T-3340-81
Joseph Charles Gabriel Mentuck, Theresa Men-
tuck, Terry Lynn Mentuck, Ivan Arnold James
Mentuck, Linda Mae Mentuck, Christopher
Charles Mentuck, Rita Mary Mentuck and Gay-
lene Bogoslowski (Plaintiffs)
v.
The Queen (Defendant)
INDEXED AS: MENTUCK v. CANADA
Trial Division, McNair J.—Winnipeg, October 15,
18, 19, 22, 23, 24, 25, 1984, June 5 and October
21, 1985; Ottawa, May 12, 1986.
Native peoples — Treaty Indian farming on reserve —
Government officials encouraging plaintiff to expand opera
tion — Wishing to portray plaintiff as example of what could
be achieved by Indian showing initiative — Plaintiff following
recommendations — Arousing jealousy of other Indians —
Plaintiff subjected to harassment and intimidation — Minis
terial agent offering compensation if plaintiff leaving reserve
— Plaintiff acting to detriment in reliance on promise —
Minister deciding no basis for compensation — Plaintiff
advised by Minister to go on municipal welfare — Crown sued
for breach of contract or trust — Judgment for plaintiff on
former basis — Indian Act, R.S.C. 1952, c. 149, s. 18(1) —
Indian Act, R.S.C. 1970, c. I-6, s. 87.
Crown — Trusts — No evidence of fiduciary obligation
between plaintiff and Crown, although some equity raised in
plaintiffs favour because of sui generis relationship between
Indians and Crown — Guerin case distinguished — Indian
Act, R.S.C. 1952, c. 149, s. 18(1).
Crown — Contracts — Whether contract concluded —
Crown agent offering to compensate plaintiff for value of land,
incidental loss due to moving and relocation expenses — Offer
accepted by plaintiff moving — Consideration detriment suf
fered in agreeing to move — That amount of compensation
subject to ministerial review suspensive condition as to manner
of performance, not "subject to contract" term — Damages
awarded for loss of value of land and for economic loss —
Expropriation Act, R.S.C. 1970 (1st Supp.), c. 16 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 35, 40 —
Federal Court Rules, C.R.C., c. 663, RR. 324, 337(2)(6), 482.
Crown — Agency — Ministerial representative holding self
out as Minister's emissary and so regarded by plaintiff —
Defence of lack of authority to contract on behalf of Crown
under specific sections of Act and Regulations fails — Ordi
nary principles of agency apply to government contracts —
Contract made by minister of Crown under general or apparent
mandate, or by agent within scope of ostensible authority,
binding, even if made without specific statutory authorization,
in absence of contrary statutory restriction — Financial
Administration Act, R.S.C. 1970, c. F-10, ss. 19, 33 —
Government Contracts Regulations, C.R.C., c. 701, s. 5(1).
Estoppel — Promissory estoppel — Doctrine requiring pre
existing legal relationship at time representation made —
Historically estoppel founded on statement of existing fact,
not on promise as to future — Recently reliance aspect
increasingly important — Immutability of sword/shield
maxim questioned — Expectation implicit in offer made by
ministerial agent, reasonable reliance thereon, and consequent
alteration of position — Defendant estopped from insisting on
legal rights — Plaintiff not mere supplicant.
Practice — Pleadings — Defendant alleging agreement
without legal or parliamentary authority and relying on
Financial Administration Act — Not pleading facts to bring
case within statute and sections relied on — Insufficient to
make general reference to statute — Cannot raise at trial
defences not properly pleaded.
Held, the action is allowed.
For the facts of this case, reference should be made to the
Editor's Note infra.
The plaintiff relied upon promissory estoppel and fiduciary
obligation to support his argument that an agreement had been
concluded. It was argued that promissory estoppel could be
used to found a cause of action. The defendant argued that
there was no contract as there was insufficient consensus ad
idem, no unequivocal offer, uncertainty as to the terms of
contract, and absence of consideration. The question is whether
there was a contract and, if there was, what were its terms.
The doctrine of promissory estoppel is that where one party,
by his words or conduct, makes to the other a promise that is
intended to affect the legal relations between them, then once
the other party has acted on it, the promisor cannot revert to
the previous legal relations. The doctrine may be used as a
shield but not as a sword. There must be some pre-existing
legal relationship between the parties when the representation
intended to induce a change of relationship or a different course
of conduct is made. The prevailing view is that estoppel must be
founded on a statement of existing fact and not on some
promise as to the future, but the rule is not ironclad. Often the
result will turn on the question of reliance and any alteration of
a party's position occasioned thereby. The trend of recent
authority has cast some doubt on the immutability of the
sword/shield maxim and the view that promissory estoppel is
incapable in itself of constituting a cause of action.
A question arises as to whether reasonable reliance can hold
sway in the case of government contracts. There is some
authority to support the proposition that where government
contracts are concerned, the promisee must show that the
government clearly intended to be legally bound, and that mere
statements of intention or affirmations of general policy are not
usually sufficient to connote binding contractual obligations.
Recently, however, the New Brunswick Court of Appeal reject
ed the notion of a special requirement of intention in Grant v.
Province of New Brunswick.
It is a question of construction in each case to determine
whether there is a conditional or concluded agreement. Courts
will not make a new agreement where essential elements are so
lacking that it is apparent that the parties were never ad idem.
They will be more prompt to fill any lacunae with reasonable
terms when it is possible to do so and where substantial reliance
was placed on the agreement. The test often becomes what is
reasonable and just in the circumstances.
As to whether there was a binding agreement, Steacy held
himself out as the Minister's emissary and was so regarded by
the plaintiff. Steacy suggested that the plaintiff move off the
reserve, in consideration of which he would be compensated for
his land, incidental loss or injury sustained as a result of leaving
the reserve and relocation expenses. The actual amount of
compensation would be determined by an appraisal done
according to the general guidelines of the Expropriation Act
and the overall settlement figure would be subject to review by
the Minister. Matters had passed beyond the stage of state
ments of intention.
The principle of reliance on promise was a dominant con
sideration in this case. There had been strong inducements by a
ministerial agent having ostensible or apparent authority, and
the plaintiff, responding predictably to the reasonable expecta
tion created thereby, accepted the terms of offer with the result
that a binding agreement was made. The consideration from
the defendant's standpoint as promisor was the detriment suf
fered by the plaintiff in agreeing to move off the reserve. The
expectation implicit in the offer, the reasonable reliance based
thereon and consequent alteration of position bolster the con
cept of an enforceable agreement. That the final settlement
figure was subject to review was a suspensive condition as to
the manner of ultimate performance and not a "subject to
contract" term that necessarily contemplated the execution of a
further agreement between the parties.
