Alberta Treasury Branches v. Leahy,

• Judge: Mason, J.
• Neutral Citation: 2000 ABQB 575
• Citation: (2000), 270 A.R. 1 (QB),2000 ABQB 575,270 AR 1,[2000] AJ No 993 (QL),78 CRR (2d) 221,99 ACWS (3d) 442,[2000] A.J. No 993 (QL),(2000), 270 AR 1 (QB),270 A.R. 1
• Date: 18 August 2000
• Court: Court of Queen's Bench of Alberta (Canada)

Alta. v. Leahy (2000), 270 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. SE.037

Alberta Treasury Branches (plaintiff) v. Elmer Leahy (defendant) and Nader Ghermezian, Raphael Ghermezian, Bahman Ghermezian, Eskander Ghermezian, 273905 Alberta Ltd., Howard Anson, Mavis Halliday, 218703 Alberta Ltd., 579511 Alberta Ltd., 298936 Alberta Ltd., West Edmonton Mall Property Inc., WEM Holdings Inc., WEM Management Inc., Avista Financial Corporation, 298926 Alberta Ltd., ABNR Equities Corp., and Devcor Investment Corporation (defendants by order)

(Action No. 9701-03767; 2000 ABQB 575)

Indexed As: Alberta (Treasury Branches) v. Leahy et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Mason, J.

August 18, 2000.

Summary:

Alberta Treasury Branches (ATB) com­menced an action on March 11, 1997, alleg­ing that the defendant Leahy, ATB's former vice superintendent, accepted a bribe from an ATB customer in exchange for granting loans. Between March 11, 1997 and May 13, 1998, the Alberta Court of Queen's Bench issued a series of ex parte orders, which, inter alia, permitted ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts controlled by Leahy. ATB brought an action against other defendants with respect to the alleged bribery. Leahy and certain other defendants applied to, inter alia, set aside the ex parte orders and exclude the use of information and evidence derived from them on the grounds that ATB 1) violated fundamental ex parte principles in obtaining the orders, 2) breached its implied undertaking to the court in its use of information obtained pursuant to the orders, and 3) breached the defendants' ss. 7 and 8 Charter rights. ATB cross-applied, inter alia, for confirmation of the ex parte orders and for a declaration that the information and evidence obtained could be used in these and related proceedings.

The Alberta Court of Queen's Bench dismissed the defendants' application and granted ATB's cross-appli­cation.

Civil Rights - Topic 1508

Property - General principles - Expecta­tion of privacy - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of docu­ments from third party financial institu­tions, in order to gain information respect­ing the source of monies in bank accounts controlled by Leahy - The records seized related to the accounts of three companies (including Ventana and Adirondack) and a Mr. Sheckter - As a result, ATB sued other defendants - Certain defendants applied to set aside the ex parte orders and sup­press the evidence obtained thereby on the basis that their s. 8 Charter rights were violated - The Alberta Court of Queen's Bench dis­missed the application - The court held that where Sheckter, Ventana and Adiron­dack were not named appli­cants, the other defendants had to establish a personal right of privacy in the former's bank records, which they failed to do - See paragraphs 316 to 327.

Civil Rights - Topic 1508

Property - General principles - Expecta­tion of privacy - The plaintiff sued the defendants, alleging bri­bery - The Alberta Court of Queen's Bench held that certain defendants did not estab­lish a per­sonal right of priv­acy in seized bank records belonging to certain com­panies - The defendants did not show that they were present at the time of the seiz­ures, owned or pos­sessed the bank accounts, historical­ly used them, or had a subjective expecta­tion of privacy which was objec­tively reason­able - While one defendant appar­ent­ly con­trolled one com­pany and had some rela­tionship with the sec­ond, and another defen­dant appar­ently con­trolled the third company, the corpor­ations were legal entities having the capacity, rights and powers of natural per­sons and without more, the right, if any, resided in them with respect to the accounts - Use of an account alone did not establish a defen­dant's right of privacy in the account - See para­graphs 316 to 327.

