Tagish Kwan Corp. ( Trustee of ) v. Canada
T-48-94
Wetston J.
23/11/94
7 pp.
Application for order setting aside decision of prothonotary dismissing defendant's motion for order striking out allegations in statement of claim referring to trust, general or specific fiduciary duties and proprietary estoppel-Coopers Lybrand Ltd. trustee in bankruptcy for Tagish Kwan Corp.-Corporation owned by Kwantlin Dun Indian Band in Whitehorse-Treasury Board submission made regarding Band relocation and plan approved in principle-Corporation assigned into bankruptcy in February 1991-Exercise of Court's discretion de novo required-Defendant seeking, under R. 419(1), to strike paragraphs alleging existence of trusts and general or specific fiduciary duties between plaintiff and defendant-Plaintiff submitting findings of fact and conclusions of law based on facts matters that can and should only be determined at trial, not on motion to strike under R. 419-Difference between principles of pleading, establishment of cause of action, and various principles that may underlie particular legal right or obligation involving fiduciary duty and proprietary estoppel-Defendant not establishing plain and obvious case in which to strike any paragraphs from statement of claim-Plaintiff having set out in pleading necessary facts to establish relationship between parties which could give rise to cause of action for fiduciary duty and/or cause of action for proprietary estoppel-Exact nature of relationships must be left to trial-Defendant not demonstrating paragraphs 3 to 10 of statement of claim should also be struck under R. 419(1)(b) or (d)-Application dismissed-Federal Court Rules, C.R.C., c. 663, R. 419(1).