The doctrine of promissory estoppel plays an important
supplementary part in reinforcing the leading roles of expecta
tion and reliance. Plaintiff could utilize the shield of estoppel
against a defence argument that insisted on strict legal rights
and portrayed plaintiff as a mere supplicant. The defendant
made promises to the plaintiff on which the latter could reason-
ably be expected to rely and did in fact rely to his detriment. It
would be unjust to allow the defendant to go back on these
promises and assurances. The defendant committed a breach of
the agreement and is liable in damages.
The defendant contends that the Crown's agent lacked au
thority to contract by reason of the restrictions imposed by
sections 19 and 33 of the Financial Administration Act and
subsection 5(1) of the Government Contracts Regulations. The
defendant merely pleaded that any agreement was without
legal and parliamentary authority and relied upon the provi
sions of the Financial Administration Act. A party relying on a
statute must plead the facts necessary to bring his case within
the statute and the particular sections relied on. It is not
enough to make general reference to the statute. The defendant
cannot now raise for the first time grounds of defence not
properly pleaded. In any case the Crown is bound by contractu
al obligations in the same manner as an individual, and the
ordinary principles of agency apply to government contracts. A
contract made by a minister of the Crown under his general or
apparent mandate of authority, or one made by an agent on his
behalf acting within the scope of his ostensible authority is
binding on the Crown, even though made without specific
statutory authorization, in the absence of any inescapable
statutory restriction to the contrary. This defence fails both on
the basis of principle and by reason of defective pleading.
The plaintiff contends that the fiduciary obligation principle
of Guerin applies because the plaintiff was, relatively speaking,
at the mercy of the Crown's discretion. Although the plaintiffs
position may raise some equity in his favour, having regard to
the sui generis relationship between Indians and the Crown,
this does not mean that such position by its very nature
automatically invokes the concomitant law of fiduciary obliga
tion. The plaintiffs claim for breach of a trust within the
Guerin principle is not sustainable.
Damages should be awarded for loss of the value of the land
and for economic loss. It was a further term of the contract that
the plaintiff would be compensated for any incidental loss or
injury sustained as the result of his leaving the reserve. The
agreement to the use of statutory guidelines for calculating
compensation indicates a contemplation of the measure of
damages likely to flow from any breach. The parties must have
contemplated that damages for loss of bargain would com
prehend some recompense for business disturbance or economic
loss attributable to the breach, which deprived the plaintiff of
his means of livelihood.
CASES JUDICIALLY CONSIDERED
APPLIED:
Parsons (H.) (Livestock) Ltd. v. Uttley Ingham & Co.
Ltd., [1978] Q.B. 791 (C.A.); Nowegijick v. The Queen,
[1983] 1 S.C.R. 29; 83 DTC 5041.
DISTINGUISHED:
Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335;
(1985), 55 N.R. 161; 13 D.L.R. (4th) 321; [1984] 6
W.W.R. 481.
CONSIDERED:
Tanner v Tanner, [1975] 3 All ER 776 (C.A.); Re
Dominion Stores Ltd. and United Trust Co. et al. (1973),
42 D.L.R. (3d) 523 (Ont. H.C.) (affd. (1974), 52 D.L.R.
(3d) 327 (C.A.); affd. [1977] 2 S.C.R. 915; (1976), 71
D.L.R. (3d) 72 sub nom. United Trust Co. v. Dominion
Stores Ltd. et al.); Calvan Consolidated Oil & Gas Co. v.
Manning, [1959] S.C.R. 253; 17 D.L.R. (2d) 1; Von
Hatzfeldt-Wildenburg v. Alexander, [1912] 1 Ch. 284;
Hillas & Co., Ltd. v. Arcos, Ltd., [1932] All E.R. Rep.
494 (H.L.); Hughes v. Metropolitan Railway Company
(1877), 2 App. Cas. 439 (H.L.); Combe v. Combe, [1951]
2 K.B. 215 (C.A.); Wauchope v. Maida et al. (1971), 22
D.L.R. (3d) 142 (Ont. C.A.); Evenden v. Guildford City
Association Football Club Ltd., [1975] Q.B. 917 (C.A.);
Grant v. Province of New Brunswick (1973), 35 D.L.R.
(3d) 141 (N.B.C.A.); Marshall v. Canada (1985), 60
N.R. 180 (F.C.A.).
REFERRED TO:
Kelly v. Watson (1921), 61 S.C.R. 482; 57 D.L.R. 363;
Courtney and Fairbairn Ltd v Tolaini Brothers (Hotels)
Ltd, [1975] 1 All ER 716 (C.A.); Sykes (Wessex), Ltd. v.
Fine Fare, Ltd., [1967] 1 Lloyd's Rep. 53 (C.A.); Central
London Property Trust, Ld. v. High Trees House, U.,
[1947] K.B. 130; Robertson v. Minister of Pensions,
[1949] 1 K.B. 227; Ajayi v. R. T. Briscoe (Nig.) Ltd.,
[1964] 1 W.L.R. 1326; [1964] 3 All E.R. 556 (P.C.);
Conwest Exploration Co. et al. v. Letain, [1964] S.C.R.
20; (1963), 41 D.L.R. (2d) 198; Burrows (John) Limited
v. Subsurface Surveys Limited et al., [1968] S.C.R.
607; 68 D.L.R. (2d) 354; Canadian Superior Oil Ltd. et
al. v. Paddon-Hughes Development Co. Ltd. et al.,
[1970] S.C.R. 932; 12 D.L.R. (3d) 427; Re Tudale
Explorations Ltd. and Bruce et al. (1978), 20 O.R. (2d)
593; 88 D.L.R. (3d) 584 (Div. Ct.); Edwards et al. v.
Harris-Intertype (Canada) Ltd. (1983), 40 O.R. (2d)
558 (Ont. H.C.); Verreault (J.E.) & Fils Ltée v. Attorney
General (Quebec), [1977] 1 S.C.R. 41; (1975), 57 D.L.R.
(3d) 403; Bank of Montreal v. Attorney General (Que.),
[1979] 1 S.C.R. 565; (1978), 96 D.L.R. (3d) 586; R. v.