Civil Rights - Topic 1508

Property - General principles - Expecta­tion of privacy - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of docu­ments from third party financial institu­tions, in order to gain information respect­ing the source of monies in bank accounts controlled by Leahy - The records seized related to the accounts of a Mr. Sheckter and three com­panies, including 273905 - As a result, ATB sued other defendants, includ­ing 273905 - Certain defendants applied to set aside the ex parte orders and sup­press the evidence obtained thereby on the basis that their s. 8 Charter rights were violated - The Alberta Court of Queen's Bench accepted, without decid­ing, that 273905 had a rea­sonable expecta­tion of privacy in the banking records respecting its account, but held that the search was reasonable - See paragraphs 328 to 354.

Civil Rights - Topic 1646

Property - Search and seizure - Unreas­onable search and seizure defined - [See third Civil Rights - Topic 1508 ].

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application of - Persons protected - [See both Civil Rights - Topic 8546 ].

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative law, including boards, tribunals and Crown corporations - Alberta Treasury Branches (ATB) sued Leahy, its former vice super­intendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts con­trolled by Leahy - As a result, ATB sued other defendants - Certain defendants applied to set aside the ex parte orders and suppress the evidence obtained thereby on the basis of, inter alia, Charter violations - The Alberta Court of Queen's Bench assumed, without deciding, that ATB was "govern­ment" at the material times - See para­graphs 290 to 298.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the per­son - Section 7 of the Charter provided that "Everyone has the right to life, liberty and security of the person ..." - Defend­ants in a civil action alleging bribery asserted that "everyone" in s. 7 should be read to include corporations in a civil suit, if the plaintiff alleged that a corporate defendant and a natural person should be treated as one - The Alberta Court of Queen's Bench rejected the argu­ment - See paragraphs 299 to 303.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - Alberta Treasury Branches (ATB) sued Leahy, its former vice super­intendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts controlled by Leahy - As a result, ATB sued other defendants - Certain defendants applied to set aside the ex parte orders and suppress the evidence obtained thereby on the basis of, inter alia, Charter violations - The Alberta Court of Queen's Bench held that s. 7 of the Charter (right to life, lib­erty and secur­ity of the person) did not apply to any of the defendants, corporate or indi­vidual, in this civil action - See para­graphs 299 to 315.

Equity - Topic 1142

Equitable relief - Practice - Bill of dis­covery - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - Over the next 14 months the court issued a series of ex parte orders permit­ting ATB to trace funds and obtain pro­duction of documents from third party financial institutions (equitable bill of discovery), in order to gain information respecting the source of monies in bank accounts controlled by Leahy - The Alberta Court of Queen's Bench held that the Rules of Court did not preclude the remedy of an equitable bill of discovery - While the Rules provided for limited pre­trial examination and production of docu­ments from nonparties, they did not con­template the particular remedies at issue here - In any event, Alberta judges could reach behind the Rules and exercise fully the broader procedural remedies of the equitable bill of discovery - See para­graphs 59 to 107.

Equity - Topic 1142

Equitable relief - Practice - Bill of dis­covery - The Alberta Court of Queen's Bench stated that "where a party requires assistance in tracing a proprietary claim, including a trust fund which has been misappropriated by a wrongdoer, equity has assisted by ordering third parties to provide documents and information relat­ing to the affairs of an alleged wrongdoer and the identification of such wrongdoers ... The jurisdiction of the court to grant such relief is based on the ancient equi­table bill of discovery ..." - See para­graphs 69 to 70.

Equity - Topic 1142

Equitable relief - Practice - Bill of dis­covery - The Alberta Court of Queen's Bench stated that the equitable remedy of discovery of third parties had been granted 1) where the information sought was necessary to ident­ify wrongdoers, 2) to find and preserve evidence that might substantiate or support an action against either known or unknown wrongdoers, or even determine whether an action existed, and 3) to trace and preserve assets - See paragraph 106.

