ContentsAboriginal Title............................................................................................................................................7

Aboriginal Property Rights come in THREE TYPES:......................................................................................7

DOUGLAS TREATIES 1850-1854...............................................................................................................7

TERMS:................................................................................................................................................8

Are the Douglas Treaties a treaty or a transfer deed (signature of transferor only)?..............................8

Regina v. White & Bob (1965) – Supreme Court Decision - Douglas Treaties are TREATIES – exempt from Provincial Hunting Laws..............................................................................................................8

ROYAL PROCLAMATION 1763..................................................................................................................8

British North America Act 1867 s. 91 (24) Indians, and Lands reserved for the Indians..........................9

Grants legislative power to the Federal Government..............................................................................9

But…........................................................................................................................................................9

British Columbia Terms of Union 1871....................................................................................................9

St. Catherine’s Milling Lumber v. Queen [1888] PC - Aboriginal Title is a “personal and usuafructory right” over the land – NOT a property interest – Aboriginals did not have a right to give property rights to anyone, since they did not have them to begin with..........................................................10

BC Gov’t position until the 1970’s........................................................................................................10

Calder v. Attorney General of British Columbia, [1973] S.C.R. 313 – Canadian law acknowledges that Aboriginal Title to land exists prior to the Colonization of the Continent. – NOT JUST USUFRUCTUARY................................................................................................................................11

Section thirty-five of the Constitution Act, 1982....................................................................................11

R. v. Sparrow, [1990] 1 S.C.R. 1075 – fishing with a drift net 20 fathoms longer than allowed - The governments of Canada have a fiduciary relationship with Aboriginals under section 35 of the Constitution Act, 1982; any denial of Aboriginal rights under section 35 must be justified, and Aboriginal rights must be given priority.............................................................................................12

3 PART TEST:.....................................................................................................................................12

Priority Scheme…...............................................................................................................................12

R. v. Van der Peet, [1996] 2 S.C.R. 507 - aboriginal fishing rights did not extend to commercial selling of fish - a practice must have been integral to the distinctive nature of the culture prior to contact by Europeans.......................................................................................................................13

"Integral to a Distinctive Culture Test"..............................................................................................13

R. v. Gladstone, [1996] 2 S.C.R. 723 – herring eggs from kelp – commercial trade – valid by Van der Peet test because it was the traditional practice of the Heiltsuk to trade in herring roe................14

Background...........................................................................................................................................14

Opinion of the Court..............................................................................................................................14

Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, 1997 CarswellBC 2385 – oral histories........14

Provincial government position.............................................................................................................14

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Supreme Court ruling............................................................................................................................14

What is aboriginal title?....................................................................................................................15

Where does aboriginal title exist in BC?.............................................................................................16

Will the decision affect private property?..........................................................................................16

How will aboriginal title affect the Province’s title to Crown lands?..................................................16

R. v. Bernard; R. v. Marshall – [2005] 2 S.C.R. 220, 2005 – Aboriginal logging claims - CarswellNS 317.....................................................................................................................................................17

Background............................................................................................................................................17

Opinion of the court.............................................................................................................................17

Tsilhqot’in Nation v. British Columbia (2007) (B.C.S.C.) – Difference between aboriginal title and hunting and fishing rights – first time Aboriginal Title is found to exist, but sent back to trial on a technicality........................................................................................................................................18

Haida Nation v. British Columbia [2004] 3 S.C.R. 511 – Weyerhauser logging in Haida Gwai’i - The Crown has a duty to consult and accommodate Aboriginal groups prior to exploiting lands to which they may have claims........................................................................................................................20

Background............................................................................................................................................20

Judgment of the Court...........................................................................................................................20

Equitable Interests....................................................................................................................................22

Land tenure in England.........................................................................................................................22

Decline of land tenure...........................................................................................................................22

LIFE ESTATE & FEE SIMPLE........................................................................................................................22

If rules of equity and law conflict, equity prevails.................................................................................23

Section 44 of Law and Equity Act [RSBC 1996] CHAPTER 253................................................................23

Trusts.........................................................................................................................................................23

EXPRESS TRUST......................................................................................................................................23

Resulting Trusts – arise in 2 ways:.........................................................................................................23

Equity prefers bargains over gifts..........................................................................................................24

Presumption of Advancement definition:..............................................................................................24

Pecore v Pecore [2007] 1 S.C.R. 795, 2007 CarswellOnt 2752 – Resulting Trust or Outright Gift in father/daughter joint back account/transfer = JOINT TENANCY vs. RESULTING TRUST (Remaining Equitable Interest).............................................................................................................................24

Ruling: the daughter holds both equitable and legal interest...............................................................25

Property Law Act [RSBC 1996] CHAPTER 377........................................................................................25

Words of transfer..............................................................................................................................25

Constructive Trusts................................................................................................................................26

Murdoch v. Murdoch [1975] SCC, - spouse claims trust – SCC rejects claim and says was mere loan – PUBLIC PRESSURE AND STRONG DISSENT LEAD TO CHANGE IN LAW (this case is no longer valid)...26

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Rathwell v. Rathwell [1978], which had similar fact to Murdoch, SCC found a resulting trust based on common interest, but has accepted that one of the ways to remedy unjust enrichment is by creating a constructive trust in favour of the one who suffered from the unjust enrichment..........26

Unjust Enrichment Test:....................................................................................................................26

Remedial Trust Test:..........................................................................................................................27

Peter v. Beblow [1993] SCC Remedial constructive trust for housekeeping (common law spouses).27

Soulos v. Korkontzilas - [1997] 2 S.C.R. 217 - Constructive trust -- Agency -- Fiduciary duties -- Real estate agent making offer to purchase property on behalf of client – but then buys property himself............................................................................................................................................................28

CONDITIONAL GIFTS AND FUTURE INTERESTS..........................................................................................29

REVERSIONS v. REMAINDERS................................................................................................................29

Reversion...........................................................................................................................................29

Remainder.........................................................................................................................................29

DEFEASIBLE v. DETERMINABLE INTERESTS............................................................................................30

Defeasible Interest/(Condition Subsequent) – fails = absolute gift....................................................30

Determinable Interest – condition fails = gift fails.............................................................................31

VESTED v. CONTINGENT REMAINDERS..................................................................................................32

Vested Interest:.................................................................................................................................32

Contingent Interest:...........................................................................................................................32

Vested Interest..................................................................................................................................33

Contingent Interest (or Condition Precedent)...................................................................................33

Where a will is ambiguous................................................................................................................34

PUBLIC POLICY & UNCERTAINTY............................................................................................................34

Freehold Estates – by G to “A for life and then to B in fee tail”.........................................................34

Stuartburn (Municipality) v. Kiansky [2001] QB - A remainder interest is vested, and thus a valid freehold estate...................................................................................................................................35

Freehold interest:..............................................................................................................................35

Life estate..........................................................................................................................................35

Seisin.................................................................................................................................................35

McKeen Estate v. McKeen Estate 1993 - Presumption against intestacy and inclination to vesting. 35

Personal = Contingent........................................................................................................................36

(RULE IN) Browne v. Moody [1936] O.R. 422 (P.C.) - Rule: A gift is prima facie vested if the postponement is to allow for a prior life estate................................................................................37

Rules of Construction............................................................................................................................37

Caroline (Village) v. Roper (1987)......................................................................................................37

St. Mary’s Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657, 1997................................................37

Covenants..................................................................................................................................................39

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Discriminating Covenants.....................................................................................................................39

Conservation Covenants.......................................................................................................................40

Restrictive Covenants...............................................................................................................40

State Limitations on Private Power (pgs 502-534).....................................................................................41

Unger v. Gossen 1996 CarswellBC 1248 (S.C.) – Unless it can be shown that the dominant intent was the condition, and not a gift, then the condition alone must fail......................................................41

H.J. Hayes Co. v. Meade 208 A.P.R. 419, 1987 CarswellNB 66 (Q.B.) – In the case of ambiguity, courts read condition as subsequent to allow for immediate vesting...............................................42

Re: Leonard Foundation Trust (1990 ON CA) – State policy applies to any trust with significant public element.............................................................................................................................................42

Leases & Licences......................................................................................................................................43

4 (possibly 5) types of leases…...............................................................................................................43

Essential Elements of a Lease….............................................................................................................43

License…................................................................................................................................................43

Fatac Ltd. (in liquidation) v. Commissioner of Inland Revenue [2002] NZCA 269- Substance not wording defines lease........................................................................................................................44

Metro-Matic Services Ltd. v. Hulmann 1973, 4 O.R. (2d) 462 (C.A.) – “Quiet Enjoyment” implies exclusive possession, and restrictions allowed so long as confirm right to do business.................44

Southwark LBC v. Tanner [2001] 1 A.C. 1 (H.L.) – Quiet Enjoyment only applicable to Landlord – not other tenants (PRIVITY).....................................................................................................................45

Petra Investments Ltd v. Jeffrey Rogers plc [2000] L. & T.R. 451 (Ch. D.) – Using the land in a way that undermines profitability of a tenant’s business is not derogation.............................................46

SHARED OWNERSHIP.................................................................................................................................47

Tenancy in common..............................................................................................................................47

Joint tenancy.........................................................................................................................................47

To be a Joint Tenancy… FOUR UNITIES…...............................................................................................48

Re Bancroft, Eastern Trust Co. v. Calder [1936] 4 D.L.R. 571 (N.S.S.C.) – if no express intention – common law assumes JOINT TENANCY.............................................................................................48

EQUITY DIFFERENCES against presumption of Joint Tenancy................................................................49

Property Law Act (changes everything – but only for land – not shares in a corporation, chattels, leases, etc!!)..........................................................................................................................................................50

SEVERENCE OF JOINT TENANCY.............................................................................................................50

Williams v. Hensman (1861) - act of one joint tenant “operating on his own share”........................50

Sorenson Estate v. Sorenson (1977) – Severance of joint tenancy.....................................................50

Three ways in which joint tenancies can be severed:........................................................................50

Feinstein v. Ashford, 2005 BCSC 1379, - severed the joint tenancy when he signed a transfer of his interest in the land to himself, even though the transfer was not registered...................................51

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SERVITUDES OVER PROPERTY (Easements – RUN WITH THE LAND; Non Easements – DO NOT RUN WITH THE LAND).................................................................................................................................................51

Re Ellenborough Park ([1956] Ch. 131) - defining an easement.........................................................51

Shelf Holdings V. Husky Oil (1989-Alta.CA) [is building a pipeline too close to possessory interest and is therefore not an easement?] NO – it is an easement.............................................................52

Profit a Prendre - A servitude which resembles an easement and which allows the holder to enter the land of another and to take some natural produce such as mineral deposits, fish or game, timber, crops or pasture....................................................................................................................................52

British Columbia v. Tener (1985), 32 L.C.R. 340 (S.C.C.) - Profit a prendre may be held independently of the ownership of any land, i.e., they may be held in gross. In this they differ from easements................................................................................................................................53

National Trust Co. v. Bouckhuyt 1987 39 DLR 4th 60 (1987, Ontario):.............................................53

ACCESS TO PUBLIC AND PRIVATE PROPERTY (USUALLY HAS TO DO WITH FREEDOM OF EXPRESSION WITH REGARD TO PUBLIC PROPERTY USES)..............................................................................................53

Director of Public Prosecutions v. Jones (1999) (HL) - Protest at Stonehenge....................................54

Michelin & CIE v. C.A.W.-Canada (1997) 2 F.C. 306 (Michelin Man cartoon stomping on workers). .54

Re Drummond Wren [1945] - Land not to be sold to Jews or persons of objectionable nationality - Wren asked that the covenant be declared invalid...........................................................................54

Quotable quote.....................................................................................................................................55

Noble v. Alley [1951] S.C.R. 64 - Court struck down a restrictive covenant that restricted ownership of a section of land to "persons of the white or Caucasian race” - covenant did not touch and concern the land – but rather was attached to the owner – therefore invalid restrictive covenant – no word on public policy................................................................................................55

Land Title Act [RSBC 1996] CHAPTER 250..................................................................................................56

Registration of covenant as to use and alienation.................................................................................56

Discriminating covenants are void.........................................................................................................57

PRIORITIES.................................................................................................................................................58

Legal and Equitable Interests....................................................................................................................58

Chippewas of Sarnia Band v. Canada (A.G.) (2000) 41 R.P.R. (3d) 1 – Aboriginal Title is Sui Generis – therefore subsequent legal title takes priority..................................................................................60

TITLE REGISTRATION (as opposed to “Deeds”).........................................................................................61

1. Registration Principle…..................................................................................................................61

2. Indefeasibility Principle… {KILLS THE NEMO DAT PRINCIPLE}........................................................61

3. Abolition of Notice Principle {KILLS THE requirement for NOTICE}................................................63

4. Assurance Principle {Compensation only to earlier titles – no absolute ownership – registration trumps but there can be compensation.}..............................................................................................63

FRAUD...................................................................................................................................................64

Assurance Fund?....................................................................................................................................66

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Validity of documents............................................................................................................................67

Credit-Foncier Franco v. Bennett (1963) BCCA - if you are dealing with the registered FS owner, you are protected – if not then not..........................................................................................................67

Canadian Commercial Bank v. Island Realty Investments Ltd. (1988) CA) - you can assume validity of documents and can rely on protection afforded by indefeasibility if you trace them back to the fee simple owner (this was NOT the case in CF). At CL, Almont would not have taken priority but this does not determine the outcome here.............................................................................................67

Priority as between charges..................................................................................................................68

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Aboriginal Title

Aboriginal Property Rights come in THREE TYPES:1. Reserve Land (Federal Gov’t holds in trust for Indian People)2. Treaty Land (Indian people own in fee simple.)3. Aboriginal Title Lands (to date we have a TEST but no actual defined lands.)