CAE Industries Ltd., [1986] 1 F.C. 129; (1985), 20
D.L.R. (4th) 347; (1985), 61 N.R. 19 (C.A.); affg.
[1983] 2 F.C. 616 (T.D.).
COUNSEL:
Morris Kaufman and Kenneth Zaifman for
plaintiffs.
Craig Henderson and Barbara Shields for
defendant.
SOLICITORS:
Margolis Kaufman Cassidy Zaifman Swartz,
Winnipeg, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
EDITOR'S NOTE
The Editor has chosen to report this judgment
for its valuable review of the equitable doctrine of
promissory estoppel and its application to gov
ernment contracts.
It was, however, decided to publish His Lord
ship's 44 page reasons for judgment as abridged
and there follows a summary of the facts.
The plaintiff, a treaty Indian, lived on a reserve
where he carried on mixed farming. Departmental
officials, wishing to promote a more economic
farm operation while portraying the plaintiff as a
living example of what could be achieved by
initiative and enterprise, encouraged him to
expand his operation by securing more land and
machinery. The Department would assist in
arranging financing. Although apprehensive that
other Indians might become jealous, the plaintiff
accepted the proposal. He leased additional land
from the Department. The plaintiff's misgivings
were proven to have been justified. Band mem
bers harassed the plaintiff in a variety of ways
such as by driving their livestock onto the plain
tiff's land causing damage to his crops. Mentuck
sued the Band and its Chief, claiming damages
for the tort of intimidation and interference with
economic interest. He was successful at trial and
in the Manitoba Court of Appeal. After this litiga
tion, the situation on the reserve got totally out of
control. Gunfire was exchanged, there were
automobile chases on the highway, the plaintiff's
tree farm was damaged by being driven upon by
tractors and his children had to be transferred to
a different school due to the receipt of threats.
The plaintiff's predicament came to the atten
tion of both Departmental officials and political
leaders. The Minister appointed a Mr. Steacy as
his special representative to look into the situation
and to make recommendations. Steacy was well
qualified. He had previously been responsible for
social policy matters at the Privy Council Office.
Steacy met with Mentuck. The latter indicated a
preference that the Department intervene to
establish law and order on the reserve. Steacy
explained that this route could not be followed
since government policy was to implement self-
government on the reserves. The only practical
solution was for Men tuck to leave the reserve.
Mentuck suggested that his farm was worth
$1,000,000. Steacy, however, recommended
having it appraised by an independent expert.
The consensus emerging from their discussions
was that Mentuck would move away, the Depart
ment compensating him in respect of the value of
his property and income loss. It was explained by
Steacy that the settlement would be subject to
ministerial approval. Steacy did a memo to the
Minister in which he recommended moving Men-
tuck from the reserve at government expense and
compensating him for his loss and suffering
according to guidelines in the Expropriation Act
(R.S.C. 1970 (1St Supp.), c. 161
The Assistant Deputy Minister directed that the
Mentuck property be assessed but indicated that
the final settlement amount would be arrived at
later. The Mentucks moved off the reserve and
the farm machinery was sold at auction, the pro
ceeds being applied towards various debts. The
land was appraised at $146,692.
The Director General of Reserves and Trusts
submitted a memo to the Assistant Deputy Minis
ter recommending payment of that amount to
Mentuck together with moving expenses. The
Assistant Deputy Minister, however, decided that
the situation should be resolved by utilizing
normal Departmental relocation and social assist
ance programmes and put a stop to further con
sideration of an "ex gratia" payment. The Assist
ant Deputy Minister was sensitive to the facts of
there being a minority government and that the
current Minister did not wish to get embroiled in
the Mentuck affair.
The plaintiff was accordingly advised of the
policy decision not to pay compensation beyond
the social assistance which he was already
receiving.
Later on, however, Mentuck received a tele
gram from the Minister's Special Assistant sug
gesting that a proposal for Mentuck's re-estab
lishment in farming should be developed. The
idea was that funding be made available through
the Manitoba Indian Agricultural Program (MIAP).
This was unacceptable to Mentuck in that only
40% funding was obtainable from MIAP. A con
sultant was retained to prepare a cost analysis for
Mentuck's re-establishment in farming. Mentuck's
demands were grandiose and lacking in common
sense. The consultant apparently made no effort
to temper the plaintiff's exorbitant requirements.
The consultant came up with a figure of
$2,868,614 and this was rejected by the Depart
ment. The Assistant Deputy Minister wrote the
plaintiff advising that no compensation would be
paid.
There was a change of government and the
new Minister immediately received a letter from
plaintiff's lawyer reviewing the case and recom
mending and out-of-court settlement to avoid liti
gation. The Minister's reply was that there was no
basis on which the federal government could pay
compensation. Mentuck changed solicitors and
the new one was able to arrange a meeting with
the Minister but the latter confirmed the legal
opinion that there was no liability on the part of
the Crown. Furthermore, social assistance pay
ments were to be terminated and Mentuck was
advised to seek employment and consult with
municipal Welfare officials.
Mentuck then commenced this action against
Her Majesty, claiming damages for breach of trust
or, in the alternative, for breach of contract. The
doctrine of promissory estoppel was raised
against any denial of an agreement to provide the
plaintiff with ownership of a fully equipped farm.
The following are the reasons for judgment
rendered in English by
McNAIR J.: The opposing cases in nutshell
version go something like this.
The counsel for the plaintiff utilizes two con
verging lines of argument to support the inesca
pable conclusion that an agreement had been con
cluded, albeit in rudimentary form, to re-establish
the plaintiff in a viable farming operation at a
location of his choice with the title held in fee
simple. The first line of argument is promissory
estoppel. The other is that of fiduciary obligation
within the principle of the Guerin [Guerin et al. v.
The Queen et al., [1984] 2 S.C.R. 335; (1985), 55
N.R. 161; 13 D.L.R. (4th) 321; [1984] 6 W.W.R.
481] case. Counsel for the plaintiff further con
tends that promissory estoppel can be used as a
sword to found and support a cause of action,
whether for breach of agreement or fiduciary
obligation.
Crown counsel likens the plaintiff's position to
that of a petitioner seeking political redress from
the Crown rather than that of a litigant pursuing
legal remedies. He contends that the principle of
Guerin should not be loosely extended to create a
fiduciary relationship in all situations and dealings
involving the Government of Canada and the
Indian people. In terms of the particular, he
asserts that the principle cannot be extended to
impose on the Crown an impossible and far-reach
ing duty of care to prevent criminal and tortious
acts by irresponsible and vindictive third parties.
