Sarchuk,
J.T.C.C.:—This
is
an
appeal
by
the
Toronto-Dominion
Bank
(the
bank)
from
an
assessment
by
the
Minister
of
National
Revenue
(the
Minister)
made
on
the
basis
that
pursuant
to
subsection
153(1.3)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
the
bank
is
liable
for
the
amount
of
unpaid
source
deductions,
interest
and
penalties
payable
by
Mark
Creek
Investments
Ltd.
The
bank
is
a
chartered
bank
of
Canada
and
has
a
branch
office
located
in
Cranbrook
British
Columbia.
Mark
Creek
Investments
Ltd.
("Mark
Creek")
was
a
customer.
The
bank
held
a
debenture
which
was
secured
against
real
property
and
chattels
owned
by
Mark
Creek
and
operated
as
Inn
of
the
Rockies
(the
"inn").
The
bank
also
received
a
postponement
of
creditors'
claims
relating
to
the
shareholders'
loans
and
unlimited
guarantees
from
the
directors.
Mark
Creek
made
default
in
the
repayment
of
the
indebtedness
and
on
October
1,
1984
the
bank
commenced
foreclosure
proceedings
in
the
Supreme
Court
of
British
Columbia
to
realized
on
its
debenture
security.
On
December
14,
1984
the
Supreme
Court
approved
the
sale
of
the
inn.
Shortly
thereafter
the
purchaser
assumed
possession
and
took
over
operations.
The
sale
of
the
said
property
and
chattels
closed
on
March
20,
1985
and
the
proceeds
were
paid
to
the
bank.
On
January
25,
1985
Mark
Creek
was
assessed
by
the
Minister
for
unremitted
source
deductions,
interest
and
penalties
for
the
period
October
through
December
1984.
This
was
followed
by
assessments
by
the
Minister
dated
August
25,
1986
pursuant
to
section
227.1
of
the
Act
against
the
directors
of
Mark
Creek
for
failure
to
remit
the
source
deductions
of
the
corporation.
These
assessments
were
subsequently
vacated.
Then
on
October
10,
1990
the
assessment
against
the
bank
presently
before
the
Court
was
made.
The
issue
is
whether
the
bank
was
a
trustee
within
the
meaning
of
the
provisions
of
subsections
153(1.3)
and
153(1.4)
of
the
Act
and
is
therefore
liable
for
the
unpaid
source
deductions,
interest
and
penalties
payable
by
Mark
Creek.
The
calculation
of
the
actual
amounts
assessed
is
not
in
issue.
Evidence
Mr.
Kenneth
R.
Jones
("Jones"),
the
Cranbrook
branch
manager,
and
David
F.
Tysoe
("Tysoe"),
a
solicitor
who
acted
on
behalf
of
the
bank
in
1984,
testified
for
the
appellant.
Bruce
A.
Hryciuk
("Hryciuk")
and
Dennis
W.
Deaville
("Deaville"),
both
shareholders
and
directors
of
Mark
Creek,
testified
for
the
respondent.
Although
there
are
understandable
differences
in
the
witness’
recollection
of
events,
there
is
no
significant
disagreement
concerning
the
facts
I
now
set
out.
The
Inn
opened
in
or
about
May
1982.
Business,
from
the
outset,
did
not
live
up
to
projections
and
within
a
short
period
of
time
Mark
Creek
began
to
fall
behind
in
its
payments
to
the
bank.
By
December
14,
1983
the
Mark
Creek
account
was
classified
by
the
bank
as
“an
unsatisfactory,
non-productive
loan"
although
Jones
still
considered
it
had
some
potential.
Internal
memoranda
indicate
that
in
January
1984
two
options
were
being
considered
by
the
bank,
receivership
within
90
days
or
deferral
of
any
action
for
one
year
or
longer.
It
appears
that
receivership
was
not
gaining
much
favour.
On
March
8,
1984
the
loan
had
been
reclassified
to
bad
and
doubtful”
and
the
bank
was
becoming
increasingly
concerned
regarding
the
ability
of
the
guarantors
to
pay
for
a
shortfall.
Both
the
bank
and,
to
a
lesser
degree
Mark
Creek,
began
to
consider
sale
as
another
option.
The
bank’s
"real
estate
team"
recommended
a
realtor
and
Jones
arranged
"for
ongoing
contact"
by
"our
customers
with"
him.
On
April
14,
1984
the
property
was
offered
for
sale
at
a
price
of
$1.1
million.
Jones'
instructions
were
to
bring
pressure
to
bear
on
Mark
Creek
to
force
it
into
a
realistic
sale
price
and
to
effect
the
sale
with
dispatch.
Several
other
factors
were
coming
into
play
at
this
time.
The
projected
shortfall
on
principal
ranged
from
a
minimum
of
$378,000
to
$678,000
or
more.
Detailed
files
on
each
guarantor
including
credit
bureau
reports
were
being
compiled
by
the
bank.
As
early
as
April
1984
the
bank
was
becoming
extremely
concerned
and
was
preparing
to
respond
to
a
"walk
away”
situation
in
which
Mark
Creek
would
simply
close
down
the
business.
In
that
month
Jones
issued
a
pre-demand
letter
which
he
described
as
an
expression
of
concern
and
a
strong
hint
to
Mark
Creek
to
resolve
its
problems.
Concurrently
the
guarantors
began
to
make
inquiries
as
to
whether
the
bank
would
consider
replacing
their
unlimited
guarantees
with
limited
amounts
supported
in
whole
or
in
part
by
security.
The
recommendation
by
Jones
to
his
divisional
supervisor
was
that
this
warranted
consideration.
In
May
an
offer
to
purchase
was
on
hand
but
was
not
likely
to
be
accepted
unless
the
guarantors
had
some
indication
as
to
the
bank’s
position
on
the
guarantees.
By
early
June
the
guarantors’
level
of
concern
was
reaching
the
breaking
point.
Jones
noted
in
his
reports
that
"it
is
becoming
apparent
that
only
the
bank
stands
to
gain
from
continued
operation"
and
made
specific
recommendations
regarding
a
workout
of
the
personal
guarantees.
These
were
rejected
by
the
divisional
office.
Matters
proceeded
slowly.
Business
remained
poor
and
cash
flow
problems
persisted.
Mark
Creek
never
had
an
operating
line
of
credit,
rather
it
worked
through
a
current
account
which
it
overdrew
with
increasing
frequency
in
1984.