Equity - Topic 1142

Equitable relief - Practice - Bill of dis­covery - The Alberta Court of Queen's Bench stated that in considering whether to grant the equitable remedy of discovery of third parties, a court would consider whether 1) the appli­cant had provided evidence sufficient to raise a valid, bona fide or reasonable claim, 2) the applicant had established a relationship with the third party from whom the information was sought such that it established that the third party was somehow involved in the acts complained of, 3) the third party was the only practi­cable source of the informa­tion available, 4) the third party could be indemnified for costs to which it might be exposed because of the disclosure, and 5) the interests of justice favoured disclosure - See para­graph 106.

Equity - Topic 1142

Equitable relief - Practice - Bill of dis­covery - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - Over the next 14 months the court issued a series of ex parte orders permit­ting ATB to trace funds and obtain pro­duction of documents from third party financial institutions (equitable discovery), in order to gain information respecting the source of monies in bank accounts con­trolled by Leahy - As a result, ATB sued other defendants - The Alberta Court of Queen's Bench considered cases that had applied the remedy of equitable discovery, begin­ning with Norwich, an English House of Lords case - The court stated that "the alleged bribery of a high level fiduciary requires the assistance of equity in the form of Norwich type orders" - See para­graph 111.

Equity - Topic 1142

Equitable relief - Practice - Bill of dis­covery - Rule 387(1) stated that "if sat­isfied that no notice is necessary, or that the delay caused by proceeding by notice of motion might entail serious mischief, the court may make an order ex parte" - The Alberta Court of Queen's Bench stated that "rule 387 does not contemplate in any way the exercise of the equitable jurisdic­tion of a bill of discovery in pursuit of uncovering bribery of a fiduciary. The development of equity in this area has been a flexible response in dealing with fraudsters and the twists and turns avail­able to them through modern banking techniques and processes." - See para­graphs 166 to 167.

Equity - Topic 3602

Fiduciary or confidential relationships - General principles - Elements of a fiduciary relationship - The Alberta Court of Queen's Bench set out the defining characteris­tics of a fiduciary relationship - The court stated that the more intense the fiduciary relationship, the more vigilant the court's surveillance would be - It was a funda­mental principle that fiduciaries were not permitted to reap personal profit or advan­tage - See paragraphs 112 to 118.

Equity - Topic 3608

Fiduciary or confidential relationships - General principles - Standard of conduct - [See Equity - Topic 3602 ].

Evidence - Topic 7533

Competency of evidence - Illegally obtained evidence - Exclusion of - Gen­eral - ATB sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions (equitable discovery), in order to gain information respecting the source of monies in bank accounts controlled by Leahy - As a result, ATB sued other defendants - Certain defendants applied to set aside the ex parte orders on procedual grounds, inter alia, and suppress the evi­dence obtained thereby - The Alberta Court of Queen's Bench ref­used to set aside the orders - The court stated that even if it had set aside the orders, it would not have granted the defendants' requests to essen­tially "erase" the evidence - The defend­ants tried to blur the funda­mental distinc­tion between civil and crimi­nal proceed­ings and the exclusion of evi­dence in the two types of proceed­ings - See paragraphs 204 to 206.

Practice - Topic 6

General principles and definitions - Application of practice rules - [See first Equity - Topic 1142 ].

Practice - Topic 14

General principles and definitions - Pro­cedures not provided for in rules - [See first and sixth Equity - Topic 1142 ].

Practice - Topic 3059

Applications and motions - General - Duty of disclosure on ex parte application - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts controlled by Leahy - ATB sued other defendants with respect to the alleged bribery - Certain defen­dants applied to set aside the ex parte orders - The Alberta Court of Queen's Bench found that there were some instances of nondisclosure by ATB in its applications for the ex parte orders, but they did not justify setting the orders aside - The court would still have made the ex parte orders if full disclosure had been made - The court was not intentionally misled - See paragraphs 186 to 200.

Practice - Topic 3126

Applications and motions - Motions - Notice of motion - General - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of docu­ments from third party financial institu­tions - As a result, ATB sued other defen­dants - Certain defen­dants applied to set aside the ex parte orders, arguing, inter alia, that rule 385 required ATB to file a notice of motion - The Alberta Court of Queen's Bench dis­agreed - It was not the practice in Alberta that an ex parte appli­cant file a notice of motion - Typically the affidavit material served to illuminate what was being sought and the grounds for doing so - See para­graphs 201 to 202.

