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Property Summary
Property Law (Niagara College (Canada))
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Summary (Property) - Table of Contents
Judges that exercised judicial activism ................................................................................................ 5
Nuisance and Trespass ................................................................................................................................ 5
SUMMARY ............................................................................................................................................... 5
Schools of Thought on Property (Merill’s Taxonomy of Three Theories of Property) ...... 5
Justifications of Property............................................................................................................................. 6
Postive Law Theory: ....................................................................................................................................... 6
Economic Theory .............................................................................................................................................. 6
Richard Posner ............................................................................................................................................................... 6
Hernando De Soto ......................................................................................................................................................... 6
Garrett Hardin ................................................................................................................................................................ 6
Eleanor Ostrom .............................................................................................................................................................. 6
Michael Heller................................................................................................................................................................. 6
Utilitarian Theory ......................................................................................................................................................... 6
Natural Rights Theory: .................................................................................................................................. 6
John Locke ........................................................................................................................................................................ 6
Robert Nozick ................................................................................................................................................................. 6
George Hegel ................................................................................................................................................................... 6
Jeremy Waldron............................................................................................................................................................. 6
Tragedy of the Anti-Commons .............................................................................................................................. 7
2. Justice Posner, Professor Ellickson......................................................................................................... 7
Socialist Perspectives ............................................................................................................................................... 7
Philosophers...................................................................................................................................................... 7
1. Posner..................................................................................................................................................................... 7
2. Ellickson ................................................................................................................................................................. 7
3. Coase ...................................................................................................................................................................... 7
4. Heller ....................................................................................................................................................................... 7
5. Locke ....................................................................................................................................................................... 7
What Is Property? ............................................................................................................................................ 7
Principles of Equity - Notes ........................................................................................................................ 8
Operation of Law.......................................................................................................................................................... 8
The meaning of Property .................................................................................................................. 9
Consensus Points ........................................................................................................................................... 9
Relevant Property Protections ....................................................................................................... 9
Private interest v public interest ................................................................................................... 9
•
Fire in the blood ................................................................................................................................................. 9
The Nature of Property .................................................................................................................... 10
1. Yanner v Eaton, Australian High Court of Appeal (1999) ....................................................... 10
2. INS v AP, US SC (1918).......................................................................................................................... 10
3. Victoria Park Racing v Taylor (1937) ............................................................................................... 11
•
Sports Trax v NBA .............................................................................................................................. 11
4. Moore v The Regents of the University of California, California SC (1990) ................... 11
Body Parts ....................................................................................................................................................... 12
Expropriation ....................................................................................................................................... 12
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Expropriation, defined – formal and regulatory (de facto) ......................................................... 12
Mariner Real Estate v Nova Scotia (AG), NS CA (1999) (de facto alleged) .......................... 13
6. CPR v City of Vancouver, SCC (2006) (de facto alleged)........................................................ 13
7. Pennsylvania Coal v Mahon, US SC (1922) .................................................................................. 13
8. Lucas v South Carolina Coastal Council, US SC (1992) ......................................................... 13
Metalclad Corp v United Mexican States (2000) – NAFTA Arbitration Tribunal ........................ 14
Quasi-Public Property & Individual Rights in Public Spaces ......................................... 14
9. Harrison v Carswell, SCC (1976) ....................................................................................................... 14
Peters .............................................................................................................................................................................. 14
10. Victoria (City) v Adams, BC CA (2009) ......................................................................................... 15
•
Abbortsford v Shantz ........................................................................................................................ 16
11. Batty v Toronto (City) (2011) – Decision: Brown J............................................................................ 16
Homelessness................................................................................................................................................ 16
Other Cases re: Property in Perspective............................................................................................ 16
•
Zuccotti Park: Quasi-public Property (See Carswell) .................................................................... 16
•
Director of Public Prosecutions v Jones (Stonehenge): .............................................................. 16
•
R v Banks (Squeegee Kids ........................................................................................................................ 17
•
Committee for the Common Wealth of Canada v Canada: ....................................................... 17
•
Peters .................................................................................................................................................................... 17
•
Grosvenor Park ................................................................................................................................................ 17
•
Scmid .................................................................................................................................................................... 17
Property Boundaries ........................................................................................................................ 17
Definitions........................................................................................................................................................ 17
