Blueberry River First Nation, Blueberry Trust Society as Trustee of the Blueberry Trust, Blueberry River Enterprises Limited Partnership, Blueberry River Enterprises GP Ltd. v. Blueberry River Enterprises Ltd., 2018 BCSC 920

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Blueberry River First Nation v. Cheveldave, 2018 BCSC 920 Date: 20180606 Docket: S22853 Registry: Fort St. John Between: Blueberry River First Nation, Blueberry Trust Society as Trustee of the Blueberry Trust, Blueberry River Enterprises Limited Partnership, Blueberry River Enterprises GP Ltd. and Blueberry River Enterprises Ltd. Plaintiffs And Cecil Cheveldave, Brita Laird, David Laird, David Laird operating as Woodbridge Professional, Jason Miles Steiner, 0891653 B.C.

Ltd., Joseph Apsassin, Lillian Apsassin, Apsassin Construction operating as Apsassin & Sons Contracting, Apsassin Family Consultants operating as Apsassin & Sons Contracting, Patrick Chipesia, Nig Creek Contracting Ltd., Shakir Alwarid, Alwarid & Associates Consulting Ltd., Mark Totten & Associates Inc. operating as Totten & Associates, 0851799 BC Ltd., operating as Creever Trading Post, Jane Doe, John Doe, ABC Corp. and XYZ Corp. Defendants And Wayne Yahey and Randy Yahey Third Parties Before: The Honourable Mr. Justice Macintosh Reasons for Judgment on the

Summary Trial Application of the Alwarid Defendants Counsel for the Plaintiffs: David Rolf, Q.C. K. Colleen Verville Adam L. Kaukas Counsel for Alwarid Defendants: John W. Bilawich Place and Dates of Hearing: Vancouver, B.C. April 30, May 1–3, 2018 Place and Date of Judgment: Vancouver, B.C. June 6, 2018 Table of Contents INTRODUCTION, THE PARTIES, THE ALWARID-BRFN WRITTEN AGREEMENT .. 4 THE PLAINTIFFS' CLAIMS AS PLEADED AGAINST MR. ALWARID .. 6 PARTICULARS .. 11 FURTHER FACTS, INCLUDING THE MNP REPORT, AND ANALYSIS .. 13 THE LAW RELATED TO LIABILITY .. 25 SUITABILITY FOR

SUMMARY TRIAL .. 29 COSTS .. 39

SUMMARY .. 41

INTRODUCTION, THE PARTIES, THE ALWARID-BRFN WRITTEN AGREEMENT [ 1 ] The Defendants, Shakir Alwarid and Alwarid & Associates Consulting Ltd., seek the dismissal of the Plaintiffs' claims against them, which the Plaintiffs quantify at $3,620,990.12. These two Defendants also counterclaim for $4,355.49, which is the amount of their unpaid invoice to the Plaintiff, Blueberry River First Nation ("BRFN" or "the Band"). [ 2 ] For the purposes of this case, these two Defendants can be treated as one.

The Defendant, Alwarid & Associates Consulting Ltd., is a corporate vehicle used by the Defendant Shakir Alwarid for carrying on his business. Mr. Alwarid and his wife are the only directors and owners of the company. All the facts in the case involve Mr. Alwarid alone insofar as these two Defendants are concerned. In these reasons, I will refer to both Defendants simply as Alwarid or Mr. Alwarid. [ 3 ] Mr. Alwarid seeks relief by

summary trial. The Plaintiffs oppose the

summary trial application on the merits and on the ground that the dispute is not suitable for

summary trial adjudication. Concerning the merits, the Plaintiffs accept that even though this is Mr. Alwarid's application, they still need to prove their case against him on the balance of probabilities. The Plaintiffs' primary submission in the suitability analysis is that their claims against Alwarid cannot properly be extracted from an adjudication of their claims against all the other Defendants. [ 4 ] The BRFN is a band within the meaning of s. 2 of the Indian Act , R.S.C. 1985, c. I-5. The Blueberry Trust Society is the trustee of the Blueberry Trust (the "Trust").

The Society was formed to administer the Trust under the Society Act , R.S.B.C. 1996, c. 433. I gather from counsel's submissions that the funds in the Trust came from payments to the BRFN by the Federal Government resulting from the settlement of land claims litigation. [ 5 ] The remaining three Plaintiffs had relatively little involvement in the facts relevant to the present applications. I will describe them and their roles below to the limited extent that may be called for. [ 6 ] Mr. Alwarid and the BRFN entered into an agreement in writing dated August 18, 2010 (the "Agreement"). Mr.

Alwarid agreed to negotiate with government agencies and private sector companies on the Band's behalf, as seen in clause 1.1 of the Agreement: 1. Engagement, Term and Termination 1.1.

The Contractor [Alwarid] agrees to work under the direction of a negotiating team to be appointed by the Chief and Counsel of the First Nation, and until then, under the direction of the Chief and Counsel of the First Nation, on the negotiation of impact benefit agreements and consultation Protocols with resources and infrastructure developers, and specifically BC Hydro on their proposed site C and TransCanada on their proposed Alaska Highway Pipeline project and any other projects the Chief and Council may assign. The Agreement specified that Mr. Alwarid was an independent contractor.

Clauses 4.4 and 4.5 elaborated on his independence as follows: 4. Independent Contractor ... 4.4 Nothing in this Agreement shall be construed in such a manner as to make the Contractor an employee, servant, agent or partner of the First Nation or to create a joint venture between the parties. 4.5 Neither party will have the authority to bind or shall attempt to bind the other party to any contract or the performance of any obligation to a third party.

Clause 2.4 of the Agreement, under the title, "Obligations of the Contractor", provided: The Contractor agrees that he shall be responsible for securing revenues from either government or industry out of which he shall be paid and agrees that he shall not be paid unless and until he secures such revenues. The reciprocal obligations of the Band were found in clauses 3.1 and 3.2: 3. Obligations of the First Nation 3.1. The First Nation shall pay the invoices of the Contractor, to be submitted on a monthly basis and detailing his work on behalf of the First Nation, at a rate of $190 per hour for his work.

It shall be the responsibility of the First Nation to process and pay all such invoices, but only from revenues secured by the Contractor from government or industry, which shall be set aside to cover such payments. 3.2 The First Nation also agrees to pay the expenses of the Contractor incurred in the performance of his duties under this Agreement, upon the submission of original receipts for those expenses. Those expenses are to be paid only from the revenues secured by the Contractor from government or industry that are set aside to cover his services. [ 7 ] Mr.

Alwarid was eminently qualified and experienced to perform his work for the Band. He had worked for the Band in 2002– 2004 to the Band's full satisfaction. His curriculum vitae , from 1974 to the present, shows him in senior government positions, including

Assistant Deputy Minister, and Deputy Minister, in Saskatchewan and in the Yukon, and in other senior positions with the governments of Manitoba and the Northwest Territories. He had been the Chief Economist for the Saskatchewan Oil & Gas Corporation, the President of Yukon Energy Corporation, and the President & C.E.O. of Nunavut Power Corporation. He had represented numerous bands as chief negotiator in most regions of western Canada. [ 8 ] It will be seen later in these reasons that the Band, under its leadership up to December, 2013, was also entirely satisfied with Mr.

Alwarid's work in 2010–2013, that is, with the work giving rise to the Band's present action against him. THE PLAINTIFFS' CLAIMS AS PLEADED AGAINST MR. ALWARID [ 9 ] The Amended Notice of Civil Claim, filed February 22, 2016, names approximately 21 Defendants plus four Jane Doe individual and corporate Defendants. [ 10 ] After naming the parties, the next paragraph in the pleading provides: 22.

The Defendants, or any one or more of them, have wrongfully, fraudulently and without color of right taken or received and converted to his or her or their own use, or to the use of another person or persons presently unknown to the Plaintiffs the total sum of $3,620,990.12. [ 11 ] Paragraph 23 of the pleading says in part that the fraudulently obtained funds were received by the Defendants between April 1, 2010 and December 31, 2013. Paragraphs 26–40 state, for the most part, how much of the $3,620,990.12 each Defendant received.

Paragraph 29 pleads, regarding Alwarid: Alwarid & Associates or its owner Alwarid, received a total of $563,870.00, allegedly, for negotiation of impact benefit agreements. The agreement with BRFN was that Alwarid was to provide services at $190.00 per hour. There is no substantiation or authorization that Alwarid & Associates or its owner, Alwarid, provided services to BRFN commensurate with the payment they received. [ 12 ] Paragraphs 41–44 make allegations against all the Defendants: 41.