Crown counsel submits that there is no pre-exist
ing contractual or legal relationship to support a
promissory estoppel and he rejects the notion that
the doctrine can be utilized to found a cause of
action. Essentially, the case for the Crown comes
down to that of "no contract" based on insufficient
consensus ad idem, lack of any unequivocal offer,
uncertainty as to the terms of contract by reason
of the many varying versions thereof propounded
by the plaintiff, and absence of consideration. The
first question must therefore be: was there a con
tract and what were its terms?
The principles applicable to the question wheth
er there is a conditional or concluded agreement
are readily ascertainable but difficult to apply. It
is a question of construction in each case. The
learned authors of Cheshire and Fifoot, The Law
of Contracts, 6th ed., put it this way at page 34:
The task of the courts is to extract the intention of the parties
both from the terms of their correspondence and from the
circumstances which surround and follow it, and the question of
interpretation may thus be stated. Is the preparation of a
further document a condition precedent to the creation of a
contract or is it an incident in the performance of an already
binding obligation?
Waddams, The Law of Contracts, takes this
view of the matter at pages 37-38:
Has the promisor committed himself to a firm agreement or
does he retain an element of discretion whether or not to
execute the formal agreement? In the former case there is an
enforceable agreement. In the latter there is none. If the
promisee's expectation of a firm commitment is a reasonable
one it will be protected even though the formal document is
never executed. Again, the courts seem particularly ready to
protect such an expectation when it is manifested in conduct in
reliance on the agreement.
See in this regard Tanner y Tanner, [1975] 3
All ER 776 (C.A.). Here the Court held that a
mistress of a married man had a contractual
licence to occupy their connubial home so long as
the twin daughters of their union were of school
age and the fact of her giving up her own flat at
the instance of her male partner was good con
sideration in the circumstances. The point of estop-
pel was also raised but the case was disposed of on
the ground of implied contract.
Re Dominion Stores Ltd. and United Trust Co.
et al. (1973), 42 D.L.R. (3d) 523 (Ont. H.C.);
affd. (1974), 52 D.L.R. (3d) 327 (C.A.); affd.
[1977] 2 S.C.R. 915; (1976), 71 D.L.R. (3d) 72
sub nom. United Trust Co. v. Dominion Stores
Ltd. et al. is an instructive case on the point of
conditional or concluded agreement. The learned
Trial Judge, Grant J., gave this lucid statement of
principle, at pages 528-529:
The effect of the decisions is, I think, that where the offer or
acceptance is expressed to be "subject to contract", "subject to
the terms of a lease" (Raingold v. Bromley, [1931] 2 Ch. 307);
"subject to a lease being to be drawn up by our clients'
solicitors" (H.C. Berry Ltd. v. Brighton and Sussex Building
Society, [1939] 3 All E.R. 217); "subject to the terms of a
formal agreement to be prepared by their solicitors" (Spottis-
woode, Ballantyne & Co., Ltd. v. Doreen Appliances, Ltd. and
C. Barclay (London), Ltd., [1942] 2 All E.R. 65), the agree
ment will be construed, in the absence of circumstances show
ing a contrary intention, to be conditional and still subject to
negotiation until actual execution of the more formal document
by the parties, notwithstanding their solicitors having previous
ly agreed to all terms thereof.
In the present case, however, the contract is not expressly
stated to be "subject to lease", and on the basis of the principle
expressed in Winn v. Bull, supra, it therefore becomes a
question of construction "whether the parties intended that the
terms agreed on should merely be put into form, or whether
they should be subject to a new agreement the terms of which
are not expressed in detail".
In Calvan Consolidated Oil & Gas Co. v. Man
ning, [1959] S.C.R. 253; 17 D.L.R. (2d) 1, the
Supreme Court of Canada was concerned with two
substantial questions, firstly, whether a contract
was void for uncertainty and, secondly, whether a
provision for a formal agreement to follow subject
to the settlement of its terms by a single arbitrator
negated the possibility of an immediately binding
contract. The Court held that the contract was not
void for uncertainty. On the further point it was
held that the parties were bound by the terms of
their informal agreement for an exchange of par
tial interests in petroleum and natural gas permits
and that nothing more needed to be done in that
there was substantial performance on both sides
and an unqualified acceptance with a formal con
tract to follow, and that it was not a case of
acceptance qualified by expressed conditions yet to
be fulfilled.
Judson J. cited with approval [at page 261
S.C.R.; at pages 6-7 D.L.R.] the principle stated
by Parker J., in Von Hatzfeldt-Wildenburg v.
Alexander, [1912] 1 Ch. 284, at pages 288-289 in
these terms:
It appears to be well settled by the authorities that if the
documents or letters relied on as constituting a contract con
template the execution of a further contract between the par
ties, it is a question of construction whether the execution of the
further contract is a condition or term of the bargain or
whether it is a mere expression of the desire of the parties as to
the manner in which the transaction already agreed to will in
fact go through. In the former case there is no enforceable
contract either because the condition is unfulfilled or because
the law does not recognize a contract to enter into a contract.
In the latter case there is a binding contract and the reference
to the more formal document may be ignored.
In Hillas & Co., Ltd. v. Arcos, Ltd., [1932] All
E.R. Rep. 494 (H.L.), Lord Tomlin made this
trenchant statement, at page 499:
... the problem for a court of construction must always be so to
balance matters that, without violation of essential principle,
the dealings of men may as far as possible be treated as
effective, and that the law may not incur the reproach of being
the destroyer of bargains.
There is a fine line of demarcation between an
agreement which is truly conditional in the sense
of being exclusively dependent on some further
contractual finalization or formalization and one
that has been concluded in sufficient outline or
rudimentary form to connote a real meeting of
minds but with some suspensive condition as to the
manner of actual performance yet to be fulfilled.
Courts will not make a new agreement for the
parties where the essential elements of agreement
are so lacking in the first instance as to make it
readily apparent that the parties were never really
ad idem. However, courts will be more prompt to
fill any lacunae of omissions with reasonable terms
when it is possible to do so and it has been made to
appear that substantial reliance was placed on the
alleged agreement. In final analysis, the test, more
often than not, will be that of what is reasonable
and just in the circumstances: see Waddams, op.
cit., pages 30-31; Kelly v. Watson (1921), 61
S.C.R. 482; 57 D.L.R. 363; Hillas & Co., Ltd. v.