Didow v Alberta Power (Haddad JA): .............................................................................................................. 17
Lord Bernstein v Skyviews (Griffiths J):.......................................................................................................... 17
Lacroix v R (Fournier J): ......................................................................................................................................... 18
Air Can v R (Monnin JA): ....................................................................................................................................... 18
US v Causby ................................................................................................................................................................ 18
S Centre of Theosophy ........................................................................................................................................... 18
Bea v Robinson .......................................................................................................................................................... 18
Backhouse v Bonami ............................................................................................................................................... 18
Petrofina v Moneta .................................................................................................................................................... 18
Flewelling v Johnston .............................................................................................................................................. 18
Boundary Qualifications – Air, Subsurface, Water, Support........................................... 18
Didow v Alberta Power, AB CA (1988) – Air Rights ....................................................................... 18
Edwards v Sims, KY CA (1929) – Subsurface Rights ................................................................... 18
Robertson v Wallace, AB QB (2000) – Land Boundry Rights .................................................... 19
Blewman v Wilkinson, New Zealand CA (1979) – Right to Support ........................................ 19
R v Nikal, SCC (1996) – Water Boundary Rights ............................................................................. 20
Fixtures – Degree of annexation and object of annexation ............................................. 20
•
Personal Property includes ........................................................................................................................ 21
17. La Salle Recreation v Canadian Camdex Investments, BC CA (1969) ........................... 21
18. Diamond Neon v TD Realty, BC CA (1976) ................................................................................. 21
Intangible Resources – Copyright, Trademarks, and Patents ........................................ 22
Intellectual Property .................................................................................................................................... 22
IP Terms ............................................................................................................................................................ 22
Copyright ........................................................................................................................................................................ 22
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Trademark ..................................................................................................................................................................... 22
Patent .............................................................................................................................................................................. 22
Théberge v Galerie d’Art du Petit Champlain, SCC (2002) - Copyright ................................. 22
Swan v Eaton Centre (1982 Ont HC) ............................................................................................................ 23
20. Monsanto v Schmeiser, SCC (2004) - Patent............................................................................. 23
Harvard Mouse (2002) (McLachlin CJ)........................................................................................................... 24
21. Mattel v 3894207 Canada Inc., SCC (2006) - Trademark ....................................................... 24
Electronic Property – How far do property rights extend? .............................................. 24
Tucows v Renner, ON CA (2011) ............................................................................................................ 24
23. Intel v Hamidi, Cal SC (2003) ............................................................................................................ 25
Other Property Boundaries Cases ........................................................................................................ 26
•
Petrofina............................................................................................................................................................... 26
•
Black v Molson ................................................................................................................................................. 26
•
Michelin ................................................................................................................................................................ 26
Possession of Property ................................................................................................................... 26
Pierson v Post (Tomkins J) ................................................................................................................................... 26
Clift v Kane (Hoyles CJ) ......................................................................................................................................... 26
Parker v British Airways (Lord Donaldson):.................................................................................................. 26
Charrier v Bell (Ponder J):..................................................................................................................................... 26
Baird v British Columbia ......................................................................................................................................... 26
24. Pierson v Post, NY SC (1805) ........................................................................................................... 26
25. Clift v Kane, Nfld. SC (1870) .............................................................................................................. 27
26. Popov v Hayashi, Cal SC (2002) – Pre-possessory rights................................................... 27
Other Cases Regarding Possession of Property ............................................................................ 28
•
Doyle v Barlett................................................................................................................................................... 28
•
Armory v Delamirie ......................................................................................................................................... 28
•
Baird v British Columbia .............................................................................................................................. 28
The rules for finders ......................................................................................................................... 28
27. Trachuk v Olinek, AB QB (1996) ..................................................................................................... 28
28. Parker v British Airways, UK CA (1982)....................................................................................... 28
29. Charrier v Bell, LA TD (1986) ............................................................................................................ 29
Finders’ Keepers – Notes .......................................................................................................................... 29
•
Millas v BC .......................................................................................................................................................... 30
Gift-Giving: Inter vivos and Donatio Mortis Causa .............................................................. 30
30. Nolan v Nolan, Vic SC (2003) ............................................................................................................ 30
31. Re Bayoff Estate, Sask. QB (2000) ................................................................................................. 30
Gifting ................................................................................................................................................................ 31
Nolan v Nolan (Dodds-Streeton J):................................................................................................................... 31
Re Bayoff Estate (Krueger J): ............................................................................................................................. 31
Re Cole ........................................................................................................................................................................... 31
Lock v Heath ................................................................................................................................................................ 31
Brown v Rotenberg ................................................................................................................................................... 31
Strong v Bird................................................................................................................................................................. 31
Symbolic delivery ....................................................................................................................................................... 31