The Defendants have misappropriated the total sum of $3,620,990.12 and have received that sum to their benefit, despite not having provided the Plaintiffs with any services, work or materials. The Defendants have received these monies despite there being no legitimate business reason for them to have received these monies. 42. To facilitate the misappropriated funds, as detailed in paragraphs 22 to 41 above, the Defendants colluded, conspired and created a culture of corruption at BRFN. 43.

Specifically, two or more Defendants conspired and colluded by committing the following acts by agreement or common design for the predominant purpose of intentionally cause harm to the Plaintiffs: (

a) Threatening financial officers within BRFN to write cheques to certain parties in order to facilitate the misappropriation; (

b) Threatening financial officers within BRFN to create and maintain financial records such as invoices and spreadsheets to facilitate the misappropriation; (

c) Forcing financial officers to forgive loans properly owing to BRFN; (

d) Refusing to provide financial back-up and substantiation when required by third-parties; (

e) Removing people from BRFN who would not participate in the corruption; (

f) Isolating people within BRFN in order to facilitate the corruption; (

g) Negotiating kick-backs from third-parties in order to balance misappropriated funds; (

h) Such further and other particulars as may be proven at a Trial of this matter. 44. As a result of th e above, the Plaintiffs have suffered damages in the sum of $3,620,990.12. [ 13 ] For examination for discovery, the Plaintiffs eventually produced Celia Sterrett, after declining to produce a Mr. Ron Paracuelles on medical grounds. Mr. Paracuelles was the Band's Financial Officer at the relevant times. The Band's counsel, at Ms. Sterrett's discovery, took the position that she appeared as the authorized representative of all the Plaintiffs. Pursuant to an outstanding information request from Ms.

Sterrett's examination for discovery, the Plaintiffs responded that they have no indication that Mr. Alwarid was involved in the facts alleged in paragraph 43(a)–(

h) of the pleading . [ 14 ] At paragraph 45 of the pleading, the Plaintiffs describe Mr. Alwarid as one of eight "Fiduciary Defendants" as follows: The Defendants, Alwarid, Chipesi a, Cheveld ave, La ird, S tei ner, Joseph, Malcolm an d Russell (the "Fid uciary Defendants '") owed the followin g fiduc iary du ties: (

a) To act in good faith a nd in the best interest of their beneficiaries;

(

b) To inform themselves and to keep themselves informed of the financial affairs and activities of the beneficiaries; (

c) To manager and administer those financial affairs and activities in the best interest of their beneficiaries; (

d) Not to act so as to put themselves in a position in which their personal interests did or might conflict with the interests of their beneficiaries; (

e) Not to make or receive or f acilitate a secret profit or secret payment from or to third parties c ontrary to the int erests of their beneficiaries: (

f) To account for any such secret profits or payments; and (

g) Such furthe r and o ther particulars as may be pr oven a t a Trial of this matter. [ 15 ] Alwarid is named as one of three Defendants as follows in paragraph 47: Further, at all material times, Alwarid, Cheveldave, Laird, Steiner were given authority, discretion and authorization to act on behalf of the Plaintiffs when conducting the business of the Plaintiffs. Inherent in this authority and discretion is a fiduciary obligation to act in the best interest of the Plaintiffs.

Alwarid, Cheveldave, Laird and Steiner failed to administer their position of authority in the best interests of the Plaintiffs and to make decisions about the financial affairs of the Plaintiff in a manner consistent with a prudent and responsible fiducia r y. Contrary to this obligation, they have placed themselves in a conflict of interest and mad e s ecret profit as a result of their positions of trust. [ 16 ] The Plaintiffs responded to an information request from the Sterrett discovery by saying that the Plaintiffs have no evidence that Mr.

Alwarid took any "secret profit" as pleaded in paragraph 47 . [ 17 ] The balance of the pleading is largely against the so-called "Fiduciary Defendants" as seen in paragraphs 49, 50 and 52–56: 49. The Fiduciary Defendants were subject to the Constitution of Blueberry Trust Society governing conduct of the trust monies held in the Trust ("the Trust Funds") which indicate, inter alia : (

a) Dispositions under the Trust must be consistent with the Trust Purposes, as defined in

Article 2.1 of the Trust, including such things as recreational, cultural, community and administrative benefit in favour of BRFN. (

b) Prior to disbursing the Trust Funds, the Society must obtain a detailed budget for all proposed expenditures and obtaining agreement from the recipient of the funds that they will report in detail on how the funds are actually spent; (

c) Administration of the Trust Funds must be in accordance with the investment policy established by the Trust; (

d) The Trustee must not make any loans or borrow money except in limited circumstances and after obtaining professional advice; (

e) The Trustee of the Society must retain custody of all accounts pertaining to the Trust Funds; (

f) No Director or Officer of the Society must be remunerated for being or acting as Director or Officer of the Society. 50. The Fiduciary Defendants, either individually or through their respective corporations, Apsassin, Alwarid, Nia, 089 and Woodbridge Professional, were negligent, committed a breach of trust, and breached their fiduciary duties to the Plaintiffs, some particulars of which include: (

a) misappropriated band funds and Trust Funds for personal use; (

b) failed to properly conduct and supervise the financial affairs of the Plaintiffs as would a reasonable and prudent fiduciary; (

c) acting in a c onflict of i nterest position by prov iding services to one or mor e of the Plaintiffs; (

d) failed to ensure the prudent maintenance of the Plaintiffs' financial books and records in an accurate and organized manner, thereby jeopardizing the Plaintiffs' financial stability; (

e) utilized the Plaintiffs' bank accounts in a confusing and unauthorized manner and failing to keep any substantiating accounting evidence to justify such withdrawals; (

f) claimed personal expenses that were not related to their work for the Plaintiffs; (

g) failed to account, adequately or at all, for personal ex p ens es; (

h) wrongfully misappropriated the Plaintiffs' property; and (

i) suc h further and ot her particulars w hich may be proven at a Trial of this matter. ... 52. All Fiduciary Defe n dants' actions were wrongfully motiv ate d by an impermissible personal desire that their personal interests be held above th at of the Plaintiffs. 53. Al l Fiduciary Defend ants' actions were directly contrary to the BRFN Govern ance Manual insofar as the personal interests of the

Fiduciary D efendants' were incom patible with their u nbias ed e xercise of judgment on behalf of BRF N. 54. The Fiduciary De fen d ants committed a breach of trust, mi sappr opriated and co nverted to their own use or uses inconsistent with the purpose of the Trust, the s um of $3,620,990.12. 55. The Fiduciary Defendants assented to, or acquiesced in, conduct that they knew, or reasonably ought to have known, amounted to a breach of trust and are responsible for causing, converting and misappropriating the Trust Funds that the Defendants received, to uses inconsistent with the Trust. 56.

As a result of all of the above, the Plaintiffs have suffered damages in the sum of $3.620.990.12. [ 18 ] Regarding paragraph 49, there is no evidence to indicate that Mr. Alwarid was in any way subject to the Constitution of the Blueberry Trust Society . Regarding paragraph 50(

d) in the pleading, Ms. Sterrett was asked in discovery whether the Plaintiffs were alleging that Mr. Alwarid was responsible for maintaining the financial books and records of any of the Plaintiffs, to which she replied, no. She gave the same negative answer concerning Mr. Alwarid for paragraphs 50(

e) and 50(f) . [ 19 ] Regarding paragraph 50(

h) and 54, the Plaintiffs responded to an outstanding discovery request by advising they have no evidence of Mr. Alwarid misappropriating property . [ 20 ] Regarding paragraph 53, Mr. Alwarid was not party to, or governed by, the BRFN Governance Manual . [ 21 ] The pleading seeks relief in

Part 2 jointly and severally against all the Defendants under 14 headings. PARTICULARS [ 22 ] Supreme Court Rule 3-7(18) calls for particulars in claims such as this one. The sub-rule provides: When particulars necessary

(18) If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading . [Emphasis added.] [ 23 ] Counsel for Alwarid demanded particulars on December 2, 2016 as follows: Pursuant to Rule 3-7(18) of the Supreme Court Civil Rules , we require that you provide particulars of every transaction, including by date, item and amount, of every transaction involving conspiracy, fraud or breach of trust for which any of the Plaintiffs or any of them allege the Defendants Shakir Alwarid or Alwarid & Associates Consulting Ltd. were involved or responsible. [Emphasis in original.] [ 24 ] The Plaintiffs responded on February 3, 2017: Pursuant to Rule 3-7(20), the plaintiffs respond as follows: 1.

The plaintiffs allege that the following payments, individually or cumulatively, were transactions from the plaintiffs to Alwarid & Associates Consulting Ltd. and its owner, Shakir Alwarid, involving conspiracy, fraud, or breach of trust: [They go on to list payments from BRFN to Alwarid & Associates totalling $563,870.31.] [ 25 ] The sum of $563,870 is simply the total of the payments the Band made to Mr.