Arcos, Ltd., [1932] All E.R. Rep. 494 (H.L.);
Courtney and Fairbairn Ltd y Tolaini Brothers
(Hotels) Ltd, [1975] 1 All ER 716 (C.A.); and
Sykes (Wessex), Ltd. v. Fine Fare, Ltd., [1967] 1
Lloyd's Rep. 53 (C.A.).
What of the doctrine of promissory estoppel or,
as it is sometimes called, equitable estoppel?
Accepted usage prefers the first terminology.
The concept of promissory estoppel derives from
the statement of Lord Cairns in the case of
Hughes v. Metropolitan Railway Company
(1877), 2 App. Cas. 439 (H.L.), at page 448:
... it is the first principle upon which all Courts of Equity
proceed, that if parties who have entered into definite and
distinct terms involving certain legal results—certain penalties
or legal forfeiture—afterwards by their own act or with their
own consent enter upon a course of negotiation which has the
effect of leading one of the parties to suppose that the strict
rights arising under the contract will not be enforced, or will be
kept in suspense, or held in abeyance, the person who otherwise
might have enforced those rights will not be allowed to enforce
them where it would be inequitable having regard to the
dealings which have thus taken place between the parties.
The doctrine received a high degree of attention
in a series of English cases: Central London Prop
erty Trust, Ld. v. High Trees House, Ld., [1947]
K.B. 130; Robertson v. Minister of Pensions,
[ 1949] 1 K.B. 227; Combe v. Combe, [1951] 2
K.B. 215 (C.A.); Ajayi v. R. T. Briscoe (Nig.)
Ltd., [1964] 1 W.L.R. 1326; [1964] 3 All E.R.
556 (P.C.).
In Combe v. Combe, supra, Lord Denning felt
obliged to retreat somewhat from the highwater
mark of the High Trees case by restating the
principle of promissory estoppel in these terms [at
page 220]:
The principle, as I understand it, is that, where one party
has, by his words or conduct, made to the other a promise or
assurance which has intended to affect the legal relations
between them and to be acted on accordingly, then, once the
other party has taken him at his word and acted on it, the one
who gave the promise or assurance cannot afterwards be
allowed to revert to the previous legal relations as if no such
promise or assurance had been made by him, but he must
accept their legal relations subject to the qualification which he
himself has so introduced, even though it is not supported in
point of law by any consideration but only by his word.
Seeing that the principle never stands alone as giving a cause
of action in itself, it can never do away with the necessity of
consideration when that is an essential part of the cause of
action. The doctrine of consideration is too firmly fixed to be
overthrown by a side-wind.
The case also dealt with the maxim that promis
sory estoppel may be used as a sword and not as a
shield and held that the doctrine could not found a
cause of action in itself but that it could play an
important supplementary role as part of a cause of
action.
The doctrine of promissory estoppel was con
sidered and dealt with by the Supreme Court of
Canada in three leading cases: Conwest Explora
tion Co. et al. v. Letain, [1964] S.C.R. 20;
(1963), 41 D.L.R. (2d) 198; Burrows (John) Lim
ited v. Subsurface Surveys Limited et al., [1968]
S.C.R. 607; 68 D.L.R. (2d) 354; and Canadian
Superior Oil Ltd. et al. v. Paddon-Hughes De
velopment Co. Ltd. et al., [1970] S.C.R. 932; 12
D.L.R. (3d) 247.
Basically, these cases support the principle that
in order to successfully invoke the doctrine of
promissory estoppel there must be some pre-exist
ing legal relationship between the parties, contrac
tual or otherwise, at the time when the representa
tion intended to induce a change of relationship or
a different course of conduct is made. The princi
ple of promissory estoppel cannot function in a
vacuum. There must at least be some sort of
subsisting legal relationship between the parties.
The prevailing view is that estoppel must be found
ed on a statement of existing fact and not on some
promise as to the future. The rule is by no means
ironclad and in many cases the result will often
turn on the question of reliance and any alteration
of a party's position occasioned thereby. The trend
of recent authority has cast some doubt on the
immutability of the sword/shield maxim as regards
promissory estoppel and whether it is capable in
itself of constituting a cause of action. The point is
far from settled and the traditional perspectives
are continually changing and broadening: see
Wauchope v. Maida et al. (1971), 22 D.L.R. (3d)
142 (Ont. C.A.); Re Tudale Explorations Ltd.
and Bruce et al. (1978), 20 O.R. (2d) 593; 88
D.L.R. (3d) 584 (Div. Ct.); Edwards et al. v.
Harris-Intertype (Canada) Ltd. (1983), 40 O.R.
(2d) 558 (Ont. H.C.); and Evenden v. Guildford
City Association Football Club Ltd., [1975] Q.B.
917 (C.A.).
In Evenden v. Guildford, supra, Lord Denning,
M.R., went so far as to conclude [at page 924]
that promissory estoppel applied "whenever a
representation is made, whether of fact or law,
present or future, which is intended to be binding,
intended to induce a person to act upon it and he
does act upon it".
Schroeder J.A., stressed the importance of the
reliance aspect in Wauchope v. Maida, supra,
when he stated, at page 148:
In equity, it seems, the supposed distinction between a varia
tion and a waiver is disregarded and the common law doctrine
that only a statement of existing fact and not a promise de
futuro can raise an estoppel is not permitted to stand in the way
of a party who has altered his position in reliance upon a
promise de futuro.
Can reasonable reliance hold sway in the case of
government contracts? There is some authority to
support the proposition that government contracts
occupy something of a relatively unique position in
that the promisee must show that the government
clearly intended to be legally bound and that mere
statements of intention or affirmations of general
policy are not usually sufficient to connote binding
contractual obligations.
The New Brunswick Court of Appeal rejected
the notion of a special requirement of intention in
Grant v. Province of New Brunswick (1973), 35
D.L.R. (3d) 141. Here, the government announced
without statutory authority a stabilization scheme
or program for the purchase of surplus potatoes at
subsidized prices and their disposal in manner
satisfactory to a provincially appointed inspector.