While
no
formal
overdraft
protection
was
in
place
on
occasion
the
manager
or
a
under
subsection
(1)
to
be
deducted
or
withheld
and
to
be
remitted
on
account
of
the
payment.
(1.4)
In
subsection
(1.3),
“trustee”
includes
a
liquidator,
receiver,
receiver-manager,
trustee
in
bankruptcy,
assignee,
executor,
administrator,
sequestrator
or
any
other
person
performing
a
function
similar
to
that
performed
by
any
such
person.
director
of
the
inn
would
inquire
as
to
whether
a
specific
trade
cheque
would
be
honoured.
Alternatively
a
cheque
would
be
presented
for
payment
and
would
appear
on
Jones'
desk,
together
with
information
indicating
whether
it
would
create
or
increase
an
overdraft.
Jones
would
make
the
decision
as
to
whether
the
cheque
would
be
honoured
based
on
the
level
of
the
overdraft
and
other
factors
such
as
his
knowledge
of
the
normal
flow
of
deposits
from
Mark
Creek;
whether
Mark
Creek's
Mastercharge
account
at
the
bank
of
Montreal
could
be
tapped
to
cover
the
overdraft;
whether
it
was
an
essential
cheque;
whether
it
could
be
deferred
or
payment
to
a
supplier
rearranged.
To
be
honoured
a
cheque
had
to
relate
to
the
day-to-day
operation
of
the
company.
Jones
described
this
arrangement
as
an
informal
facility
the
bank
had
provided
to
Mark
Creek
almost
from
the
day
the
Inn
opened
for
business.
In
early
summer
of
1984
the
bank
required
Mark
Creek
to
produce
internal
financial
statements
on
a
monthly
basis.
On
July
4,
1984
Jones
was
instructed
by
his
superior
to
urge
the
shareholders
of
Mark
Creek
to
accept
an
offer
in
the
amount
of
$750,000
and
to
negotiate
an
increase
in
the
guarantors’
offer
of
settlement
of
$152,000
by
an
additional
$200,000.
On
September
7,1984
the
bank
served
a
formal
demand
for
payment
on
Mark
Creek.
Demand
was
also
made
of
the
guarantors.
An
offer
to
purchase
dated
September
9,
1984
for
the
inn
was
presented
to
Mark
Creek.
It
contained
a
condition
precedent,
to
wit:
receipt
of
confirmation
from
the
bank
that
it
would
limit
its
claim
for
any
shortfall
resulting
from
the
sale
to
an
amount
of
$350,000.
Mark
Creek
was
prepared
to
accept
the
offer
only
if
the
bank
agreed
to
limit
the
liability
of
the
guarantors
to
$150,000.
This
was
unacceptable
to
the
bank.
On
October
1,
1984
when
no
payment
was
made
the
bank
filed
a
petition
in
the
Supreme
Court
for
orders
enforcing
the
security
instruments
held
by
it,
including
an
order
for
the
sale
of
the
inn.
Tysoe
advised
Jones
to
have
the
prospective
purchaser
prepare,
for
submission
to
the
Court,
a
new
agreement
which
did
not
contain
a
limitation
on
the
guarantees.
On
October
9,
1984
the
purchaser
made
an
offer
in
that
form
and
Tysoe
was
instructed
to
seek
Court
approval
of
the
sale.
A
motion
for
such
an
order
was
to
have
been
heard
on
October
26,
1984
but
was
adjourned
at
the
request
of
the
purchaser's
solicitor
and
by
the
guarantors.
The
matter
was
further
adjourned
on
several
occasions
because
the
purchaser
had
failed
to
finalize
his
financing
and
his
offer
was
conditional
upon
that
fact.
It
was
also
in
the
bank’s
best
interests
to
accommodate
him
and
to
hold
off
on
pursuing
its
remedies
in
the
interim.
Throughout
this
period
discussions
continued
between
Hryciuk
and
the
bank
regarding
the
guarantors’
exposure.
By
November
20,
1984
an
agreement
was
taking
shape.
Jones
was
again
concerned
that
Mark
Creek
would
close
the
inn
and
in
a
memorandum
to
his
divisional
supervisors
recommended
that
gratuitous
credit
of
up
to
$20,000
be
given
to
Mark
Creek
to
facilitate
day-to-day
operations
and
final
payroll
separation
costs.
This
meant
that
the
bank
would
not
ask
Mark
Creek
to
repay
this
amount
if
expended,
and
no
further
guarantees
or
security
would
be
required.
Jones
advised
his
superiors
that
there
was
a
substantial
risk
that
the
hotel
operation
would
fall
apart
and
that
this
credit
was
necessary
to
ensure
that
the
business
would
not
cease
to
exist.
His
recommendation
was
rejected.
Jones
nonetheless
continued
to
approve
Mark
Creek
overdrafts
as
before
and
the
Inn's
doors
remained
open.
The
bank's
application
was
now
scheduled
to
be
heard
on
December
14,
1984.
That
morning
Tysoe
met
Mr.
Grant
Burnyeat
("Burnyeat"),
counsel
representing
Mark
Creek
and
the
guarantors
.
Tysoe
advised
Burnyeat
that
the
bank
had
instructed
him
to
agree
to
a
settlement
on
the
guarantees
in
the
amounts
proposed.
Burnyeat
stated
this
was
acceptable
to
his
clients.
The
motion
was
heard
and
the
Supreme
Court
approved
the
sale.
Further,
as
agreed,
the
banks
request
for
a
judgment
against
the
guarantors
was
adjourned
indefinitely.
At
or
about
the
same
time
the
Federal
Business
Development
Bank
declined
to
give
the
purchaser
the
required
financing.
The
bank
felt
obliged
to
do
so
to
complete
the
sale
but
wanted
written
confirmation
of
the
settlement
with
the
guarantors.
The
terms
of
the
agreement
were
embodied
in
a
letter
dated
December
19,
1984
from
Tysoe
to
Burnyeat.
No
response
was
received.
No
response
was
received.
On
the
morning
of
December
21,
1984
Burnyeat
met
Tysoe
at
which
time
Burnyeat
confirmed
that
Tysoe's
letter
correctly
set
out
the
understanding
between
the
parties
for
the
compromise
of
the
guarantees.
The
bank
then
proceeded
to
arrange
financing
for
the
purchaser.
Possession
of
the
Inn
was
taken
on
or
about
December
21,
1984
and
closing
was
scheduled
for
January
18,
1985.
