Judgments

[1997] 1 F.C. 624

T-3041-89

Forest Oil Corporation (Plaintiff)

v.

Her Majesty the Queen (Defendant)

Indexed as: Forest Oil Corp. v. Canada (T.D.)

Trial Division, Gibson J.—Ottawa, November 27, 1996.

Energy — Overpayment by installments under Petroleum and Gas Revenue Tax Act — Act, s. 91(1) complete code on question of refunds — To affect taxpayer’s right, Legislature must do so expressly — Unjust enrichment — Constructive trust.

Restitution — Principle of unjust enrichment applicable to government in case of overpayment by taxpayer under Petroleum and Gas Revenue Tax Act — Enrichment, corresponding deprivation and absence of juristic reason (PGRT Act, s. 91(1)).

Crown — Duty to abide by laws — Question of restitution where Crown unjustly enriched by installment overpayments under taxing statute — Argument Crown precluded from making repayment by Financial Administration Act, s. 26 — Not for Court to discover Parliamentary authority for paying amount due to plaintiff — Executive’s problem to figure out how judgment to be complied with.

The plaintiff contested the Crown’s refusal to repay to it the sum of $411,424.94 in installment payments paid in respect of the plaintiff’s estimated tax liability for its 1983 taxation year under the Petroleum and Gas Revenue Tax Act (PGRT Act). The plaintiff sought a declaration that the defendant was a constructive trustee of that sum on behalf of the plaintiff and an order for delivery to the plaintiff of the said amount, with interest. The argument was essentially restricted to the request for a declaration regarding a constructive trust, based on the doctrine of unjust enrichment.

Held, the action should be allowed.

It was not disputed that no tax was payable by the plaintiff under the PGRT Act in respect of its 1983 taxation year, that there was an “overpayment” within the meaning of subsection 91(1) of the PGRT Act, and that there was an enrichment and a corresponding deprivation. The issue was whether or not there existed a “juristic reason” for the defendant’s enrichment.

Subsection 91(1) provides for the refund of overpayments if the return of a taxpayer’s production revenue for a taxation year has been made within four years from the end of the year. Since the plaintiff did not file a return of its production revenue for its 1983 taxation year within the specified four years and since the Minister had not notified the plaintiff in writing that no tax was payable for the taxation year, it was beyond question that the Minister had neither obligation nor authority under the terms of subsection 91(1) of the PGRT Act to make the refund at issue to the plaintiff. If, in the absence of authority under subsection 91(1), the Minister has no authority whatever to make the refund, then there would be absence of a juristic reason for the enrichment.

There is case law to the effect that a court should not limit a taxpayer’s right to what would otherwise be his own money in the absence of a clear statutory directive. On the basis of a words-in-total-context approach to the interpretation of the relevant provisions of the PGRT Act, it must be concluded that subsection 91(1) was intended by Parliament to represent a complete code of the circumstances in which the Minister of National Revenue is either authorized or required to provide a refund of amounts paid on account of tax under the PGRT Act, whether or not any tax is payable by the taxpayer under that Act for the taxation year in question.

Nevertheless, as a matter of equity and given the lack of express language in or in relation to subsection 91(1) declaring it to be a complete code, on the facts of this case it was open to the Court to find a constructive trust by reason of unjust enrichment flowing from an absence of juristic reason for the defendant’s enrichment.

The concept of unjust enrichment was applicable against the government to ground recovery in the circumstances of this case. Here, the problem arose out of the plaintiff’s compliance with the requirements of the PGRT Act to make installment payments on account of potential tax liability and, more importantly, out of the failure of the plaintiff to file a return of its production revenue for its 1983 taxation year in a timely manner. The result, under a relatively unusual set of circumstances and under a statutory regime that is now no longer in place, resulted in an extraordinarily harsh penalty to the plaintiff which was substantially out of proportion to the plaintiff’s failing.

Section 26 of the Financial Administration Act (which provides that no payment shall be made out of the Consolidated Revenue Fund without the authority of Parliament) did not preclude repayment on the facts of this case. It was not for the Court to find Parliamentary authority for repayment of an amount determined to be owing by the Crown to the plaintiff. That will be a task for the Executive branch of Government. If no Parliamentary authority can be found, section 26 of the Financial Administration Act cannot be read as precluding the Court from pronouncing the judgment considered to be proper, just and in accordance with law. If an appropriate authority cannot be found, then it will be for the Executive to determine how to proceed in order to comply with this judgment.