The plaintiff offered his potatoes in response to the
subsidy scheme and they were passed by the
inspector and disposed of accordingly. The com
mittee charged with responsibility for approving
applications for subsidy refused the plaintiff's
application because he had not proven that he was
the owner of the potatoes in question. The plaintiff
brought an action claiming the subsidy and the
Trial Judge found for him on the ground that the
widely publicized information of the scheme con
stituted an offer on the part of the government and
not merely a statement of its intention to purchase
potatoes. The Court affirmed this decision on
appeal, holding that a reasonable person in the
position of the plaintiff would be entitled to
assume that if he complied with the specific terms
and conditions of the scheme he would be entitled
to sell his potatoes to the government and the
government was therefore legally bound to pur
chase and pay for them. In reaching this result,
Hughes C.J.N.B., expressly approved and adopted
the following test [at page 146]:
In interpreting an offer the objective test should, I think, be
applied. Williston on Contracts, 3rd ed., (1957), vol. 1, s. 94,
contains the following statement at p. 339:
It follows that the test of the true interpretation of an offer
or acceptance is not what the party making it thought it
meant or intended it to mean, but what a reasonable person
in the position of the parties would have thought it meant.
It is noteworthy that the offer made to Grant
pursuant to the subsidy scheme was without
express statutory authorization, although the point
does not seem to have been argued. The Court
nevertheless chose to resolve the issue on the broad
basis of what was reasonable and just in the
circumstances. Unlike the case of Grant, counsel
for the defendant raises that very point of argu
ment in his case. He contends that any representa
tion or inducement or offer made by an officer or
agent of the Crown is lacking in contractual effica
cy by reason of the restrictions imposed by sections
19 and 33 of the Financial Administration Act
[R.S.C. 1970, c. F-10] and subsection 5(1) of the
Government Contracts Regulations [C.R.C., c.
701].
These legislative provisions see their first light of
day in the course of argument. Nowhere are they
specifically pleaded by the defendant, save for the
general allegations in the defendant's answer to
the plaintiff's reply to the effect that any agree
ment entered into between the plaintiff and the
defendant was without legal and parliamentary
authority and that the defendant relies "upon the
provisions of the Financial Administration Act".
A party relying on a statute must plead the facts
necessary to bring his case within the statute and
the particular sections relied on. It is not enough to
make general reference to the statute at large:
Williston & Rolls, The Law of Civil Procedure,
Vol. 2, pages 641-642, 692-693; and Odgers on
Pleading and Practice, 17th ed., page 95. The
defendant cannot now be heard in argument to
raise for the first time grounds of defence that
were not properly or sufficiently pleaded in the
first instance.
Even if the defendant were permitted this indul
gence, the argument of lack of authority to enter
into a binding contract must surely impinge on the
broader concepts of general mandate and apparent
authority. The principle to be applied, as it seems
to me, goes something like this: the Crown is
bound by contractual obligations in the same
manner as an individual and the ordinary princi
ples of agency apply to government contracts so
that a contract made by a minister of the Crown
under his general or apparent mandate of author
ity or one made by an agent on his behalf acting
within the scope of his ostensible authority is
binding on the Crown, even though made without
specific statutory authorization, in the absence of
any inescapable statutory restriction to the con
trary. See Verreault (J.E.) & Fils Ltée v. Attorney
General (Quebec), [1977] 1 S.C.R. 41; (1975), 57
D.L.R. (3d) 403; Bank of Montreal v. Attorney
General (Que.), [1979] 1 S.C.R. 565; (1978), 96
D.L.R. (3d) 586; and R. v. CAE Industries Ltd.,
[1986] 1 F.C. 129; (1985), 20 D.L.R. (4th) 347;
(1985), 61 N.R. 19 (C.A.); affg. [1983] 2 F.C.
616 (T.D.).
In my opinion, the defendant's argument on this
point must fail both on the basis of principle and
by reason of defective pleading.
Counsel for the plaintiff stresses the importance
of the recent Supreme Court of Canada decision in
Guerin et al. v. The Queen et al., [1984] 2 S.C.R.
335' and contends that the fiduciary obligation
principle of Guerin applies to the case at bar
' Also cited (1985), 55 N.R. 161; 13 D.L.R. (4th) 321;
[1984] 6 W.W.R. 481.
because the plaintiff was, relatively speaking, at
the mercy of the Crown's discretion. I must disa
gree. It is one thing to say that the plaintiffs
position vis-Ã -vis the defendant is susceptible of
raising some equity in his favour, having regard to
the sui generis relationship between Indians and
the Crown, and quite another to assert that such
position by its very nature automatically invokes
the concomitant law of fiduciary obligation. The
res in the Guerin case was reserve land and its
surrender for the purpose of leasing and the ques
tion for determination was whether subsection
18(1) of the Indian Act [R.S.C. 1952, c. 149]
imposed an enforceable obligation on the Crown
with respect thereto. Nor does the weight of evi
dence in the case at bar point to anything resem
bling a breach of fiduciary duty that could crystal
lize upon surrender into an express trust of specific
land for a specific purpose. The plaintiffs claim
for breach of trust within the meaning of the
Guerin principle is not sustainable by any
reckoning.
In my view, the one and only gleaning from
Guerin that proffers a scintilla of support for the
plaintiffs case is the statement by Dickson J. [as
he then was], in reference to promissory estoppel,
at page 389:
In the present case the relevant aspect of the required standard
of conduct is defined by a principle analogous to that which
underlies the doctrine of promissory or equitable estoppel. The
Crown cannot promise the Band that it will obtain a lease of
the latter's land on certain stated terms, thereby inducing the
Band to alter its legal position by surrendering the land, and
then simply ignore that promise to the Bands detriment. See
e.g. Central London Property Trust Ltd. v. High Trees House
Ltd., [1947] K.B. 130; Robertson v. Minister of Pensions,
[1949] 1 K.B. 227 (C.A.).
I come back again to the question first posed—
was there a binding agreement and what were its
terms?
Newton C. Steacy was commissioned by the
Minister as his special representative to seek a
resolution of the long standing problems between
the plaintiff and the Valley River Band. Steacy
held himself out to the plaintiff as the Minister's
emissary and was so regarded by the latter. This
fact is one of significant import in setting the stage
for the events that immediately followed. Steacy
made it apparent at the outset of the discussions
that the Department was not prepared to intercede
directly by curtailing the Band's authority to such
extent as would restore the status quo and fulfill
the plaintiffs expectation of being able to peace
fully pursue his farming avocation. This pointed
the way to the only other alternative. Steacy prof-
ferred the solution that the plaintiff and his family
should move off the reserve and relocate else
where, in consideration of which the plaintiff
would be compensated for the value of his land
and any incidental loss or injury sustained and the
Department would defray the expenses of reloca
tion. This was not a last minute, fortuitious thing.