On
December
27,
1984
Hislop
wrote
to
Jones
setting
out
his
understanding
of
the
arrangement
between
the
bank
and
the
guarantors
and
confirming
that,
subject
to
several
conditions,
it
was
acceptable
to
the
guarantors.
One
such
condition
was
that
the
bank
“will
see
that
the
preferred
creditors,
e.g.,
W.C.B.,
income
tax,
and
wages
are
paid,
and
will
save
harmless
the
directors
from
preferred
creditor
claims”.
This
letter
was
referred
to
Tysoe
who,
on
January
9,
1985,
advised
Hislop
that
the
agreement
for
the
compromise
of
the
guarantees
was
that
contained
in
his
December
19
letter
to
Burnyeat.
More
specifically
he
advised
Hislop
that
there
was
no
condition
to
the
effect
that
the
bank
would
pay
any
creditors
of
Mark
Creek
other
than
those
which
had
priority
over
the
bank’s
security
and
assert
their
priority.
Hryciuk
wrote
to
Jones
on
January
21
and
to
Tysoe
on
February
25,
1985.
On
March
4
Hislop
wrote
to
Tysoe.
They
continued
to
contend
that,
as
Hryciuk
put
it,
the
guarantors
:
.
.
.
entire
understanding
of
the
settlement
agreement
was
based
upon
the
undertakings
of
Mr.
Jones
and
the
Toronto-Dominion
Bank
that
the
liabilities
for
these
items
would
be
funded
without
question
upon
presentation
of
appropriate
documentation
by
the
bank
with
no
recourse
against
the
directors,
guarantors
or
shareholders
of
Mark
Creek
Investments
Ltd.
Our
discussions
with
Mr.
Jones
identified
these
liability
accounts
specifically
and
did
not
refer
to
priority
claims,
preferred
creditors
or
any
other
legal
definition.
The
discussions
clearly
indicated
that
the
liabilities
of
concern
were
those
as
stated
above
regardless
of
what
terminolgy
[sic]
is
used
to
define
them.
Mr.
Tysoe
responded
on
March
11,
1985,
stating:
Whatever
discussions
may
have
taken
place
between
Mr.
Hryciuk
and
Mr.
Jones,
the
terms
of
the
settlement
agreement
were
the
ones
which
we
discussed
with
Mr.
Burnyeat
immediately
prior
to
the
Court
hearing
on
December
14,
1984,
as
confirmed
in
our
letter
dated
December
19,
1984
to
Davis
and
Company.
The
settlement
agreement
did
not
include
any
term
relating
to
the
payment
by
the
bank
of
indebtedness
owing
by
Mark
Creek
Investments
Ltd.
for
which
the
directors
may
be
liable.
He
went
on
to
say
that
payroll
deductions
did
not
have
priority
over
the
bank
and
thus
would
not
fall
into
the
category
of
priority
claims
which
would
be
honoured
by
the
bank.
On
March
27,
1985
Hislop,
on
behalf
of
the
guarantors,
wrote
to
Tysoe,
enclosing
a
cheque
in
the
amount
of
$172,000
together
with
a
general
release
and
a
consent
dismissal
of
the
action
against
the
guarantors
for
execution
by
the
bank.
No
mention
was
made
of
the
"understanding",
nor
was
any
further
action,
legal
or
otherwise,
taken
by
the
guarantors.
Appellant's
position
Counsel
for
the
appellant
argued
that
in
order
for
the
assessment
to
stand
the
Court
must
be
satisfied
that
the
bank
was
(a)
a
trustee;
(b)
who
administered,
controlled
or
managed
the
property
of
Mark
Creek;
and
(c)
who
authorized
or
otherwise
caused
payment
of
salary
or
wages
to
be
made
on
behalf
of
Mark
Creek.
He
submitted
that
the
bank
was
not
a
trustee
because
there
was
no
vesting
of
property.
From
subsection
153(1.4)
of
the
Act
the
legislative
intention
was
clear
in
that
the
word
"trustee"
is
designated
to
describe
a
person
in
whom
a
legal
authority
has
vested
over
property
and,
further,
that
the
trustee
is
managing
that
property
for
the
exclusive
interest
of
a
beneficiary.
Counsel
contends
there
was
no
such
relationship
in
this
case.
The
relationship
between
the
bank
and
Mark
Creek
was
one
of
debtor/creditor.
The
evidence
is
that
the
bank’s
purpose
throughout
1984
was
directed
towards
a
maximum
recovery
of
its
loans
to
Mark
Creek.
The
involvement
of
Jones
and
the
enforcement
of
its
remedies
under
the
security
instruments
through
the
Court
were
taken
in
furtherance
of
that
purpose
and
not
for
the
benefit
of
any
other
person.
Counsel
argued
that
there
was
no
evidence
of
any
legal
impediment
to
Mark
Creek
closing
the
hotel
and
“walking
away
from
the
venture".
What,
if
any,
perception
Mark
Creek
had
as
to
the
bank's
interests
or
alleged
requirements
to
maintain
and
continue
the
operation
of
the
Inn
was
not
sufficient
to
convert
the
position
of
the
bank
from
that
of
lender
to
trustee
in
whom
Mark
Creek's
property
vested.
Furthermore,
the
bank
was
not
in
control
of
Mark
Creek's
property.
Counsel
noted
that
the
Minister
assumed
that
the
principals
of
Mark
Creek
or
the
manager
of
the
inn
were
in
charge
of
its
day-to-day
operations
during
the
time
when
remittances
should
have
been
made.
In
regard
to
the
payroll
process,
the
bank
provided
a
service
for
Mark
Creek
out
of
which
arises
no
obligation
to
make
the
remittances
required
by
statute.
The
bank
was
an
agent
in
that
regard,
and
it
did
not
act
without
direction
and
authorization
from
Mark
Creek.
The
bank
never
authorized
or
caused,
within
the
meaning
of
subsection
153(1.3),
a
payment
to
be
made
to
the
employees.
Only
Mark
Creek
authorized
the
payments.
Counsel
submitted
that
in
fact
Mark
Creek,
as
the
person
required
to
deduct
and
remit
the
source
deductions,
paid
its
employees
without
making
the
required
remittances.
It
was
subsequent
to
that
failure
that
the
guarantors
settled
with
the
bank
by
way
of
an
agreement
which
did
not
include
any
term
or
condition
which
would
require
the
bank
to
pay
the
source
deductions
to
Revenue
Canada
after
the
company
ceased
operating
the
hotel.
The
fact
that
directors
may
have
believed
the
liability
would
not
subsequently
be
imposed
on
them
if
the
hotel
was
later
sold
does
not
excuse
Mark
Creek
as
the
employer
from
making
remittances
as
they
fell
due.
