Cikanek Estate, Re, 2006 ABQB 916

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 25, 2006
• Citations: 2006 ABQB 916;(2006), 411 A.R. 100 (QB)

Cikanek Estate, Re (2006), 411 A.R. 100 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.034

Petr Svoboda (applicant/plaintiff) and Paul Kuzel (respondent/defendant)

(SES03 112313; 2006 ABQB 916)

Indexed As: Cikanek Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

December 18, 2006.

Summary:

Kuzel, the former administrator of Cikanek's estate applied to be discharged as administrator. He further sought an express acknowledgment that he had fully accounted to the estate and was released from any further claims by the estate. The current administrator of the estate, Svoboda, asserted that any discharge of Kuzel should be without prejudice to the estate's right to seek damages from Kuzel for breach of fiduciary duty.

The Alberta Court of Queen's Bench determined the issues.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - Kuzel, the former administrator of Cikanek's estate applied to be discharged as administrator - At issue, inter alia, was whether the court's prior ruling regarding Kuzel's entitlement to compensation barred future claims against Kuzel for breach of fiduciary duty - The Alberta Court of Queen's Bench held that specific rulings on allegations of breach of trust made during an application to pass accounts would bar subsequent actions based on the same allegations - However, if the facts underlying the breach of trust allegations formed part of the facts supporting a separate cause of action, that action might not be considered res judicata - Such a determination could only be made if and when such an action was brought - See paragraphs 33 to 44.

Executors and Administrators - Topic 682

Appointment, qualification and tenure - Administrators - Discharge - Effect of - Kuzel, the former administrator of Cikanek's estate applied to be discharged as administrator - He further sought an express acknowledgment that he had fully accounted to the estate and was released from any further claims by the estate - The current administrator of the estate, Svoboda, asserted that any discharge of Kuzel should be without prejudice to the estate's right to seek damages from Kuzel for breach of fiduciary duty - The Alberta Court of Queen's Bench held that the effect of a discharge was to absolve the administrator/trustee from any remaining fiduciary duties owed to the estate and its beneficiaries - However, a discharge did not provide an administrator/trustee with wide sweeping immunity from future litigation - The law respecting defences to trustee liability suggested that a trustee had to wait until a breach of trust claim was brought and then had to rely on one of the available defences to protect themselves from liability - See paragraphs 14 to 32.

Cases Noticed:

Lacombe Estate, Re (1996), 192 A.R. 124 (Surr. Ct.), refd to. [para. 29].

Holmes v. National Trust Co., [2002] A.R. Uned. 562 (Q.B.), revd. in part [2003] A.R. Uned. 733 (C.A.), refd to. [paras. 34, 36].

Holmes v. National Trust Co., [2004] A.R. Uned. 777 (Q.B.), affd. [2006] A.R. Uned. 11 (C.A.), refd to. [paras. 36, 38].

TD Canada Trust Co. et al. v. Cheifetz et al. (2005), 201 O.A.C. 120 (C.A.), refd to. [para. 40].

Simone Estate v. Cheifetz - see TD Canada Trust Co. et al. v. Cheifetz et al.

Simone v. Cheifetz et al. (1998), 74 O.T.C. 18 (Gen. Div.), refd to. [para. 40].

Authors and Works Noticed:

Oosterhoff, Albert H., Trusts: Text, Commentary and Materials (6th Ed. 2004), p. 28 [para. 27].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 1108 [para. 30]; 1236 [paras. 19, 20].

Counsel:

Wanda M. Fawcett (Bishop & McKenzie LLP), for the applicant;

Helen R. Ward (Duncan & Craig LLP), for the respondent.

This application was heard on September 25, 2006, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 18, 2006.