The defendant had been enriched at plaintiff’s expense and there was no juristic reason, in this case, a statutory provision, clearly and unequivocally justifying the enrichment. Parliament did not contemplate the impact of subsection 91(1) of the PGRT Act on facts such as those of the present case. If it had, it would surely have provided for an appropriate result in favour of the taxpayer. By failing to do so, Parliament cannot be presumed to have intended that this taxpayer be so unfairly treated. The defendant had been unjustly enriched.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Customs Act, R.S.C. 1970, c. C-40.

Financial Administration Act, R.S.C., 1985, c. F-11, s. 26.

Petroleum and Gas Revenue Tax Act, S.C. 1980-81-82-83, c. 68, Part IV, ss. 87(4), 91(1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; (1986), 74 A.R. 67; 29 D.L.R. (4th) 1; [1986] 5 W.W.R. 289; 46 Alta. L.R. (2d) 97; 23 E.T.R. 143; 69 N.R. 81; 2 R.F.L. (2d) 225; Morguard Properties Ltd. et al. v. City of Winnipeg, [1983] 2 S.C.R. 493; (1983), 3 D.L.R. (4th) 1; [1984] 2 W.W.R. 97; 25 Man. R. (2d) 302; 6 Admin. L.R. 206; 24 M.P.L.R. 219; 50 N.R. 264; Amoco Canada Petroleum Co. Ltd. and M.N.R. (1985), 9 C.E.R. 1; [1985] 1 C.T.C. 240; 85 DTC 5169; 57 N.R. 274 (F.C.A.); Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346 [1985] CTC 79; (1985), 85 DTC 5310; 60 N.R. 321 (C.A.); Air Canada v. British Columbia, [1989] 1 S.C.R. 1161; (1989), 59 D.L.R. (4th) 161; [1989] 4 W.W.R. 97; Consumers Glass Company Limited v. Canada, [1989] 1 F.C. 120 (1988), 17 C.E.R. 4; [1988] 2 C.T.C. 141; 21 F.T.R. 131 (T.D.).

DISTINGUISHED:

Union Gas Ltd. v. M.N.R., [1991] 1 C.T.C. 1; (1990), 90 DTC 6659; 116 N.R. 220 (F.C.A.).

REFERRED TO:

Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536; (1984), 10 D.L.R. (4th) 1; [1984] CTC 294; 84 DTC 6305; 53 N.R. 241; Consumers Glass Co. Ltd. v. Canada (1990), 107 N.R. 156; 3 TCT 5112 (F.C.A.).

ACTION for a declaration that the defendant was a constructive trustee of installment payments on behalf of the plaintiff and for an order, based on the principle of unjust enrichment, for the delivery to the plaintiff of that amount, with interest. Action allowed.

COUNSEL:

Al Meghji for plaintiff.

Bonnie Moon for defendant.

SOLICITORS:

Bennett Jones Verchere, Calgary, for plaintiff.

Deputy Attorney General of Canada for defendant.

The following are the reasons for judgment rendered in English by

Gibson J.: By statement of claim filed December 22, 1989, the plaintiff contests the refusal of the defendant to repay to it, with interest, $360,000 in instalment payments paid in respect of the plaintiff’s estimated tax liability for its 1983 taxation year under the Petroleum and Gas Revenue Tax Act,[1] (the PGRT Act) and $51,424.94 representing an overpayment by instalments of tax assessed against the plaintiff under the PGRT Act for the plaintiff’s 1982 taxation year that was transferred at the plaintiff’s request, to the plaintiff’s PGRT account for its 1983 taxation year.