Background to Aboriginal societies of British Columbia

Columbia river becomes the main transportation route through the “Oregon Territory” – which includes most of what is currently Oregon, Washington, and British Columbia.

1846 – establishes the boundary of the 49th parallel – the “Oregon/Washington Treaty”. The Hudson Bay Co. can no longer operate via the Columbia River. 1849 Hudson Bay Co. moves its operations (from what is now Vancouver, Washington) to and

establishes colony of Vancouver Island. The British gov’t and the Hudson Bay Co. begin to form treaties with the Aboriginal people on

Vancouver Island. The DOUGLAS TREATIES (14 of them) were signed from 1850-54. But that’s it. No more

treaties.

DOUGLAS TREATIES 1850-1854

Between 1850 and 1854, James Douglas, made a series of fourteen land purchases from aboriginal peoples.

The Douglas Treaties cover approximately 358 square miles [tiny chunk of land – unlike rest of Canada – treaty negotiation began and ended here – this is why there is still much dispute with current Aboriginal Land Claims, because it wasn’t dealt with again until the 1990’s.] of land around Victoria, Saanich, Sooke, Nanaimo and Port Hardy, all on Vancouver Island.

Treaty negotiations by Douglas did not continue beyond 1854 due, in part, to a lack of funds and the slow progress of settlement and industry in the 1850s.

Douglas' policies were generally consistent with British principles. Those of his political successors, however, proved to be not as consistent.

Land was surrendered "entirely and forever" in exchange for cash, clothing, or blankets. The signatories and their descendants retained existing village sites and fields for their continued use, the "liberty to hunt over unoccupied lands" and the right to "carry on their fisheries as formerly."

Douglas' land purchases have consistently been upheld as treaties by the courts (R. v. White and Bob, 1964; R. v. Bartleman, 1984; Claxton v. Saanichton Marina Ltd., 1989). In 1987 the Tsawout Band successfully obtained a permanent injunction restraining the construction of a marina in Saanichton Bay

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on the grounds that the proposed facility would interfere with fishing rights promised to them by their 1852 treaty.

TERMS:“The condition of our understanding of this sale is this, that our village sites and enclosed fields are to be kept for our own use, for the use of our children, and for those who may follow after us; and the land shall be properly surveyed, hereafter. It is understood, however, that the land itself, with these small exceptions, becomes the entire property of the white people for ever; it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.”

Are the Douglas Treaties a treaty or a transfer deed (signature of transferor only) ?

Implications – if it is treaty then it has Constitutional protection and supremacy. If it is not a treaty, then things like provincial hunting laws apply and are enforceable.

If it is a TREATY three possible interpretations:1. Take the TEXT as the whole treaty.2. Take the TEXT PLUS surrounding circumstances and documents.3. The ORAL agreement is the treaty – and the TEXT is ONLY evidence of the ORAL

agreement, which may or may not be complete.

Regina v. White & Bob (1965) – Supreme Court Decision - Douglas Treaties are TREATIES – exempt from Provincial Hunting Laws

The decision found that early agreements inked by B.C.’s first governor and Hudson Bay chief factor James Douglas were treaties within the meaning of the Indian Act and recognized First Nations peoples’ rights to hunt in exclusion of the B.C. Game Act.

ROYAL PROCLAMATION 1763

“And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories {this is an assertion of Sovereignty} as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions: as also that no Governor or

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Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.

And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.

And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.”

1858 – Gold rush – establishment/creation of the colony of “British Columbia” by Queen Victoria.

1871 – “British Columbia” joins the Canadian Confederation.

British North America Act 1867 s. 91 (24) Indians, and Lands reserved for the Indians

Grants legislative power to the Federal Government.

But…

British Columbia Terms of Union 1871

13. The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the Union.

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To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government {10 acres per family – doesn’t match the national policy of large treaties and large tracts of land} to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the decision of the Secretary of State for the Colonies.

Numbered Treaties 1871-1921 of the “Northwest Territorties” (which includes what is now most of Manitoba, Sask, Alberta, part of BC (N.E.) and a chunk of the current NWT).

St. Catherine’s Milling Lumber v. Queen [1888] PC - Aboriginal Title is a “personal and usuafructory right” over the land – NOT a property interest – Aboriginals did not have a right to give property rights to anyone, since they did not have them to begin with.Aboriginal Title is a “personal and usufactory right” over the land

Facts: From 1670-1870 HBC had Crown rights to Rupert’s Land. In 1870 Fed purchased it from HBC and granted a timber lease to PL. Fed claims that it had acquired the land from the Ojibwa Treaty 3, and it was in their power to give timber rights. ON claimed it was Crown land, and it was provincial jurisdiction allocating the timber rights.

Issues: What rights did the Fed acquire from Ojibwa in Treaty 3?

Discussion:• FED: Ojibwa held the land in a fee simple sort of a thing, and were free to give it to the Fed in the treaty• ON: Ojibwa did not have fee simple, they merely occupied the land, and they did not have a right to give property rights to anyone, since they did not have them to begin with. Treaty 3 was merely political.

• PC: Crown had an estate interest and the Aboriginal interest was a mere burden. Aboriginal have a “personal and usufactory right” over the land - occupation and use (hunting and fishing) of the land, NOT exclusive possession.

Ruling: Natives did not have possession rights, thus were not able to give them away. The land and its timber and mineral rights are Provincial and the land is Provincial.

BC Gov’t position until the 1970’sBC gov’t maintains the position that the Royal Proclamation does not apply to BC since it was unknown at the time of the Royal Proclamation – Provincial position is that “we do not make treaties”, we have few land transfers, but they are not treaties.

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Calder v. Attorney General of British Columbia, [1973] S.C.R. 313 – Canadian law acknowledges that Aboriginal Title to land exists prior to the Colonization of the Continent. – NOT JUST USUFRUCTUARY

In 1967, Frank Arthur Calder and the Nisga'a Nation Tribal Council brought an action against the British Columbia government for a declaration that aboriginal title to certain lands in the province had never been lawfully extinguished.

The Supreme Court found that there was indeed an aboriginal right to land that existed at the time of the Royal Proclamation of 1763. However, the Court was split 3 to 3 on whether the claim to land was valid.

One group claimed that though title existed it had been extinguished by virtue of the government's exercise of control over the lands, while the other group required that more be done to show extinguishment. 4TH Judge says the lawsuit is invalid because Nisga’a did not follow proper procedure.

Justice Judson (part of the 3 that would have it extinguished): “Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying land as their forefathers had done for centuries. That is what Indian title means and it does not help one in the solution of this problem to call it a “personal or usufructuary” right.”

Section thirty-five of the Constitution Act, 1982

The provision provides that:

“ 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "Aboriginal Peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”

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R. v. Sparrow, [1990] 1 S.C.R. 1075 – fishing with a drift net 20 fathoms longer than allowed - The governments of Canada have a fiduciary relationship with Aboriginals under section 35 of the Constitution Act, 1982; any denial of Aboriginal rights under section 35 must be justified, and Aboriginal rights must be given priority.

FACTSRonald Edward Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45 fathoms (82 m) in length, 20 fathoms (37 m) longer than permitted by the band's fishing licence under the Fisheries Act. Sparrow admitted to all the facts in the charge but justified it on the ground that he was exercising his aboriginal right to fish under section 35(1) of the Constitution Act, 1982.

ISSUE To the Supreme Court was whether the net length restriction violated s. 35(1).

HOLDING The governments of Canada have a fiduciary relationship with Aboriginals under section 35 of the Constitution Act, 1982; any infringement of Aboriginal rights under section 35 must be justified, and Aboriginal rights must be given priority.

{In this case there is a valid purpose – regulating commercial fiseries – but it violates the priority of Aboriginal Rights – therefore not valid.}

"recognized and affirmed" – government has a fiduciary duty to the Aboriginal peoples which requires them to exercise restraint when applying their powers in interference with aboriginal rights.

This further suggests that aboriginal rights are not absolute and can be encroached upon given sufficient reason.

Extinguishment of rights can only occur through an act that showed "clear and plain intention" on the government.

3 PART TEST:

1. Is there a right? (e.g. to a food, social and ceremonial fishery)

2. Has it been infringed? (e.g. by a regulatory regime that gave prior access to sport and commercial fishers)

3. Onus shifts to the Crown… is the infringement justified?a. Compelling and substantial justification (e.g. salmon conservation)b. Not a breach of the fiduciary duty of the Crown (e.g. conservation for the benefit of the

sport and commercial fisheries.)

Priority Scheme…

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1. Conservation2. Aboriginal food, social, and ceremonial fishery3. Commercial and sport fishery

R. v. Van der Peet, [1996] 2 S.C.R. 507 - aboriginal fishing rights did not extend to commercial selling of fish - a practice must have been integral to the distinctive nature of the culture prior to contact by Europeans

R. v. Van der Peet where Chief Justice Lamer's majority decided that to be considered an aboriginal right, a practice must have been integral to the distinctive nature of the culture prior to contact by Europeans.

In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right." [1] The exchange of fish for money or other goods did not constitute a practice, custom or tradition that was integral to Sto:lo culture.

"Integral to a Distinctive Culture Test" to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The Test has ten main parts:

1. Courts must take into account the perspective of aboriginal peoples themselves

2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right

3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question

4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact

5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims

6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis

7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists

8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct

9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence.

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10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples.

R. v. Gladstone, [1996] 2 S.C.R. 723 – herring eggs from kelp – commercial trade – valid by Van der Peet test because it was the traditional practice of the Heiltsuk to trade in herring roe.

BackgroundWilliam and Donald Gladstone were members of the Heiltsuk Band in British Columbia. They were both charged with selling herring spawn collected from kelp contrary to the federal Fisheries Act. In their defence, the brothers claimed that they had a right to sell herrings under section 35 of the Constitution Act, 1982. At trial, they presented evidence showing that trade of herring spawn was a significant part of the Hieltsuk band's way of life prior to contact.

Opinion of the CourtChief Justice Lamer, for the majority, found that there was an aboriginal right to sell herring spawn under the Van der Peet test.ALSO - the regulation of commercial fishing the regard should be given to regional fairness among all people when distributing fishing resources.

Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, 1997 CarswellBC 2385 – oral histories

Claimed ownership and legal jurisdiction over 133 individual hereditary territories, a total of 58,000 square kilometres.

On appeal, the claim changed to Aboriginal Title and Self-Government.

The Gitksan and Witsuwit'en used their oral histories as principal evidence in the case.

Provincial government positionThe Province insisted that all First Nations land rights in British Columbia were extinguished "whenever the intention of the Crown to do so is clear and plain."

(In the Court of Appeal, the Province changed its position to argue that aboriginal land rights had not been extinguished.)

Supreme Court ruling

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No decision on the land dispute, insisting that another trial was necessary. For the first time, however, the Court directly addressed the issue of Aboriginal title.

Aboriginal title is different from land usage rights. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers. {SUI GENERIS}

The legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony.

The decision confirmed aboriginal title does exist in British Columbia, that it’s a right to the land itself — not just the right to hunt, fish or gather.

When dealing with Crown land, the government must consult with and may have to compensate First Nations whose rights are affected.

When a First Nation sits down at the treaty table, it recognizes there is some legitimacy to the claims of title, ownership and jurisdiction by Canada and BC.

Similarly, Canada and BC recognize there is some legitimacy to the claims of title, ownership and jurisdiction by the First Nation. The challenge is giving that recognition practical expression.

What is aboriginal title?The court said that aboriginal title is a right to the land itself. Until this decision, no Canadian court had so directly addressed the definition of aboriginal title. Other cases had dealt with aboriginal rights in terms of the right to use the land for traditional purposes such as hunting.

Aboriginal title is a property right that goes much further than aboriginal rights of usage. Permitted uses of aboriginal lands are no longer limited to traditional practices. For example, mining could be a permitted use, even if mining was never a part of the First Nation’s traditional culture. – however, see note below (re: cannot be inconsistent with continuing relationship)

In many ways, aboriginal title is just like ordinary land ownership. The owner can exclude others from the property, extract resources from it, use it for business or pleasure. But there are important differences, too.

Aboriginal title is a communal right. An individual cannot hold aboriginal title. This means that decisions about land must be made by the community as a whole.

Because aboriginal title is based on a First Nation’s relationship with the land, these lands cannot be used for a purpose inconsistent with that continuing relationship. For example, if the people’s culture was based on hunting, their aboriginal title lands could not be paved over or strip-mined if that would destroy their cultural relationship to the land.

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Aboriginal title lands can be sold only to the federal government. {Inalienability}

Aboriginal title has the additional protection of being a constitutional right. No government can unduly interfere with aboriginal title unless the interference meets strict constitutional tests of justification.

Except for these limitations, aboriginal title holders can use their lands as they wish.

Where does aboriginal title exist in BC?

Nobody knows yet. It will have to be either agreed on through a treaty process or decided by the courts on a case-by-case basis. If First Nations decide to go to court to establish title to lands, they will have to prove that they occupied the land to the exclusion of others before 1846, the year Britain declared sovereignty over the area that became British Columbia.

