or at mercy of fiduciary holding discretionary power-Motion dismissed-Plaintiff establishing reasonable cause of action based on fiduciary duty, trust which might benefit members of Band and Corporation in that pleadings lay ground work for duty, set out breach, harm flowing from breach-Background facts establishing impugned conclusion-Where written contract not constituting complete expression of contractual arrangements between parties, parol evidence rule not applying and that part of agreement which is oral may be proven by oral evidence-Alternately two parallel oral and written agreements-Plaintiff pleading estoppel by acquiescence-Pleading making little sense by itself-Requiring some form of background particulars, provided in first portion of statement of claim-Background paragraphs perfectly correct in estoppel context-Federal Court Rules, C.R.C., c. 663, R. 419.