Counsel
contended
that
what
is
apparent
from
the
respondent's
pleadings
and
the
assessment
is
that
the
Minister
tied
the
agreement
alleged
by
the
directors
of
Mark
Creek
that
the
bank
would
hold
them
harmless
at
the
time
of
sale
to
the
obligation
of
Mark
Creek
to
deduct
and
remit
the
source
deductions
as
required.
That,
he
says,
is
wrong
as
the
Minister
cannot
assess
on
the
"agreement"
between
the
guarantors
and
the
bank.
As
counsel
noted:
.
.
.
if
there
was
any
right
of
action
the
guarantors
or
directors
may
have
had
against
the
bank,
the
breach
of
the
alleged
agreement
to
pay
deductions
arising
out
of
the
alleged
misunderstanding
between
Mr.
Jones
and
Mr.
Hryciuk,
that
does
not
render
the
bank
liable
to
the
Crown
for
unpaid
source
deductions
under
section
1.3
of
the
Act.
Respondent's
position
Counsel
for
the
respondent
submitted
that
the
whole
of
section
153
of
the
Act
must
be
looked
at
in
order
to
determine
the
interpretation
to
be
placed
on
subsections
153(1.3)
and
(1.4).
Subsection
153(1)
requires
"every
person
paying
.
.
.
salary
or
wages
or
other
remuneration"
to
deduct
and
remit
the
prescribed
amounts
to
the
Receiver
General
on
account
of
the
payee's
tax.
Subsections
153(1.3)
and
(1.4)
were
added
by
1980-81,
c.
48,
subsection
86(3)
and
were
intended
to
broaden
the
net
of
persons
that
would
now
be
subject
to
the
provisions
of
subsection
153(1).
Subsection
153(1.3)
provides
that
a
trustee
may
be
deemed
to
be
the
person
making
any
payment
referred
to
in
subsection
153(1)
and
is
thereby
liable
for
the
tax
to
be
withheld
from
such
payment.
Counsel
further
argued
that
by
the
language
of
subsection
153(1.4)
the
legislators
also
increased
the
scope
of
the
enactment
by
expanding
the
definition
of
"trustee"
to
include
not
just
liquidators,
receivers,
etc.,
but
also
"any
other
person
performing
a
function
similar
to
that
performed
by
such
person".
Counsel
submitted
that
section
153
now
includes
not
only
those
in
a
strict
employer/employee
relationship
but
also
those
who
stand
in
a
fiduciary
relationship
to
another
person.
In
support
he
referred
to
the
following
definition
of
"trustee"
in
Black’s
Law
Dictionary:
In
a
strict
sense,
a
"trustee"
is
one
who
holds
the
legal
title
to
property
for
the
benefit
of
another,
while,
in
a
broad
sense,
the
term
is
sometimes
applied
to
anyone
standing
in
a
fiduciary
or
confidential
relation
to
another,
such
as
agent,
attorney,
bailee,
etc.
State
ex
rel.
Lee
v.
Sartorius,
344
Mo.
912,
130
S.W.
2d
547,
549,
550.
[Emphasis
added.]
and
to
the
interpretation
of
the
term
"fiduciary
obligation"
propounded
by
Wilson,
J.
in
Frame
v.
Smith,
[1987]
2
S.C.R.
99,
42
D.L.R.
(4th)
81
at
pages
134-36
(D.L.R.
97):
In
the
past
the
question
whether
a
particular
relationship
is
subject
to
a
fiduciary
obligation
has
been
approached
by
referring
to
categories
of
relationships
in
which
a
fiduciary
obligation
has
already
been
held
to
be
present.
Some
recognized
examples
of
these
categories
are
relationships
between
directors
and
corporations,
solicitors
and
clients,
trustees
and
beneficiaries,
agents
and
principals,
life
tenants
and
remaindermen,
and
partners.
As
well,
it
has
frequently
been
noted
that
the
categories
of
fiduciary
relationship
are
never
closed:
see,
for
example,
Guerin
v.
The
Queen,
[1984]
2
S.C.R.
335,
13
D.L.R.
(4th)
321
at
page
384
(D.L.R.
340-41),
per
Dickson,
J.
(as
he
then
was);
International
Corona
Resources
Ltd.
v.
Lac
Minerals
Ltd.
(1986),
25
D.L.R.
(4th)
504,
53
O.R.
(2d)
737
(H.C.);
Standard
Investments
Ltd.
v.
Canadian
Imperial
Bank
of
Commerce
(1985),
22
D.L.R.
(4th)
410,
52
O.R.
(2d)
473;
English
v.
Dedham
Vale
Properties
Ltd.,
[1978]
1
AIl
E.R.
382
at
page
398;
Tufton
v.
Sperni,
[1952]
T.L.R.
516
at
page
522;
R.
Goff
and
G.
Jones,
The
Law
of
Restitution,
2nd
ed.
(1978),
at
pages
490-91.
An
extension
of
fiduciary
obligations
to
new
“categories”
of
relationship
presupposes
the
existence
of
an
underlying
principle
which
governs
the
imposition
of
the
fiduciary
obligation.
Yet
there
are
common
features
discernible
in
the
contexts
in
which
fiduciary
duties
have
been
found
to
exist
and
these
common
features
do
provide
a
rough
and
ready
guide
to
whether
or
not
the
imposition
of
a
fiduciary
obligation
on
a
new
relationship
would
be
appropriate
and
consistent.
Relationships
in
which
a
fiduciary
obligation
have
been
imposed
seem
to
possess
three
general
characteristics:
1.
The
fiduciary
has
scope
for
the
exercise
of
some
discretion
or
power.
2.
The
fiduciary
can
unilaterally
exercise
that
power
or
discretion
so
as
to
affect
the
beneficiary's
legal
or
practical
interests.
3.
The
beneficiary
is
peculiarly
vulnerable
to
or
at
the
mercy
of
the
fiduciary
holding
the
discretion
or
power.
Counsel
contended
that
these
criteria
were
subsequently
adopted
by
the
majority
of
the
Supreme
Court
in
Lac
Minerals
Ltd.
v.
International
Corona
Resources
Ltd.,
[1989]
2
S.C.R.
574,
61
D.L.R.
(4th)
14.
With
reference
to
the
present
appeal,
it
was
argued
that
Mark
Creek
was
peculiarly
vulnerable
to
and
at
the
mercy
of
the
bank.