Then they have to prove some degree of continuity from that occupation until today.

The Delgamuukw case does say that courts must be willing to rely on oral history, including traditional stories and songs, in a way that until now they have not. However, it is still far from clear exactly what level of proof will be enough to establish a claim of aboriginal title.

Will the decision affect private property?

The Gitxsan and Wet’suwet’en made no claim to private lands, so the court did not directly address this question.

However, the court’s decision clearly suggests that there are private lands in BC that are subject to aboriginal title, or at least were wrongly sold. This is because the court confirmed that the province had no authority to extinguish aboriginal title after union with Canada in 1871, yet the province has been selling land to private interests since 1849.

Still, the remedy for First Nations is more likely to be the payment of compensation than any adjustment to private ownership.

How will aboriginal title affect the Province’s title to Crown lands?

This is a difficult question and one that cannot be answered with any certainty right now.

The court does indicate that the Province will still have a limited right to deal with Crown land that is subject to aboriginal title, for example by granting resource tenures.

The limits on that right are expressed in a two-pronged test:

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1. It would have to be for a purpose that is compelling and substantial. (The court gives agriculture, forestry, mining, environmental protection and economic development as possible examples, which would have to be examined on a case-by-case basis);

2. The government’s action must be consistent with the fiduciary relationship between the Crown and aboriginal peoples, which is a relationship of trust. This means that the Province will need to consult with First Nations before granting any interest in aboriginal lands to others. Whether this means that a First Nation’s consent would be required will depend on the circumstances. Consent would likely be required for provincial laws regulating hunting and fishing on aboriginal lands. Cash compensation will be another factor. First Nations are entitled to share in the economic benefits derived from their lands.

The court’s decision concludes with these words:

Ultimately, it is through negotiated settlements, with good faith and give and take on both sides, reinforced by judgments of this Court, that we will achieve… “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.” Let us face it, we are all here to stay.

R. v. Bernard; R. v. Marshall – [2005] 2 S.C.R. 220, 2005 – Aboriginal logging claims - CarswellNS 317

Background

This decision considers two separate cases.

Stephen Marshall and 34 other Mi'kmaqs were charged with cutting down timber on Nova Scotia Crown land without a permit.

Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw mill that was cut from Crown lands.

In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land.

Opinion of the court

McLachlin, writing for the majority, held that there was no right to logging under the treaties. From the evidence she found that it did not support the conclusion that logging formed the basis of the Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.

IMPORTANT NOTES FROM CASE…

Aboriginal Title needs to “comport, correspond, compare” with Common Law

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(from the judgement)… “the requirement of exclusive occupation that exploiting the land, rivers or seaside for hunting, fishing or other resources may translate into aboriginal title to the land if the activity was sufficiently regular and exclusive to comport with title at common law.”

(from the judgement)… “to say that title flows from occasional entry and use is inconsistent with these cases and the approach to aboriginal title which this Court has consistently maintained.”

(from the judgement)… “practices must be assessed from the aboriginal perspective. But, as discussed above, the right claimed also invokes the common law perspective. The question is whether the practices established by the evidence, viewed from the aboriginal perspective, correspond to the core of the common law right claimed.”

(from the judgement)… “unaided by formal legal documents and written edicts, we are required to consider whether the practices of aboriginal peoples at the time of sovereignty compare with the core notions of common law title to land. It would be wrong to look for indicia of aboriginal title in deeds or Euro-centric assertions of ownership. Rather, we must look for the equivalent in the aboriginal culture at issue.”

(from the judgement)… “acts of exclusion is not required to establish aboriginal title. All that is required is demonstration of effective control of the land by the group, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so. “

(from the judgement)… “whether a nomadic people enjoyed sufficient “physical possession” to give them title to the land, is a question of fact, depending on all the circumstances”

(from the judgement)… “claimants must establish they are right holders…The right is based on pre-sovereignty aboriginal practices. To claim it, a modern people must show that the right is the descendant of those practices. Continuity may also be raised in this sense.”

Tsilhqot’in Nation v. British Columbia (2007) (B.C.S.C.) – Difference between aboriginal title and hunting and fishing rights – first time Aboriginal Title is found to exist, but sent back to trial on a technicality.

Facts: Natives seek a declaration that they hold aboriginal title to their area.

Issues: Is there aboriginal title or hunting and fishing right?

Discussion:• The judge finds about half of the disputed area to be aboriginal title• The other half is seen as a hunting and fishing rights area• There is no “postage stamp” approach to title (scattered panoply of small sites)• A proper approach is that of a blanket coverage of the area: village sites, cultivated fields, and everything covered by a network of trails and waterways.

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Ruling: The judicial opinion gives aboriginal title, but the matter goes back to trial again on a technicality .

What it means…

-If aboriginal title is declared to exist, the Tsilhqot'in Nation will have the exclusive right to use and occupy those lands;

-This would be the first case in Canada to recognize aboriginal title to specific lands;

If aboriginal title is declared to exist, the provincial Forest Act will not apply to those lands, for two reasons:

-The Forest Act only applies to provincial Crown lands, and lands held under aboriginal title do not fall within the definition of Crown lands under the Act; and

-The provincial Legislature does not have the power to make laws that conflict with the Tsilhqot'in Nation’s exclusive right to determine how to use the land and the resources on the land;

-The granting of fee simple title to land by the provincial government does not extinguish any aboriginal rights or title that may exist in or on that land;

-The Tsilhqot'in Nation was declared to have hunting and trapping rights, the right to capture wild horses, and the right to trade skins and pelts as required to secure a moderate livelihood; those rights were declared to have been unjustifiably infringed by the provincial forestry and land use planning regimes; and

-First Nation expectations with respect to the extent of aboriginal title lands in B.C. have been heightened significantly by the decision, which ironically will likely make the negotiation of treaties much more difficult.

What It Doesn’t Mean:

The Tsilhqot'in Nation do not have aboriginal title to any land as yet:

-No declaration has been made, and the decision may yet be appealed — very likely that the decision is not the final word on the scope of aboriginal title lands in British Columbia;

-Even if the Tsilhqot'in Nation is ultimately recognized as holding aboriginal title to all or some of the lands in the Claim Area, that does not give it unlimited rights on the land:

-Aboriginal title brings the right to use the land for a variety of purposes, but does not allow a First Nation to use the land for mining, forestry, or other developments that are inconsistent with its attachment to the land;

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-If the Tsilhqot'in Nation wants to develop land held under aboriginal title for an inconsistent purpose, it will have to surrender its aboriginal title to the federal government — for example, through a negotiated treaty;

-The decision does not mean that other First Nations in British Columbia may also hold aboriginal title up to 45 percent of their traditional lands — this case dealt with a relatively remote area of the province where there are no overlapping claims from other First Nations and the Tsilhqot'in Nation had a relatively strong case for continued existence of aboriginal title;

Haida Nation v. British Columbia [2004] 3 S.C.R. 511 – Weyerhauser logging in Haida Gwai’i - The Crown has a duty to consult and accommodate Aboriginal groups prior to exploiting lands to which they may have claims

Background

In 1961 the provincial government issued a "Tree Farm Licence" (TFL 39) over an area of land to which the Haida Nation claimed title.

The Haida Nation also claimed an Aboriginal right to harvest red cedar in that area.

In 1999 the Province transfered to Weyerhauser Co. These actions were performed unilaterally, without consent from or consultation with the Haida Nation.

The Haida Nation brought a suit, requesting that the replacement and transfer be set aside.

Judgment of the CourtChief Justice McLachlin, writing for a unanimous court, found that the Crown has a "duty to consult with Aboriginal peoples and accommodate their interests". This duty is grounded in the honour of the Crown, and applies even where title has not been proven.

The scope of this duty will vary with the circumstances; the duty will escalate proportionately to the strength of the claim for a right or title and the seriousness of the effect upon that potential right or title.

McLachlin CJ

10 I conclude that the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach agreement. The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida people’s concerns, although the possibility remains that it could become liable for assumed obligations. It follows that I would dismiss the Crown’s appeal and allow the appeal of Weyerhaeuser.

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20 Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims.

Where there is a strong prima facie case for the claim and the adverse effects of the government's proposed actions impact it in a significant (and adverse) way, the government may be required to accommodate. This may require taking steps to avoid irreparable harm or minimize the effects of the infringement.

On the facts of the case, the Court found that the Haida Nation's claims of title and an Aboriginal right were strong, and that the government's actions could have a serious impact on the claimed right and title. Accordingly, the Crown had a duty to consult the Haida Nation, and likely had a duty to accommodate their interests.

The Crown's duty of good-faith consultation does not extend to third parties, and cannot be delegated to them by the Crown.

Accordingly, the Crown's appeal was dismissed and Weyerhauser Co.'s appeal was allowed.

While it is open to the Haida to seek an interlocutory injunction, they are not confined to that remedy, which may fail to adequately take account of their interests prior to final determination thereof. If they can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies.

The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.

The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops.

40 In Delgamuukw, supra, at para. 168, the Court considered the duty to consult and accommodate in the context of established claims. Lamer C.J. wrote:

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

In the end… Weyerhaeuser was able to continue its logging activities… but it confirms that the Crown has (moving forward) a duty to “consult and accommodate.”

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Equitable Interests Equity = a judicial cure for perceived shortcomings and complexities of the (common) law. The source of Equitable Doctrines was/is the Crown and its royal prerogative.

Land tenure in EnglandA complicated pyramid of feudal relationships.

At the bottom of the feudal pyramid were the tenants who lived on and worked the land (called the tenants in demesne and also the tenant paravail).

In the middle were the lords who had no direct relationship with the King, or with the land in question - referred to as mesne lords.

Land was granted in return for various "services" and "incidents". A service was an obligation on the part of the tenant owed to the landlord. The most important were payment of rent (socage tenure), military service (Knight-service), the performance of some form of religious service (frankalmoin) and personal/official service, including in times of war (serjeanty tenure).

On the death of the tenant, an important incident was that of escheat, whereby the land of the tenant by knight service would escheat to the Crown in the event either of there being no heirs, or the knight's being convicted of a felony.

Decline of land tenureThe feudal system in England gradually became more and more complex until eventually the process became cumbrous and services difficult to enforce. As tenancies came to an end, the number of layers in the feudal pyramid was reduced. The Tenures Abolition Act 1660 abolished knight service, converting all free tenures to socage tenure.

LIFE ESTATE & FEE SIMPLEYou are a knight about to head off on one of the crusades. You know the chances of your returning are not very good. As a result, you want to transfer title in your land to your trusted friend so that if you were to die, some of the incidents or tenure related to inheritance would not be triggered. But you are giving the property to your friend so that it will be preserved for the benefit of your daughter and yourself, should you return. As a result, your daughter is to have the benefit of a life estate while you wish to retain the benefit of fee simple.

Draft a single sentence conveyance that will achieve this goal…

“to FRIEND and his heirs, to the use of MY DAUGHTER for life.”

or…

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“to FRIEND and his hers, to the use of MY DAUGHTER for life, with remainder to the use of B (whomever B may be – including self) and his/her heirs.”

If rules of equity and law conflict, equity prevails

Section 44 of Law and Equity Act [RSBC 1996] CHAPTER 253

44 Generally in all matters not particularly mentioned in this Act in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity prevail.

In sum – An equitable right will trump a legal one, so long as equity considers that justice is served by doing so.

Trusts“Property settled on trustees who are directed to hold the interest for the benefit of someone or something else.”

EXPRESS TRUST - a trust created by the free and deliberate act of the parties involved (usually on the basis of written documentation)direct trusttrust - something (as property) held by one party (the trustee) for the benefit of another (the beneficiary); "he is the beneficiary of a generous trust set up by his father"

Resulting Trusts – arise in 2 ways:

A resulting trust (from the Latin 'resultare' meaning 'to jump back') is the creation of an implied trust by operation of law, as where property gets transferred to one who pays nothing for it; and then is implied to have held the property for benefit of another person.

a. The beneficial entitlement in a trust has not been properly disposed of or transferred.

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i. “To A in fee simple to hold in trust for B for life” (see page 446) – when B dies, the fee simple does not go to A – they were only the “HOLDER” of the fee simple interest - the undisposed of equitable interest results back to the settler (or that person’s estate).

b. Property transferred in the form of a gift…

i. “a gift to A in trust for all of my grandchildren who reach 18 years of age.” (see page 446) – if no one ever qualifies for the gift, the equitable title will remain where it has been reposed in the meantime: with the settler.

Equity prefers bargains over gifts.

So… essentially… if a gift is given… the recipient owns the “legal” title, but not the “equitable” title, unless the recipient can prove otherwise.

In certain circumstances this presumption is reversed and the onus is reversed. This is called an “advancement.”

Where there is “joint” tenancy, the surviving tenant immediately acquires ownership.

Presumption of Advancement definition:

A presumption in trust, contract and family law which suggests that property transferred from a parent to a child, or spouse to spouse, is a gift and would defeat any presumption of a resulting trust.

Pecore v Pecore [2007] 1 S.C.R. 795, 2007 CarswellOnt 2752 – Resulting Trust or Outright Gift in father/daughter joint back account/transfer = JOINT TENANCY vs. RESULTING TRUST (Remaining Equitable Interest)

Facts: Father and daughter hold a shared bank account. Upon the death of the father, the daughter assumes the share of the deceased party (the legal interest). Her ex-husband claims that the equitable interest was held by the deceased estate and therefore that a share of it passed on to him by virtue of the deceased will.