The plaintiff seeks the following relief:

(a)  a declaration that the Defendant is a constructive trustee of the said amount of $411,424.94 [the aggregate of the instalment payments paid in respect of the 1983 taxation year and the amount transferred to the Plaintiff’s account in respect of that taxation year] on behalf of the Plaintiff;

(b)  an order for delivery to the Plaintiff of the said amount together with any and all interest accrued thereto;

(c)  in the alternative, judgment or damages in the amount of $411,424.94;

(d)  pre-judgment interest as damages in the further amount of $400,000. or such further and greater amount as will be proven at the trial of this action;

(e)  in the alternative to the relief claimed in (d) …, interest on the said amount of $411,424.94 calculated pursuant to the provisions of the Income Tax Act, R.S.C. 1952 c. 148, as amended, from July 28, 1988 to the date of judgment or payment, pursuant to the provisions of the Judgment Interest Act, S.A. 1984 c. J.0.5, from April 1, 1984 to the date of judgment or payment, or pursuant to the provisions of the Interest Act, R.S.C. 1985, c. C.-50, as amended, from January 2, 1984 to the date of judgment or payment;

(f)   costs of this action; and

(g)  such further and other relief as to this Honourable Court may seem appropriate.

At the trial of this matter before me, argument was essentially restricted to the request for a declaration regarding a constructive trust, based on the doctrine of unjust enrichment. It was agreed that the issue of interest on any amount found to be payable to the plaintiff would be dealt with at a later date.

The parties filed an agreed statement of facts in the following terms:

1.   The Plaintiff is a body corporate with its head office in the City of Bradford, in the State of Pennsylvania, United States of America, with a taxation year ending December 31.

2.   In respect of the 1983 taxation year, and over a period commencing on or about February 14, 1983 and concluding on or about January 2, 1984, the Plaintiff made a series of PGRT instalment payments to the Defendant as required by section 88 of the Petroleum and Gas Revenue Tax Act, S.C. 1980-81-82-83, c. 68 (“PGRT Act”), in a total amount of $360,000.00.

3.   On or before December 31, 1983, upon processing the Plaintiff’s return of production Revenue (“PGRT Return”) for the 1982 taxation year, the Defendant transferred, at the Plaintiff’s request, to the Plaintiff’s PGRT account for the 1983 taxation year, a further credit of $51,424.94 for overpayment of PGRT instalment payments made by the Plaintiff to the Defendant in respect of the 1982 taxation year in the amount of $44,035.44, plus interest thereon of $7,389.50, resulting in a total credit balance in the said account as at January 2, 1984 of $411,424.94.

4.   The PGRT Return for the Plaintiff’s 1982 taxation year was filed on or about July 21, 1983. The Minister of National Revenue (the “Minister”) issued a Notice of Assessment for the Plaintiff’s 1982 taxation year on or about February 13, 1985.

5.   By letter dated January 23, 1985 the Minister requested a PGRT Return for the Plaintiff’s 1983 taxation year. The Plaintiff filed a PGRT Return for its 1983 taxation year on July 18, 1988.

6.   By letter dated September 8, 1988 the Minister advised the Plaintiff that the PGRT Return for the Plaintiff’s 1983 taxation year was not received within the required four years from the end of the taxation year and that a refund would not be issued.

7.   On December 20, 1984, the PGRT Act was amended by, among other things, adding section 84.1. For the 1982, 1983, 1984 and 1985 taxation years of the Plaintiff, subsection 84.1(1) permitted certain deductions from taxes payable.

8.   The Defendant has continued, since January 2, 1984, to hold the said amount of $411,424.94. The Defendant confirmed in writing on September 21, 1987 that it continued to hold the said amount, and invited the Plaintiff to submit a PGRT Return for the 1983 taxation year which would have resulted in a refund of the said amount.

9.   The Defendant refused and continues to refuse to return or pay to the Plaintiff the said amount of $411,424.94 or any part thereof.

Before me, counsel for the plaintiff argued that the defendant had been unjustly enriched by reason of the facts recited in the agreed statement of facts. To establish unjust enrichment, it was not in dispute that three elements must be proved: first, an enrichment; second, a corresponding deprivation; and finally, the absence of any juristic reason for the enrichment.[2] That the defendant has been enriched and the plaintiff correspondingly deprived also was not in dispute before me. The issue, then, was whether or not a “juristic reason” for the defendant’s enrichment existed.

It is trite to say that a provision of law can constitute a juristic reason for enrichment. The provision of law cited before me as a juristic reason is subsection 91(1) of the PGRT Act which, at the relevant time, read as follows:

91. (1) If the return of a taxpayer’s production revenue for a taxation year has been made within four years from the end of the year, the Minister

(a) may, on or after mailing the notice of assessment for the year, refund to a taxpayer, without application therefor, any overpayment made on account of his tax for the year; and

(b) shall make such a refund after mailing the notice of assessment if application therefor has been made in writing by the taxpayer within four years from the end of the year.