Alwarid for his work on the Band's behalf from August 2010 to December 2013. [ 26 ] On February 4, 2017, the Alwarid Defendants wrote to the Plaintiffs asking the Plaintiffs to confirm that their claims against the Alwarid Defendants are limited to the transactions in their Response to Demand for Particulars, and do not include the balance of the transactions identified in the Amended Notice of Civil Claim. The text of the request was as follows: Your clients go on to identify transactions totaling about $563,870.31 paid to Alwarid & Associates Consulting Ltd.

Are we correct in interpreting this as meaning that the Plaintiffs are not alleging that Mr. Alwarid and Alwarid & Associates Consulting Ltd. were involved in or responsible for transactions other than those expressly listed in the Response to our clients’ Demand for Particulars? We need clarity on this point because the Response to Demand for Particulars appears to represent a significant change in the allegations made against our clients.

The Amended Notice of Civil Claim contains sweeping allegations that all Defendants (including our clients) were party to and responsible for conspiracy, fraud and breach of trust relating the global sum of $3,620,990.12. However, the Response to our clients’ Demand for Particulars only alleges about $563,870.31 in transactions to Mr. Alwarid or Alwarid & Associates Consulting Ltd. It is important that our clients understand which damages figure is being claimed as against them. The difference between the two is obviously significant.

If the Plaintiffs are still alleging that our clients were somehow involved in or responsible for transactions other than the ones you have identified as being from the plaintiffs to Mr. Alwarid or Alwarid & Associates Consulting Ltd., then we still require particulars of those other transactions.

[ 27 ] The Plaintiffs failed to respond despite several follow-up requests. [ 28 ] During the discovery of Ms. Sterrett, as the authorized representative of all the Plaintiffs, the issue was raised again, and was left with her as an information request, answered as follows: 17) If plaintiffs are suggesting that Alwarid & Associates or Mr.

Alwarid received any portion of the $3,628,990.12, beyond what is set out in this Response to Demand for Particulars, then identify which amounts and dates of transfer (page 90) The Plaintiffs currently know of only the $563,870.31 that is set out in the Response to Demand for Particulars . [ 29 ] In those circumstances, I am restricting the Plaintiffs' claim against Alwarid to $563,870. I should add that there is no evidence that Mr. Alwarid ever sought or obtained any money apart from the $563,870. [ 30 ] The

summary above contains the full exchange regarding particulars in this case. Notwithstanding the obligatory nature of Supreme Court Rule 3-7(18), quoted earlier, the Plaintiffs have never particularized any of the wrongdoing they have alleged against Mr. Alwarid. Mr. Alwarid did not bring an application to strike portions of the Amended Notice of Civil Claim for want of particulars. Instead, in this application, he simply points to the absence of any particulars against him, either in the pleading, in formal particulars, or in the evidence as a whole.

FURTHER FACTS, INCLUDING THE MNP REPORT, AND ANALYSIS [ 31 ] The Plaintiffs' case against Alwarid is largely, if not entirely, based on a document called the MNP Report, the Plaintiffs' discovery of Mr. Alwarid, and, to a lesser extent, if at all, the transcript of a phone call to Mr. Alwarid by an MNP employee. [ 32 ] The Plaintiffs said little in the

summary trial about how their claim arose. The balance of this paragraph captures my understanding of what happened, but nothing in this paragraph is intended to constitute a finding of fact. It is only background. Plaintiffs' counsel said that there are two first nations within the Band. The inference to be drawn was that there is some tension within the Band as a result, but that point was not made clear. Band elections are held every two years. In the election held on December 13, 2013, three of the Defendants were voted out.

They were the Chief from that time, Joseph Apsassin, and two Councillors from that time, Russell Apsassin and Malcolm Apsassin.

The new Chief and Council, in place after the December 13, 2013 election, hired MNP, who are accountants based in Edmonton, to investigate all the Band's financial affairs. [ 33 ] The purpose and scope of the MNP retainer was set out in its letter of March 4, 2014, addressed to the Band's new Chief and Council: Purpose We understand that our investigation and forensic accounting services are required in connection with concerns regarding the Client's financial activities during the period April 1, 2010 to December 31, 2013, inclusive of the Client's wholly-owned programs and businesses.

Scope of Engagement and Approach Pursuant to our discussion with you, it is anticipated that this engagement will include examination of concerns of overspending, conflict of interest, mismanagement, breach of fiduciary duty, and other wrongdoing concerns with the Client's Band Office and wholly-owned Blueberry River Enterprises Inc. ("BRE"), Pink Mountain Ranch Guiding & Outfitting ("Pink Mtn"), and Blueberry Trust Society ("BTS"). The scope of the work will be defined further as the engagement progresses. (the "Services") [ 34 ] The MNP Report was submitted on March 12, 2015.

The Report traced the flow of funds, in the millions of dollars, from the Trust into the Band's general account or other accounts controlled by one or more of the Band member Defendants. (In the Band's governance structure, the directors of the Trust are the Band's Chief and Councillors, or some of its Councillors, in place at any particular time.) [ 35 ] Perhaps needless to say, Mr.

Alwarid was never a director of the Trust, a Councillor, or a Band member. [ 36 ] The Band's thesis in this lawsuit is that all the Defendants conspired, and committed the other pleaded torts, to wrongly take $3,628,990 out of the Trust and spend it, contrary to the provisions in the Band's 27-page Declaration of Trust. [ 37 ] The amount of $3,628,990 is the result of the work summarized in the MNP Report. MNP determined that $3,628,990 came out of the Trust and went into the Band's general account or other accounts controlled by one or more of the Defendant Band members.

MNP also determined that the Defendants, taken as a whole, received $3,628,990. However, that is really all that MNP did. MNP did not purport to conduct a forensic investigation to determine if any of the money left the Trust in violation of the Declaration of Trust or as a result of any of the torts which are alleged in the pleading. It is therefore perhaps unnecessary to add, MNP made no effort to determine who did what among all or any of the Defendants . [ 38 ] Taking Mr. Alwarid as an example, all that the MNP Report showed was that at times in the August 18, 2010 to December 31, 2013 period, Mr.

Alwarid received out of the Band's general account ( not out of the Trust ) $563,870, the amount he had invoiced the Band for his services.

[ 39 ] MNP never investigated Mr. Alwarid or his conduct in any way. (It had one phone call with him, on the eve of releasing its report, which I will refer to later in these reasons.) [ 40 ] MNP never examined or assessed the extensive work Mr. Alwarid did to earn the $563,870, in order to determine whether the work was done satisfactorily and for good value. (Mr. Alwarid filed the affidavits of the Band Chief, the Band Administrator and the Executive Assistant to the Chief and Band Council in place when Mr. Alwarid did his work for the Band.

Their evidence is uncontradicted in describing the high quality and value of Mr. Alwarid's work in the 2010–2013 period.) [ 41 ] Significantly, MNP never attempted to determine how much money Mr. Alwarid raised for the Band in 2010–2013, or when he raised it. As against his total fees of $563,870, plus a final relatively small invoice, Mr. Alwarid brought in for the Band approximately $7.1 million from the parties with whom he negotiated on the Band's behalf . (That figure would be considerably larger if the new Band leaders, elected in December 2013, had not cancelled other third-party agreements Mr.

Alwarid had also negotiated for the Band.) All of that money came to the Band before it started this lawsuit. The above is relevant given clauses 2.4, 3.1 and 3.2 in the Agreement, quoted above at para. [6] of these reasons. Moreover, the evidence shows that Mr. Alwarid had brought in approximately $2 million to the Band from third parties BEFORE the first of the money from the Trust, approximately $76,000, was paid into the Band's general account .

Unfortunately, MNP was not asked to, and did not, examine that point in its Report. (The first Trust money, $76,407, did not enter the Band's general account until late June of 2012, long after Mr. Alwarid had begun his work and had been sending his monthly invoices, for which he was being paid. Mr. Alwarid had brought in $2 million from third parties in the course of 2011.) [ 42 ] The Plaintiffs examined Mr. Alwarid in discovery for the first time on the eve of this hearing, on April 6 and 7, 2018. They read in many of his answers as part of their case on these applications.

Speaking generally, I am of the view that the Alwarid discovery evidence read in did not strengthen the Plaintiffs' case but did contain evidence supportive of Mr. Alwarid's position. [ 43 ] The next several paragraphs of these reasons, [44]–[48], summarize the Alwarid discovery evidence submitted by the Plaintiffs. [ 44 ] In 2002–2004, Mr. Alwarid worked for the Band as an independent contractor, primarily in negotiating with industry and governments to reach agreements concerning oil and gas, and forestry rights. He also served as a general advisor to the Chief and Council at that time. (I note that Mr.