Constructive Delivery: ............................................................................................................................................. 31
Principles of Equity & Trusts ........................................................................................................ 31
Overview of Trusts/Equity ........................................................................................................................ 31
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Constructive Trusts .......................................................................................................................... 32
Pecore v Pecore, SCC (2007) ................................................................................................................... 32
•
Madsen Estate ...................................................................................................................................... 33
Remedial Constructive Trusts & Unjust Enrichment.......................................................... 33
Murdoch v Murdoch, SCC (1973) ........................................................................................................... 33
•
Rathwell ............................................................................................................................................................... 33
•
Pettkus v Becker.............................................................................................................................................. 33
Kerr v Baranow; Vanasse v Seguin, SCC (2011)............................................................................. 33
Other Cases and Considerations for Constructive Trust in Relationship Breakdowns 34
•
Family Law Act ................................................................................................................................................. 34
•
Rawluk .................................................................................................................................................................. 34
•
Peter v Beblow ................................................................................................................................................. 34
•
M v H ..................................................................................................................................................................... 34
•
Walsh v Bona .................................................................................................................................................... 34
•
Sorochan: ............................................................................................................................................................ 34
The Future of Property..................................................................................................................... 34
Ellickson, “Property in Land”.................................................................................................................. 34
Vested Interest, with strings: Condition Subsequent and Determinable Limitation ....... 35
Interpreting Wills ................................................................................................................................ 40
Thomas v Murphy, NB QB (1990)........................................................................................................... 40
Key Terms for Transfer Intention Identification .............................................................................. 40
Re Walker, ON CA (1924) ........................................................................................................................... 40
Re Taylor, Saskatchewan Court (1982) ............................................................................................... 41
Christensen v Martini, AB CA (1999) .................................................................................................... 41
The Future of Property..................................................................................................................... 41
Kinds of Interest: .......................................................................................................................................... 41
Real Estate Definitions ............................................................................................................................... 41
Magic Words to keep in mind .............................................................................................................................. 42
Stuartburn v Kiansky, MB QB (2001) ................................................................................................... 42
Re McKeen Estate, NB QB (1993) .......................................................................................................... 43
Caroline (Village) v Roper, AB QB (1987) ........................................................................................... 43
Vested interest - conditions subsequent and determinable limitation ................................. 44
Four grounds for limitation by the State – impossibility, public policy
(discrimination), uncertainty, and inefficiency/economic concern/inalienability... 45
Impossibility - Unger v Gossen, BC SC (1996) ................................................................................ 45
Uncertainty - Hayes v Meade, AB QB (1987)..................................................................................... 45
Valid, but weighed the idea of public policy - Estate of Charles Millar, SCC (1938) ...... 46
Discrimination - Leonard Foundation Trust, ON CA (1990) ....................................................... 46
Inefficiency - Trinity College v Lyons, ON Gen Div (1995) .......................................................... 47
•
Noble v Wolfe (1949): .................................................................................................................................... 47
•
Ramsden Estate (1996) PEI ......................................................................................................................... 47
•
Fox Estate (1996) ON CA ............................................................................................................................... 47
•
Spence v BMO Trust (2016) ON CA........................................................................................................... 47
Aboriginal Rights ............................................................................................................................... 48
Ways in which to enforce or establish title ....................................................................................... 48
History of Aboriginal Rights in Canada (and generally) .............................................................. 48
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Van Der Peet Trilogy (1996 SCC) – Defined and restricted aboriginal rights, building on
Sparrow for both ......................................................................................................................................................... 49
Delgamuukw v BC, SCC (1997) – Tests for Aboriginal Title and Infringement
Established...................................................................................................................................................... 49
Haida Nation v BC, SCC (2004) – Establishing the duty to consult on potential claims 49
R v Bernard; R v Marshall, SCC (2005) – Clarifying the Standards for Occupation ........ 50
Tsilhqot’in v British Columbia, SCC (2014) – The first successful claim for Aboriginal
Title, but opening the door for provincial infringement ............................................................... 50
Nanabush v Deer, Wolf, et al, John Borrow’s “Recovering Canada” .................................... 50
Richard Overstall: Encouraging the Spirit in the Land ................................................................ 50
Delgamuukw v British Columbia, SCC (1997) – Aboriginal title and infringement defined
.............................................................................................................................................................................. 50
Haida Nation v BC, SCC (2004) – duty of consultation in face of potential land claims 51
R v Bernard; R v Marshall, SCC (2005) – Standards for occupation ...................................... 52
Tsilhqot’in v British Columbia, SCC (2014) (successful) - test for proof & infringement
.............................................................................................................................................................................. 52
Differences between Aboriginal and Non-Aboriginal Land Title ........................................................ 53
Tom Flanagan First Nations, Second Thoughts .............................................................................................. 53
Frameworks: General Notes and Terms ....................................... Erreur ! Signet non défini.
Long-Answer Frameworks .................................................................. Erreur ! Signet non défini.
Memo Format Template ...................................................................................Erreur ! Signet non défini.
Judges that exercised judicial activism
• Pittney J (INS), Mosk J (Moore), Laskin J (Harrison), Logan J (Edwards), Laskin
(Murdoch)
Incremental Adjustments or Leave it to Legislators
Brandeis J (dissent) in INS / Latham CJ in Victoria Park / Panelli J in Moore / Dickson in
Harrison / Wedegar J in Intel
Nuisance and Trespass
1. Nuisance: “The impairment of the rights flowing from occupation and ownership of the
land” (Rich J Dissent in Victoria Park)
2. Latham CJ (Victoria Park) any notion of a property right in a spectacle is metaphorical in
nature only, cannot be regulated on any legal principle.
3. Rich J Dissent: nuisance should have been successful due to the economic right of
property ownership.