Steacy had envisaged this as the most likely solu
tion in his initial memorandum of February 5,
1979 and had consistently maintained this theme
throughout. Indeed, it had the full support of the
Director General of Reserves and Trusts and
others in the Department. Further terms of offer
were that the actual amount of compensation
would be determined by an appraisal done accord
ing to the general guidelines of the Expropriation
Act and that the overall settlement figure resulting
therefrom would be subject to review by the Min
ister. Thus, the machinery for ascertaining the
monetary amount due the plaintiff for agreeing to
leave the reserve was put in place. Whether wit
tingly or not, matters had passed beyond the stage
of statements of intention.
Moreover, the principle of reliance must be seen
as playing a dominant role. There were strong
inducements on the part of a ministerial agent
having ostensible or apparent authority and the
plaintiff, responding predictably to the reasonable
expectation created thereby, accepted the terms of
offer with the result that a binding agreement was
made. The consideration from the standpoint of
the defendant as promisor was the detriment suf
fered or undertaken by the plaintiff in agreeing to
move off the reserve. The legal implications are
aptly depicted by the following statement from the
American Law Institute, Restatement of the Law
of Contracts, section 90:
A promise which the promisor should reasonably expect to
induce action or forbearance of a definite and substantial
character on the part of the promisee and which does induce
such action or forbearance is binding if injustice can be avoided
only by enforcement of the promise.
The expectation implicit in the offer or induce
ment and the reasonable reliance based thereon
and consequent alteration of position served to
bolster the concept of an enforceable agreement
and dispel any illusion of a mere "agreement to
agree". In my view, the totality of evidence sup
ports this finding. The fact that the final settle
ment figure was subject to review by the Minister
is, in my opinion, nothing more than a suspensive
condition as to the manner of ultimate perform
ance that could not by any fair and reasonable
stretch of imagination be conceived as a fatal
"subject to contract" term that necessarily con
templated the execution of a further agreement
between the parties. As I see it, the Minister's role
in this regard can best be likened to that of the
arbitrator in the Calvin Consolidated Oil & Gas
case, supra.
There are other circumstances, to my mind, that
support this conclusion.
For one thing, the subsequent conduct of the
parties is corroborative of the very agreement from
which the defendant sought to resile after the veto
meeting on November 19, 1979. To take one
instance, Brown had agreed at the meeting of June
1, 1979 between himself, Leask and Steacy to have
the Mentuck property appraised according to the
Expropriation Act guidelines. While Brown may
have intended this only as a preliminary to the
final resolution of the Mentuck problem it seems
to me that a reasonable and dispassionate observer
on the sidelines would be more likely to view it as
indicative of an agreement, especially having
regard to the fact that Mentuck had by then
moved from the reserve and crossed the Rubicon.
Crown counsel suggested in his argument that the
plaintiff still held his certificates of possession and
could have gone back to the reserve at any time
and taken up his former calling. I reject this
submission. The defendant called no evidence to
show that conditions on the reserve had changed
for the better, following the plaintiffs departure.
The only logical inference is that the plaintiff
could not return to the reserve without assuming
the role of vanquished and subjecting himself to
the likely probability of more humiliation, vilifica
tion and harassment. Nor did the defendant lead
any evidence as to the present status of the plain-
tiffs land holdings. The inference is that the leased
parcels are gone. Besides, the farm machinery and
equipment was sold off in June 1979. Under the
circumstances, I am bound to conclude that any
avenue of return to the Valley River reserve is
permanently closed.
In my view, the doctrine of promissory estoppel
must be perceived as playing an important supple
mentary part in reinforcing the leading roles of
expectation and reliance. If there is one prong of
the defendant's case that should be blunted and
diverted by the shield of estoppel it is the insist
ence on strict legal rights in the context of the
plaintiff being regarded as a mere supplicant and
the spoken word as evincing nothing more than an
intention to negotiate toward a possible settlement.
Expectation and reliance, buttressed by estoppel,
all come down to the same thing: the defendant
gave promises or assurances to the plaintiff on
which the latter could reasonably be expected to
rely and did in fact rely to his detriment and it
would be unjust and inequitable in the circum
stances to allow the defendant to afterwards go
back on those promises and assurances.
In the result, I am of the opinion that the
defendant committed a breach of its agreement
with the plaintiff and is liable in damages for the
consequences thereof. Probably, anticipatory
breach occurred in late December 1979 when the
defendant verbally announced its intention to
resile, but the express repudiation of the agree
ment came with the Nicholson letter of February
26, 1980 and this can be taken to mark the actual
date of breach.
The parties themselves contrived their own
scheme of compensatory standard by adopting the
guidelines of the federal Expropriation Act. This
was the factor that led to the engagement of Mr.
D. L. Hoover. His evidence was not seriously
challenged and I have no reluctance in accepting
his appraisal estimate of $146,692 as the proper
measure of the plaintiffs damages for loss of
bargain with respect to the land itself and the
consequential loss of revenue for the years 1978
and 1979.
One of the items included was the sum of
$11,300 for the plaintiffs trees, subject to Mr.
Hoover's reservation that the dictates of strict
accuracy might well require the services of an
expert in tree nursery. Actually, the expert report
of one Carl Pedersen was filed under date of
November 15, 1979 with a copy thereof attached
to the Hoover report dated October 19, 1979.
Pedersen was not called as a witness at the trial to
read his report or any part thereof into evidence
and be available for cross-examination. On my
understanding, there was no agreement of counsel
that his evidence could be taken as read or permit
ted to go unchallenged. In my opinion, this expert
evidence falls far short of complying with the
requirements of Rule 482 [Federal Court Rules,
C.R.C., c. 663] and is nothing more than pure
hearsay. Accordingly, I reject it in its entirety.
Under the circumstances, the Hoover evidence is
the best evidence of the value of the plaintiffs
trees and I have no difficulty in accepting his
appraisal figure of $11,300.
Mr. Hoover declined to do an appraisal for
business disturbance damages under subparagraph
24(3)(b)(ii) of the Expropriation Act. His reason
was that there were too many unknown factors
militating at that point of time against any realis
tic determination of business disturbance damage
in terms of actual costs. He acknowledged that the
Act made allowance for an alternative percentage
of market value, not exceeding 15%, in cases where
the costs, expenses and losses arising out of or
incidental to the owner's disturbance could not be
practically estimated or determined. Nevertheless,
he chose to exclude any percentage allocation from
his overall appraisal figure.
