Robinson Engineering Co. et al. v. Wasabi Resources Ltd. et al., (1988) 93 A.R. 321 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 12, 1988
• Citations: (1988), 93 A.R. 321 (QB)

Robinson Eng. Co. v. Wasabi Resources (1988), 93 A.R. 321 (QB)

MLB headnote and full text

Robinson Engineering Company Ltd., Pension Plan and Trust and R.W. Robinson and Associates Co., Profit Sharing Plan (plaintiffs) v. Wasabi Resources Ltd., Canam Financial Group Ltd., and Petro-West Engineering Ltd. (defendants)

(No. 8701-16391)

Indexed As: Robinson Engineering Co. et al. v. Wasabi Resources Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

December 12, 1988.

Summary:

Petro-West, a defendant, applied to dismiss the plaintiff's statement of claim because the action was commenced in the names of trusts rather than in the names of the trustees of the trusts.

A master allowed the application and dismissed the plaintiff's claim. The plaintiff appealed.

The Alberta Court of Queen's Bench allowed the appeal, dismissed Petro-West's application and permitted the plaintiffs to substitute the names of trustees in place of the names of the trusts.

Trusts - Topic 3

Trust defined - The Alberta Court of Queen's Bench stated that a trust is not a legal entity but is a description of a fiduciary relationship which exists between parties (see paragraph 4).

Practice - Topic 624

Parties - Adding or substituting parties - Original plaintiff without a cause of action, named plaintiff not a legal entity - The plaintiff's action was commenced in the names of trusts rather than in the names of the trustees of the trusts - The plaintiffs applied to insert the names of the trustees of the trusts notwithstanding the expiry of the relevant limitation period - The Alberta Court of Queen's Bench allowed the application and permitted the plaintiffs to substitute the names of the trustees in place of the names of the trusts because the defendant was not prejudiced - The court referred to authority which stated that the proper test was whether the amendment results in prejudice and not whether the original action was a nullity (see paragraph 28).

Practice - Topic 2112

Pleadings - Amendment of pleadings - Name of party, misnomer [See Practice - Topic 624 above].

Cases Noticed:

Lazard Brothers and Company v. Midland Bank Ltd., [1933] 2 A.C. 289, refd to. [para. 8].

Yue Shan Society v. Chinese Workers' Protective Association, [1944] 3 W.W.R. 497, refd to. [para. 8].

Klatenback v. Frolic Industries Ltd., [1948] 1 D.L.R. 689, refd to. [para. 9].

Towne and Countrye Pet Village v. Silver et al. (1987), 14 C.P.C.(2d) 271, refd to. [para. 11].

Tatum Farms Ltd. et al. v. Plains Poultry (1988), 60 Sask.R. 50; 16 C.P.C.(2d) 308 (C.A.), refd to. [para. 13].

Whitford v. Cardinal (1987), 82 A.R. 58, consd. [para. 16].

Brochner v. MacDonald et al. (1988), 83 A.R. 117, consd. [para. 16].

Buteau v. The Public Trustee for Alberta et al., [1972] 2 W.W.R. 177, refd to. [para. 18].

J.R. Sheet Metals Manufacturing Ltd. v. Prairie Rose Wood Products Ltd., Forty Winks Waterbeds Ltd. and Prairie Rose Wood Products (1980) Ltd. (1986), 67 A.R. 326; 42 Alta. L.R.(2d) 378, refd to. [para. 20].

Skyline Associates v. Small et al., [1975] 1 W.W.R. 385 (B.C.Q.B.), [1976] 3 W.W.R. 477 (B.C.C.A.), refd to. [para. 22].

United Services Funds v. Richardson Greenshields (1987), 16 B.C.L.R.(2d) 187 (B.C.Q.B.), refd to. [para. 23].

Frank v. Canada (Minister of Indian and Northern Affairs) (1988), 88 A.R. 241; 56 Alta. L.R.(2d) 289, refd to. [para. 25].

Statutes Noticed:

Rules of Court (Alta.), rule 38, rule 43, rule 132 [para. 31].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.), p. 1352 [para. 4].

Halsbury's Laws of England (4th Ed.), vol. 48, p. 272 [para. 5].

Counsel:

D.B. Ressor and Cathleen E. McFarland, for the plaintiffs;

P.S. Jull and H.R. Hansford, for the defendants.

This appeal was heard by Hutchinson, J., of the Alberta Court of Queen's Bench. The decision of Hutchinson, J., was delivered at Calgary, Alberta, on December 12, 1988.