Alwarid's role in 2010–2013 evolved in the same way, from negotiating only to negotiating and also giving the Chief and Council general advice.) In his role as an advisor in 2002–2004, Mr. Alwarid advised the Band on budgeting and planning. He was aware of the Band's Trust in 2002–2004. He was not employed to work for the Trust. [ 45 ] In 2010, it was the Chief who hired Mr. Alwarid. He was hired pursuant to the Agreement referred to in para. [6] of these reasons. Each month, to receive payments, Mr.

Alwarid faxed his invoices to the BRFN Finance Officer, Ron Paracuelles, and they were paid, apart from the final invoice (which is the subject of the Alwarid counterclaim). The Agreement did not allow for a 2% charge as an expense component, but the Band agreed to pay it. (I add that portion from the discovery evidence because, in oral submissions, the Band sought to make an issue of Mr. Alwarid charging for expenses in a manner not set out or contemplated in the Agreement. The fact is that both sides to the Agreement, the Band and Mr. Alwarid, were apparently content to make that small adjustment in how Mr.

Alwarid was compensated for his expenses.) [ 46 ] In 2010–2013, Mr. Alwarid was not made aware of the Band's internal processes for reviewing his accounts before they were paid. [ 47 ] As in 2002–2004, in 2010–2013, Mr. Alwarid gave advice on budgeting issues in addition to negotiating for the Band with third parties. As he testified in discovery, he did not become involved in the operation of the Trust. He was on the periphery of Trust issues. He testified that Band members were saying that the Trust was being wasted, and he told the Chief and the Council not to be wasteful of the Trust money.

He told them of his concern that they were not complying with the Trust . Because of that concern, Mr. Alwarid located a solicitor, a Mr. Roger Smith, and caused him to be retained in order to legally advise the Chief and Council about the Trust. (The Band followed that advice and retained Smith.) Mr. Alwarid told Mr. Smith of the Trust problem and he, Smith, reported to the Chief and the Councillors. Mr. Alwarid had never seen the Trust documents which were shown to him in his discovery. Mr.

Alwarid repeated, later in his discovery, that he formed the view that the Trust was wasted and misused, and added that Roger Smith, the lawyer he brought in, warned the Band about the misuse of Trust money . [ 48 ] Mr. Alwarid further testified in discovery that he was against the Band paying its expenses out of Trust funds. He told them that was wrong, the auditor told them that was wrong and Roger Smith told them that was wrong . (It is common ground that Mr. Alwarid never held any position in the Trust.) Later in the discovery, Mr.

Alwarid pointed out that he had very little knowledge about the Trust documents. [ 49 ] I emphasize that the Plaintiffs read in as part of their case all of Mr. Alwarid's discovery evidence I have summarized above at paras. [44]–[48]. Only the portions in brackets in those paragraphs are my own additions. In my view, the Alwarid discovery evidence is damaging to the Plaintiffs' case. It accords entirely with what Mr. Alwarid said on his own behalf in his own affidavits. From the discovery evidence adopted by the Plaintiffs, not only was Mr.

Alwarid not party to any breach of trust, conspiracy or breach of fiduciary duty; by contrast, he told the Chief and Council that the Trust should not be used for Band expenses and he caused a solicitor to come in who gave the Band concurring legal advice. [ 50 ] I mentioned earlier that the only other component of the Plaintiffs' case against Mr. Alwarid was a phone call between him and an MNP employee on February 23, 2015, about three weeks before MNP published its voluminous Report on March 12, 2015. (The MNP employee did not tell Mr. Alwarid that she was taping their phone call. As Mr.

Alwarid said in his discovery evidence, he had not been paid his final invoice at the time of the call and may have been exaggerating somewhat when he spoke with her. The better description would be that he was rather outspoken in the call.) Mr. Alwarid did not implicate himself in any way, directly or indirectly, during the phone call. To the extent the call could be viewed as being relevant, Mr. Alwarid exonerated himself. He was highly critical of the Band's processes, or lack of them, for evaluating, planning and budgeting.

He told the MNP employee of his concern about the Trust, and how it was being used improperly. He told her that Roger Smith warned the Band about the Trust. He gave MNP Smith's phone number. Incidentally, the phone call transcript goes on to set out in considerable detail the successful negotiation work

Mr. Alwarid did on the Band's behalf. [ 51 ] There is nothing further to the Plaintiffs' case against Mr. Alwarid. I do not see any case against him. He was a capable and successful negotiator on the Band's behalf in 2002–2004 and 2010–2013. In 2010–2013, he raised $7.1 million for the Band. As noted before, there would have been more money, but the new Band leaders cancelled the relevant agreements. In both periods, Mr. Alwarid's work expanded at the Band's request to include his advice in various matters.

He was paid at his agreed hourly rate, except that the Plaintiffs refused to pay him his final invoice of $4,355 after the changing of the guard at the Band. I believe Mr. Alwarid has been dragged into a political fight between former and present Band leaders, when he is innocent. [ 52 ] Before turning to the law and to the suitability-for-summary-trial analysis, I will refer at least summarily to Mr. Alwarid's own evidence. Following is a

summary of the evidence in the affidavits of the former Chief and two former Band staff which Mr. Alwarid tendered as part of his case. (The Plaintiffs elected to cross-examine none of these witnesses on their affidavits, and tendered no opposing affidavit evidence.) To summarize the evidence of the three witnesses, I am adopting below the written submissions by Mr. Alwarid's counsel, which accurately summarize their affidavits: Evidence of Joseph Apsassin 40. The Plaintiffs have not challenged former Chief Joseph Apsassin’s evidence. 41. Mr.

Apsassin was duly elected Chief of BRFN between December 2009 and December 2013. While Chief he was also a duly appointed Trustee of the Trust and a director of BRE-BC. 42. He confirms that the Alwarid Defendants had previously provided consulting services to BRFN between 2002 and 2004. He was Chief at that time. He worked closely with Mr. Alwarid and developed a strong, positive, constructive working relationship with him. Mr. Alwarid proved himself to be extremely knowledgeable, experienced and hardworking. Invoices for services performed at the time were accepted and paid.

He was satisfied with the services provided. 43. In 2010 he approached Mr. Alwarid to inquire about the Alwarid Defendants again providing consulting services to BRFN. This led to the Consulting Agreement. He signed on behalf of BRFN. 44. He is aware that Mr. Alwarid regularly had to travel to numerous locations across BC and occasionally outside BC in the course of his work for BRFN. Mr. Alwarid regularly travelled to BRFN's band office to meet with him and Councillors. Mr.

Alwarid also travelled to numerous other locations on BRFN business, often accompanied by him and select Councillors for meetings and conferences related to matters Mr. Alwarid was working on. He is aware that Mr. Alwarid frequently met with representatives of entities he was negotiating with on BRFN's behalf. 45. He in his capacity as Chief and the majority of BRFN's Councillors were consistently satisfied with the Alwarid Defendants' efforts and results achieved on behalf of BRFN. 46. He has reviewed Mr. Alwarid's Affidavit #1 and I confirms that: a. The list of entities which Mr.

Alwarid indicates that he dealt with in the course of his duties for BRFN appears to be accurate. b. The list of invoices attached as Exhibit "C" which the Alwarid Defendants rendered to BRFN appears to be accurate. 47. He was directly involved in many of the matters described or he discussed them with Mr. Alwarid or received contemporaneous reports from him regarding the progress being made on various matters that the Alwarid Defendants undertook for BRFN at the time. 48. Based on his knowledge and observations of Mr.

Alwarid's efforts for BRFN between July 2010 and December 2013, he believes that the charges in the Alwarid Defendants' accounts to BRFN fairly and accurately describe the services provided to BRFN and the hours, fees and disbursements indicated in the accounts were reasonable. It is his view that BRFN received good value for the services provided. He was and remains of the view that the Alwarid Defendants' invoices were properly due and owing by BRFN. 49. Many of the matters described in the accounts led to agreements between BRFN and parties indicated or between the plaintiff BRE-BC and the parties indicated.

Agreements were generally brought before Chief and Council and they voted on resolutions indicating whether or not we accepted them. 50. He or BRFN staff authorized by him as Chief and authorized by Council reviewed the accounts rendered by the Alwarid Defendants at the time, duly approved them and authorized payment of them. 51. BRFN received good value for the services provided.

In many instances, the parties BRFN was negotiating with were providing up front "capacity funding" to cover BRFN's costs of negotiations and costs of legal services BRFN had to incur to get advice, review and draft agreements the Alwarid Defendants were negotiating for BRFN. 52. Draft agreements that the Alwarid Defendants were negotiating for BRFN with BC Hydro / BC Government would have provided generous financial and other benefits to BRFN had they been approved by BRFN's Chief and Council.