Issues: Did the father intend that daughter hold the beneficial interest in the account, or did he withhold it to be distributed upon his death? Did the shared account give rise to a resulting trust or an advancement?

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Discussion:• Difference between joint/common tenancy: joint goes to the other tenant upon death, common is passed to heirs.

• If a gift is made, the presumption is that there is resulting trust

• But, if husband transfers to wife, or parent transfers to a child, law will presume an advancement

• But what about independent adult children, as the daughter was when the account was opened?

• Presumption of advancement only applies to minor children

• However, presumptions are mere guidelines, the will of the deceased is the ruling factor

• There is sufficient evidence to rebut the presumption of resulting trust in favour of an advancement.

Ruling: the daughter holds both equitable and legal interest.

Held: Appeal Dismissed Majority: The trial judge erred in applying the presumption of advancement because Paula was not a minor child. However, the error did not affect the decision. The trial judge found ample evidence in support of Hughes’ intention to have the balance in the joint accounts go to Paula upon his death through survivorship. Had the trial judge applied the presumption of resulting trust, the result would have been the same as proof that a gift was intended would have been found on the evidence.

Minority: Abella J. reached the same conclusion as the majority, albeit through a different analysis. Abella J. concluded that the trial judge applied the correct legal presumption to the facts of the case. Unlike the majority who maintained that the principal justification for the presumption of advancement is the parental obligation to support their dependant children, Abella J. concluded that the rationale for the presumption is grounded in parental affection. Abella J. agreed with the majority of the Ontario Court of Appeal in Madsen Estate on this point (Para 96 Pecore; Para 21 Madsen), asserting that because the justification for the presumption of advancement is parental affection, it does not need to be limited to non-adult children.

Property Law Act [RSBC 1996] CHAPTER 377

Words of transfer

19 (1) In the transfer of an estate in fee simple, it is sufficient to use the words "in fee simple" without the words "and his heirs".

(2) A transfer of land to a person without words limiting the interest transferred, or to a corporation sole by his or her corporate designation without the words "successors", passes the fee simple or the greatest estate or interest in the land that the transferor has power to transfer, unless the transfer expressly provides that a lesser estate or a particular interest is being transferred.

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(3) A voluntary transfer need not be expressed to be “for the use or benefit of” the transferee to prevent a resulting trust.

So, unless otherwise stated, a gift passes legal and equitable title, abolishing the presumption of the resulting trust.

(4) Subsections (1) and (2) do not prevent an instrument from operating by way of estoppel.

c. Evidence of a common intention to create a trust. – (Common intention of trust… e.g. spouse who is not on the title but who, by contribution and/or intent is meant to have an equitable interest.)

Constructive Trusts

A trust which a court declares or imposes onto participants in very specific circumstances such as those giving rise to an action for unjust enrichment, and notwithstanding the lack of any willing settlor to declare the trust.• A constructive trust is one imposed by equity, most commonly as a remedy for unjust enrichment.• It is situation based: it arises in a number of established specific instances, usually for common law couples.• “Remedial” constructive trust has been developed to respond to situations of unjust enrichment

Murdoch v. Murdoch [1975] SCC, - spouse claims trust – SCC rejects claim and says was mere loan – PUBLIC PRESSURE AND STRONG DISSENT LEAD TO CHANGE IN LAW (this case is no longer valid)

PL claimed an interest in the property of her husband, which was bought and developed on her blood, sweat and tears: partly on the financial contributions to the purchase of original property, partly on the indirect contributions through her work. Majority of SCC dismissed the claim and said that it was a mere loan to be repaid, but a DISSENT by Laskin CJ advocated a constructive trust imposition, to respond to unjust enrichment by PL’s husband.

Rathwell v. Rathwell [1978], which had similar fact to Murdoch, SCC found a resulting trust based on common interest, but has accepted that one of the ways to remedy unjust enrichment is by creating a constructive trust in favour of the one who suffered from the unjust enrichment.

A finding of unjust enrichment does not always result in a trust, sometimes monetary compensation is an option.

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Unjust Enrichment Test:1. There is an enrichment2. There is a corresponding deprivation3. There is an absence of juristic (justifiable by way of contract) reasons for enrichment

• PL must first show that no previously recognized juristic reason to deny recovery applies at present case• D then bears an onus to establish that a juristic reason exist.

Remedial Trust Test:1. There was unjust enrichment2. Monetary compensation is inadequate3. There is a connection between the services done and the property in dispute.

Peter v. Beblow [1993] SCC Remedial constructive trust for housekeeping (common law spouses)

Facts: PL and D cohabit (common law) for 12 years, with PL doing domestic work in D’s property, which allowed D to save $350 a month on housekeeper fees, pay off the mortgage, and get some swag and bling. After a breakup, PL claimed interest in the property. Lower court found that D unjustly enriched over PL, and due to the extent of her contributions, the entire property went to her.

Issues: Is there unjust enrichment and what is the remedy?

Discussion:• There is unjust enrichment:

• Housekeeping was enrichment to D• The work was uncompensated, thus a deprivation to PL

• There is no plausible reason to deny compensation• SCC thinks that D’s suggestion that domestic services cannot found a claim is BS

• What is the appropriate remedy?• SCC: for a constructive trust to be ordered:

• monetary compensation has to be inadequate• a link should exist between the services and the property in dispute (the nature and strength of the connection is vague?)

• If so, PL is entitled to a constructive trust based on “value survived” approach.• Value survived: amount by which property has been improved. This will capture the increase in value of the property due to the work of PL, including interest and all that. How did PL’s contribution enhance the assets?

• Value received: value of D’s services. Will not capture the increase in property.

• What about the fact that PL did not pay rent?

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Ruling: PL awarded 50% equitable interest in the property.

Soulos v. Korkontzilas - [1997] 2 S.C.R. 217 - Constructive trust -- Agency -- Fiduciary duties -- Real estate agent making offer to purchase property on behalf of client – but then buys property himself.

FACTS: Vendor rejecting offer but advising agent of amount it would accept -- Agent buying property for himself instead of conveying information to client -- Market value of property decreasing from time of agent’s purchase

ISSUE: Whether constructive trust over property may be imposed and agent required to transfer property to client even though client can show no loss.

RULING: YES – there is a constructive trust – property should go to client.

Per La Forest, Gonthier, Cory, McLachlin and Major JJ.: The constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain. While Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment, this should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized. Under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, and to remedy unjust enrichment and corresponding deprivation. While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.

The following conditions should generally be satisfied before a constructive trust based on wrongful conduct will be imposed:

(1) the defendant must have been under an equitable obligation in relation to the activities giving rise to the assets in his hands;

(2) the assets in the hands of the defendant must be shown to have resulted from deemed or actual agency activities of the defendant in breach of his equitable obligation to the plaintiff;

(3) the plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties; and

(4) there must be no factors which would render imposition of a constructive trust unjust in all the circumstances of the case.

Here K’s breach of his duty of loyalty sufficed to engage the conscience of the court and support a finding of constructive trust. First, K was under an equitable obligation in relation to the property at issue. His failure to pass on to his client the information he obtained on his

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client’s behalf as to the price the vendor would accept on the property and his use of that information to purchase the property instead for himself constituted a breach of his equitable duty of loyalty. Second, the assets in K’s hands resulted from his agency activities in breach of his equitable obligation to S. Third, a constructive trust is required to remedy the deprivation S suffered because of his continuing desire to own the particular property in question. A constructive trust is also required in cases such as this to ensure that agents and others in positions of trust remain faithful to their duty of loyalty. Finally, there are no factors which would make imposition of a constructive trust unjust in this case.

CONDITIONAL GIFTS AND FUTURE INTERESTS

Ways and means of giving land conditionally.

The law frowns on conveyance of land which are conditional and which complicate ownership and title.

"seisin" = has actual possession of land.

REVERSIONS v. REMAINDERS

Reversion

"To Bob for life” the property reverts back to the grantor (or his heirs) upon the death of Bob.

This reversion can be alienated (i.e. bought or sold or conveyed by will) and is immune from the rule against perpetuities because they are vested.

Remainder

"To Bob for life and after his death to Susan in fee simple" creates a remainder - upon the death of Bob, the land is transferred to Susan. A remainder is a future interest but it is vested, it can be bought and sold even before it comes to term.

In the above example, Bob holds a life estate and Susan owns "a fee simple in remainder."

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DEFEASIBLE v. DETERMINABLE INTERESTS

Defeasible Interest/(Condition Subsequent) – fails = absolute gift

"on condition that" "but if" "provided that", and "if it happens that."

This interest resembles a reverter insomuch as it is also the grantor that re-takes in this case, except that this is a contingent interest and not a vested one. It is not only conditional or "contingent" on the condition being broken but it is also contingent on re-entry by the grantor or his/her heirs.

"To the United Church in fee simple, on the condition that if the land shall no longer be needed for church purposes, my estate may re-enter."

If the event happens or if the beneficiary does or does not do something specified, the interest is "defeated." Thus, this is a "defeasible interest"; a fee simple that can be defeated upon the occurrence of a specific event.

A defeasible interest is also referred to as a condition subsequent upon which, if it should occur, the fee simple becomes voidable and the land may be reclaimed by the grantor or his heirs when they re-enter the land.

BC does not allow the right to re-enter linger on forever. British Columbia's Limitations Act (section 3(5)(f)) requires that the re-entry occur within 6 years of the breach of the condition subsequent.

If condition subsequent is invalid, then the gift is absolute (fee simple)

A defeasible interests/condition subsequent if the following words are used:

"on condition that" "but if" "provided that", and "if it happens that."

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Determinable Interest – condition fails = gift fails

"while" "during" "so long as", and "until."

"To the United Church in fee simple until the land is no longer needed for church purposes."

A determinable fee simple creates an estate and then says clearly how long it is to last. The terminating event is part of the estate granted.

A reversion to the grantor or his heirs - automatically when the "land is no longer be needed for church purposes." In lawyer's words: "A determinable interest comes to an end automatically upon the occurrence of the terminating event." It is like a time bomb wrapped around the estate, detonating when the event occurs.

Words which the courts have held to mean a determinable interest include:

"while" "during" "so long as", and "until."

If the condition is a determinable interest and it found to be void (eg. against public policy or uncertain), the entire gift fails.

Words in a conveyance, such as a will, are not always clear and the differences can be subtle. One author suggests that the words "as long as she continues to reside in Canada" or "but only so long as" could be interpreted either way.

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VESTED v. CONTINGENT REMAINDERS

Qualities of Interest

Vested Interest:

• A vested interest is immediate.• An interest is vested when no conditions or limitations stand in the way of

enjoyment• Prior life estates are allowed.• In “to A for life, then to B in fee simple”, both interests are vested.• A is vested in possession and B is vested in interest.• Being vested in interest means having a right to future enjoyment.• An interest vested in possession can be divested if it is determinable or

defeasible.• All vested interest are fully alienable and can be sold or transferred in any

way.

Contingent Interest:

• A contingent interest is one where vesting is delayed pending the occurrence of a condition precedent, the happening of which is not inevitable.

• A right of re-entry is contingent, because it is subject to a condition precedent.

• Courts dislike contingent interest and favour vesting whenever such interpretation is available.

"An estate is vested in interest when there is a present fixed right of future enjoyment. An estate is contingent when a right of enjoyment is to accrue on an event which is dubious and uncertain." {Pearson v. IRC (1981) AC 753.}

All future interests are either vested or contingent.

The owner of a vested interest is guaranteed his estate; he or she has nothing to do but wait. So a vested interest is more valuable than a contingent interest.

Under common law, a contingent interest was not something you could sell, since it may transpire to be worthless, if the condition never occurs.

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Vested Interest

All reversions are necessarily vested, by its very nature as the grantor stands ready to reclaim the estate.

An interest with no condition or limitation, not even the determination of the recipient, except the natural end of the present estate, are called "vested interests."

The estate is fixed and certain either immediately or in the future. There are no "ifs" or "buts" about it. The two conditions of a vested interest are, therefore:

1. The person(s) entitled to take is ascertained; and2. The interest is ready-to-go subject only to the termination of the prior estate.

When in doubt between a vested or contingent interest, as far as concerns land, Canadian courts prefer vested interests so as not to leave the estate uncertain. This is a rebuttable presumption.

"To Adam for life, remainder to Barbara."The classic example of a vested interest, Adam vested in possession, Barbara vested in interest.

"To Adam for life with remainder to Barbara for life with remainder to Charlie in fee simple if he survives Adam."

Since Adam's death is not a "dubious and uncertain" event, but a certainty, Barbara's interest is vested but Charlie's is contingent.

Contingent Interest (or Condition Precedent)

Contingent interests are subject to the rule against perpetuities.

An interest is said to be contingent if vesting is delayed until some condition precedent occurs.

A condition precedent suspends an interest from vesting unless or until a certain event takes place such as leaving a house to "the first person to place flowers on my grave."

A remainder..

can be vested ("to Sam for life with remainder to melanie in fee simple") or contingent, if the remainderman is not ascertained, ("To Sam for life with remainder

to Melanie's oldest child living at her death").

If a real property conveyance is attached to a condition precedent which is void , the entire conveyance is void (the law is different if the property is not real- estate).