Once again, it was common ground between counsel before me that no tax was payable by the plaintiff under the PGRT Act in respect of its 1983 taxation year. Thus, the amount in dispute represented an “overpayment” made on account of the plaintiff’s tax for the taxation year within the meaning of subsection 91(1) of the PGRT Act.

The plaintiff did not file a return of its production revenue for its 1983 taxation year within four years from the end of that year. To this day, the Minister has not mailed a notice of assessment to the plaintiff in respect of its 1983 taxation year. Nor has the Minister, in the words of subsection 87(4) of the PGRT Act, “notify [notified] [the plaintiff] in writing … that no tax is payable for the taxation year”. Thus, it is beyond question that the Minister has neither obligation nor authority under the terms of subsection 91(1) to make the refund at issue to the plaintiff.

Does then subsection 91(1) of the PGRT Act result in an absence of a juristic reason for the defendant’s enrichment in the circumstances of this matter?

Counsel for the defendant argued that, in the absence of authority under subsection 91(1), the Minister has no authority whatever to make the refund. Thus, there is a juristic reason for the enrichment, the absence of authority to make a refund. In essence, counsel for the defendant argued that subsection 91(1) represents a complete code on the question of refunds within the authority of the Minister and in the circumstances of this case, which do not fit the parameters of subsection 91(1), there is thus a juristic reason for the enrichment.

By contrast, counsel for the plaintiff argued that subsection 91(1) does not constitute a complete code, and that, in any event, subsection 91(1) does not extend to the circumstances here at issue and that it is open to this Court and, indeed incumbent on this Court, to find or to create an absence of juristic reason.

To find an absence of juristic reason, the Court would be obliged to find an implicit obligation on the Minister to make the refund, in the face of subsection 91(1), thus enabling it to declare the existence of a constructive trust on the Minister which is the primary relief requested on behalf of the plaintiff.

In Morguard Properties Ltd. et al. v. City of Winnipeg,[3] Mr. Justice Estey, speaking for the Court, wrote:

In more modern terminology the courts require that, in order to adversely affect a citizen’s right, whether as a taxpayer or otherwise, the Legislature must do so expressly. Truncation of such rights may be legislatively unintended or even accidental, but the courts must look for express language in the statute before concluding that these rights have been reduced. This principle of construction becomes even more important and more generally operative in modern times because the Legislature is guided and assisted by a well-staffed and ordinarily very articulate Executive. The resources at hand in the preparation and enactment of legislation are such that a court must be slow to presume oversight or inarticulate intentions when the rights of the citizen are involved. The Legislature has complete control of the process of legislation, and when it has not for any reason clearly expressed itself, it has all the resources available to correct that inadequacy of expression. This is more true today than ever before in our history of parliamentary rule.

In Amoco Canada Petroleum Co. Ltd. and M.N.R.,[4] Mr. Justice MacGuigan wrote [at page 2]:

The issue in this case is simply stated: the Government seeks to avoid paying the whole amount of a refund otherwise wholly owing to a taxpayer on the basis of a claimed one-year limitation period which it infers from the language of the taxing statute. For a Court so to limit a taxpayer’s right to what would otherwise be his own money would necessitate a clear statutory directive indeed.

Later, he continued [at page 3]:

The need for express language can only be a fortiori when it is a question not of the tax itself but of a refund of money paid in error. It cannot be lightly presumed that Parliament does not intend the Government to pay its debts. A Court must therefore carefully scrutinize the statute in question.

Mr. Justice MacGuigan concluded [at page 7]:

This interpretation not only resolves the ambiguities of these subsections, but it does so without unfairness to the taxpayer who does not initially contest his obligation to pay. A taxpayer who pays his taxes in good faith and under the general compulsion of the law should not be penalized for not challenging his Government’s right to the tax at every stage—annually, as recommended before us by counsel for the respondent. Compliance with law is not a vice but a wholesome attitude in a democratic society.

Surely the same can be said where what is at issue is not the payment of tax in good faith, but the payment of instalments, in advance, in accordance with the law, where the good faith in making such payments cannot be at issue. The only obvious concern lies with the failure of the plaintiff to file a return as and when required, and even when invited to do so, where the plaintiff knew, or at least should have reason to believe, that a substantial refund is due to it and that filing a return is a condition precedent to realizing the return.