It
was
pressing
Mark
Creek
to
continue
operating;
it
was
pressing
Mark
Creek
to
sell
the
inn
at
a
value
which
would
result
in
a
major
obligation
on
the
guarantors.
Furthermore,
the
bank
was
in
a
position
to
and
did
exercise
its
power
or
discretion
so
as
to
affect
Mark
Creek's
interests.
Jones,
the
bank
manager,
decided
whether
Mark
Creek's
cheques
would
be
honoured
and,
more
significantly,
towards
the
latter
part
of
1984
periodically
extended
credit
beyond
that
endorsed
by
the
owners
of
the
inn
in
order
to
ensure
it
remained
in
business.
Thus
he
was
unilaterally
increasing
Mark
Creek's
liability.
Furthermore,
the
evidence
of
Hryciuk
and
Deaville
made
it
clear
that
in
September
1984
the
directors
were
on
the
verge
of
closing
the
inn
to
limit
their
losses.
The
bank
was
privy
to
these
discussions
and,
as
Deaville
stated,
refused
to
allow
the
directors
to
do
so
at
the
end
of
summer,
insisting
that
the
inn
remain
open
so
that
it
could
be
sold
as
an
ongoing
operation.
As
a
result
of
their
exposure
under
the
guarantees
the
directors
felt
compelled
to
comply.
Faced
with
such
intransigence
the
directors
effected
an
agreement
with
the
bank
that
payroll
costs,
which
were
the
largest
component
of
the
inn's
expenses,
would
be
processed
and
met
on
a
regular
basis
until
the
Inn
was
sold
and,
they
say,
it
was
understood
that
any
further
indebtedness
which
arose
from
these
payments
would
not
be
repaid
to
the
bank
but
would
simply
form
part
of
the
final
settlement.
The
Court
was
urged
to
accept
Hryciuk's
assertion
that
his
discussions
with
Jones
dealt
with
source
deduction
liability
as
well
as
provincial
sales
tax
and
Workmen's
Compensation.
Specifically
with
respect
to
the
payroll
source
deductions
Hryciuk
said
it
was
agreed
that
the
existing
payroll
arrangement
would
continue
with
one
major
change
being,
that
Mark
Creek
would
no
longer
make
separate
remittances
to
the
Receiver
General,
this
function
now
being
taken
over
by
the
bank.
It
was
submitted
that
as
a
result
of
the
ever
increasing
control
of
the
affairs
of
Mark
Creek
by
the
bank
it
owed
a
fiduciary
duty
to
Mark
Creek.
This
fiduciary
relationship
existed
because
certain
major
business
decisions
were
being
made
by
the
bank.
As
contrasted
to
the
involvement
of
the
interim
receiver
referred
to
in
Plaskett
&
Associates,
supra,
the
bank
was
making
decisions
independent
of
Mark
Creek,
principally
those
which
required
it
to
continue
with
the
operation
of
the
inn
despite
the
directors'
desire
to
close
it
down.
This,
counsel
argued,
was
sufficient
to
bring
the
bank
within
the
purview
of
subsection
153(1.3).
Analysis
What
is
to
be
determined
in
this
appeal
is
the
interpretation
to
be
given
the
language
of
subsection
153(1.4)
of
the
Act.
In
order
for
a
liability
to
arise
under
subsection
153(1.3)
a
person
must
be
a
"trustee"
within
the
extended
meaning
given
by
subsection
153(1.4).
Thus
the
evidence
must
establish
that
the
bank
was
performing
functions
similar
to
that
of
a
receiver,
etc.
It
was
not
vigorously
contended
by
counsel
for
the
respondent
that
the
evidence
supported
a
finding
that
the
bank
was
a
trustee
as
that
term
is
usually
defined.
Given
the
evidence,
that
is
understandable.
The
bank
was
not
vested
wit
the
property
and
assets
of
Mark
Creek;
it
was
not
empowered
to
exclude
Mark
Creek
from
running
the
business;
it
did
not
administer
property
on
behalf
of
Mark
Creek,
nor
was
it
entitled
to
carry
on
any
of
the
usual
functions
of
the
persons
enumerated
in
subsection
153(1.4).
However,
counsel
for
the
respondent,
relying
on
the
comments
of
Wilson,
J.
in
Frame,
supra,
asks
the
Court
to
hold
that
the
evidence
supports
a
conclusion
that
the
relationship
between
the
bank
and
Mark
Creek
had
the
characteristics
required
to
impose
a
fiduciary
obligation
on
the
bank
and
that
is
sufficient
to
bring
the
bank
within
the
ambit
of
the
provisions
of
subsection
153(1.3)
of
the
Act.
Two
issues
arise.
First,
was
subsection
153(1.4)
intended
by
the
legislators
to
expand
the
meaning
of
"trustee"
to
this
extent.
Second,
if
so,
does
the
evidence
support
a
conclusionthat
the
specific
circumstances
of
the
relationship
between
Mark
Creek
and
the
bank
give
rise
to
a
fiduciary
obligation
on
the
part
of
the
bank
sufficient
to
bring
it
within
the
scope
of
subsection
153(1.3).
As
to
the
first
issue
counsel
for
the
respondent
baldly
stated
that
the
legislative
intent
was
clear
but
otherwise
failed
to
support
that
proposition.
Counsel
for
the
appellant
did
not
directly
deal
with
the
issue,
resting
his
case
on
the
lack
of
evidence
that
the
bank
assumed
control
over
the
affairs
of
Mark
Creek.
The
two
subsections
in
issue
were
added
to
the
Income
Tax
Act
by
1980-81,
c.
48,
subsection
86(3),
effective
on
Royal
Assent,
February
26,
1981.
Prior
to
the
enactment
of
these
subsections
commentators
had
noted
that
there
had
developed
growing
uncertainty
concerning
the
responsibility
of
an
agent,
receiver
or
trustee
in
bankruptcy
for
making
tax
deductions
under
subsection
153(1
).
Several
inconsistent
cases
did
little
to
clear
up
the
situation.
The
decision
most
often
used
to
illustrate
the
problem
was
Coopers
&
Lybrand
Ltd.
v.
The
Queen,
[1979]
C.T.C.
352,
79
D.T.C.
5273
(F.C.T.D.)
[rev'd
[1980]
C.T.C.
367,
80
D.T.C.
6281
(F.C.A.)].
In
that
case
Coopers
&
Lybrand
had
been
appointed
receiver
and
manager
for
Venus
Electric,
an
agent
of
the
Mercantile
Bank
of
Canada
pursuant
to
a
debenture.