The draft Reconciliation Agreement between BRFN and BC Government, for example, contemplated that BFRN would receive $1 million in "implementation funding", among other benefits. 53. Mr. Alwarid was responsible for helping to bring a considerable amount of new money and other benefits into BRFN (and some through agreements assigned to BRE) through agreements he negotiated. He does not have access to BRFN or BRE-BC financial records at present, so he cannot state exactly how much.

He knows that the amount considerably exceeds the amount that the Alwarid Defendants invoiced to BFRN and that BRFN paid for their services.

54. The agreements that Mr. Alwarid negotiated with BC Hydro / BC Government and TCPL ultimately were not approved by Chief and Council due to leadership changes arising from the 2013 Election. Had he been re-elected, it was his intention to support approval of the draft agreements the Alwarid Defendants had helped to negotiate. Unfortunately, he was not re-elected. Marvin Yahey Sr. was elected as the new Chief. 55.

After the 2013 Election, the new Chief and Council rejected the BC Hydro / BC Government Site C and TCPL draft agreements that the Alwarid Defendants had been negotiating for the preceding several years. A majority of the new Council opposed the projects, including new Chief Marvin Yahey and Councillors Lisa Hotte (reelected), Wayne Yahey (re-elected) and Norma Pyle. The new Council pushed out or terminated contractors and the majority of the employees who were working for BRFN under the previous administration. The scope of this "purge" was extensive. 56.

Between July 2010 and the election of December 2013, he and the majority of Councillors were satisfied with and appreciated the efforts and results achieved by the Alwarid Defendants on behalf of BFRN. At no point prior to the December 2013 Election did he or the majority of Council take issue with the services that the Alwarid Defendants provided or the accounts they rendered to BFRN. 57.

All BRFN cheques which were made payable to Alwarid & Associates for services rendered were signed by persons who were authorized signatories of BRFN at the material time, after review by BRFN's Band Manager and by the Finance Director Ron Paracuelles in the normal course of their duties and after receiving Mr. Paracuelles' recommendation they be paid. 58. The Alwarid Defendants did not have signing authority on either the BRFN bank accounts or Trust bank accounts.

The payments that BRFN made or authorized to be made by others to the Alwarid Defendants were approved by me as Chief and by the majority of Council at the time, after review by the Band Manager. He considered the invoices to be properly due and payable. 59. The majority of the payments made by BRFN directly to the Alwarid Defendants were made by cheque which had to be signed by two authorized signatories of BRFN - namely him as Chief and one other Councillor or by two Councillors.

He was and remains satisfied that all payments which were made to the Alwarid Defendants were for services which fell within the scope of the Consulting Agreement or which had otherwise been requested by him in my capacity as Chief and by authorized Councillors. 60. Alwarid Defendants were independent contractors as set out in the Consulting Agreement. They were working with designated representatives identified by the Chief and Council and/or lawyers and other professionals working on the various projects and matters that BRFN requested they work on.

The Alwarid Defendants had no authority to make decisions regarding issuance of cheques or payment of Alwarid & Associates invoices. 61. The Alwarid Defendants received payment from BRFN or from others on its behalf for all of the invoices attached as Exhibit "C" to Mr. Alwarid's Affidavit except for Invoice 15-060 dated January 21, 2014 for the sum of $4,355.49. He confirms that it relates to work that he as Chief and that Council as it was composed before the 2013 Election requested the Alwarid Defendants perform.

It is his view that BRFN should have paid the Alwarid Defendants the amount indicated in the invoice. Evidence of David Laird 62. The Plaintiffs have not challenged Mr. Laird’s evidence. 63. Mr. Laird was BRFN Band Administrator between 2011 and 2013. The Alwarid Defendants were already engaged as consultants when he started. He continued to work regularly with Mr. Alwarid until approximately mid-December 2013 on BRFN business. 64. Mr. Alwarid primarily worked directly with BRFN’s Chief and designated Councillors. Mr. Laird was frequently asked to and did take

part in meetings and phone conversations that Council had with Mr. Alwarid. As the senior administrator attending Council Meetings, he regularly received and reviewed progress reports and draft agreements Mr. Alwarid was negotiating and was involved in Chief and Council’s reviews of those, their deliberations about whether to make counter-offers or to consider resolutions on whether to accept agreements negotiated by the Alwarid Defendants or to pass them along to the Plaintiff BRE-BC. 65. He received and reviewed the accounts the Alwarid Defendants issued to BRFN.

BRFN’s Finance Director, Ron Paracuelles , was the person within BRFN responsible for reviewing and approving them and recommending to Chief and Council whether they ought to be paid. 66. In the course of his duties he became aware, directly or indirectly, of more or less all of the work that the Alwarid Defendants did for BRFN between about March 2011 and December 2013. 67.

BRFN’s Executive Assistant to Chief and Council, Danielle Talbot, was the person primarily responsible for maintaining BRFN’s records relating to the work the Alwarid Defendants were doing for BRFN, including keeping copies of their accounts to BRFN and for keeping files on the various parties BRFN was negotiating and contracting with. A second copy of the accounts that the Alwarid Defendants rendered to BRFN were also kept in BRFN’s accounting office.

He was aware of this established practice as well as aware of the in-flow of funds that were coming to BRFN from time to time as a result of the Alwarid Defendants’ efforts. 68. Mr. Alwarid regularly had to travel to numerous locations across BC and occasionally outside BC in the course of the work the Alwarid Defendants were doing for BRFN. Mr. Alwarid was very popular with many band members. Whenever he visited the BRFN’s band office, it generated considerable excitement. He was treated with respect by most of the BRFN leadership and he treated them with respect in return.

The band occasionally put on large lunches when he visited which were open to everyone in the community. He also travelled to numerous other locations, often accompanied by the Chief and select Councillors for meetings and conferences related to matters he was working on for BRFN. He frequently met with representatives of entities he was negotiating with on BRFN’s behalf. 69. The Chief and majority of BRFN’s Councillors consistently expressed satisfaction with the Alwarid Defendants’ efforts and results they achieved on behalf of BRFN.

70. He has reviewed Alwarid #1 and confirms that the list of entities which Mr. Alwarid indicates that he dealt with in the course of his duties for BRFN appears accurate. The list of invoices the Alwarid Defendants rendered to BRFN appears accurate. 71. Based on his observations of Mr. Alwarid’s efforts for BRFN between March 2011 and December 2013, he believe that the charges in the Alwarid Defendants’ accounts rendered to BRFN during that period fairly and accurately describe the services provided to BRFN during that period and that the hours, fees and disbursements indicated in the accounts were reasonable.

It is his view that BRFN received good value for the services that the Alwarid Defendants provided. He was and remains of the view that the Alwarid Defendants’ invoices were properly due and owing by BRFN. 72. Draft agreements that the Alwarid Defendants were negotiating for BRFN with BC Hydro / BC Government would have provided generous financial and other benefits to BRFN had they been approved by Chief and Council. The draft Reconciliation Agreement between BRFN and BC Government, for example, contemplated that BFRN would receive $1 million in “implementation funding”, among other benefits.

BFRN was also given “capacity funding” for negotiations. This paid BRFN’s costs for the Alwarid Defendants’ services as lead negotiator and the cost of legal counsel to review and comment on draft agreements. BRFN did not actually have to pay from its own funds for a significant portion of the sums paid to the Alwarid Defendants during the 2010 – 2013 period. 73. Mr. Alwarid was responsible for helping to bring a considerable amount of new money and other benefits into BRFN (and some through agreements assigned to BRE-BC) through agreements he negotiated for BRFN.

He does not have access to BRFN or BRE-BC financial records at present, so he cannot state exactly how much. He believes that the amount considerably exceeded the amount that the Alwarid Defendants invoiced to BFRN and that BRFN paid for their services. 74. The agreements that Mr. Alwarid negotiated with BC Hydro / BC Government and TCPL ultimately were not approved by Chief and Council due to changes arising from the 2013 Election.

His understanding from his discussions and interactions with Chief and Council was that the majority of Council prior to the 2013 Election Council supported the draft agreements the Alwarid Defendants had helped to negotiate. 75. Based on my discussions and observations of BRFN’s Chief and the majority of Council between March 2011 and December 2013, the majority were fully satisfied with and greatly appreciated the efforts and results achieved by the Alwarid Defendants on behalf of BFRN at that time. 76.

