Following a trial where the plaintiff was awarded damages against its former employee, the plaintiff sought a declaration that the employee's actions constituted misappropriation under s. 178(1)(d) of the Bankruptcy and Insolvency Act.
The court dismissed the claim for declaratory relief because the plaintiff had not pleaded or proven that the employee was acting in a fiduciary capacity, which is a requirement under the statute.
The dismissal was without prejudice to the plaintiff's right to seek such a declaration in future bankruptcy proceedings if the employee becomes bankrupt.