The
bank
supplied
net
payroll
to
Coopers
&
Lybrand
which
distributed
it.
Hence
none
of
the
amounts
that
should
have
been
deducted
were
remitted
to
the
Minister
of
National
Revenue,
the
department
raised
an
assessment
against
Coopers
&
Lybrand
for
the
unremitted
amount
together
with
interest
and
penalties.
Gibson,
J.,
in
a
strongly
worded
decision,
held
that
Coopers
&
Lybrand
was
not
obligated
to
remit
under
section
153.
He
made
it
clear
that
Coopers
&
Lybrand
could
not
be
considered
to
be
a
"person"
for
the
purposes
of
that
section.
It
appears
generally
accepted
that
these
cases,
and
in
particular
Coopers
&
Lybrand,
supra,
led
to
enactment
of
the
provisions
of
subsections
153(1.3)
and
(1.4).
In
a
notice
of
ways
and
means
motion
to
amend
the
Income
Tax
Act
tabled
by
the
Finance
Minister
on
December
11,
1979
the
following
proposal
is
found:
70.
That
(a)
after
December
11,
1979,
receivers-managers
and
similar
persons
who
have
substantial
control
of
the
affairs
of
another
person
be
required
to
deduct
withholding
tax
in
respect
of
payments
caused
to
be
made
on
behalf
of
the
other
person.
.
.
.
An
election
intervened.
On
April
21,
1980
the
new
Finance
Minister
tabled
a
ways
and
means
motion
containing
essentiallythe
same
proposals
for
amendment
to
section
153.
While
any
attempt
to
discern
the
legislative
intent
behind
a
particular
provision
is
often
speculative,
in
this
case
it
seems
reasonably
clear
that
Parliament
desired
to
make
"receiver-managers"
liable
for
the
withholding
and
remitting
of
tax
under
section
153
and
that,
by
enacting
subsection
153(1.4)
intended
to
make
the
definition
of
"trustee"
as
broad
as
possible
to
ensure
that
any
person
with
substantial
control
of
the
affairs
of
another
person
be
required
to
deduct
withholding
tax.
I
have
concluded
that
the
respondent's
position
with
respect
to
the
legislative
intent
behind
subsections
153(1.3)
and
(1.4)
has
some
merit.
However
Frame,
supra
provides
but
limited
assistance
since
that
decision
is
extremely
narrow
in
scope
and
does
not
represent
the
view
of
the
Supreme
Court
of
Canada
as
a
whole.
Reference
should
be
made
instead
to
Lac
Minerals,
supra,
where
the
subject
of
fiduciary
relationships
was
fully
canvassed.
I
particularly
note
the
following
comments
of
La
Forest,
J.,
first
at
pages
643-44
(D.L.R.
26)
where
he
stated:
There
are
few
legal
concepts
more
frequently
invoked
but
less
conceptually
certain
than
that
of
the
fiduciary
relationship.
In
specific
circumstances
and
in
specific
relationships,
courts
have
no
difficulty
in
imposing
fiduciary
obligations,
but
at
a
more
fundamental
level,
the
principle
on
which
that
obligation
is
based
is
unclear.
Indeed,
the
term
"fiduciary"
has
been
described
as
"one
of
the
most
ill-defined,
if
not
altogether
misleading
terms
in
our
law.
.
.
.
La
Forest,
J.
acknowledged
the
comments
of
Wilson,
J.
in
Frame,
supra,
and,
noting
that
the
issue
in
that
case
was
whether
the
relationship
of
a
custodial
parent
to
a
non-custodial
parent
could
be
considered
a
category
to
which
fiduciary
obligations
could
attach
(an
issue
the
majority
of
the
Supreme
Court
did
not
consider
necessary
to
address),
accepted
Wilson,
J.’s
approach
as
helpful.
However
he
went
on
to
say
at
pages
646-49
(D.L.R.
28-30):
Much
of
the
confusion
surrounding
the
term
"fiduciary"
stems,
in
my
view,
from
its
undifferentiated
use
in
at
least
three
distinct
ways.
The
first
is
as
used
by
Wilson,
J.
in
Frame,
supra.
There
the
issue
was
whether
a
certain
class
of
relationship,
custodial
and
non-custodial
parents,
was
a
category,
analogous
to
directors
and
corporations,
solicitors
and
clients,
trustees
and
beneficiaries,
and
agents
and
principals,
the
existence
of
which
relationship
would
give
rise
to
fiduciary
obligations.
The
focus
is
on
the
identification
of
relationships
in
which,
because
of
their
inherent
purpose
or
their
presumed
factual
or
legal
incidents,
the
courts
will
impose
a
fiduciary
obligation
on
one
party
to
act
or
refrain
from
acting
in
a
certain
way.
The
obligation
imposed
may
vary
in
its
specific
substance
depending
on
the
relationship,
though
compendiously
it
can
be
described
as
the
fiduciary
duty
of
loyalty
and
will
most
often
include
the
avoidance
of
a
conflict
of
duty
and
interest
and
a
duty
not
to
profit
at
the
expense
of
the
beneficiary.
The
presumption
that
a
fiduciary
obligation
will
be
owed
in
the
context
of
such
a
relationship
is
not
irrebuttable,
but
a
strong
presumption
will
exist
that
such
an
obligation
is
present.
Further,
not
every
legal
claim
arising
out
of
a
relationship
with
fiduciary
incidents
will
give
rise
to
a
claim
for
breach
of
fiduciary
duty
.
.
.
.
.
.
.
It
is
only
in
relation
to
breaches
of
the
specific
obligations
imposed
because
the
relationship
is
one
characterized
as
fiduciary
that
a
claim
for
breach
of
fiduciary
duty
can
be
founded.
In
determining
whether
the
categories
of
relationships
which
should
be
presumed
to
give
rise
to
fiduciary
obligations
should
be
extended,
the
rough
and
ready
guide
adopted
by
Wilson,
J.
is
a
useful
tool
for
that
evaluation
.
.
.
.
This
brings
me
to
the
second
usage
of
fiduciary
.
.
.
a
fiduciary
obligation
can
arise
as
a
matter
of
fact
out
of
the
specific
circumstances
of
a
relationship.
As
such
it
can
arise
between
parties
in
a
relationship
in
which
fiduciary
obligations
would
not
normally
be
expected.