At no time did the Alwarid Defendants have signing authority on either the BRFN bank accounts or Trust bank accounts. 77. All BRFN cheques which were made payable to Alwarid & Associates in payment of invoices for services rendered were signed by persons who were authorized signatories of BRFN at the material time, after review by BRFN’s Finance Director Ron Paracuelles in the normal course of his duties and after receiving his recommendation they be paid. Evidence of Danielle Talbot 78. The Plaintiffs have not challenged Ms. Talbot’s evidence. 79.

She is former Executive Assistant to the Chief and Council of BRFN. She worked for BRFN between about 2005 and 2013, for eight years and through four Councils. Her position and duties did not change except for a period of about 6 months during which she was also briefly Acting Band Manager (prior to 2010). She left her position with BRFN effective December 13, 2013. 80. Her duties included all manner of Executive Assistant and administrative duties for Chief and Council members.

She attended formal meetings of Chief and Council to take minutes, made travel arrangements for Chief and Council members, received and sent correspondence and she maintained files for various matters in which BRFN was involved. 81. From about mid-2010 to December 2013, the Alwarid Defendants were consultants who worked with BRFN under the direction of Chief and Council as its Chief Negotiator with numerous government agencies, crown corporations and private businesses. 82. In the course of her duties for BRFN, she worked closely with Mr. Alwarid. She had frequent telephone and email communications with him.

She occasionally made travel arrangements for him and coordinated those with travel arrangements for Chief, Council members and BRFN staff. 83. She received some of Alwarid & Associates’ invoices to BRFN for services rendered and directed them to appropriate personnel within BRFN for consideration and payment. She was responsible for creating and maintaining files and correspondence for some of the agreements negotiated by or with the assistance of Mr. Alwarid. She was not responsible for administering or paying the invoices. From time to time she received correspondence from Mr.

Alwarid requesting assistance to get overdue invoices when the Finance Department had not responded to his requests for payment. 84. She was responsible for creating and maintaining files for the agreements negotiated by or with the assistance of Mr. Alwarid and correspondence, BRFN resolutions and the like. A related, more comprehensive set of files with all of the other agreements made or that were being negotiated or pending and awaiting completion was kept by the Band Manager.

Copies of completed agreements with monetary benefits due to BRFN were kept by the Finance Department so they could monitor them and ensure BRFN received the benefits due to the band. 85. The normal process when a new agreement negotiated by or with the assistance of the Alwarid Defendants came up for consideration was that it would be added as an agenda item at a formal meeting of Chief and Council members. If approved, a formal resolution was prepared and signed by Chief and Council members who voted in favour and the agreement would be signed.

She would then add the Resolution and Agreement to BRFN’s Resolutions Binder, according to the calendar year. The approved Council meeting minutes would also have a copy of the executed agreements in them for the Chief, Council, Band Manager and Mr. Alwarid, as Chief Negotiator for BRFN, to keep in their personal files.

86. She was normally present when BRFN Chief and Council formally met to discuss and vote on matters, including matters that theAlwarid Defendants were working on and agreements they had negotiated for BRFN. She was not present for matters which Chief andCouncil occasionally referred to the Plaintiff BRE-BC and is board of directors. BRE-BC had its own separate administrative assistant. 87. She reviewed Alwarid #1 and confirms that his list of negotiations and agreements as set out in paragraphs 31 to 35 inclusive ofhis affidavit appear to be accurate. 88.

Based on her observations of the amount of time and energy that she observed Mr. Alwarid put into his work for BRFN and basedon the results and the results he was able to achieve for BRFN, it appeared to her that Mr. Alwarid was consistently dedicated anddiligent in the services he provided and he appeared to achieve good results for BRFN. 89. Based on the comments she heard from Chief and most Council members from time to time, they appeared to be satisfied withMr.

Alwarid’s efforts and performance and continued to request his services up to the change of leadership in the 2013 Election. [Emphasis in original.] [53] Before turning to the applicable law governing Mr. Alwarid's liability, I briefly summarize his counterclaim. Mr. Alwaridclaims $4,355. It is simply his final invoice to the Band for his final work in 2013. It remains unpaid because by the time it would havebeen processed, the new Band leadership was in place. It appears from the evidence that Mr. Alwarid accidentally double-charged fortwo disbursements on that invoice.

The two accidental double-charges total $377. Mr. Alwarid's counterclaim of $4,355 is allowed,subject to being reduced by $377, resulting in his counterclaim being allowed at $3,978. THE LAW RELATED TO LIABILITY [54] The Plaintiffs did not submit a written argument, but in their oral submissions, grounded their case against Mr. Alwarid inbreach of fiduciary duty and conspiracy. [55] In asserting that Mr. Alwarid breached a fiduciary duty, the Plaintiffs relied primarily on Hodgkinson v.

Sims, (SCC), [1994] 3 S.C.R. 377, and in particular, para. 30 from that decision. [56] The facts in Hodgkinson are very different from those at bar. Mr. Sims was a seasoned, professional investment advisor whorecommended to Mr. Hodgkinson that he invest in buildings then called MURBs pursuant to a government-sponsored tax reductionincentive. Sims did not disclose to Hodgkinson that he, Sims, was in a financial relationship with the developers of the buildings. Themore MURBs Sims sold to Hodgkinson, the more money he made from the developers.

Four of the seven judges in the Supreme Courtof Canada found that Sims owed and breached a fiduciary duty to Hodgkinson. [57] Paragraph 30 from the majority judgment, written by La Forest J., is as follows: This conceptual approach to fiduciary duties was given analytical structure in the dissenting reasons of Wilson J. in Frame v. Smith, (SCC), [1987] 2 S.C.R. 99, at p. 136, who there proposed a three-step analysis to guide the courts in identifying new fiduciaryrelationships.

She stated that relationships in which a fiduciary obligation has been imposed are marked by the following threecharacteristics: (1) scope for the exercise of some discretion or power; (2) that power or discretion can be exercised unilaterally so as toeffect the beneficiary's legal or practical interests; and, (3) a peculiar vulnerability to the exercise of that discretion or power.

Althoughthe majority held on the facts that there was no fiduciary obligation, Wilson J.'s mode of analysis has been followed as a "rough andready guide" in identifying new categories of fiduciary relationships; see Lac Minerals, supra, per Sopinka J., at p. 599, and per LaForest J., at p. 646; Canson, supra, at p. 543; and M. (K.) v. M. (H.), supra, at pp. 63-64. Wilson J.'s guidelines constitute indicia thathelp recognize a fiduciary relationship rather than ingredients that define it. [58] On the facts at bar, Mr. Alwarid was never given the scope for the exercise of some discretion or power.

He had no power overthe Trust for example. He could not, and did not, attempt to vote in the Trust. Nor did he ever encourage others to do so. To thecontrary, as seen above. In any event, any power Mr. Alwarid did have could not be exercised unilaterally so as to affect the Band's legalor practical interests. The absence of any peculiar vulnerability to him on the part of the Chief and Council is apparent in that theyignored his advice, and that of Mr. Smith, the lawyer, in telling the Band not to use the Trust monies.

Counsel for the Plaintiffs alludedto Band members being generally vulnerable, but I note from the MNP Report that the Band spent $788,000 on lawyers in the 2010–2013 period. That likely included payment to Roger Smith, who tried to help the Band do the right thing. [59] In short, none of Wilson J.'s three characteristics of a fiduciary relationship, as seen above in Hodgkinson, are present on thefacts of this case. (The only place in the factual matrix from which Mr.

Alwarid could be a fiduciary, and I make no finding on the point,would be in his work for the Band negotiating with governments, energy companies, et cetera. However, no complaint is made againsthim related to that work, understandably. As Galambos v. Perez, 2009 SCC 48, makes clear, the existence of fiduciary responsibilities inone aspect of a relationship are not simply transferable to other aspects of the relationship.) [60] Galambos also makes clear that fiduciary duties are to be imposed only on those who had expressly or impliedly undertakenthem. Fiduciary relationships do not arise out of thin air.

There is nothing in the facts of this case to indicate that Mr. Alwarid everbecame a fiduciary of the Band insofar as its Trust monies are concerned. Certainly, he was not a fiduciary or trustee expressly. Norwas he impliedly. There is no evidence to suggest that. He was simply an advisor, albeit one who was not listened to on the relevantmatters. [61] As noted above, the Plaintiffs frame their alternative argument against Mr.

Alwarid in conspiracy. [62] The Plaintiffs began that argument with the description of conspiracy found in Cement LaFarge, as quoted and discussed by theAlberta Court of Appeal at paras. 19–25 in D'Agnone v. D'Agnone, 2017 ABCA 35:

Appeal of finding of civil conspiracy 19 The tort of conspiracy requires the defendants to have an agreement to engage in a course of conduct with the predominantpurpose of injuring the plaintiff, or if the conduct of the defendants is unlawful, to have acted knowingly or having ought to have knownthat injury to the plaintiff is likely to result: Cement LaFarge v BC Lightweight Aggregate, (SCC), [1983] 1 SCR 452. 20 In Cement LaFarge, the court acknowledged that "the scope of the tort of conspiracy is far from clear", but it may be found whereparties combine and effect loss in the following manner: 1.