4. Trespass: Didow v Alberta Power - cujus est solum.
SUMMARY
Schools of Thought on Property (Merill’s Taxonomy of Three Theories of Property)
Single Variable Essentialism: the right to exclude others is both the necessary and sufficient
condition of property (Blackstone’s sole and despotic dominion)
• Merrill: property is the sole right to exclude
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•
•
Blackstone: property is the sole and despotic dominion which one man claims and
exercises over the external thing of the world, in total exclusion of the right of any other
individual in the universe
Cohen: keep off X unless you have my permission
Multiple Variable Essentialism: property rights are a bundle of rights where exclusion is just one
of them (SCOTUS saying “possess, use, dispose”)
Nominalism: Property is what the law decided it is with no fixed meaning and is dependent on
legal realism (people interpreting laws differently - Yanner)
Justifications of Property
Postive Law Theory: Property is a man-made right (not born with this) created to serve a
particular purpose (i.e. economic, utilitarian)
Economic Theory: the law is shaped to serve particular economic outcomes/structures
Richard Posner: for efficient markets, you need 1. exclusivity (exclusive ownership);
2. universality; and 3. transferability
Hernando De Soto (2000 Book, The Mystery of Capital): Property rights initiate the rule
of law, without which there is chaos. Property rights unlock markets by providing
certainty to titles.
Garrett Hardin: Tragedy of the Commons – need to privatize property to sustain
resources and prevent their abuse/depletion.
Eleanor Ostrom: Critique of Hardin’s tragedy: Communities can figure out how to
share without private property and create rules of sustainability – Elinor also provided
the table on the typology of property systems (state/public, private, common, nonproperty).
• Tragedy of the commons only exists if you assume the worst of people; communities
can figure out how to share.
Michael Heller: Tragedy of the Anti-Commons – too many property rights are bad and
cause breakdowns in the market through inefficiency and freezing innovation
Utilitarian Theory: Work is good, society wants work, so if you work on something you should
own it because that work maximizes societal happiness: Bentham
Natural Rights Theory: property is inherent to being a human; prop rights are human rights.
John Locke: Labour theory – You own your body, you own your work, if you work on
something, you own it (labour + time = you own it)
Robert Nozick: Private property is an innate right (libertarian position). If you already
have property, you have the right to keep it. It gives you autonomy, and the state cannot
redistribute.
• Nozick: occupancy theory – if you have it, it’s yours; Cohen, if you find it, it’s yours
George Hegel: Personhood – the idea that owning things defines who you are
Jeremy Waldron: You are not truly free if you have no place to be.
Ostrom’s Table
State/Public Property
The state has the right to determine rules of access and use,
but also a duty to manage publicly owned resources for the
public welfare. Public does not necessarily have right to
access or use, but have a duty to observe access and use
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Private Property
Common Property
Non-Property/Open Access
rules promulgated by controlling agency.
Owners have the exclusive right to undertake socially
acceptable uses to the exclusion of non-owners and have a
duty to refrain from socially unacceptable uses. Non-owners
have a duty to refrain from preventing owners’ socially
acceptable uses, but have the right to prevent or be
compensated for socially unacceptable uses.
Each member of the ownership group has the right to access
and use group-owned resources in accordance with access
and use rules established collectively by the group, and a duty
not to violate access and use rules. Each member can exclude
non-members.
No individual has a duty to refrain from accessing and using a
resource.
Tragedy of the Anti-Commons
1. The logical format would have been to divide justifications for property rights in water
into two categories: economic arguments and natural rights.
2. Justice Posner, Professor Ellickson and others—the more resources that are
“propertized” the better, on this view, to facilitate market exchanges of rights.
3. No answer would be complete without discussion of Hardin’s tragedy of the commons,
and Ostrom’s opposing perspective on the same.
Socialist Perspectives
• The best students concentrated on two essential points, geared to reach the two
audiences identified in the question: (a) that the commons isn’t always tragic, and (b)
that property can be a problem as well as a solution.
• The first of those points would have drawn on the work of scholars like Elinor Ostrom as
a counter to Garrett Hardin and Hernando de Soto.
• In addressing the second point, about the problems of property, the best students
usefully explained both Heller’s theory of the anti-commons as well as concerns about
inequality and access (homelessness and medicines were frequently discussed as
practical illustrations).
Philosophers
1. Posner believes that economic efficiency is achieved through rights that are (i)
universal, (ii) exclusive, and (iii) transferable.
2. Ellickson: we’d privatize everything if we could; regulate + zoning
3. Coase: Economics relating specifically to the issue of transaction costs as an
impediment to market efficiency.
4. Heller: Anti-commons identifies problems with too many property rights
5. Locke: Labour theory – you own what you put labour into.
6.
What Is Property?
Yanner v Eaton (Gleeson CJ): property is not a thing with full beneficial, absolute ownership, it
is elusive, primarily over control, all or many kinds of things, fiction expressive in legal
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shorthand, and an aggregate of rights of control. In essence, it has no meaning
(nominalism).