Practice - Topic 3131

Applications and motions - Motions - Ex parte - [See Practice - Topic 3126 ].

Practice - Topic 4157

Discovery - General principles - Collat­eral use of discovery information (implied undertaking rule) - The Alberta Court of Queen's Bench stated that "the implied undertaking is a legal obligation imposed by the court in civil proceedings upon counsel and any party to whom production of documents and information is made pursuant to the applicable Rules of Court or by court order. Its purpose is to protect the confidentiality of discovery, which the producing party was compelled to disclose in response to the requirements of the civil process and to permit the Court to do justice between the parties. The obligation is to the court and to the producing party, whether a party to the action or a third party from which production is made. The obligation is not to make improper use of the production." - See paragraph 269.

Practice - Topic 4157

Discovery - General principles - Collat­eral use of discovery information (implied undertaking rule) - The Alberta Court of Queen's Bench stated that a party to whom production was made had an obligation not to make improper use of the production - The court stated that "improper use has been variously defined in the authorities as use that is 'ulterior', 'collateral' or 'alien' to the purpose for the production. The defini­tion of improper use, therefore, is deter­mined by examining the purposes for which the specific production was made to counsel and the party receiving it."- See paragraph 270.

Practice - Topic 4157

Discovery - General principles - Collat­eral use of discovery information (implied undertaking rule) - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permit­ting ATB to trace funds and obtain pro­duction of docu­ments from third party financial institu­tions, in order to gain information respect­ing the source of monies in bank accounts con­trolled by Leahy - As a result, ATB sued other defen­dants - The Alberta Court of Queen's Bench held that the implied undertaking rule was not applicable to these proceed­ings, where the evidence had been obtained for the dual purpose of pursuing the action in which it was pro­duced and identifying and pursuing third parties - See paragraph 276.

Practice - Topic 4157

Discovery - General principles - Collat­eral use of discovery information (implied undertaking rule) - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permit­ting ATB to trace funds and obtain pro­duction of docu­ments from third party financial institu­tions, in order to gain information respect­ing the source of monies in bank accounts con­trolled by Leahy - As a result, ATB sued other defen­dants - The actions were con­solidated - The Alberta Court of Queen's Bench held that the implied undertaking rule did not apply - Alterna­tively, the rule was not violated because the purposes expressed in the ex parte applications were the use to which the pro­duction was ulti­mately put (i.e., using the evi­dence against the persons pay­ing the bribes, as well as against the per­son bribed, was not col­lat­eral or ulterior) - To the extent that ATB should have obtained court per­mission before this use of the produc­tion, the court granted per­mission, nunc pro tunc, and declared that ATB could use the produc­tion in the consoli­dated action and Leahy's defamation action - See para­graphs 207 to 288.

Practice - Topic 4603

Discovery - Production of documents by nonparties - Jurisdiction - [See first, second and sixth Equity - Topic 1142 ].

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - [See third, fourth and fifth Equity - Topic 1142 ].

Practice - Topic 5809

Judgments and orders - Ex parte orders - Notice - [See sixth Equity - Topic 1142 ].

Practice - Topic 6254

Judgments and orders - Setting aside orders - Ex parte orders - ATB sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts controlled by Leahy - As a result, ATB sued other defendants - Certain defen­dants applied to set aside the ex parte orders and suppress the evi­dence obtained thereby - ATB cross-applied for con­firmation of the orders and a dec­laration that the evidence could be used in these and related pro­ceedings - The Alberta Court of Queen's Bench held that the setting aside and cross-applica­tions were de novo hear­ings and the court should have regard to all of the relevant, admissible evidence before it - See para­graphs 50 to 57.

Practice - Topic 6254

Judgments and orders - Setting aside orders - Ex parte orders - [See Practice - Topic 3059 ].

Cases Noticed:

Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), appld. [para. 48].

Griffin Steel Foundries Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers et al., [1978] 1 W.W.R. 35 (Man. C.A.), not folld. [para. 50].