Whether the means used by the defendants are lawful or unlawful the predominant purpose of the defendants' conduct is to causeinjury to the plaintiff; or 2.

Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), andthe defendants should know in the circumstances that injury to the plaintiff is likely to and does result. 21 In Mraiche Investment Corporation v McLennan Ross LLP, 2012 ABCA 95, 524 AR 151 at para 40, this Court adopted thesomewhat restated test as follows: ... the following elements must be proved: 1. an agreement between two or more persons; 2. concerted action taken pursuant to the agreement; 3. (

i) if the action is lawful there must be evidence that the conspirators intended to cause damage to the plaintiff; (ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their actionwould injure the plaintiff (constructive intent); 4. actual damage suffered by the plaintiff; 22 The tort of conspiracy requires an agreement that is acted on and causes injury to the plaintiff. The agreement may be inferredand need not be in any specific form, or even constitute a binding contract: Lewis N Klar, Tort Law, 5th ed (Toronto: Carswell, 2012) at731.

Proving an agreement to a conspiracy is often dependent on circumstantial evidence. However, to be party to a conspiracy, morethan mere knowledge that a conspiracy exists is required: see GHL Fridman, The Law of Torts in Canada, 3rd ed (Toronto: Carswell,2010) at 728, citing Western Ontario Natural Gas Company Limited v Aikens et al, (ON SC), [1946] OR 661 (H Ct J). The facts of the alleged agreement must be known and intention to be part of the alleged agreement must be found: Maguire v Calgary(City), 1983 ABCA 121, 146 DLR (3d) 350.

There must be intentional participation with a view to furthering the common design andpurpose. 23 The first form of civil conspiracy identified above, predominant purpose conspiracy, requires that the predominant purpose of thedefendants' conduct is to cause injury to the plaintiff, using lawful or unlawful means, and that the plaintiff suffers loss caused by thedefendants' conduct: see Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 74, [2013] 3 SCR 477. 24 The second form, unlawful means conspiracy, requires that the alleged co-conspirators do something contrary to law to furthertheir agreement.

Unlawful means have been held to include fraud, perjury and breach of court orders: see Le Soleil Hospitality Inc. vLouie, 2011 BCCA 305, 308 BCAC 122; Pro-Sys; Sun-Rype Products Ltd v Archer Daniels Midland Company, 2011 BCCA 187, 331DLR (4th) 631. 25 A third characterization of civil conspiracy includes knowing assistance in breach of trust.

This requires that there be a trust, thatthe trustee perpetuate a dishonest and fraudulent breach of trust, and that the respondent participate in and have actual knowledge of thetrustee's dishonest and fraudulent breach of trust: see Sorrel 1985 Limited Partnership v Sorrel Resources Ltd, 2000 ABCA 256 at para73, 277 AR 1; Air Canada v M & L Travel Ltd, (SCC), [1993] 3 SCR 787 at 812.

The knowledge requirement for thistype of liability is actual knowledge; recklessness or wilful blindness will also suffice: Belmont Finance Corporation v WilliamsFurniture Ltd, (No 2), [1980] 1 All ER 393 at pp 130, 136; re Montagu's Settlement Trusts, [1987] Ch 264 at pp 271-272, 285; Carl-Zeiss-Stiftung v Herbert Smith & Co (No. 2) (1968), [1969] 2 All ER 367 at 379 (CA). [63] First, as seen above at paras. [12] and [13] of these reasons, the Plaintiffs have no indication that Mr. Alwarid was involved inthe facts alleged in para. 43 of the Amended Notice of Civil Claim, which is the conspiracy pleading.

The evidence taken from theapplications as a whole leads to the same conclusion, that Mr. Alwarid was not party to any conspiracy. [64] Paragraph 22 from D'Agnone, quoted above, observes that the tort of conspiracy requires an agreement that is acted on, andinjures the plaintiff(s). Not only is there no evidence of any such agreement, the evidence is to the contrary, that Mr. Alwarid, andthrough him, the lawyer Mr. Smith, advised the Band leaders not to take any inappropriate steps with the Trust. [65] The Plaintiffs also cited Air Canada v. M&L Travel, (SCC), [1993] 3 S.C.R. 787; and Gold v.

Rosenberg, (SCC), [1997] 3 S.C.R. 767; to argue, as a matter of law, that Mr. Alwarid could be liable in conspiracy for offering knowingassistance to the Chief and Council in depleting the Trust. That argument, however, suffers on the facts, where it is seen thatMr. Alwarid did nothing to assist any other Defendant in this way. He was concerned that Band member Defendants may not be abidingby the Trust, which was why he brought in Roger Smith. [66] The Plaintiffs also argued unjust enrichment against Mr.

Alwarid, but conceded that to succeed on that basis, they would firstneed to show either breach of fiduciary duty or conspiracy before the juristic reason could disappear for Mr. Alwarid retaining the moneyhe was paid.

[67] To summarize to this point, in my view, the Plaintiffs have no case against Mr. Alwarid. The facts, stated earlier in thesereasons, are against them, as is the law, summarized immediately above in this part of the reasons. SUITABILITY FOR

SUMMARY TRIAL [68] To introduce this analysis, it is important in this case to recall that it is incumbent in a

summary trial application for therespondent(

s) to prepare properly in opposing it. I adopt here pages 22–24, paragraphs 9 and 10, in Mr. Alwarid's written argument: 9. Where an application for

summary trial is set down, the parties are obliged to take every reasonable step to put themselves in thebest position possible. A party cannot, by failing to take such steps, frustrate the benefits of a

summary trial process. See EverestCanadian Properties Ltd. v. Mallman, 2008 BCCA 275 at para 34: [34] It is trite law that where an application for

summary determination under Rule 18A is set down, the parties are obliged to takeevery reasonable step to put themselves in the best position possible. As this court noted in Anglo Canadian Shipping Co. v. Pulp, Paper& Woodworkers of Canada, Local 8 (1988), (BC CA), 27 B.C.L.R. (2d) 378 at 382, a party cannot, by failing to takesuch steps, frustrate the benefits of the

summary trial process. Where the application is brought by a plaintiff, the defendant may notsimply insist on a full trial in hopes that with the benefit of viva voce evidence, 'something might turn up': see Hamilton v. Sutherland(1992), (BC CA), 68 B.C.L.R. (2d) 115, [1992] 5 W.W.R. 151 (B.C.C.A.) at paras. 66-7. The same is true of aplaintiff where the defence has brought the R.18A motion.

In this instance, it was not realistic for Everest to hope that the Court at thesummary trial would of its own volition decline to proceed because it was being asked to determine issues of dishonesty, or because thepossibility of certain viva voce evidence had been discussed in a different context. [Emphasis added in these reasons on the Alwaridapplication.] 10. See also Brown v. Douglas, 2011 BCCA 521 at paras 29 and 30: [29] I should also advert briefly to an argument made by the plaintiffs at the oral hearing of this appeal - that the

summary trial judgeshould not have proceeded at all under R. 18A in the face of their lack of evidence as to what counsel referred to as "proof of damages".(As seen above, the phrase "evidence of quantum" would have been more accurate.) It was said that in the circumstances, the

summarytrial judge should have dismissed the defendants' motion for judgment and permitted the plaintiffs to address this matter on a lateroccasion. In this regard, the plaintiffs cited the comments of this court in Placer Development Ltd. v. Skyline Explorations Ltd. (1985) (BC CA), 67 B.C.L.R. 366, where Taggart J.A. described three options available to counsel faced with an applicationbrought against his or her client under R. 18A. These options were: 1. He may agree that the case is an appropriate case for a

summary trial and he may decide to seek judgment on the merits in favourof his client. 2. He may decide that it is a wholly inappropriate case for

summary trial and he may decide to oppose the application for

summarytrial on the basis of material already filed and on the basis of additional material including affidavits that tend to show that the case isinappropriate for disposition under the rule. 3. He may decide that the case is an inappropriate case for

summary trial but he may decide to file affidavits and other materialtending to show that while it is not an appropriate case for

summary trial, if there is to be a

summary trial the judgment should be infavour of his client. [At 384-5.] The Court went on to observe that the language of what was then R. 18A(3) - more latterly, R. 18A(11) and now R. 9-7(11) - clothes thejudge with a "broad discretion" to refuse to proceed where the judge is unable to find the facts necessary to decide the issues of fact orlaw or if it would be unjust to decide the issues. [30] The authorities are clear, however, that (as counsel for the plaintiffs acknowledged at the hearing of this appeal) counselacting on behalf of the respondent to an application for

summary judgment who takes the second course described in Placer"runs a risk". This is the risk that the court will not agree that the case is not appropriate for

summary trial and may givejudgment against his or her client. This point was made in Inspiration Management, supra, where the Chief Justice observed at 214that "There is no room in the proper construction of R. 18A for a respondent's veto." The point was also made at greater length in AngloCanadian Shipping Co. v. Pulp, Paper and Woodworkers of Canada, Local 8 (1988) (BC CA), 27 B.C.L.R. (2d) 378. There a plaintiff had sued for judgment under R. 18A, giving the defendant two months' notice of its application.