I
agree
with
this
comment
of
Professor
Finn
in
"The
Fiduciary
Principle",
supra,
at
page
64:
What
must
be
shown,
in
the
writer’s
view,
is
that
the
actual
circumstances
of
a
relationship
are
such
that
one
party
is
entitled
to
expect
that
the
other
will
act
in
his
interests
in
and
for
the
purposes
of
the
relationship.
Ascendancy,
influence,
vulnerability,
trust,
confidence
or
dependence
doubtless
will
be
of
importance
in
making
this
out.
But
they
will
be
important
only
to
the
extent
that
they
evidence
a
relationship
suggesting
that
entitlement.
The
critical
matter
in
the
end
is
the
role
that
the
alleged
fiduciary
has,
or
should
be
taken
to
have,
in
the
relationship.
It
must
so
implicate
that
party
in
the
other's
affairs
or
so
align
him
with
the
protection
or
advancement
of
that
other's
interests
that
foundation
exists
for
the
“fiduciary
expectation".
Such
a
role
may
generate
an
actual
expectation
that
that
other's
interests
are
being
served.
This
is
commonly
so
with
lawyers
and
investment
advisers.
But
equally
the
expectation
may
be
a
judicially
prescribed
one
because
the
law
itself
ordains
it
to
be
that
other's
entitlement.
And
this
may
be
so
either
because
that
party
should,
given
the
actual
circumstances
of
the
relationship,
be
accorded
that
entitlement
irrespective
of
whether
he
has
adverted
to
the
matter,
or
because
the
purpose
of
the
relationship
itself
is
perceived
to
be
such
that
to
allow
disloyalty
in
it
would
be
to
jeopardise
its
perceived
social
utility.
It
is
in
this
sense,
then,
that
the
existence
of
a
fiduciary
obligation
can
be
said
to
be
a
question
of
fact
to
be
determined
by
examining
the
specific
facts
and
circumstances
surrounding
each
relationship;
see
Waters,
Law
of
Trusts
in
Canada
(2nd
ed.
1984),
at
page
405.
If
the
facts
give
rise
to
a
fiduciary
obligation,
a
breach
of
the
duties
thereby
imposed
will
give
rise
to
a
claim
for
equitable
relief.
The
third
sense
in
which
the
term
"fiduciary"
is
used
is
markedly
different
from
the
two
usages
discussed
above.
It
requires
examination
here
because,
as
I
will
endeavour
to
explain,
it
gives
a
misleading
colouration
to
the
fiduciary
concept.
This
third
usage
of
“fiduciary”
stems,
it
seems,
from
a
perception
of
remedial
inflexibility
in
equity.
Courts
have
resorted
to
fiduciary
language
because
of
the
view
that
certain
remedies,
deemed
appropriate
in
the
circumstances,
would
not
be
available
unless
a
fiduciary
relationship
was
present.
In
this
sense,
the
label
fiduciary
imposes
no
obligations,
but
rather
is
merely
instrumental
or
facilitative
in
achieving
what
appears
to
be
the
appropriate
result.
The
clearest
example
of
this
is
the
judgment
of
Goulding,
J.
in
Chase
Manhattan
Bank
N.A.
v.
Israel-British
Bank
(London)
Ltd.,
[1981]
Ch.
105.
As
to
this
category
La
Forest,
J.
said
at
page
652
(D.L.R.
32):
In
my
view,
this
third
use
of
the
term
fiduciary,
used
as
a
conclusion
to
justify
a
result,
reads
equity
backwards.
It
is
a
misuse
of
the
term.
It
will
only
be
eliminated,
however,
if
the
courts
give
explicit
recognition
to
the
existence
of
a
range
of
remedies,
including
the
constructive
trust,
available
on
a
principled
basis
even
though
outside
the
context
of
a
fiduciary
relationship.
With
these
principles
in
mind
I
turn
to
the
matter
before
me.
Clearly
the
relationship
between
the
bank
and
Mark
Creek
does
not
fit
into
the
first
category
described
by
La
Forest,
J.
(and
as
applied
by
Wilson,
J.
in
Frame,
supra).
The
relationship
created
in
an
arm's
length
transaction
between
a
lender
and
borrower
does
not,
in
my
view,
constitute
a
class
of
relationship,
the
mere
existence
of
which
might
give
rise
to
fiduciary
obligations.
Equally
the
third
sense
in
which
the
term
fiduciary
was
referred
to
by
La
Forest,
J.
has
no
relevance
or
application
in
the
present
appeal.
That
leaves
the
second
usage
of
fiduciary
referred
to
by
La
Forest,
J.
In
considering
whether
it
is
applicable,
the
fact
that
the
bank
and
Mark
Creek
were
involved
in
a
commercial
transaction
must
not
be
overlooked.
In
this
context
I
am
mindful
of
the
comments
of
La
Forest,
J.
in
Lac
Minerals,
supra,
at
page
653
(D.L.R.
33):
The
Court
of
Appeal
agreed
with
the
submission
made
by
Lac
that
the
law
of
fiduciary
relations
does
not
ordinarily
apply
to
parties
involved
in
commercial
negotiations.
Such
negotiations
are
normally
conducted
at
arm's
length.
They
held,
however,
that
in
certain
circumstances
fiduciary
obligations
can
arise,
and
it
is
a
question
of
fact
in
each
case
whether
the
relationship
of
the
parties,
one
to
the
other,
is
such
as
to
create
a
fiduciary
relationship.
and
at
page
667
(D.L.R.
43):
Commercial
relationships
will
more
rarely
involve
fiduciary
obligations.
That
is
not
because
they
are
immune
from
them,
but
because
in
most
cases,
they
would
not
be
appropriately
imposed.
I
agree
with
this
comment
of
Mason,
J.
in
Hospital
Products
Ltd.
v.
United
States
Surgical
Corp.
(1984),
55
A.L.R.
417,
at
pages
456-57:
There
has
been
an
understandable
reluctance
to
subject
commercial
transactions
to
the
equitable
doctrine
of
constructive
trust
and
constructive
notice.
But
it
is
altogether
too
simplistic,
if
not
superficial,
to
suggest
that
commercial
transactions
stand
outside
the
fiduciary
regime
as
though
in
some
way
commercial
transactions
do
not
lend
themselves
to
the
creation
of
a
relationship
in
which
one
person
comes
under
an
obligation
to
act
in
the
interests
of
another.
The
fact
that
in
the
great
majority
of
commercial
transactions
the
parties
stand
at
arm’s
length
does
not
enable
us
to
make
a
generalization
that
is
universally
true
in
relation
to
every
commercial
transaction.