Canadian Caterplan Ltd. v. 488570 Alberta Ltd. (1991), 123 A.R. 316; 83 Alta. L.R.(2d) 115 (Q.B.), refd to. [para. 51].

Edmonton Northlands v. Edmonton Oilers Hockey Corp. (1993), 147 A.R. 113; 15 Alta. L.R.(3d) 179 (Q.B.), affd. (1994), 149 A.R. 92; 63 W.A.C. 92; 17 Alta. L.R.(3d) 382 (C.A.), refd to. [para. 51].

Envirotek Mills Inc. v. Ikona Inc. (1995), 33 Alta. L.R.(3d) 274 (Q.B.), refd to. [para. 51].

Capitanescu et al. v. Universal Weld Overlays Inc. et al. (1996), 192 A.R. 85; 46 Alta. L.R.(3d) 203 (Q.B.), refd to. [para. 51].

Canadian Union College v. Bonamy et al. (1995), 179 A.R. 122; 35 Alta. L.R.(3d) 246 (Q.B.), refd to. [para. 51].

Interclaim Holdings Ltd. et al. v. Down et al., [1999] A.R. Uned. 111 (Q.B.), revsd. in part (1999), 250 A.R. 94; 213 W.A.C. 94 (C.A.), refd to. [para. 51].

Dunwoody Furs Ltd. et al. v. People Against Cruel Trapping Society et al. (1992), 133 A.R. 336 (Q.B.), refd to. [para. 51].

WEA Records Ltd. v. Visions Channel 4 Ltd., [1983] 2 All E.R. 589 (C.A.), refd to. [para. 52].

Polesystems Inc. et al. v. Martec Manu­facturing Ltd. et al. (1989), 96 A.R. 218; 67 Alta. L.R.(2d) 159 (Q.B.), refd to. [para. 53].

Agrium Inc. v. Pocha, [1999] A.J. No. 994 (Q.B.), refd to. [para. 53].

Kraupner et al. v. Ruby et al. (1957), 21 W.W.R. 145 (B.C.C.A.), refd to. [para. 56].

Wilkie Garment Co. et al. v. Interlock Holdings Ltd. et al. (1994), 53 C.P.R.(3d) 55 (B.C.S.C.), refd to. [para. 56].

Glaxco Wellcome plc v. Minister of National Revenue, [1998] 4 F.C. 439; 228 N.R. 164 (F.C.A.), refd to. [para. 70].

Bankers Trust Co. v. Shapira, [1980] W.L.R. 1274 (C.A.), refd to. [para. 74].

A. and Another v. C. and Others, [1980] 2 All E.R. 347 (Q.B.), refd to. [para. 74].

Arab Monetary Fund v. Hashim and Others (No. 5), [1992] 2 All E.R. 911 (Ch.D.), refd to. [para. 74].

Marc Rich & Co. Holding GmbH v. Krasner, [1999] E.W.J. No. 210 (C.A.), refd to. [para. 94].

P. v. T. Ltd., [1997] 1 W.L.R. 1309 (Ch.D.), refd to. [para. 95].

Johnston (Frank) Restaurants Ltd., Re (1980), 33 Nfld. & P.E.I.R. 341; 93 A.P.R. 341 (P.E.I.C.A.), refd to. [para. 99].

Comeau, Re (1986), 77 N.S.R.(2d) 57; 191 A.P.R. 57 (T.D.), refd to. [para. 99].

Leahy v. Dr. A.B. (1992), 113 N.S.R.(2d) 417; 309 A.P.R. 417 (T.D.), refd to. [para. 99].

National Bank of Canada et al. v. Mann et al. (1999), 102 O.T.C. 32; 37 C.P.C.(4th) 88 (S.C. Master), refd to. [para. 101].

Kenney v. Loewen et al. (1999), 4 B.C.T.C. 161; 28 C.P.C.(4th) 179 (S.C.), folld. [para. 102].

Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1; 85 D.L.R.(4th) 129, refd to. [para. 109].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 112].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241; 146 D.L.R.(4th) 214, refd to. [para. 117].

Hong Kong v. Reid, [1994] A.C. 324; 163 N.R. 221 (P.C.), refd to. [para. 119].