INS v AP (Pitney J): property exists because of incentive, skill, and labour (quasi-property)
→ Link to Victoria Park, Natural Right/Labour Theory, and Economic Theory
Victoria Park v Taylor (Latham CJ): ingenuity, knowledge, skill, or labour does not always equal
property – the law will not build fences where the plaintiff could
→ Link to INS, refuting Labour Theory
Moore v UCLA (Paneli J): property rights cannot be so sweeping as to freeze innovation
→ Link to limiting regulations in Yanner, Labour Theory, extending the law (VP Racing),
Tragedy of the Anti-Commons
Sports Trax v NBA: Labour Theory – not illegal because NBA invested no effort and could just
put the clause on a ticket if they didn’t like it
Principles of Equity - Notes
Tie to Aboriginal title (holding the property as trusts for future
generations), Popov, Legal Realism
EXPRESS TRUST
Settlor
(Testamentary or Inter Vivos)
Trustee
Beneficiary
(Bare, fixed or
(Person or
Operation of Law
discretionary)
Purpose)
Resulting Trusts: ties up loose ends
→ Gap Filling: when trust document fails to fully
Beneficial interest
Legal title
dispose of beneficial interests – testatrix sends only
part of the interest to a third party (To my trustee and
her heirs, to hold for the benefit of my wife for her life)
We presume
based on equity that trustee holds remainder interest at the end of the life
→ Gift Giving: principles of equity apply so that when you give something away in the
absence of an express intention otherwise, you are presumed to be giving the donee
legal title to hold on your behalf (even if effected delivery)
Constructive Trusts: equitable remedy imposed against those not acting in good conscience to
retain the beneficial interest and make the holder of title a trustee
→ Relational: arise on the account of a particular relationship (fiduciary, equitable
obligation) – husband/wife, parent/minor children
→ Remedial: arise most commonly with unjust enrichment (non-marital, conjugal
relationship)
Pecore v Pecore (Rothstein J):
1. Presumption of resulting trust = applies to adult children
a. Burden of proof to show that is was gift by that adult child
b. Show things like: relationship, still dependent on parent, why it would not go to
other siblings (ie estranged relationships) or spouse (ie. Are they expected to die
first?)
c. Does not require there to be a relationship but could be a fiduciary duty
2. Presumption of advancement = applies to minor children
a. Burden of proof on party claiming that it was not an advancement to show that it
was a trust
→ Applies when there is a duty of care (spouse/spouse; parent/child)
Soulas v Korkontzillas (McLachlin J): For a constructive trust remedy, we need:
1. Defendant has equitable obligation (has a duty): action of good conscience, not about
the law but equity
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2. Assets resulted from the breach of obligation
3. Legitimate reason for proprietary remedy: preservation of fiduciary relationship or where
monetary damages are inadequate because D is broke/property unique
4. No factors make trust unjust
The meaning of Property
Consensus Points
• Property is a right, not a thing: it is a relationship between a person and an object
• It is different from possession
• Can be tangible or intangible
• Must be institutionally enforced: private property is not actually private
Relevant Property Protections
• Canadian Bill of Rights: allows for the enjoyment of property and the right not to be
deprived thereof (note: not entrenched like Charter so can be trumped by Charter)
• Section 35 of the Canadian Constitution: Protecting aboriginal title
• US Constitution: states that nobody should be deprived of property (5th amendment);
Requires due process of law and property cannot be taken from a person without just
compensation
• UN Declaration of Rights: Article 17: everyone has a right to own property and no one
shall be arbitrarily deprived of its property
• NAFTA Article 1110: Concerned with expropriation compensation.
• South African Constitution: public interest includes nation’s commitment to land
reform & reforms to have equitable access to all south Africans
Private interest v public interest
• Fire in the blood: demonstrated the issues with balancing public and private interests
when there are politics and jurisdictional issues at play (users and producers – users in
Africa and impoverished, producers in America, wealthy, protected by law)
o Indian Drug Maker: Yusuf Hamid, Cipla – produced it for cheap
o African protestor: Zackie Achmit, refused to take medication (protesting,
grounded in human rights, Carswell)
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The Nature of Property
1. Yanner v Eaton, Australian High Court of Appeal (1999)
Facts
Yanner convicted for hunting without a permit; fauna act says all fauna is absolute
property of the crown.
• Fauna Act 1974 says you need a permit to hunt crocodiles
• Native Title Act 1993 says hunting without a permit is a Native right, unless
it was extinguished by an inconsistent right
• Fauna Act says “All fauna…is property of the Crown” and the Crown
argues that this shows intention to extinguish the right in the Native Title
Act
Issues
Majority
(Gleeson
CJ)
•
•
•
•
•
•
Dissent
(McHugh
J)
Held
Ratio
•
•
•
•
•
•
Links
•
•
•
•
•
What does property mean?
Did fauna act extinguish native rights?
Property is a bundle of rights;
Difficult to apply to different things; the migrating bird argument challenges
understanding of what property means; if you say it is clear enough to
extinguish rights, it cannot at the same time be complicated
Wild animals are not property until possessed (Pierson v Post)
Crown property of fauna is not really the same as individual ownership, it is
more of a monitoring or stewardship role (custodial)
Legislative intent was for taxing, not sole and despotic dominion
Property is not a “movie set” with nothing behind it, it is the sole right to
exclude (see Merrill, single variable essentialism) – government meant
what they meant when they used property.
