Ambrozic v. Voodoo Enterprises Ltd., 2013 ABQB 148

• Judge: Jeffrey, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Friday January 18, 2013
• Citations: 2013 ABQB 148;(2013), 560 A.R. 46 (QB)

Ambrozic v. Voodoo Ent. Ltd. (2013), 560 A.R. 46 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.123

Monyca Ambrozic (applicant) v. Voodoo Enterprises Ltd. (respondent)

(1101 09853; 2013 ABQB 148)

Indexed As: Ambrozic v. Voodoo Enterprises Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Jeffrey, J.

March 8, 2013.

Summary:

Ambrozic and Burcevski divorced in 1978. In 2001, Ambrozic sued Burcevski and Voodoo Enterprises (Burcevski's company), claiming, inter alia, a declaration of trust in her favour against property owned by them. In 2006, Wilkins, J., declared that Ambrozic was the owner of an undivided one third interest in farmland owned by Voodoo, but said nothing in respect of Ambrozic's claim for profits earned from the property or any accounting thereof. Ambrozic applied under ss. 15 and 17 of the Law of Property Act for partition and sale of the farmland, plus an accounting and rendering to her of her share of the rents and profits generated.

The Alberta Court of Queen's Bench allowed the application. The appropriate start date for the accounting was May 10, 1977.

Equity - Topic 1006

Equitable relief - General - Accounting of profits - [See Estoppel - Topic 379 ].

Equity - Topic 2065.2

Equitable defences - Laches - Claim for an accounting of profits - Ambrozic and Burcevski divorced in 1978 - In 2001, Ambrozic sued Burcevski and Voodoo Enterprises (Burcevski's company), claiming, inter alia, a declaration of trust in her favour against property owned by them - In 2006, Wilkins, J., declared that Ambrozic was the owner of an undivided one third interest in farmland owned by Voodoo, but said nothing in respect of Ambrozic's claim for profits earned from the property or any accounting thereof - Ambrozic applied under ss. 15 and 17 of the Law of Property Act for partition and sale of the farmland, plus an accounting and rendering to her of her share of the rents and profits generated - The Alberta Court of Queen's Bench allowed the application - Having held that the appropriate date for the accounting to begin was May 10, 1977, the court rejected Voodoo's argument that it was inequitable or unjust to require an accounting to that date - Ambrozic's delay in bringing her original claim was considered by the Court of Appeal, which rejected a laches argument - Most of the delay since 2006 resulted from Voodoo or Burcevski - The court had found that Voodoo, as trustee, owed Ambrozic a fiduciary duty, which was a duty of the utmost good faith - Yet Voodoo had resisted performing even that portion of its obligations that it did not dispute (an accounting since 2006) - The equities were the very opposite of what Voodoo had urged on the court - The accounting request was not unreasonable nor unjust by reason of delay - See paragraphs 62 to 70.

Equity - Topic 5006

Merger - General - Where doctrine not applicable - Ambrozic and Burcevski divorced in 1978 - In 2001, Ambrozic sued Burcevski and Voodoo Enterprises (Burcevski's company), claiming, inter alia, a declaration of trust in her favour against property owned by them - In 2006, Wilkins, J., declared that Ambrozic was the owner of an undivided one third interest in farmland owned by Voodoo, but said nothing in respect of Ambrozic's claim for profits earned from the property or any accounting thereof - Ambrozic applied under ss. 15 and 17 of the Law of Property Act for partition and sale of the farmland, plus an accounting and rendering to her of her share of the rents and profits generated - The Alberta Court of Queen's Bench allowed the application - Having held that the appropriate date for the accounting to begin was May 10, 1977, the court rejected Voodoo's argument that Ambrozic's right to an accounting was extinguished by virtue of the doctrines of merger and res judicata - In her original claim, Ambrozic had not sought an accounting, but a proprietary interest - While she had asked for two accountings, both were monetary accounting claims for which she then requested damages - Neither were for an accounting of the kind now requested - Neither were from Voodoo for a share of the profits derived from the farmland - Ambrozic was not now claiming an accounting that she had already claimed in the original action - Neither merger nor issue estoppel applied - See paragraphs 31 to 51.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - [See Equity - Topic 5006 and Estoppel - Topic 379 ].

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - Ambrozic and Burcevski divorced in 1978 - In 2001, Ambrozic sued Burcevski and Voodoo Enterprises (Burcevski's company), claiming, inter alia, a declaration of trust in her favour against property owned by them - In 2006, Wilkins, J., declared that Ambrozic was the owner of an undivided one third interest in farmland owned by Voodoo, but said nothing in respect of Ambrozic's claim for profits earned from the property or any accounting thereof - Ambrozic applied under ss. 15 and 17 of the Law of Property Act for partition and sale of the farmland, plus an accounting and rendering to her of her share of the rents and profits generated - The Alberta Court of Queen's Bench allowed the application - Having held that the appropriate date for the accounting to begin was May 10, 1977, the court rejected Voodoo's argument that Ambrozic's right to an accounting was extinguished by virtue of the doctrines of merger and res judicata - As to cause of action estoppel, the accounting now sought was not a separate cause of action, but was rather a method of quantifying the proprietary relief that had already been granted by Wilkins, J. - Cause of action estoppel did not preclude Ambrozic from requiring Voodoo to account for farmland profits back to May 10, 1977 - However, even if Ambrozic had claimed in her original action the same accounting that she now sought, the court's conclusion would have been the same - The right to an accounting advanced here by Ambrozic was an incident of the ownership of a beneficial interest in property, whereas the accounting claim at trial was a monetary claim - As an incident of the constructive trust that she was awarded, Ambrozic was entitled to an accounting from the trustee - See paragraphs 52 to 61.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Equity - Topic 5006 ].