In
truth,
every
such
transaction
must
be
examined
on
its
merits
with
a
view
to
ascertaining
whether
it
manifests
the
characteristics
of
a
fiduciary
relationship.
I
am
satisfied
that
if
the
circumstances
of
the
relationship
between
the
bank
and
Mark
Creek
were
such
that
Mark
Creek
was
entitled
to
expect
that
the
bank
would
act
in
its
interests
in
and
for
the
purposes
of
the
relationship,
then
a
fiduciary
obligation
upon
the
bank
could
arise
and
that
would
be
sufficient
to
bring
it
within
the
ambit
of
subsections
153(1.3)
and
(1.4),
provided
that
it
could
be
said
the
bank
was
“controlling
or
otherwise
dealing
with
the
property,
business"
of
Mark
Creek
and
"authorized
or
caused
a
payment"
referred
to
in
subsection
153(1).
Conclusion
I
am
not
able
to
conclude
that
the
bank
owed
any
fiduciary
obligation
to
Mark
Creek.
While
the
bank
exercised
some
discretion
or
authority,
particularly
with
regard
to
the
overdraft,
that
situation
did
not
come
about
as
a
result
of
any
unilateral
action
by
the
bank
during
the
period
of
time
in
issue.
In
fact
it
had
existed
virtually
from
the
time
the
Inn
opened
for
business
and
had
been
accepted
by
Mark
Creek
as
an
essential
alternative
to
a
formal
line
of
credit.
Furthermore,
it
would
be
difficult
to
conclude
that
the
bank
unilaterally
exercised
its
power
to
affect
Mark
Creek's
interest.
Compensation
to
the
employees
remained
in
the
hands
of
Mark
Creek
at
all
times.
It
had
arranged
to
use
the
bank's
computer
payroll
department
(C.P.D.)
in
1982.
This
payroll
service
was
purely
clerical,
and
involved
nothing
more
than
utilizing
information
provided
by
Mark
Creek
to
process
a
pay
run
which
included
the
preparation
of
cheques
or
direct
deposits
for
Mark
Creek
employees
together
with
accounting
records
which
accompany
a
normal
payroll.
The
processed
cheques
and
records
were
returned
to
Mark
Creek
which
then
paid
its
employees.
The
letter
of
authorization
from
Mark
Creek
instructed
C.P.D.
to
debit
Mark
Creek's
general
account
with
the
amounts
of
the
net
payroll
and
appropriate
charges
but
specifically
directed
that
government
statutory
deductions
were
not
to
be
made
by
C.P.D.
The
evidence
is
that
the
manager
of
the
Inn
was
responsible
and
had
historically
remitted
those
deductions
to
Revenue
Canada.
Furthermore,
although
an
overdraft
position
had
occurred
on
a
number
of
occasions,
each
cheque
tor
source
deductions
remitted
to
Revenue
Canada
by
Mark
Creek
was
honoured
by
the
bank.
That
never
changed.
It
is
also
relevant
that
as
of
November
2,
1984
Mark
Creek's
account
was
in
a
credit
position,
demonstrating
that
funds
were
being
generated
by
the
operation
and
were
available
to
make
the
remittances.
Furthermore,
I
cannot
find
that
there
was
a
specific
agreement
by
the
bank
to
deduct
and
remit
the
source
deductions
on
behalf
of
the
Inn
during
the
period
of
October
to
December
1984.
Hryciuk
was
adamant
that
the
"arrangement"
between
the
guarantors
and
the
bank
included
the
actual
remittance
of
the
source
deductions
by
the
bank.
Jones
maintained
he
has
no
recollection
of
specific
claims
being
discussed
and
is
equally
adamant
that
he
never
advised
Mark
Creek
that
the
bank
would
pay
source
deductions
during
that
period.
Considering
all
of
the
evidence
I
concluded
that
source
deductions
were
not
specifically
identified
and
raised
between
Jones
and
the
guarantors
until
after
Mark
Creek
had
gone
out
of
possession
of
the
Inn
on
December
17,1984.
In
my
view
Mark
Creek
was
not
“peculiarly
vulnerable
to
or
at
the
mercy
of"
the
bank.
There
is
no
evidence
that
Mark
Creek
was
legally
or
financially
restricted
in
its
ability
to
deal
with
Revenue
Canada
and
this
fact
was
conceded
by
Hryciuk.
Both
Hryciuk
and
Deaville
stated
that
the
operation
of
the
Inn
continued
primarily
because
of
pressure
from
the
bank.
The
evidence,
however,
suggests
that
an
equally
strong
motive
was
the
uarantors’
desire
to
negotiate
the
lowest
possible
settlement
with
the
bank
for
themselves.
Financially
speaking
Mark
Creek
was
dead
in
the
water.
It
could
have
closed
down
the
operations
of
the
Inn
and
thus
limited
the
amount
of
its
ultimate
indebtedness,
but
did
not
because
the
guarantors
who
had
a
vested
interest
in
the
outcome,
in
their
role
as
directors
permitted
Mark
Creek
to
continue
operations
to
protect
their
personal
interests.
Difficult
as
it
may
have
been
the
directors'
responsibility
was
to
Mark
Creek,
and
the
relationship
of
the
guarantors
with
the
bank
must
not
be
confused
with
that
of
Mark
Creek
and
the
bank.
The
issue
as
expressed
by
La
Forest,
J.
in
Lac
Minerals,
supra,
at
page
646
(D.L.R.
28)
“should
be
whether,
having
regard
to
all
the
facts
and
circumstances,
one
party
stands
in
relation
to
another
such
that
it
could
reasonably
be
expected
that
the
other
would
act
or
refrain
from
acting
in
a
way
contrary
to
the
interests
of
that
other".
On
the
facts
of
this
case
I
am
satisfied
that
the
circumstances
of
the
relationship
between
the
bank
and
Mark
Creek
were
not,
if
I
may
borrow
the-
words
of
Professor
Finn,
such
as
to
implicate
the
bank
in
Mark
Creek's
affairs
or
so
align
the
bank
with
the
protection
or
advancement
of
Mark
Creek's
interests
that
a
foundation
exists
for
the
fiduciary
expectation.
The
bank
did
not
have
such
substantial
control
over
the
affairs
of
Mark
Creek
as
to
bring
it
within
the
purview
of
subsections
153(1.3)
and
(1.4)
of
the
Act.
The
appeal
is
allowed,
with
costs
to
be
taxed,
and
the
assessment
is
vacated.
Appeal
allowed.