Yanner not guilty because no clear intention to extinguish his rights
Property is not a thing with full beneficial, absolute ownership (it is not the
sole and despotic dominion and the right to exclude), it is elusive, primarily
over control, all or many kinds of things, fiction expressive in legal
shorthand, and an aggregate of rights of control.
Property has no meaning; there are limitations
Property has no set meaning – “can describe all or any of many different
relations with an object.” (nominalism)
Australian court used the nominalist approach
Judicial activism
Legal realism – court grappling with Mabo’s case, would look bad
Indigenous law
Victoria Park: defer to legislature
2. INS v AP, US SC (1918)
Facts
• INS “stole” the news from AP by copying it from early editions of AP
newspapers to distribute for INS’ own profit.
Issues
• Is there property in the news?
• Does news become common property when it is published?
Majority
• Economic: AP put in the work, INS was free-riding from it unfairly.
(Pitney J)
Complicated but can be handled by courts.
• Facts are free and copyright would take too long.
• INS is making a profit (unjust enrichment) and is cutting in to AP’s profits
(latter stronger)
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•
Dissent
(Brandeis
J)
•
•
•
Held
Ratio
•
•
•
Links
•
•
•
•
•
Without property rights, AP would have no incentive to go out and get the
news first (Posner) / INS is reaping what AP has sewn (Locke)
Property exists because of incentive, skill and labour
Money plus labour does not always equal property
Clear that just because there is value doesn’t mean you can own the
information (see Victoria Park)
Courts are ill-equipped to set limits and government should do it if they wish
For AP - INS “stole” the news
News is quasi-property versus competitors but common property versus the
general public
We want to maintain the incentive of this socially useful action
New is somewhat property and property is a bunch of things
Quasi-Property because it is a public concern/interest; Victoria Park is not
quasi-property because it is a private concern that is not beneficial to
society
Natural Right/Labour Theory: you own what you put work in to and the role
of legislature is to enforce this
Economic Theory: need incentives as the news is beneficial for society, so
give them rights against competitors
3. Victoria Park Racing v Taylor (1937)
Facts
• Taylor builds platform on his property to watch and radio broadcast events
at VPR. VPR alleges nuisance.
Issues
• Was Taylor committing the tort of nuisance?
Majority
• No harm done to the plaintiff and Taylor did not break laws
(Latham
• Vagueness of calling a spectacle quasi-property which has been damaged
CJ)
here – the law will not build plaintiffs, the plaintiff could
• Damage alone is not sufficient for cause of action - (interference with use
and enjoyment) and ingenuity + labour does not always equal property
Dissent
• Nuisance regulates neighbours
(Rich J)
• Invasion of VPR’s rights – nuisance. VPR had the right to profit-make on
their property, Taylor infringed on this with his broadcasting.
Held
• For Taylor. He is not violating VPR’s property rights. Can’t prevent someone
from looking at your property – law won’t build a fence for you.
Ratio
• The law will not build fences when a plaintiff can
• Just because there is value does not mean that you own the information
generated by a spectacle
Links
• Quasi-Property in AP because it is a public interest; Victoria Park is
not quasi-property because it is a private concern
• VP refutes labour theory and rejects quasi-property arguments
• Sports Trax v NBA: sharing scores is legal because it is not in competition with the
NBA and the NBA invested no effort in the actual creation of the score (compare to golf
where you can’t just sit in one place); if you don’t like the behaviour, prohibit it with a
ticket
4. Moore v The Regents of the University of California, California SC (1990)
Facts
Dr. Gould took Moore’s cells without his consent to create a profitable cell-line – an
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Issues
Majority
(Panelli
J)
Dissent
(Mosk J)
Held
Ratio
Links
object distinct from cells.
• Did Moore have a property right to removed cells? If yes: conversion
occurred – and conversion was the claim brought.
• Policy concern: if you establish property rights here, this could impede on
research that benefits society (tragedy of anti-commons).
• Cell lines are distinct from the cells – product that required skill + labour that
the Doctor put in (Locke labour theory)
• Statutory law limits continued interest in cells once removed from the body.
• If there was an issue it would be malpractice. (Like INS, it’s lying not
stealing).
• No reported judicial decision supports Moore’s claim (precedent - Carswell)
• No precedent supporting, but no rejection either – biotech issue is new
• Issue is one of justice – Moore did not invent but was essential to the
creation of the cell-line.
• Deciding for Moore would be an ethical and equitable result ($$$).
• Legislature can better remedy but court does not have to wait (opposite of
Brandeis in INS and Dixon in VPR) – agrees with Pitney in INS.
• Property is always regulated, just because you cannot sell and buy organs
does not exclude them from being property
• Anti-commons issue at play: patents cause a bigger problem
• Profound ethical imperative to respect the human body
• Where the government has not spoken clearly the common law can
• For UC. Far-reaching policy considerations + cell-line is distinct from cells.
