As part of a subdivision plan, Caleron Properties Ltd. divided a parcel of land into two parts – one smaller strip of land, and one larger. After several real estate transactions, a dispute arose as to who owned the smaller strip of land. Novia Developments Ltd (“Novia”) commenced an Action against Caleron Properties Ltd. and other titleholders for the lands for Novia’s losses relating to being sold an unregisterable parcel of land.

At Trial, Novia argued in its closing submissions that the previous titleholders breached a trust in favour of Novia; essentially, a trustee relationship was created when the titleholders held legal title to the smaller strip of land. The Defendants responded that, pursuant to Rule 13.6(3), a claim for breach of trust must be pleaded with full particulars in the Statement of Claim, and that Novia had not done so.

Novia admitted that breach of trust was not pleaded in its Statement of Claim and that no particulars were provided, but argued that the omission was a “curable irregularity” because the underlying facts of the breach of trust were present in the Statement of Claim. Justice Hunt McDonald held that it was too late to argue the claim for breach of trust in closing arguments at Trial. Hunt McDonald J. held further that, even if the cause of action was properly pleaded, a trust relationship did not exist in this case because the parties never intended to create one.