The defendantdid not examine the plaintiff for discovery within that period and on the day scheduled for trial, argued that it had been prevented fromexploring arguments it might wish to make with respect to mitigation. The trial judge nevertheless granted judgment to the plaintiff underR. 18A and awarded damages of some $42,000. On appeal, this court rejected the defendant's argument that judgment should not havebeen granted. Lambert J.A. stated: [Emphasis in original.] In my opinion, the

summary trial procedure contemplated by R. 18A cannot be open to being frustrated by one of the parties delayingthe pre-trial procedures until it is too late for the

summary procedure to use them effectively. I am not suggesting that there was any intentional delay in this case. But it must be the case that if adequate notice is given to anopposing party that a

summary trial application is going to be brought on, there then falls on that party an obligation to take everyreasonable step to complete as much of the pre-trial procedures as is necessary to put him into the best mastery of the facts thatis reasonably possible before the

summary trial proceedings are heard. He cannot, by failing to take those pre-trial procedures,frustrate the benefits of the

summary trial rule. [Emphasis added by counsel for Mr. Alwarid.] ... In my opinion, it is not in this case appropriate that the judgment be set aside, on the ground that sufficient facts were not available toone of the parties to lay before the court on the

summary trial application. [At 381-2.; emphasis added]

[69] Those passages have application here. The Plaintiffs have taken almost no steps to move this case along, or apparently toprepare for the present applications, despite the extremely serious allegations they have brought against Mr. Alwarid and otherDefendants. [70] The Plaintiffs filed their Notice of Civil Claim in March of 2015. Almost a year later, in February 2016, they amended theNotice of Civil Claim. In April 2016, all or many of the Defendants, in four groupings, filed Responses to Civil Claim. Little happenedafter that.

It is true that the Plaintiffs, in April 2016, issued a List of Documents (approximately 2,800 pages) and almost a year later, inFebruary 2017, an Amended List (approximately 37,500 pages) but even those steps were largely listing compilations of invoices andaccounts MNP had collected for its Report. [71] Mr. Alwarid delivered his

summary trial application October 27, 2017. On December 8, 2017, his

summary trial applicationwas set for when it was heard, April 30 and May 1–3, 2018. [72] The Plaintiffs appear to have done little, from October 27, 2017 to April 30, 2018, to prepare their case for these applications. In January 2018, they successfully resisted presenting for discovery the witness Mr. Alwarid requested, and offered instead Ms. Sterrett. The Plaintiffs postponed her being discovered from late January, to February 14, 2018. Mr. Alwarid offered himself for discovery onFebruary 27, 2018, which the Plaintiffs changed first to March 5 and 6, and then to April 6 and 7, 2018, nearing the hearing date.

I havesummarized earlier in these reasons the evidence the Plaintiffs relied on in these applications. They did not seek to cross-examine on anyof the affidavits Mr. Alwarid relied on. In the result, in my view, the Plaintiffs came to the applications with a weak position, rolling thedice to avoid the dismissal of their claim by arguing that the applications were not suitable for

summary trial disposition. The evidencein three affidavits tendered for Mr. Alwarid, summarized above, is very unlikely to change if there is a full trial. In other words, thePlaintiffs at trial would face Mr. Alwarid being supported by those who represented the Plaintiffs at the time Mr. Alwarid was dealingwith the Plaintiffs. [73] In Hryniak v. Mauldin, 2014 SCC 7, the Court recognized that

summary dispute mechanisms are only appropriate where it is inthe interests of justice to proceed summarily. As seen at para. 60 in that decision: The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as awhole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest ofjustice to use the new fact-finding powers to grant

summary judgment against a single defendant. Such partial

summary judgment mayrun the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest ofjustice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and bethe most proportionate, timely and cost effective approach. [Emphasis added.] [74] Counsel for the Plaintiffs acknowledged that Mr. Alwarid's state of health could be a relevant factor in the suitability analysis. Mr. Alwarid is retired and in poor and declining health.

His own affidavit evidence concerning his health (and the possible impact of theclaims on his reputation) is correctly summarized as follows, at paragraphs 36–38 of his counsel's written submissions: 36. Mr. Alwarid has been diagnosed with Progressive Supernuclear Palsy, a form of Parkinson’s Disease, which is now relativelyadvanced. This is a progressive degenerative condition which has been gradually getting worse. He is now at a stage where he hasdifficulty controlling his body, such that he falls frequently. His falls can cause him further significant injury.

His condition alsonegatively affects his ability to speak, making it increasingly difficult for him to give understandable oral evidence. 37. He has also recently been diagnosed with a recurrence of lymph cancer. He previously had lymphoma cancer in or about 1994 butwas successful in fighting this off. At present his medical team is monitoring his white blood cell count. He may eventually have tostart a new round of treatment with chemotherapy or other therapies, as the specialist may recommend.

He is concerned this couldeventually have a negative impact on his ability to remember details and to testify at Trial. 38. The allegations that have been made against the Alwarid Defendants could cause serious damage to his professional reputation. Itis frustrating that the Plaintiffs have made no real effort to move their case against him or any of the Defendants forward since startingthe action except in reaction to the Alwarid Defendants

summary trial application. If they are going to maintain such serious allegationsagainst a professional person, they are obliged to prosecute them expeditiously. [75] The Plaintiffs submitted that Mr. Alwarid should have submitted a doctor's opinion, which he did not. However, I have noreason not to accept Mr. Alwarid's own description of his circumstances, particularly when they were not meaningfully challenged whenhe was examined in discovery. [76] I am mindful as well of how serious are the Plaintiffs' allegations against Mr. Alwarid's professional reputation.

The fact he isretired does not remove the stress and blemish of those allegations. The nature of the allegations adds weight to Mr. Alwarid'ssubmission that the disposition of the case against him should be timely. [77] This Court has now devoted four hearing days to the Plaintiffs' claims against Mr. Alwarid, and has been able to form a clearpicture of the case against him, or the absence of such a case. [78] Addressing Mr. Alwarid's applications by

summary trial, in my view, achieves interests of justice, including access to justice,proportionality and timeliness. If there is a full trial of the Plaintiffs' claims against the other Defendants, it will only begin in April of2019, and likely will run for eight weeks. Given the nature and size of the claims, an appeal would be likely. In my view, it would notbe just to subject Mr. Alwarid to that process, particularly given the absence of any case against him shown to this point. [79] Several decisions by our Court of Appeal give guidance for determining whether

summary trial is appropriate. In Girchuru v.Pallai, 2013 BCCA 60, at paras. 30–31, the Court summarized the law relating to the suitability of a case for

summary trial: [30] In Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), (BC CA), 36 B.C.L.R. (2d) 202(C.A.), the court confirmed that the court under this rule "tries the issues raised by the pleadings on affidavits", that "a triable issue or

arguable defence will not always defeat a

summary trial application", and that "cases will be decided summarily if the court is able to find the facts necessary for that purpose, even though there may be disputed issues of fact and law" provided that the judge does not find "it is unjust to do so" (p. 211).

In determining the latter issue (whether it would be unjust to proceed summarily), the Chief Justice identified a number of relevant factors to consider (at p. 215): In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question. [31] To this list has been added other factors including the cost of the litigation and the time of the

summary trial, whether credibility is a critical factor in the determination of the dispute, whether the

summary trial may create an unnecessary complexity in the resolution of the dispute, and whether the application would result in litigating in slices : Dahl v. Royal Bank of Canada et al. , 2005 BCSC 1263 at para. 12 , upheld on appeal at 2006 BCCA 369 . [Emphasis added.] [ 80 ] In Greater Vancouver Water District v. Bilfinger Berger AG , 2015 BCSC 485 , Madam Justice Griffin, as she then was, reviewed the history and evolution of the

summary trial rule in British Columbia. She summarized as follows in relation to a

summary trial application brought in respect of only a portion of a case:

a) whether the court can find the facts necessary to decide the issues of fact or law;

b) whether it would be unjust to decide the issues by way of

summary trial, considering amongst other things: i. the implications of determining only some of

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