• Entrenchment of private property in science will hinder future research by
restricting access to appropriate raw materials
• Tragedy of the Anti-Commons: too many property rights are a problem and
can impede on innovation
• Labour Theory: emphasis on the right of the inventor; the doctors turned the
cells into something of value by exerting their own labour
Body Parts
1. Are body parts property – if yes, to whom do they belong, and what policy considerations
may be relevant?
Expropriation
Expropriation, defined – formal and regulatory (de facto)
• Formal Expropriation: A formal government action taking private property away and
redistributing it. You cannot say no. The government must compensate.
• Regulatory Taking (de facto expropriation): A regulation deprives the land owner of
the all economic benefits that can be derived from the land.
o In Canada: Not unconstitutional – all uses must be taken, and govt must benefit.
▪ Multi-variable essentialism
o In the US: Unconstitutional (5th amendment) – physical intrusion or economic
value deprived.
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Mariner Real Estate v Nova Scotia (AG), NS CA (1999) (de facto alleged)
Facts
• Private land owners denied building permits according to the provisions of
the Beaches Act – Minister denied permit due to public interest (public
safety and environmentally sensitivity land)
• Expropriation Act requires compensation for loss of land
Issues
Majority
(Cromwell
JA)
Held
Ratio
•
•
•
•
•
•
•
Was Mariner’s land de facto taken by the Beaches Act?
Mariner could still use the land in other ways.
Mariner did not lose all “sticks in the bundle” and the govt. acquired no
benefit. “Must be a confiscation of all reasonable private uses.”
Strict regulations =/= an interest being conferred to the Crown.
No, Mariner’s land was not de facto expropriated.
The enhancing of public land value does not amount to an acquisition of
interest.
Where regulations limit the use of property in Canada, the plaintiff must
establish that the regulation virtually eliminates the property interest.
6. CPR v City of Vancouver, SCC (2006) (de facto alleged)
Facts
Crown granted CPR land for a railway. Line was built on Arbutus Corridor. CPR
stopped using the railway but is willing to sell the land. Vancouver builds around
and through the railway; CPR says this is unfair/unreasonable and ultra vires.
Issues
• Did Vancouver de-facto expropriate CPR’s property?
Majority
• Vancouver didn’t gain a beneficial interest in the corridor.
(McLachlin
• CPR could use it for the reason they originally received it.
CJ)
Held
• For Vancouver. No de facto taking
Ratio
• For a de facto taking requiring compensation: (1) an acquisition of a
beneficial interest in the property or flowing form it, and (2) removal of all
reasonable uses of the property
Links
• Coase theorem: sell to whoever wants it most
7. Pennsylvania Coal v Mahon, US SC (1922)
Facts
Penn Coal wanted to mine on the property, but the Kohler Act forbade
subsurface mining that damages homes – in this case, Mahon’s. Penn Coal
claimed Kohler was a regulatory taking, as they could not use land.
Issues
Majority
(Holmes J)
Dissent
(Brandeis J)
Was the statute a de facto expropriation?
You may regulate property, but you may not go too far in doing so. If you do,
it may constitute a taking.
Penn Coal still had the land and the government didn’t actually take anything.
Further, their restrictions had a social benefit of preventing a noxious usage.
Held
For Plaintiff. If legislation essentially means taking has occurred that merits
compensation, the property must have devalued – here, Plaintiff lost all value
because of the law and was to be compensated.
The state may regulate property, but stripping economic value will mean a de
facto taking has occurred.
Ratio
8. Lucas v South Carolina Coastal Council, US SC (1992)
Facts
Lucas bought two beachfront lots, intending to develop them. Govt passed The
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Issues
Majority
(Scalia J)
Held
Ratio
Links
Beachfront Management Act, 1988 prohibiting development on the beachfront,
with no exceptions.
Is this regulation a taking? How far is too far?
Economic reasons to not let this happen – gone too far when it denies all
economic benefits; if the state disrupts economic use, may as well have taken
the land
The regulation was a taking is a taking
Regulatory taking is compensable if:
(1) the owner suffers physical intrusion or;
(2) it denies all economically beneficial or productive use of the land
5th amendment protection – economic POV on property
Metalclad Corp v United Mexican States (2000) – NAFTA Arbitration Tribunal
Facts
Metalclad (US Corp) invests in Mexican property, relying on Mex. Govt
when doing so. Ultimately blocked from building, even though it was
approved. Metalclad alleged de facto expropriation.
Issues:
Did Metalclad deserve compensation as per NAFTA 1110?
Holding
Yes. Article 1110 sets out when expropriation can occur: for public purposes
in non-discriminatory fashion following due process, upon payment of
compensation = fair market value before expropriation took place.
This protects foreign investments.
Quasi-Public Property & Individual Rights in Public Spaces
9. Harrison v Carswell, SCC (1976)
Facts
• Carswell protests employer at a mall. Carswell charged with petty
trespass by mall owner. Mall owner granted easement to Carswell’s
employer so public could access the site.
Issues
• Did the mall owner have sufficient control to enable a claim for
trespass/can a mall invoke trespass against someone conducting a
lawful action on private property open to all?