Midcon Oil & Gas Co. v. New British Dominion Oil Co., [1958] S.C.R. 314, refd to. [para. 119].

Tournier v. National Provincial and Union Bank of England Ltd., [1923] All E.R. 550 (C.A.), refd to. [para. 162].

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Anton Piller K.G. v. Manufacturing Pro­cesses Ltd., [1976] 1 All E.R. 779; [1976] Ch. 55 (C.A.), refd to. [para. 165].

M.A.B., Re (1992), 126 A.R. 276 (Prov. Ct.), refd to. [para. 171].

EMI Ltd. et al. v Pandit, [1975] 1 All E.R. 418 (Ch.D.), refd to. [para. 171].

Bekhor (A.J.) Ltd. v. Bilton, [1981] 1 Q.B. 923 (C.A.), refd to. [para. 171].

MacIntyre v. Nova Scotia (Attorney Gen­eral) and Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 65 C.C.C.(2d) 129; 132 D.L.R.(3d) 385, refd to. [para. 177].

Mercantile Group (Europe) AG v. Aiyela et al., [1994] Q.B. 366 (C.A.), refd to. [para. 180].

Wong v. Insurance Co. of British Colum­bia (1993), 16 C.C.L.I.(2d) 143 (B.C.S.C.), folld. [para. 206].

Alterskye v. Scott, [1948] 1 All E.R. 469 (Ch.D.), refd to. [para. 210].

Riddick v. Thames Board Mills Ltd., [1977] 3 All E.R. 677 (C.A.), refd to. [para. 212].

Prudential Assurance Co. v. Fountain Page Ltd. and others, [1991] 3 All E.R. 878 (Q.B.), refd to. [para. 217].

Sybron Corp. v. Barclays Bank plc, [1985] 1 Ch. 299, refd to. [para. 218].

Crest Homes plc v. Marks and others, [1987] 2 All E.R. 1074 (H.L.), refd to. [para. 221].

Wilden Pump & Engineering Co. v. Fuseld, [1985] F.S.R. 581 (Ch.D.), refd to. [para. 228].

Omar v. Omar, [1995] 1 W.L.R. 1428 (Ch.D.), refd to. [para. 241].

Sony Corporation v. Anand, [1981] F.S.R. 398 (Ch.D.), refd to. [para. 251].

Levi Strauss & Co. v. Barclays Trading Corp. Inc., [1993] F.S.R. 179 (Ch.D.), refd to. [para. 253].

Miller (Ed) Sales and Rentals Ltd. v. Cat­erpillar Tractor Co. et al. (1986), 72 A.R. 354; 43 Alta. L.R.(2d) 299 (Q.B.), refd to. [para. 256].

Wirth Ltd. v. Acadia Pipe & Supply Corp. et al. (1991), 113 A.R. 298; 79 Alta. L.R.(2d) 345 (Q.B.), refd to. [para. 256].

Church of Scientology of California v. Department of Health and Social Secur­ity, [1979] 1 W.L.R. 723 (C.A.), refd to. [para. 257].

755568 Ontario Ltd. v. Lynchcrist Homes Ltd. (1991), 1 O.R.(3d) 649 (Gen. Div.), refd to. [para. 258].

Ochitwa v. Bombino et al. (1997), 210 A.R. 259; 56 Alta. L.R.(3d) 37; 153 D.L.R.(4th) 555 (Q.B.), refd to. [para. 260].

Carbone v. De La Roche (1993), 13 O.R.(3d) 355 (Gen. Div.), refd to. [para. 261].

Goodman v. Rossi (1995), 83 O.A.C. 38; 12 C.C.E.L.(2d) 105 (C.A.), refd to. [para. 263].

LAC Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R.(2d) 260 (H.C.), refd to. [para. 280].

Miller v. Scorey, [1996] 3 All E.R. 18 (Ch.D.), refd to. [para. 282].

Eldridge et al. v. British Columbia (Attor­ney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 292].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85, refd to. [para. 297].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 68 C.C.C.(3d) 308; 9 C.R.(4th) 1, refd to. [para. 297].