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Where a will is ambiguous

There is a presumption that the condition is a condition subsequent and NOT a condition precedent.

"To Adam's oldest son living at his death." This is a contingent interest.

"To the survivor of Barbara or Charlie." This is a contingent interest.

"To Barbara, a child, if she attains the age of 21." This is a contingent interest.

"To Barbara if she becomes a member of the Law Society."

This is a contingent interest.

PUBLIC POLICY & UNCERTAINTY

Conditions are themselves subject to some basic rules:

Conditions which operate as absolute restrictions on the alienation of the fee simple estate are void. The court's guideline is "whether the condition takes away the whole power of alienation substantially" (Re Macleay 1875 L.R. 20). A condition which forbids sale to the whole world except to, or without the permission of a specific person, is void as an absolute restraint on alienation;

A restraint that is partial, such as disallowing leasing, is valid; Restrictions based on first marriage appear to be void on grounds of public

policy but, oddly, not so for second marriages. A condition preventing a beneficiary of a will from challenging the will

through litigation is void as contrary to public policy (Re Bronson (1958) Ontario Reports 367);

The law of contract governs most of the other validity of conditions such as voidness for uncertainty or impossibility.

The test for uncertainty in the case of conditions subsequent is that the beneficiary of the estate must be able to know, clearly, what act(s) would defeat the estate (Sifton v. Sifton 1938 A.C. 656).

It is much more difficult to have a condition precedent held void for uncertainty as the courts will be satisfied if the condition is capable of "some meaning."

Freehold Estates – by G to “A for life and then to B in fee tail”1. in possession – right to posses/occupy – A has a life estate in possession2. in remainder – following a life estate – B has an estate in fee tail in remainder VESTED3. in reversion – G retains an estate in fee simple in fee simple in reversion

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Stuartburn (Municipality) v. Kiansky [2001] QB - A remainder interest is vested, and thus a valid freehold estate

Facts: D is an official in the city, under the condition that all officials are owners of land. D sold his property, but has a remainder interested to a life estate of his grandmother.

Issues: Does the remainder interest qualify as being a current owner of land?

Discussion:• freehold estate can be interpreted to mean freehold right, title or interest in land• remainder interest is a vested interest, though it is an interest vested in interest, not in possession• thus it allows D to be classified as a present owner of a freehold estate

Ruling: Ruling for D – a remainder interest is vested and thus is a valid freehold estate.

Freehold interest: a freehold is a measure of the nature and degree of a person’s interest in land including both a life estate and fee simple.

Life estate is a bridge from the past to the present. The transfer to the remainderman is automatic upon the death of the life estate holder.

Seisin (possession of land) lies in the person w/ present ownership (life tenant) but any and all remaindermen are capable of present ownership (just have to wait to occupy). The remainder interest is a present right.

McKeen Estate v. McKeen Estate 1993 - Presumption against intestacy and inclination to vesting.

Facts: Testator dies and leaves estate in trust for his wife for her life, and on her death divided in fee simple “equally between his two sisters, if they are both alive at the time of death of said wife”. Both sisters die before the wife.

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Issues: Was the intent to make sisters’ interest contingent on them surviving the wife, or vested in interest?

Discussion:• The first thing to look at is the intention of the testator

• If it is unclear, the court will decide what a reasonable person might have intended

• There is a presumption against intestacy• Where the construction of the will is doubtful, the court assumes that the testator did not intend to die wholly or partially intestate• If there is a clear intention that the testator intended to fully dispose of the property, but it is ambiguous as to how, the court prefers a reading that will effect a complete disposition of the whole.

• There is a inclination in favour of vesting. See rules in Browne v. Moody and Phipps v. Ackers

• A will that makes no reference to the time of vesting should always be held to take effect at the testator’s death, and lead to vesting in interest.

• Here, the testator did not intent for intestacy

• Court disagrees with the suggestion that the gift was accompanied by a condition that both sisters are alive

Ruling: Ruling for the estates of the deceased sisters. (The interest is in fee simple, as a remainder vested in interest, and is vested equally in both sisters which only would have been divested of one of them if only one sister survived the life tenant.)

Personal = Contingent

Where the reason for postponement of the vesting of interest is personal to the recipient (donee) we will assume that the gift is contingent. To A when A marries (A has to marry before she gets anything). Same rule for requirement of reaching a particular age.

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When there is ambiguity in the language, construe in favour of the gift being vested. **Presumption against intestacy**

(RULE IN) Browne v. Moody [1936] O.R. 422 (P.C.) - Rule: A gift is prima facie vested if the postponement is to allow for a prior life estate.

Rules of Construction

1. Testator’s intention paramount

2. Presumption against intestacy

3. Construction in favour of vesting

4. Rule in Browne v. Moody - A gift is prima facie vested if the postponement is to allow for a prior life estate.

5. Rule in Re Francis – The rule in Browne v. Moody, except when the conditions are personal to the donee (achieve the age of 19, provided that she marry Fred, provided that she not go to law school)

6. Rule in Phipps v. Ackers – Where a gift with conditions, and then a gift over if conditions are not met, then the first gift is presumed vested. “to A, if and when A attain the age of 19 years, but to C if A does not attain the age of 19 years” A’s interest is presumed to vest even before A turns 19.

Caroline (Village) v. Roper (1987)

“This acre… Transferred to the Caroline Community Hall this day, Shall revert back to the late Thomas Roper Estate if used for other than a community centre…” [498]

St. Mary’s Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657, 1997

In 1966 the appellants surrendered part of their reserve for full market value to the Federal Crown for use as a municipal airport and subject to the stipulation that it would revert to the band if it ceased to be used for public purposes. The Indian Act limits a band’s property tax power to interests of land “in the reserve”, but in 1988 the Kamloops Amendments amended the Indian Act to provide that certain forms of surrendered land -- land surrendered “otherwise than absolutely” -- would be brought within the legal definition of reserve. The appellants levied property taxes in 1992 on the ground that the stipulation to the surrender made the transfer “otherwise than absolut[e]” with the result that the surrendered land fell within the “designated lands” category of the reserve.

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When the respondent refused to pay, the band successfully sued but the judgment at trial was reversed on appeal. The Attorney General of Canada was granted intervener status because the band claimed taxes from it under identical circumstances but in a separate action.

The central question before this Court was whether the appellants’ surrender was made “otherwise than absolutely” such that these surrendered lands now fall within the definition of “designated lands” under the current Indian Act. This required the Court to consider whether the sui generis nature of native land rights means that common law real property principles do not apply to the surrender of the Indian reserve lands under the provisions of the Indian Act.

Held: The appeal should be dismissed.

Given the sui generis nature of native land rights, the Court must go beyond the usual restrictions of the common law (which would embrace the minutiae of the language in the surrender documents and traditional distinctions between determinable limitations and conditions subsequent) and look more closely at the respective intentions of the band and the Crown when the lands were surrendered.

The appellants intended to part with the land on an absolute basis. First, the band surrendered the land for sale. Second, the band entered into negotiations with the Crown upon the full understanding that the impugned lands were to be sold for use as an airport. Third, in return for its surrender, the Crown paid the appellants the full market value of the land. The mere fact that the band included a rider in its surrender does not necessarily mean that the surrender was other than absolute. “Absolute” and “conditional” are not mutually exclusive terms -- either conceptually or under the scheme of the Indian Act. A key element of both the 1952 and 1988 versions of the Indian Act is that they expressly provide that a surrender can be both absolute and conditional.

The Kamloops Amendments created a two-tier system of surrenders which was intended to clarify the status of reserve lands surrendered for lease primarily for purposes of taxation. Surrenders for lease fall within the definition of “designated lands” and surrenders for sale remain beyond the definition of reserve. The broad phrase “otherwise than absolutely” allows for other limited forms of surrenders (such as a right of way) to be considered designated land and yet ensures that other forms of permanent surrenders, be they conditional or unconditional (such as an exchange or gift) remain beyond the notion of reserve land. The definition of “designated lands” therefore does not capture the airport lands.

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Covenants

o   To run with the land (Tulk v. Moxhay)

  Negative

  Intended to run with the land

  For the benefit of the dominant land

  Must enhance the dominant tenement

  Must touch and concern the land

  Only a restriction on alienation will not run

  Restraint of trade will be subject to rule of contra proferendum

  General limitations of equitable principles

  Must have notice

Discriminating Covenants

o   Re Drummond Wren (1945)

  Land not to be sold to Jews, or persons of objectionable nationality

o   Noble and Wolf v. Alley

  Excluding anyone but Caucasians

  Court said didn’t touch and concern the land

  Attaches to characterestics of the person owning the land, not about the land itself

o   Property Law Act

  S. 222(1)

  Eliminates all discriminatory covenants

o   You can establish covenants that requires to certain building guidelines

  So, say you can’t build a house under $1,000,000 on the land, you can use to discriminate

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o   Essentially allows for a private zoning system

Conservation Covenants

o   Statutory creatures

o   Prevents developments of wetlands, etc.

o   Only available to certain actors

  Crown, Crown Corp, Municipality, etc.

o   CAN BE NEGATIVE OR POSITIVE!

and CAN excerpts:

Restrictive Covenantso   Tulk v. Moxhay

  Negative in substance

  Intended to run with the land

  For the benefit of the dominant land

  Must enhance the dominant tenement

  Must touch and concern the land

       Only a restriction on alienation will not run

       Restraint of trade will be subject to rule of contra proferendum

  General limitations of equitable principles

  Must have notice

o   Discriminatory covenants have been eliminated by operation of Property Law Act s. 222(1)

  Previously courts had struck down covenants restricting potential buyers based on race as not touching and concerning the land (Noble and Wolf v. Alley)

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o   Covenant made with Crown, Crown Corps, and other governmental bodies (usually for conservation) can

  Be positive in substance

  Registered in gross (no dominant tenement needed)

  Restrict the use, development, alienation of that land, or demand such

  And still be a valid covenant running with the land

Land Ttile Act s. 219

State Limitations on Private Power (pgs 502-534)

Declarations of Invalidity- law has limited tolerance of conditional transfers. At core, private act won't

be tolerated by courts if it offends some sort of public policy. If court declares a condition subsequent

to be invalid, then invalid condition is removed and gift becomes absolute (if that's the only

condition). *If determinable limitation or a condition precedent is found invalid, then the entire gift

fails. Ontario has recommended abolishing the condition, but not yet.

Unger v. Gossen 1996 CarswellBC 1248 (S.C.) – Unless it can be shown that the dominant intent was the condition, and not a gift, then the condition alone must fail.

Woman dies and leaves to sister, but sister dies first, so goes to her nephews on condition that they move to Canada within 15 years (afraid of USSR taking money). Under Immigration Act, they were ineligible to immigrate to Canada. Estate makes application to Court to see if they can distribute estate to the nephews. If they become residents of Canada seems to be condition precedent (meaning the whole gift would fail). However, doesn't happen here, because performance of condition was not

reason for gift. Gift motivation of testator, not the condition (and reason for condition – USSR as an evil state – no longer exists).

Invalidity Due to Impossibility in Law- condition found invalid if requires person to do something legally

impossible.

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H.J. Hayes Co. v. Meade 208 A.P.R. 419, 1987 CarswellNB 66 (Q.B.) – In the case of ambiguity, courts read condition as subsequent to allow for immediate vesting.

Hayes dies and leaves son property with condition that he reside upon and cultivate the land, if not then goes to other son if gives first son $1,000. Second took land because first didn't reside upon it, and subsequent condition is invalid. D argues conditions were invalid.

Court says, if condition precedent couldn't vest in James, because he didn't reside, but also not Harold, because he didn't pay James. Court decides it is a CS, but is it void due to uncertainty? James did build house on land later. But nothing in will explains what counts as cultivating and residing upon.

Court declare invalid and strike conditions, becomes absolute gift for James.

Condition subsequent (rigorous test): must be a clear and precise divesting conditionInterest would vest from the start (court favours vesting). In uncertainty, the condition is struck out but the interest remains (unconditional)

Condition Precedent (generous): if residency is required before interest vests, court takes ‘wait and see’ approach

If cultivating land before it vests is required, CP is void for uncertainty and entire interest fails

Invalidity due to Uncertainty- won't be enforced, if they can't be interpreted by the Court. Has relatively

low threshold. Interpreting limitation for retaining property a bit more complicated. A CS/DL more likely

to be declared invalid than a condition precedent.

Re: Leonard Foundation Trust (1990 ON CA) – State policy applies to any trust with significant public element.

- scholarship designed for white Christians people, and only 25% women. Human Rights Commission files complaint against trust. Problem because trust was private.

Court says even though private, clear “quasi-public” character.

Right to dispose of property is not absolute, and changing times mean that this is not acceptable to majority of Ontarians.

Court says makes no sense to have entire trust fail, because is charitable trust, so they remove objectionable restrictions.

Invalidity Due to Public Policy-

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Conditions that contravene public policy will not be enforced.

Conditions that encourage people to violate the law, seek to undermine parental rights, mess

with marriage are not enforced.

Problem of construction- to A if he on the condition that he remain unmarried. Usual answer is if

language shows condition subsequent, it is invalid as an improper financial inducement (if he

remains unmarried), but if language shows determinable limitation is ok (until he marries)

Leases & Licences

4 (possibly 5) types of leases…

1. Fixed Term Lease (e.g. – 10 year lease)2. Period Lease (such as from month-month)3. Tenancy at Will (terminated at any time by either the landlord or tenant)4. Tenancy at Sufferance (tenant overholds after the expiration of the term).