The question remains: should additional dam
ages be awarded for loss of profit or business
disturbance or economic loss, however you choose
to term it? In my judgment, they should.
In Parsons (H.) (Livestock) Ltd. v. Uttley
Ingham & Co. Ltd., [1978] Q.B. 791 (C.A.),
Scarman L.J., restated the principle applicable to
this point, at page 806:
In C. Czarnikow Ltd. v. Koufos [1969] 1 A.C. 350 (a case of
a contract of carriage of goods by sea) the House of Lords
resolved some of the difficulties in this branch of the law. The
law which the House in that case either settled or recognised as
already settled may be stated as follows. (1) The general
principle regulating damages for breach of contract is that
"where a party sustains a loss by reason of a breach of contract,
he is, so far as money can do it, to be placed in the same
situation ... as if the contract had been performed": see per
Lord Pearce, at p. 414, quoting Parke B. in Robinson v.
Harman (1848) 1 Exch. 850, 855. (2) The formulation of the
remoteness test is not the same in tort and in contract because
the relationship of the parties in a contract situation differs
from that in tort: see per Lord Reid, at pp. 385-386. (3) The
two rules formulated by Alderson B. in Hadley v. Baxendale, 9
Exch. 341 are but two aspects of one general principle--that to
be recoverable in an action for damages for breach of contract
the plaintiffs loss must be such as may reasonably be supposed
would have been in the contemplation of the parties as a serious
possibility had their attention been directed to the possibility of
the breach which has, in fact, occurred.
Before making this statement, the learned Judge
took pains to point out that in the case of contract
"one must recognise that parties to a contract have
the right to agree on a measure of damages which
may be greater, or less, than the law would offer in
the absence of agreement".
It was a further term of contract, as I have
found, that the plaintiff would be compensated not
only for his land but also for any incidental loss or
injury sustained as the result of his leaving the
reserve. Moreover, there is the additional, special
circumstance that the parties selected the abacus
of the statutory guidelines for calculating the just
measure of compensation which must surely be
taken to afford some indication of their reasonable
contemplation as a serious possibility of the meas
ure of damages likely to flow from any breach.
Given these circumstances, it becomes impossible
to conclude that it was not within the common
contemplation of the parties that any damages for
loss of bargain would be likely to comprehend
some recompense for business disturbance or eco
nomic loss attributable to the breach. In practical
and common sense terms, the breach of agreement
left the plaintiff deprived of his means of
livelihood.
In my opinion, the plaintiff is entitled to some
thing over and above the sum of $18,120 estimated
by Mr. Hoover for loss of revenue for 1978 and
1979, and included within his total appraisal
figure. Mr. Hoover admitted under cross-examina
tion that the estimated loss of revenue would aver
age out to $9,060 per year for the two years in
question but he refused the invitation to perform
the extrapolation of multiplying the average by a
given number of years to obtain an economic loss
result for whatever span was chosen. He took the
view that this methodology was improper,
although he conceded that its utilization could
approach something of a rough approximation.
I am satisfied on the entire evidence that the
plaintiff sufferred an actual economic or business
loss from the loss of his farm. This is an element of
damage that is directly attributable to the breach
of contract. The causal link is recognized by the
contract itself and the only uncertainty is the
extent or measure of damages. The impossibility of
ascertaining the exact measure of damages by
some precise mathematical computation should
not be a deterrent to making an assessment of fair
compensation. In my opinion, it would not be
unreasonable in the circumstances to allot a time
span of four years for measuring the loss. Applying
this to Mr. Hoover's average of $9,060 per year for
his two-year period gives an unadjusted result of
$36,240. In my view, it would be unrealistic not to
apply some weightback adjustment to allow for
normal farming contingencies, such as crop fail
ure, diminished yield, fluctuating prices and the
like. It seems to me that 25 per cent would be a
fair adjustment factor to apply over the four-year
period. It is unnecessary to consider the incidence
of income tax by reason of section 87 of Indian Act
and the authority of Nowegijick v. The Queen,
[1983] 1 S.C.R. 29; 83 DTC 5041. The applica
tion of this percentage yields a result of $25,180
and I assess this figure as damages to the plaintiff
for economic or business loss.
For the foregoing reasons, there will be judg
ment in favour of the plaintiff, Joseph Charles
Gabriel Mentuck, for total damages in the sum of
$171,872. The respective causes of action of the
other plaintiffs are dismissed for want of proof and
in the interests of res judicata, but without costs.
In his statement of claim, the plaintiff seeks
interest on any award of damages at "an appropri
ate rate from the time the Plaintiffs left the
Reserve to the date of Judgment". Subject to
section 35 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] the Court has â discretion in a
proper case to award pre-judgment interest and
determine the appropriate rate thereof. The rate so
determined is often the average of the Bank of
Canada prime rate. There is no evidence whatever
of what this would be for the period in question. It
might be noted with respect to pre-judgment inter
est that in Marshall y. Canada (1985), 60 N.R.
180, the Federal Court of Appeal ordered pre
judgment interest in accordance with the appli
cable provisions of the Judicature Act [R.S.O.
1980, c. 223] of Ontario.
Possibly, it was meant to be implied because of
the contractual or statutory guidelines that interest
should be determined in accordance with the basic
rate under the Expropriation Act, which is the
prescribed average yield on Government of
Canada treasury bills. Again, there was no evi
dence on this.
The fact is that the matter of interest, whether
pre-judgment or post-judgment, was not raised or
even touched on during the course of argument,
apart from the utter paucity of any evidence there
on. As to post-judgment interest, it is now clear
that the Court has authority to fix the rate thereof
at something beyond the statutory rate referred to
in section 40 of the Federal Court Act: see R. v.
CAE Industries Ltd. [[1986] 1 F.C. 129, at pages
179-180]; (1985), 20 D.L.R. (4th) 347, at page
385 (C.A.).
I want to make it quite clear that I defer only
with respect to the pronouncement of formal judg
ment and not the finality of these reasons for
judgment. Under the circumstances, counsel for
the plaintiff may move for judgment accordingly
under Rule 337(2)(b). The matter of interest can
be fully dealt with on the motion for judgment as
well as any submissions as to costs. I see no reason
why the motion for judgment should not be made
under Rule 324. However, if counsel think other
wise then I will have to fix the time and place of
oral hearing for some convenient, future date.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.