Irwin Toy Ltd. v. Québec (Procureur gén­eral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577, consd. [para. 300].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 300].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 302].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V. (1999), 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25 (S.C.C.), refd to. [para. 306].

Blencoe v. Human Rights Commission (B.C.) et al. (1998), 107 B.C.A.C. 162; 174 W.A.C. 162; 160 D.L.R.(4th) 303 (C.A.), dist. [para. 311].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 312].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1; 122 D.L.R.(4th) 1, refd to. [para. 312].

B. v. Children's Aid Society of Metro­poli­tan Toronto - see Sheena B., Re.

Human Rights Commission (Alta.) v. Alberta Blue Cross Plan, [1983] 6 W.W.R. 758; 48 A.R. 192; 1 D.L.R.(4th) 301; 28 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 318].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 319].

Alderman v. United States (1969), 394 U.S. 165, refd to. [para. 321].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 84 C.C.C.(3d) 203, refd to. [para. 329].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297; 124 C.C.C.(3d) 129; 158 D.L.R.(4th) 577, refd to. [para. 330].

R. v. Jarvis (W.J.) (1998), 225 A.R. 225; 63 Alta. L.R.(3d) 236 (Q.B.), refd to. [para. 331].

R. v. CIP Inc., [1992] 1 S.C.R. 843; 135 N.R. 90; 52 O.A.C. 366; 71 C.C.C.(3d) 129, refd to. [para. 332].

Del Zotto v. Minister of National Revenue (1997), 215 N.R. 184; 147 D.L.R.(4th) 457 (F.C.A.), refd to. [para. 334].

R. v. McKinlay Transport Ltd. and C.T. Transport Inc., [1990] 1 S.C.R. 627; 106 N.R. 385; 39 O.A.C. 385; 55 C.C.C.(3d) 530; 68 D.L.R.(4th) 568, refd to. [para. 334].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1; 59 C.C.C.(3d) 225; [1990] 6 W.W.R. 481; 49 B.C.L.R.(2d) 321; 80 C.R.(3d) 129; 73 D.L.R.(4th) 596; 50 C.R.R. 1, refd to. [para. 339].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 340].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 343].

National Financial Services Corp. v. Wolverton Securities Ltd. et al., [1998] B.C.T.C. Uned. A46 (S.C.), refd to. [para. 345].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 25 C.R.R.(2d) 1; 120 D.L.R.(4th) 12, refd to. [para. 355].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 355].

Statutes Noticed:

Rules of Court (Alta.), rule 387(1) [para. 166].

Authors and Works Noticed:

Bowstead and Reynolds on Agency (16th Ed. 1996), p. 542 [para. 119].

Cooter and Freedman, The Fiduciary Relationship: Its Economic Character and Legal Consequences (1991), 66 N.Y.U.L. Rev. 1045, pp. 1053, 1055 [para. 116].

Côté, J.E., The Reception of English Law (1977), 15 Alta. Law Rev. 29, pp. 57, 58, 59 [para. 103].

Gee, S., Mareva Injunctions and Anton Piller Relief (3rd Ed. 1975), pp. xiii [para. 174]; 81 [para. 69]; 386, 387 [para. 255].

Goff, Robert, and Jones, Gareth, The Law of Restitution (5th Ed. 1998), pp. 716 [para. 117]; 718 [para. 118].

Shepherd, J.C., Law of Fiduciaries (1981), pp. 260, 261 [para. 120].

Spry, C.F., The Principles of Equitable Remedies (5th Ed. 1997), p. 1 [para. 108].

Counsel:

C.D. O'Brien, Q.C., B.G. Nemetz, E.B. Mellett and A.C. Woolley, for the defen­dants by order;

J.A. Weir, Q.C., for the defendant;

J.E. Redmond, Q.C., J.T. Prowse, R.J. Cotter, Q.C., T.F. Mayson, H.L. Treacy and T.J. Williams, for the plaintiff;

F.R. Foran, Q.C., and J.G. Hopkins, for Her Majesty the Queen in Right of Alberta.

This application and cross-application were heard by Mason, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following deci­sion on August 18, 2000.