5. Perpetual Lease (NOT recognized by common law, but can exist by Statute)

Essential Elements of a Lease…

1. A demise of exclusive possession2. Identification of the parties, property, term, date of commencement, and rent (if any).3. DOES transfer to and bind a new owner(Landlord)

License…

1. Permission to do what would otherwise amount to trespass2. Does NOT transfer to and bind a new owner

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Fatac Ltd. (in liquidation) v. Commissioner of Inland Revenue [2002] NZCA 269- Substance not wording defines lease

FACTS: Puhuini granted Atlas right to operate quarry then sold land to Wellington

ISSUE: Which o the parties is liable for GST payment? Was it ‘tenanted’ property?

DISCUSSION: distinction-tenant v licensee: tenant has right to exclusive possession What constitutes a lease? Must have fixed term, does not require that rent be paid, cannot be terminated pursuant to another legal relationship (terminating clause for [i.e. employment] relates to personal, contractual relations [where landlord-tenant relates to land itself]), landlord cannot retain right to enter, terminology doesn’t matter, limitations does not negate tenancy

Tenancy: temporary ownership Licence: permission to be on land

Atlas was limited to quarrying one thing in small portion of property subject to owners/subowners’ ability to come onto land (so long as didn’t interfere with quarrying)

If contract primarily concerned with use of land there is no tenancy p. 574 and where occupation can be terminated for reasons unconnected to occupation of land, no tenancy (i.e. employment relationship, mortgagee in possession, living in the white house, etc)

DECISION: Atlas’ right to occupation was not exclusive, it was a licence

RATIO: absent express contrary indication tenancy is found where usually understood

Doctrine: lease gives lessee rights against whole world (incl successor landlords) where licence is agreement only between contracting parties (not 3rd parties) Test: exclusive possession

Metro-Matic Services Ltd. v. Hulmann 1973, 4 O.R. (2d) 462 (C.A.) – “Quiet Enjoyment” implies exclusive possession, and restrictions allowed so long as confirm right to do business

Laundromat-landlord covenants to permit access to machines at all times, to be used only for purposes of carrying on business of Laundromat, tenants to have free access at all reasonable times.

Access to premises is in the nature of the business, but restriction from altering nature of business-(freedom of licensee to use premises for desired purposes highly restricted)

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COURT OF APPEAL – Overturns – this is lease – it really looks like a Lease, but a whole lot of restrictions, nevertheless there is great security given to the “tenant” that they will be able to do what they need to do in order to continue their business…

*IF effect is to give exclusive right, subject to restriction, is in law a demise(lease)*Therefore it is a lease!

Southwark LBC v. Tanner [2001] 1 A.C. 1 (H.L.) – Quiet Enjoyment only applicable to Landlord – not other tenants (PRIVITY)

Complain of being able to hear all the sounds made by their neighbours. It is not that the neighbours are unreasonably noisy. For the most part, they are behaving quite normally. But the flats have no sound insulation. The tenants can hear not only the neighbours' televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.

>>>>>>>

No warranty on the part of the landlord that the flat has sound insulation or is in any other way fit to live in. Nor does the law imply any such warranty. This is a fundamental principle of the English law of landlord and tenant. In Hart v. Windsor (1844) 12 M. & W. 68, 87 Parke B. said:

"There is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let."

>>>>>>>

In Jenkins v Jackson (1888) 40 Ch.D. 71, 74, Kekewich J. felt obliged to point out that the word "quietly" in the covenant "does not mean undisturbed by noise. When a man is quietly in possession it has nothing whatever to do with noise... 'Peaceably and quietly' means without interference - without interruption of the possession."

Likewise in Kenny v. Preen [1963] 1 Q.B. 499, 511 Pearson L.J. explained that "the word 'enjoy' used in this connection is a translation of the Latin word 'fruor' and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it."

>>>>>>>

The tenant takes the property not only in the physical condition in which he finds it but also subject to the uses which the parties must have contemplated would be made of the parts retained by the landlord.

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>>>>>>>>

The present case is not concerned with whether the neighbouring tenants, in using their flats in the ordinary way, are lawfully claiming under the landlord. They obviously are. The question is rather whether their conduct amounts to a breach of the covenant for quiet enjoyment at all. In the present cases, the rights of the tenants of neighbouring flats to use them in a normal way are not qualified in any way. As against the appellants, there is nothing improper about their neighbours' use of their flats.

>>>>>>>

Accordingly for the reasons given by my noble and learned friends, I too would dismiss both appeals.

Petra Investments Ltd v. Jeffrey Rogers plc [2000] L. & T.R. 451 (Ch. D.) – Using the land in a way that undermines profitability of a tenant’s business is not derogation.

The FactsThe intention originally had been to make the mall into an upmarket department store. The floor on which Petra was based was to have a particular bias towards high-fashion retail. This concept was not achieved and the trading losses and consequent high turnover of tenants during the first few years meant that the tone of the mall shifted progressively towards the mass-market end of the spectrum.

Petra blamed its losses on the creation of the new unit, the letting of a Virgin Megastore and the prominent signs which Virgin had been allowed to put up advertising both itself and the centre as a Virgin Megastore.

The JudgementThe Court examined the application of the doctrine of non-derogation from grant in this case and reached the following conclusions:

The obligations imposed by the doctrine of non-derogation must be deduced from the circumstances surrounding the original grant. In the present instance the landlord was under an obligation not to alter the common parts of the centre in a way which would cause it to lose its character as a retail shopping mall.

The landlord was under an obligation to take account of the expectations of its existing lessees when contemplating substantial alterations to the mall. This requires a landlord not to do something that could be foreseen to render a lease materially less fit for the purpose for which it had been let.

A clause in a lease which gives the landlord wide powers to deal with retained land and common parts cannot oust these obligations, nor are the obligations diluted by subsequent events. In the present instance the fact that the original concept of the centre had already altered prior to the arrival of the Virgin Megastore was not, in principle, relevant to the question of whether the

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landlord had breached its obligations under the doctrine of non-derogation from grant by allowing Virgin to move in.

Had Petra not signed away the right to complain both of the conversion of a non-retail space into a unit and of the letting of a unit for non-fashion use by accepting a service charge free period, the Court would have found the landlord in breach of its obligations.

The Court further found that the landlord was not liable for the adverse effect the signage

SHARED OWNERSHIP

A concurrent estate or co-tenancy is a concept in property law which describes the various ways in which property is owned by more than one person at a time. If more than one person own the same property, they are referred to as co-owners, co-tenants or joint tenants. Most common law jurisdictions recognize tenancies in common and joint tenancies, and some also recognize tenancies by the entirety. Many jurisdictions refer to a joint tenancy as a joint tenancy with right of survivorship, and a few U.S. States treat the phrase joint tenancy as synonymous with a tenancy in common.

The type of ownership determines the rights of the parties to sell their interest in the property to others, to will the property to their devisees, or to sever their joint ownership of the property. Just as each of these affords a different set of rights and responsibilities to the co-owners of property, each requires a different set of conditions in order to exist.

Tenancy in common

This form of ownership is most common where the co-owners are not married or have contributed different amounts to the purchase of the property. The assets of a joint commercial partnership might be held as a tenancy in common.

Tenants in common have no right of survivorship, meaning that if one tenant in common dies, that tenant's interest in the property will be part of his or her estate and pass by inheritance to that owner's devisees or heirs, either by will, or by intestate succession. Also, as each tenant in common has an interest in the property, they may, in the absence of any restriction agreed to between all the tenants in common, sell or otherwise deal with the interest in the property (e.g. mortgage it) during their lifetime, like any other property interest.

Joint tenancy

A joint tenancy or joint tenancy with right of survivorship (JTROS or JTWROS) is a type of concurrent estate in which co-owners have a right of survivorship, meaning that if one owner dies, that owner's

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interest in the property will pass to the surviving owner or owners by operation of law, and avoiding probate. The deceased owner's interest in the property simply evaporates and cannot be inherited by his or her heirs. Under this type of ownership, the last owner living owns all the property, and on his or her death the property will form part of their estate. Unlike a tenancy in common, where co-owners may have unequal interests in a property, joint co-owners have an equal share in the property.

To create a joint tenancy, clear language indicating that intent must be used - e.g. "to AB and CD as joint tenants with right of survivorship, and not as tenants in common". This long form of wording may be especially appropriate in those jurisdictions which use the phrase "joint tenancy" as synonymous with a tenancy in common. Shorter forms such as "to AB and CD as joint tenants" or "to AB and CD jointly" can be used in most jurisdictions. Words to that effect may be used by the parties in the deed of conveyance or other instrument of transfer of title, or by a testator in a will, or in an inter vivos trust deed.

Where no intent is used in the language, but a transfer is made to more than one person the assumption at Common Law is that it will be in Joint Tenancy.

This presumption will only be rebutted if there are words of severance, such as…

“in equal shares” “share and share alike” “to be divided between” “to be distributed in joint and equal proportions” “equally” “severally”

To be a Joint Tenancy… FOUR UNITIES…

1. Possession2. Interest3. Title (same instrument)4. Time

Re Bancroft, Eastern Trust Co. v. Calder [1936] 4 D.L.R. 571 (N.S.S.C.) – if no express intention – common law assumes JOINT TENANCY

6(b) To invest the other of the said shares … and divide the income thereof annually during the term of the life of my said widow Clara E. Bancroft into four equal shares and pay one of the shares to my son

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Percy, one of the said shares to my son Aubrey, one of the said shares to my daughter Florence and the other of the said shares to the children of my deceased daughter Minnie B. Calder. [Paul & Jean]

6(c) …, in equal shares per stirpes***.

CL presumption of joint tenancy= right of survivorship. Anything which in the slightest degree hints at dividing property must be held to abrogate the idea of joint tenancy and create a tenancy in common.

* Appropriate words of severance “share and share alike” “equally amongst them or to them” are taken to denote a tenancy in common

In this particular case there is no indication, and therefore this is a joint tenancy.

***Per Stirpes

EQUITY DIFFERENCES against presumption of Joint Tenancy

Three circumstances where Equity does not follow common law presumption of a joint tenancy:1. co-owners contributed unequally to the acquisition of the property

2. commercial transactions

3. where co-owners held interest in property as security for a loan (Imagine a

scenario whereby somebody lends money, the property is the security, and then the lender dies.

The estate should not lose the interest in the land to secure the repayment of the loan.)

Property Law Act (changes everything – but only for land – not shares in a corporation, chattels, leases, etc!!)

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11(2) If, by an instrument executed after April 20, 1891, land is transferred or devised in fee simple, charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the land to 2 or more persons, other than personal representatives or trustees, they are tenants in common unless a contrary intention appears in the instrument.

SEVERENCE OF JOINT TENANCY

Williams v. Hensman (1861) - act of one joint tenant “operating on his own share”

1. An act of one joint tenant “operating on his own share”• Transfer to another• Transfer to self - Property Law Act, s. 18(1) & 18(3)• Mortgaging the interest• Granting a lesser estate (e.g. life estate)

BUT can not sever a joint tenancy in a will. 2. Mutual agreement3. Course of dealings

Sorenson Estate v. Sorenson (1977) – Severance of joint tenancy

Marriage broke up, parties divorced in 1969 but continued to hold 3 lots in joint tenancy (A, B, C); lot with home (C) would be divided into two lots (C and D). Agreement said they’d hold A and B in trust, sell D and let wife rent C at $1/year. Wife caring for kids, including mentally disabled son, learns she has cancer in 1974 and executed a trust for her son (containing declaration of severance) to be registered on her death. She wrote her will and started transfer proceedings right before she died.

BUT the creation of the trust (irrevocable) succeeds despite being unregistered and uncommunicated because it was made in contemplation of death (donation mortis causa) = understood as a testamentary disposition. (AND she tied speeding up the conveyance: her intent was obvious)

Three ways in which joint tenancies can be severed:1. An act by any one of any one of the persons interested operating upon his own share may create a severance as to that share. 2. By mutual agreement3. By any course of dealings sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

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Feinstein v. Ashford, 2005 BCSC 1379, - severed the joint tenancy when he signed a transfer of his interest in the land to himself, even though the transfer was not registered

Madam Justice Dorgan of the Supreme Court of British Columbia held that one of two joint tenant owners of a house severed the joint tenancy when he signed a transfer of his interest in the land to himself, even though the transfer was not registered before his death. In the result, the deceased's estate was entitled to a half interest in the house.

Mr. Ashford and Ms. Feinstein went their separate ways, and listed the house for sale. On February 10, 2005, Mr. Ashford signed a transfer of a half interest in the land to himself. However, he died on February 28, 2005, before the transfer was registered in the land title office.

Madam Justice Dorgan noted that a joint tenancy can be severed in three ways: "(i) by one person acting on his or her own share; (ii) by mutual agreement; or (iii) by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common."

In this case, the Court found that when Mr. Ashford had signed the transfer, it was effective as against himself on the date he signed it.