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Estoppel - Topic 379 ].

Real Property - Topic 3731

Joint estates - Joint tenancies - Right to an accounting - [See Estoppel - Topic 379 ].

Trusts - Topic 2306

Constructive trusts - General principles - When trust takes effect (incl. retroactivity) - Ambrozic and Burcevski divorced in 1978 - In 2001, Ambrozic sued Burcevski and Voodoo Enterprises (Burcevski's company), claiming, inter alia, a declaration of trust in her favour against property owned by them - In 2006, Wilkins, J., declared that Ambrozic was the owner of an undivided one third interest in farmland owned by Voodoo, but said nothing in respect of Ambrozic's claim for profits earned from the property or any accounting thereof - Ambrozic applied under ss. 15 and 17 of the Law of Property Act for partition and sale of the farmland, plus an accounting and rendering to her of her share of the rents and profits generated - At issue was the appropriate start date for the accounting - Voodoo asserted that the correct date was September 1, 2006, when the judgment roll was entered - Ambrozic asserted that the correct date was May 10, 1977, which was the date on which Wilkins, J., found that Voodoo first had an interest in the farmland - The Alberta Court of Queen's Bench held that the trust commenced on May 10, 1977 - This date was most consistent with the entirety of the judgment and the reasons of the Court of Appeal in upholding that judgment - Further, a trustee's obligations began when the trustee received the property that was invested with the trust - The application for an accounting back to May 10, 1977 was granted - See paragraphs 19 to 30.

Trusts - Topic 6082

The trustee - Accounting - Right to an accounting - [See Estoppel - Topic 379 ].

Cases Noticed:

Ambrozic v. Burcevski et al. (2006), 394 A.R. 15; 2006 ABQB 4, affd. (2008), 433 A.R. 25; 429 W.A.C. 25; 2008 ABCA 194, leave to appeal denied (2008), 392 N.R. 382 (S.C.C.), refd to. [para. 2].

Ambrozic v. Burcevski et al. (2010), 491 A.R. 245; 2010 ABQB 570, affd. (2011), 505 A.R. 359; 522 W.A.C. 359; 2011 ABCA 178, leave to appeal denied (2011), 430 N.R. 399 (S.C.C.), refd to. [para. 3].

Rawluk v. Rawluk, [1990] 1 S.C.R. 70; 103 N.R. 321; 38 O.A.C. 81; 65 D.L.R.(4th) 161, refd to. [para. 30].

Ruwenzori Enterprises Ltd. et al. v. Walji et al., [2004] B.C.T.C. 741; 8 E.T.R.(3d) 209; 2004 BCSC 741, refd to. [para. 33].

Foskett et al. v. McKeown et al., [2000] 3 All E.R. 97; 257 N.R. 294 (H.L.), refd to. [para. 37].

Waxman et al. v. Waxman et al., [2002] O.T.C. 443; 25 B.L.R.(3d) 1 (Sup. Ct.), affd. (2004), 186 O.A.C. 201; 44 B.L.R.(3d) 165 (C.A.), refd to. [para. 37].

Zukowski v. Royal Insurance Co. of Canada (2000), 266 A.R. 81; 228 W.A.C. 81; 2000 ABCA 165, refd to. [para. 50].

420093 B.C. Ltd. v. Bank of Montreal (1995), 174 A.R. 214; 102 W.A.C. 214; 1995 ABCA 328, refd to. [para. 51].

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225; 2006 ABCA 337, refd to. [para. 51].

Henderson v. Henderson (2012), 316 B.C.A.C. 62; 537 W.A.C. 62; 27 B.C.L.R.(5th) 38; 2012 BCCA 31, refd to. [para. 55].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161; 167 D.L.R.(4th) 577, refd to. [para. 65].

Ahone v. Holloway (1988), 30 B.C.L.R.(2d) 368 (C.A.), refd to. [para. 66].

Statutes Noticed:

Law of Property Act, R.S.A. 2000, c. L-7, sect. 15, sect. 17 [para. 8].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney M., and Bryant, Alan W., The Law of Evidence in Canada (1996), p. 999 [para. 52].

Counsel:

Blair R. Carbert and Kelly Patrick Colborne, for Monyca Ambrozic;

Brian N. Clark, for Voodoo Enterprises Ltd.

This application was heard on January 18, 2013, by Jeffrey, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on March 8, 2013.