By reference to the foregoing statement by Mr. Justice Estey in Morguard and a further statement by him in Stubart Investments Ltd. v. The Queen,[5] Mr. Justice MacGuigan, in Lor-Wes Contracting Ltd. v. The Queen[6] stated [at pages 351-352]:

The Supreme Court of Canada in recent tax decisions has cleared out a great deal of the under-brush that previously surrounded tax law.

…

It seems clear from these cases that older authorities are no longer to be absolutely relied upon. The only principle of interpretation now recognized is a words-in-total-context approach with a view to determining the object and spirit of the taxing provisions.

On the basis of a “words-in-total-context” approach to the interpretation of the relevant provisions of the PGRT Act, I can only conclude that subsection 91(1) of the PGRT Act was intended by Parliament to represent a complete code of the circumstances in which the Minister of National Revenue is either authorized or required to provide a refund of amounts paid on account of tax under the PGRT Act, whether or not any tax is payable by the taxpayer under that Act for the taxation year in question. To imply that Parliament left open an authority to the Minister to make a refund in circumstances where a taxpayer, as here, has not filed a return within the four years stipulated in that subsection would make nonsense of the subsection. I am not prepared to envisage such a result. Equally, to conclude that the references in paragraphs 91(1)(a) and (b) to “mailing the notice of assessment” do not extend to and include giving notification in writing that no tax is payable, as provided for in subsection 87(4), would result in an equally untenable result.

But that is not the end of the matter. The question remains, as a matter of equity and given the lack of express language in or in relation to subsection 91(1) declaring it to be a complete code, is it open to this Court to find a constructive trust by reason of unjust enrichment flowing from an absence of juristic reason for the enrichment of the defendant on the facts of this matter.

It would appear clear from Air Canada v. British Columbia[7] that the concept of unjust enrichment can be applied against a government to ground recovery in appropriate circumstances. Mr. Justice La Forest wrote, at page 1207:

This rule against the recovery of unconstitutional and ultra vires levies is an exceptional rule, and should not be construed more widely than is necessary to fulfil the values which support it. Chief among these are the protection of the treasury, and a recognition of the reality that if the tax were refunded, modern government would be driven to the inefficient course of reimposing it either on the same, or on a new generation of taxpayers, to finance the operations of government. Though the drawing of lines is always difficult, I am persuaded that this rule should not apply where a tax is extracted from the taxpayer through a misapplication of the law. Thus, where an otherwise constitutional or intra vires statute or regulation is applied in error to a person to whom on its true construction it does not apply, the general principles of restitution for money paid under a mistake should be applied, and, subject to available defenses and equitable considerations discussed earlier, the general rule should favour recovery. In exceptional cases public policy considerations may require a contrary holding, but those exceptional cases do not justify extending the general rule of non-recovery of unconstitutional or ultra vires levies.

The position taken on behalf of the defendant in this matter certainly cannot be said to have arisen out of application of the PGRT Act in error to the plaintiff. It arises out of the plaintiff’s compliance with the requirements of the PGRT Act to make instalment payments on account of potential tax liability and, more importantly, out of the failure of the plaintiff to file a return of its production revenue for its 1983 taxation year in what might be described as a timely manner. Nonetheless, the result, under what I can only presume to be a relatively unusual set of circumstances and under a statutory regime that is now no longer in place, results in an extraordinarily harsh penalty to the plaintiff which I can only conclude is substantially out of proportion to the plaintiff’s failing.

In Consumers Glass Company Limited v. Canada,[8] Mr. Justice Cullen had before him a somewhat analogous issue arising under the Customs Act [R.S.C. 1970, c. C-40]. He stated the issue before him in the following terms [at pages 124-125]:

The issue to be decided is whether the plaintiff is entitled to a refund of $322,563.64, the balance of the moneys paid by it in error, on the basis of unjust enrichment. The resolution of this issue requires a determination of the following:

1. that moneys paid under mistake of law are recoverable pursuant to the restitutionary principle of unjust enrichment; and

2. that recovery by Consumers is not barred by the provisions of the Customs Act [R.S.C. 1970, c. C-40].