SERVITUDES OVER PROPERTY (Easements – RUN WITH THE LAND; Non Easements – DO NOT RUN WITH THE LAND)

Re Ellenborough Park ([1956] Ch. 131) - defining an easement

The decision of Judge Danckwerts determined the following critera for defining an easement, which were taken from Cheshire's "Modern Real Property":

(1) There must be a dominant and a servient tenement(2) an easement must "accommodate" the dominant tenement

(“reasonably necessary for the better enjoyment of that tenement’)(3) dominant and servient owners must be different persons

Property Law Act18 (7) Common ownership and possession of the dominant and servient tenements does not extinguish an easement. {useful for property development where a developer

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creates and easement or abides by an easement, and owns all the property until such time as the property is then sold to each new individual owner)

(4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant…

1. The rights under the easement must not be too vague2. Cannot establish mere rights of recreation3. Cannot extinguish the possessory rights of the servient owner to a part or all of

his/her property

It was decided from this that the occupiers of the properties in question were therefore the proper beneficiaries and that they did enjoy an easement over the parkland in question.

Shelf Holdings V. Husky Oil (1989-Alta.CA) [is building a pipeline too close to possessory interest and is therefore not an easement?] NO – it is an easement

- NO: even interests close to possessory interest can be easements – privileges granted do not detract from the servient owner’s rights of ownership

- Common easement in oil industry – underground pipelines

The interest conveyed in the grant of an easement is a right of way in the form of an easement and not a grant of an interest in land consistent with ownership.First three conditions for an easement were met – it is the fourth condition that was at issue – the Court held that the privileges granted to Husky do not detract from the servient owner’s right of ownership. The 7th term – upon abandonment of the right of way – Husky must restore land and the right of way reverts to Shelf. Shelf is using the surface of the land. Granted Husky an easement valid and enforceable.

Grant of easement to Husky Oil to permit construction of a pipeline under lands owned by Shelf Holdings. SH (servient tenement) could continue farming the land. Issue is whether it is an easement [enforceable] or a possessory interest [not likely enforceable]. Trial court concluded that it was not an easement. Court of Appeal reversed this decision.

Profit a Prendre - A servitude which resembles an easement and which allows the holder to enter the land of another and to take some natural produce such as mineral deposits, fish or game, timber, crops or pasture.

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British Columbia v. Tener (1985), 32 L.C.R. 340 (S.C.C.) - Profit a prendre may be held independently of the ownership of any land, i.e., they may be held in gross. In this they differ from easements

Claim for compensation based on de facto expropriation - claimant owned mineral claims that were incorporated into a provincial park - no formal expropriation but surface access to the claims was denied under park regulations - owner was entitled to compensation.

“It is important to note that it is the right of severance which results in the holder of the profit a prendre acquiring title to the thing severed. The holder of the profit does not own the minerals in situ. They form part of the fee. What he owns are mineral claims and the right to exploit them through the process of severance…”

“Profit a prendre may be held independently of the ownership of any land, i.e., they may be held in gross. In this they differ from easements.”

The history of the doctrine was also described in…

National Trust Co. v. Bouckhuyt 1987 39 DLR 4th 60 (1987, Ontario):

"A profit à prendre is a right to take something off the land of another person. A profit includes the power and privilege to acquire, through severance, ownership of some part of the physical substance included in the possession of the land that is subject to the profit, or by reduction to possession, ownership of some substance which, were it not for the existence of the profit, could be appropriated only by the possessor of the land that is subject to the profit.

"A profit à prendre is an incorporeal hereditament and unlike an easement it is not necessarily appurtenant to a dominant tenement but may be held as a right in gross, and as such may be assigned and dealt with as a valuable interest according to the ordinary rules of property. It is in effect a grant of the ownership of such portions of the land as are conveyed."

ACCESS TO PUBLIC AND PRIVATE PROPERTY (USUALLY HAS TO DO WITH FREEDOM OF EXPRESSION WITH REGARD TO PUBLIC PROPERTY USES)

Director of Public Prosecutions v. Jones (1999) (HL) - Protest at Stonehenge

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Protest at Stonehenge

“If, as in my opinion it does, the common law recognizes the right of public assembly, I consider that the common law should also recognize that in some circumsantces this right can be exercised on the highway, provided that it does not obstruct the passage of other citizens, because otherwise the value of the right is greatly diminished…”

“…the freedom of expression cannot be exercised in a vacuum… it necessarily implies the use of physical space in order to meet its underlying objectives. No one could agree that the exercise of freedom of expression can be limited solely to places owned by the person wishing to communicate: such an approach would certainly deny the very foundation of the freedom of expression.”

Michelin & CIE v. C.A.W.-Canada (1997) 2 F.C. 306 (Michelin Man cartoon stomping on workers)

“It has not historically conferred a right to use another’s private property as a forum for expression. A proprietor has had the right to determine who uses his or her property and for what purpose. Moreover, the Charter does not extend to private actions. It is therefore clear that s. 2(b) confers no right to use private property as a forum for expression…”

“In the balance of interests and rights, if the Defendants have no right to use the Plaintiff’s “Bibendum” [Michelin Man], they have a multitude of other means for expressing their views. However if the Plaintiff loses its right to control the use of its copyright, there is little left to the Plaintiff’s right of private property. The Defendants seek to extend the scope of their right of free expression to include the use of another’s property…”

Re Drummond Wren [1945] - Land not to be sold to Jews or persons of objectionable nationality - Wren asked that the covenant be declared invalid.

World War II was over, the Allied Forces won, and Canadians took a collective sigh of relief. Fallen men were mourned and surviving Canadian soldiers were welcomed home with open arms and parades in towns across the country. As the celebrations came to an end, Canadians tried to make sense of their losses and pondered the meaning of their great victory. A powerful wave of nationalism lead us to ask "Who are we?" Drummond Wren was one who asked himself that very question. He didn't like his answer. So, Drummond Wren took himself to court.

You see, Drummond Wren had purchased a house by which he had assumed a discriminatory covenant. It read:

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"Land not to be sold to Jews or persons of objectionable nationality."

Uncomfortable with the notion of legal racial discrimination, Mr. Wren asked that the covenant be declared invalid. A very simple, but very remarkable move.

What made Wren's case even more remarkable was that Wren's lawyer did not rely on the Racial Discrimination Act. He didn't argue about jurisdiction or technicalities. No. He argued that the restriction was against the public good and therefore void as being contrary to public policy. In other words, he argued that discrimination was simply wrong.

Finally, a judge agreed. Judge Mackay believed that public policy must evolve as the society it serves evolves. He spoke of the terrible price Canada had paid for freedom and justice. He quoted the San Francisco Charter of the new United Nations, and leaders like Roosevelt and Churchill. Ultimately, the covenant was declared invalid, and Drummond went home and slept a little better.

Yet isn't it ironic that, of all those who had challenged the legality of racial discrimination (Re MacDougall and Waddell), it took a white man to win?

Quotable quote

" If sale of a piece of land can be prohibited to Jews, it can equally be prohibited to Protestants, Catholics or other groups or denominations. If the sale of one piece of land can be so prohibited, the sale of other pieces of land can likewise be prohibited."

Judge Mackay, from Re Drummond Wren

Noble v. Alley [1951] S.C.R. 64 - Court struck down a restrictive covenant that restricted ownership of a section of land to "persons of the white or Caucasian race” - covenant did not touch and concern the land – but rather was attached to the owner – therefore invalid restrictive covenant – no word on public policy

The Court struck down a restrictive covenant that restricted ownership of a section of land to "persons of the white or Caucasian race".

In 1933, Annie Noble had purchased a lot for a cottage in the Beach O' Pines area on Lake Huron. She decided in 1948 to sell the lot to Bernie Wolf, however, it was noticed that the original deed contained the following clause:

(f) The lands and premises herein described shall never be sold, assigned, transferred, leased, rented or in any manner whatsoever alienated to, and shall never be occupied or used in any manner whatsoever by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood, it being the intention and purpose of the Grantor, to restrict the ownership, use,

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occupation and enjoyment of the said recreational development, including the lands and premises herein described, to persons of the white or Caucasian race not excluded by this clause.

Though Wolf was Jewish, Noble still wanted to sell him the land and so they applied to the court to get the covenant nullified, but faced opposition from the "Pines" community.

Noble and Wolf argued that the recent decision of Re Drummond Wren, where the Ontario Court struct down a discriminatory covenant. However, At trial and on appeal the courts upheld the restriction.

The Supreme Court, in a six to one ruling, held that the convenant was invalid. They agreed with the lower court's dismissal of Drummond Wren and instead looked at the law of restrictive covenants and held that the language used in the restriction on alienation was too uncertain.

{the covenant did not touch and concern the land – but rather was attached to the owner – therefore invalid restrictive covenant – no word on public policy issues by the Court here.}

Land Title Act [RSBC 1996] CHAPTER 250

Registration of covenant as to use and alienation

219 (1) A covenant described in subsection (2) in favour of the Crown, a Crown corporation or agency, a municipality, a regional district, the South Coast British Columbia Transportation Authority, or a local trust committee under the Islands Trust Act, as covenantee, may be registered against the title to the land subject to the covenant and is enforceable against the covenantor and the successors in title of the covenantor even if the covenant is not annexed to land owned by the covenantee.

(2) A covenant registrable under subsection (1) may be of a negative or positive nature and may include one or more of the following provisions:

(a) provisions in respect of(i) the use of land, or(ii) the use of a building on or to be erected on land;(b) that land(i) is to be built on in accordance with the covenant,(ii) is not to be built on except in accordance with the covenant, or(iii) is not to be built on;(c) that land(i) is not to be subdivided except in accordance with the covenant, or(ii) is not to be subdivided;(d) that parcels of land designated in the covenant and registered under one or more indefeasible titles are not to be sold or otherwise transferred separately.

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(3) A covenant described in subsection (4) in favour of

(a) the Crown or a Crown corporation or agency,(b) a municipality, a regional district, the South Coast British Columbia Transportation Authority or a local trust committee under the Islands Trust Act, or(c) any person designated by the minister on terms and conditions he or she thinks proper,as covenantee, may be registered against the title to the land subject to the covenant and, subject to subsections (11) and (12), is enforceable against the covenantor and the successors in title of the covenantor even if the covenant is not annexed to land owned by the covenantee.

(4) A covenant registrable under subsection (3) may be of a negative or positive nature and may include one or more of the following provisions:

(a) any of the provisions under subsection (2);(b) that land or a specified amenity in relation to it be protected, preserved, conserved, maintained, enhanced, restored or kept in its natural or existing state in accordance with the covenant and to the extent provided in the covenant.

(5) For the purpose of subsection (4) (b), "amenity" includes any natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land that is subject to the covenant.

Discriminating covenants are void

222 (1) A covenant that, directly or indirectly, restricts the sale, ownership, occupation or use of land on account of the sex, race, creed, colour, nationality, ancestry or place of origin of a person, however created, whether before or after the coming into force of this section, is void and of no effect.

(2) The registrar, on application, may cancel a covenant referred to in subsection (1) that was registered before October 31, 1979.

(3) If the registrar has notice that a registered restrictive covenant is void under this section, the registrar may, on the registrar's own initiative, cancel the covenant.

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PRIORITIES

Legal and Equitable Interests

Nemo dat quod non habet No one can give that which they do not own

Ringo transfers Strawberry Fields to Paul. Ringo then transfers Strawberry Fields to John.

What is the nature of the claims? LEGAL RIGHTS Does Paul or John have the better claim? PAUL (Nemo dat quod non habet, plus first in time is

first in title)

Ringo transfers Strawberry Fields to Paul, but George held legal title to Strawberry Fields, not Ringo.

Does Paul or George have the better claim? GEORGE (Nemo dat quod non habet)

Ringo agrees to transfer Strawberry Fields to Paul. Ringo then receives a better offer from John and agrees to transfer Strawberry Fields to John. Ringo has not transferred title to Strawberry Fields to either Paul or John.

What is the nature of the claims? Competing EQUITABLE – CONSTRUCTIVE TRUSTS Does Paul or John have the better claim? PAUL – first in time

Ringo mortgages his interest in Strawberry Fields to Apple Inc. in exchange for a loan. Ringo then mortgages his remaining interest in Strawberry Fields to Epstein Inc. in exchange for another loan. Ringo defaults on the mortgages and the value of Strawberry Fields is insufficient to cover the value of the two loans.

What is the nature of the claims? (at common law one transfers 100% title – (LEGAL INTEREST) – in exchange for the mortgage. It is the EQUITABLE right of redemption allows for a second mortgage.

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Does Apple or Epstein have the better claim? At common law APPLE – because a prior LEGAL interest takes precedence over the EQUITABLE interest.

Ringo agrees to sell Strawberry Fields to Paul, the parties to complete the transfer at a future date. Ringo then receives and accepts a better offer for Strawberry Fields from John and transfers title to John.

What is the nature of the claims? Paul = equitable, John = legalDoes Paul or John have better claim? JohnWhat does it depend on? Whether or not John is a bona fide (good faith) purchaser for value without notice of Paul’s interest.

Ringo agrees to sell Strawberry Fields to Paul, the parties to complete the transfer at a later date. Ringo then transfers absolute title to Strawberry Fields to George as a gift.

What is the nature of the claims? Paul = prior equitable, George = subsequent legalDoes George or Paul have the better claim? Subsequent legal interest only takes precedent if there is a bona fide “purchaser”. This is a gift. Paul has the better claim.

Ringo agrees to sell Strawberry Fields to Paul, the parties to complete the transfer at a later date. Ringo then receives a better offer from John, accepts the offer, and transfers Strawberry Fields to John. John knew that Paul was interested in the property and that Paul had been negotiating with Ringo.

What is the nature of the claims? Paul = prior equitable, John = subsequent legalDoes Paul or John have the better claim? JohnWhat does it depend on? Unless… did John have actual notice? Or imputed notice? Or constructive notice (ought to have known)?

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Ringo holds title to Strawberry Fields. Paul has leased the property for many years and has indicated that he wishes to purchase the property if Ringo ever decided to sell. Ringo decides to sell and agrees to sell Strawberry Fields to Paul. Then, concerned that he settled for too low a price, Ringo approaches John who had also expressed interest in the property. John offers a better price, which Ringo accepts, and Ringo transfers his interest to John.

What is the nature of the claims? Paul = prior equitable, John = subsequent legalDoes Paul or John have the better claim? JohnWhat does it depend on? MUCH MORE LIKELY THAT THERE WOULD BE A CONSIDERATION OF… constructive notice (ought to have known)?

GENERAL PRINCIPLE - FRAUD IS NOT REWARDED. (WITH REGARD TO THE PARTY THAT PARTICIPATES, AND NOT AN INNOCENT PARTY).

100% RISK IS WITH THE PURCHASER.

A FRAUDLENT ACT NULLIFIES ALL SUBSEQUENT CLAIMS. {NEMO DAT}

COMMON LAW DEVELOPED A LIMIT OF 60 YEARS. (STATUTE HAS LIMITED THIS TO 15-20 YEARS DEPENDING ON THE JURISDICTION)

Chippewas of Sarnia Band v. Canada (A.G.) (2000) 41 R.P.R. (3d) 1 – Aboriginal Title is Sui Generis – therefore subsequent legal title takes priority.

The plaintiff, an aboriginal nation, claimed aboriginal title to a four-square-mile parcel of land in and around the city of Sarnia, Ontario. The Court of Appeal dismissed the claim, upholding the lower court's judgment although with different reasoning. The Chippewas of Sarnia sought leave from the Supreme Court of Canada to appeal the decision, but leave was denied.

The Chippewas of Sarnia Band, legally an Indian Band pursuant to Canada's Indian Act, is now known as Aamjiwnaang First Nation.

First, the aboriginal group was claiming ownership of privately held land. Previous aboriginal title claims, such as in Delgamuukw v. British Columbia, had asserted title to crown land only, but here, the disputed Sarnia lands had been taken from the aboriginal group and then transferred (mostly) to private individuals and corporations. The Chippewas of Sarnia sought an order that the corporations vacate the land and return it to the Chippewas of Sarnia. With respect to land currently occupied by individuals (i.e.

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houses), the Chippewas did not ask that it be vacated, but instead sought financial compensation from the government.

DOCTRINES OF LACHES AND ACQUIESENCE applies.

[306] The good faith purchaser defence is an equitable doctrine and the Chippewas assert that their interest in the lands is a purely legal one not caught by purely equitable defences. {COURT SAYS THAT SUI GENERIS = MIX OF EQUITABLE & LEGAL} For reasons already given, we do not accept this argument. To the extent that the Chippewas assert a claim for the return of the lands, they assert a claim to an equitable remedy that is subject to equitable defences.

TITLE REGISTRATION (as opposed to “Deeds”)

1. Registration Principle…

Unregistered instrument does not pass estate

20 (1) Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act.

(2) An instrument referred to in subsection (1) confers on every person benefited by it and on every person claiming through or under the person benefited, whether by descent, purchase or otherwise, the right

(a) to apply to have the instrument registered, and

(b) in proceedings incidental or auxiliary to registration, to use the names of all parties to the instrument, whether or not a party has since died or become legally incapacitated.

(3) Subsection (1) does not apply to a lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement.

2. Indefeasibility Principle… {KILLS THE NEMO DAT PRINCIPLE}

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Effect of indefeasible title

23 (1) In this section, "court" includes a person or statutory body having, by law or consent of parties, authority to hear, receive and examine evidence.

(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

(a) the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant or contained in any other grant or disposition from the Crown;

(b) a federal or Provincial tax, rate or assessment at the date of the application for registration imposed or made a lien or that may after that date be imposed or made a lien on the land;

(c) a municipal charge, rate or assessment at the date of the application for registration imposed or that may after that date be imposed on the land, or which had before that date been imposed for local improvements or otherwise and that was not then due and payable, including a charge, rate or assessment imposed by a public body having taxing powers over an area in which the land is located;

(d) a lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement;

(e) a highway or public right of way, watercourse, right of water or other public easement;

(f) a right of expropriation or to an escheat under an Act;

(g) a caution, caveat, charge, claim of builder's lien, condition, entry, exception, judgment, notice, pending court proceeding, reservation, right of entry, transfer or other matter noted or endorsed on the title or that may be noted or endorsed after the date of the registration of the title;

(h) the right of a person to show that all or a portion of the land is, by wrong description of boundaries or parcels, improperly included in the title;

(i) the right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree;

(j) a restrictive condition, right of reverter, or obligation imposed on the land by the Forest Act, that is endorsed on the title.

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(3) After an indefeasible title is registered, a title adverse to or in derogation of the title of the registered owner is not acquired by length of possession.

(4) Despite subsection (3), in the case only of the first indefeasible title registered, it is void against the title of a person adversely in actual possession of and rightly entitled to the land included in the indefeasible title at the time registration was applied for and who continues in possession.

3. Abolition of Notice Principle {KILLS THE requirement for NOTICE}

Effect of notice of unregistered interest

29 (1) For the purposes of this section, "registered owner" includes a person who has made an application for registration and becomes a registered owner as a result of that application.

(2) Except in the case of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner

(a) a transfer of land, or

(b) a charge on land, or a transfer or assignment or subcharge of the charge,

is not, despite a rule of law or equity to the contrary, affected by a notice, express, implied, or constructive, of an unregistered interest affecting the land or charge

4. Assurance Principle {Compensation only to earlier titles – no absolute ownership – registration trumps but there can be compensation.}

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FRAUD

What about the bona fide purchaser for value?Immediate indefeasibility?Deferred indefeasibility?

Andy held the fee simple interest in Zenyatta. Sting, believing that he was dealing with Andy, contracted to purchase the fee simple interest. However, he was actually dealing with Stewart who was posing as Andy. Stewart forged Andy’s signature on the transfer instrument (Form A) and Sting registered his interest. At this point, Andy discovers the fraud and claims title.

STING REGISTERED HOLDER OF TITLE

Can Andy recover title …

if Sting has participated in the fraud? YES

if Sting is a bona fide purchaser for value within a system of immediate indefeasibility? NO

if Sting is a bona fide purchaser for value within a system of deferred indefeasibility system? YES

Andy held the fee simple interest in Zenyatta. Sting, believing that he was dealing with Andy, contracted to purchase the fee simple interest. However, he was actually dealing with Stewart who was posing as Andy. Stewart forged Andy’s signature on the Form A and Sting registered his interest. Sting then contracts to sell the fee simple interest in Zenyatta to Sarah. At this point, Andy discovers the forgery.Assuming Sting and Sarah are bona fide purchasers for value can Andy recover title

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…within a system of immediate indefeasibility? NO

…within a system of deferred indefeasibility? YES – the interest hasn’t yet gone to Sarah – there is an agreement but it hasn’t actually happened.

Andy held the fee simple interest in Zenyatta. Sting, believing that he was dealing with Andy, contracted to purchase the fee simple interest. However, he was actually dealing with Stewart who was posing as Andy. Stewart forged Andy’s signature on the Form A and Sting registered his interest. Sting then contracts to sell the fee simple interest in Zenyatta to Sarah and on the closing date Sarah registers her interest. At this point, Andy discovers the forgery.Assuming Sting and Sarah are bona fide purchasers for value can Andy recover title

…within a system of immediate indefeasibility?

…within a system of deferred indefeasibility?

Andy held the fee simple interest in Zenyatta. Sting, believing that he was dealing with Andy, contracted to purchase the fee simple interest. However, he was actually dealing with Stewart who was posing as Andy. Stewart forged Andy’s signature on the Form A and Sting registered his interest. Sting then contracts to sell the fee simple interest in Zenyatta to Sarah and on the closing date Sarah registers her interest. At this point, Andy discovers the forgery.Assuming Sting and Sarah are bona fide purchasers for value can Andy recover title …within a system of immediate indefeasibility?

…within a system of deferred indefeasibility?

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Assurance Fund?

296 (2) A person, in this Part referred to as the "claimant",(a) who is deprived of any estate or interest in land

(i) because of the conclusiveness of the register, in circumstances where, if this Act had not been passed, the claimant would have been entitled to recover the land from the present owner, and

(ii) in consequence of fraud or a wrongful act in respect of the registration of a person other than the claimant as owner of the land, and …

- deprived or any estate or interest in land?- because of the conclusiveness of the register?- would be entitled to recover absent a title registration system?- in consequence of fraud or wrongful act?- barred from bringing an action to recover land?

Barred from bringing an action to recover land?

25 (2) An action of ejectment or other action for the recovery of land for which an indefeasible title has been registered must not be commenced or maintained against the registered owner named in the indefeasible title …

Immediate Indefeasibility Comes to B.C.

Land Title Act 25.1(1) Subject to this section, a person who purports to acquire land or an estate or interest in land by registration of a void instrument does not acquire any estate or interest in the land on registration of the instrument. {restating NEMO DAT}(2) Even though an instrument purporting to transfer a fee simple estate is void, a transferee who(a) is named in the instrument, and(b) in good faith and for valuable consideration, purports to acquire the estate,is deemed to have acquired that estate on registration of that instrument. {even though nothing, good faith purchaser for value – thus knocking down the NEMO DAT}(3) Even though a registered instrument purporting to transfer a fee simple estate is void, a transferee who(a) is named in the instrument, (b) is, on the date that this section comes into force, the registered owner of the estate, and (c) in good faith and for valuable consideration, purported to acquire the estate, is deemed to have acquired that estate on registration of that instrument. {already in the registration system – still fixes any problems}

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Validity of documents

Credit Foncier v. Bennett: authority for the proposition that you cannot assume validity of the documents on the basis of which registration of a charge took place. Authority for interpretation for s. 26, still good law.

Court: s. 197 tells about process of registration not consequences of registration. Consequences of registration found in s. 26, which provides that registered owner is deemed to be entitled to interest. Contrast with s. 23, (strong language indicating immediate indef) indicates that s. 26 is rebuttable deeming provision. This allows one to go behind the register. Effect of Credit Foncier seemed to be that in the case of charges had to do old fashioned common law search of title.

Credit-Foncier Franco v. Bennett (1963) BCCA - if you are dealing with the registered FS owner, you are protected – if not then not

Analysis: Why wasn’t CF protected since they were dealing with the registered charge? Court looked at language – shall be deemed in s. 26 could be interpreted in one of two ways: Either irrebuttable presumption, or presumed until contrary is proven. This was critical – they thought leg intended to have lesser degree of protection applied to charges than they did to fee simple, based on the less strong language in s. 26. Ratio: the presumption is in favour of B. You have to put limitations on the inquiry that you will take in relation to s. 26.

- How did the Island Realty case deal with the problem Credit Foncier created?o The court in Island Realty focused on the fact that the holder of the 3 rd mtg. was dealing

with the registered ownero In Credit Foncier, the registered FS owner had never actually granted the mtg. The

original mtg. was a forgery so there was no connection between the assignee of the mortgage and the Bennetts

o So the court effectively limits Credit Foncier, they disagree that CF should go so far that every time we have a dispute, we should go behind the register to determine who holds title, the court decided that this wasn’t necessary given the land registration system

o The bottom line is : if you are dealing with the registered FS owner, you are protectedo But of course registration of an interest does not guarantee the validity of the interest,

validity of interest can be challenged

Canadian Commercial Bank v. Island Realty Investments Ltd. (1988) CA) - you can assume validity of documents and can rely on protection afforded by indefeasibility if you trace them back to the fee simple owner (this was NOT the case in CF). At CL, Almont would not have taken priority but this does not determine the outcome here

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Result: you can assume validity of documents and can rely on protection afforded by indefeasibility if you trace them back to the fee simple owner (this was NOT the case in CF). At CL, Almont would not have taken priority but this does not determine the outcome here.Should there be legislative reform in this area as well?

Analysis: Here however, discharge released PM even if it was fraudulent and cleared their interest in land. Almont did NOT take under void instrument. Cannot apply rule in CFF either – even though s. 23 says owner of fee simple is conclusively presumed to have title, where s. 26 does not offer this same type of protection to chargeholder (rebuttable presumption).

Ratio: where mortgage is valid, bona fide purchaser will be protected.

Validity of the interestRegistration of charge does not constitute a determination by the Registrar that the interest was validly created. Open to subsequent purchaser to convince court that this is not a valid interest.

Notice of terms and conditionsIf a document that is filed at the LTO provides certain terms, does purchaser have to take these into account? S. 27 provides that registration of a charge gives notice of any supporting document on file in LTO—i.e. content of instrument creating the charge.BUT note S. 27(1)(b) provides that this is so far as it relates to that registered interest. If a document creates 2 interests (e.g. a lease with option to purchase), each must be registered separately.

Priority as between charges S. 28 provides that when 2 or more charges registered, as between those charges, priority is determined by dates of applications to register . Reverses common law which determined priority on the basis of date of the creation of the interest.

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