Mr. Justice Cullen concluded that the doctrine of unjust enrichment is firmly entrenched and accepted in Canadian law. He stated [at page 141]:

Not to recognize the law of restitution based on unjust enrichment is to ignore equity and equitable remedies.

He went on to apply the “restitutionary principle of unjust enrichment.” He found recovery by Consumers Glass not to be barred by the provisions of the Customs Act.

On appeal, Mr. Justice Cullen’s decision in Consumers Glass was reversed by the Federal Court of Appeal, not on the basis of his adoption of the principle of unjust enrichment against the Minister of National Revenue but, rather, on the basis that recovery by Consumers Glass was expressly excluded by the provisions of the Customs Act.[9] Mr. Justice Pratte wrote [at pages 158]:

Section 46(1) [of the Customs Act] stated clearly that the tariff classification and appraisal made at the time of the entry were “final and conclusive” if they were not modified in accordance with those rules.

Here, of course, no such express words are contained in subsection 91(1) of the PGRT Act or elsewhere in that Act in relation to that subsection. It is worthy of note that the Court of Appeal did not question Mr. Justice Cullen’s adoption of the principle of unjust enrichment against the Minister absent such express language.

Counsel for the defendant referred me to Union Gas Ltd. v. M.N.R.[10] where Mr. Justice Pratte wrote [at page 2]:

The appellant’s counsel based his contention that the Minister did not have the power to enter into the agreement of June 1978 on the fact that the Minister cannot, under section 164, refund an amount paid on account of the tax before mailing the notice of assessment for the year. This argument has no merit. The reason why the Minister may only refund an overpayment of tax in the circumstances described in section 164 of the Act is found in section 26 of the Financial Administration Act, R.S.C. 1985, c. F-11 (formerly R.S.C. 1970, c. F-10, s. 19), which prescribes that “no payment shall be made out of the Consolidated Revenue Fund without the authority of Parliament.” It is clear that the agreement of June 1978 was not a payment out of the Consolidated Revenue Fund and was not, therefore, prohibited by that section.

Counsel relies on the third sentence from the foregoing quotation as support for the proposition that, if subsection 91(1) of the PGRT Act was intended by Parliament to represent a complete code of the circumstances in which the Minister of National Revenue is either authorized or required to provide a refund of amounts paid on account of tax under the PGRT Act, and I have found that to be the case, and that subsection does not authorize or require a refund on the facts before me, and I have also found that to be the case, then section 26 of the Financial Administration Act[11] precludes repayment on the facts of this case notwithstanding that the defendant may have been unjustly enriched and the plaintiff correspondingly deprived. With great respect, I cannot agree with counsel that the sentence relied upon supports such a proposition. It is not for me to scour the statutes of Canada in search of Parliamentary authority for repayment of an amount that I determine to be due from the defendant to the plaintiff. That will be a task for the defendant. If no such Parliamentary authority can be found, I do not read section 26 of the Financial Administration Act as precluding me from pronouncing the judgment that I consider to be proper, just and in accordance with law. Rather, section 26 speaks to the Executive. If an appropriate authority cannot be found, then it will be for the Executive arm of Government to determine how to proceed in order to comply with my judgment.

On the facts before me, I find the defendant to have been enriched at the expense of the plaintiff. Further, I find no juristic reason, in this case, a statutory provision, clearly and unequivocally justifying the enrichment. I conclude that Parliament simply did not, perhaps for justifiable reason, contemplate the impact of subsection 91(1) of the PGRT Act on facts such as those before me. If it had, it would surely have provided for an appropriate result in favour of the taxpayer. By failing to do so, Parliament cannot be presumed to have intended that this taxpayer be so unfairly treated. I therefor find the defendant to have been unjustly enriched.

Before me, counsel were in agreement that, if judgment were to go in favour of the plaintiff on the main issue, as it will, then agreement between the parties could likely be reached on the question of interest. Accordingly, the issue of interest was not argued before me and will not be dealt with in my judgment. If agreement on the interest issue is not reached within a reasonable time, I retain jurisdiction and am prepared to reconvene this matter on that issue only.

Accordingly my judgment will provide a declaration that the defendant, by reason of the principle of unjust enrichment, is a constructive trustee of the amount of $411,424.94 on behalf of the plaintiff. My order will require the delivery up to the plaintiff of the said amount by the defendant to the plaintiff.

The plaintiff is entitled to costs.

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