Majority
• Stare decisis in Peters must be followed
(Dickson J)
• Protestor trespassed on private property – owners had sufficient control
• Dickson Does not see the difference between public (Peters) and an
employee (Carswell)
Peters found trespass was done by boycotters of grapes in front of store.
Boycotters had no relation with the store, which was quasi-public
property].
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Dissent
(Laskin CJ)
•
•
•
•
•
Held
•
Ratio
•
•
•
•
Links
•
Don’t mechanically defer to Peters (for example, shopping centres were
not common at time of petty trespass act enactment)
Peters was a public boycott – this is an employee strike, we are looking
at the question is being looked at without the facts
Picketing is legal; this decision and ticket suppresses a legal action –
where else was she going to protest?
Extravagant to say a freely accessible place can exclude on a whim if
conduct is not an issue.
The mall owners gave up their right to exclude during mall open hours
when they invited the public in to their property.
For mall owner. Carswell convicted; owners have the right to evict, as
set out in Peters.
Just because you invite the public in does not mean you relinquish the
right to withdraw the invitation
The owner of a mall has enough possessory interest in common areas
of the mall to claim trespass
Upheld Peters saying the owner of a shopping plaza has sufficient
control or possession of the common areas as to enable them to invoke
remedy of trespass
Owners of a quasi-public space retain the right to exclude even if your
conduct is lawful. [BAD LAW RESULTING FROM NEW STATUTES]
Judical activism on the part of Laskin (Moore, INS)
10. Victoria (City) v Adams, BC CA (2009)
Facts
• Tent city occupants told to leave park overnight by the city. Occupants are
homeless. The by-laws do not prohibit sleeping, but it does prohibit tent
structures. The by-law applies citywide. Insufficient shelter beds in the city
for the number of homeless people that live in Victoria.
Issues
• Is the Park ByLaw in violation of s. 7?
Majority
• Use of park space by the homeless was not depriving the ability for others
(Ross J)
to use it
• Public properties are held for the benefit of the public; including the
homeless
• Govt can’t prohibit certain activities based on ownership if doing so means
depriving an individual of fundamental human rights (s7)
• If you do not have private property and can’t fulfill your basic needs, then
you are not free and have no liberty or security of the person – these tickets
are infringing as a result
• The request to leave was unjustifiable. They need to be somewhere; if the
bylaw is city-wide, where do they go (Waldron cited by Judge)
Held
• As long as the shelter spaces are full or inadequate for homeless pop,
prohibiting the homeless from from fulfilling basic human rights/needs in
public spaces violates s. 7
Ratio
• No positive duty on the state to do anything about the problem of
homelessness (e.g. provide housing, increase shelter beds), but they
cannot ticket those in public if doing so would deprive human rights
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Links
•
•
•
Violation of S7
Compromise in reality: overnight tents are okay, a balance of interests
Abbortsford v Shantz: Denying homeless people S7 rights would be
grotesque in comparison to any benefit the city would enjoy from violating
the rights.
11. Batty v Toronto (City) (2011) – Decision: Brown J
Facts
Toronto issues an eviction notice for St. James Park to Occupy Protestors. They
allege this violates their Charter rights.
Issue
Did Toronto violate the protestor’s Charter rights 2(a)-(d) by issuing an eviction
notice for trespassing? [Freedom of expression and peaceful assembly]
Holding
For Toronto. Charter violation saved under s1. Allowed to evict.
Ratio
A plaintiff’s usage of public property cannot be to the detriment of the public at
large; you cannot monopolize public property. Infringement was minimal.
Reasons
Protestors still welcome, but not 24/7. They monopolized the park to public
detriment (community around the park was annoyed and felt uncomfortable,
other people couldn’t use the park, and park maintenance was impacted).
Homelessness
• Crux of the problem: the tension between private property and other important rights,
such as freedom of association and freedom of expression
• Quasi-public: nature of Zuccati Park and other places like shopping malls, universities,
city halls and personal residences should be considered
• Property per se is not a recognized constitutional right in Canada, but several cases
have protected vulnerable individuals, e.g. Abbortsford v Shantz, Victoria v Adams
addressing municipal bylaws impacting “section 7” right to life, liberty, and security
o Nature of interference (minimal), without justification, limited shelter space
• Two responses to Adams: governments will repeal or change bylaw regulating public
spaces to meet constitutionality (e.g. overnight tents only) or provide shelter space that
reduces homeless persons’ need to use public spaces – first more likely
• Waldron connection is very strong here
Other Cases re: Property in Perspective
• Zuccotti Park: Quasi-public Property (See Carswell) – Single Variable Essentialism
(Fox Judge Nepolitano is big on exclusion)
• Director of Public Prosecutions v Jones (Stonehenge): A highway is a public place
which the public may enjoy for any reasonable purpose – such as peaceful assembly, as
long as it does not detrimentally impact others (highway access is important)
o “Freedom of expression cannot be exercised in a vacuum”
• Concerning quasi-public property and the right to public use, laws direct courts to
consider:
o 1. The normal use of the quasi-public property
o 2. The extent of public invitation to use the property
o 3. The expressional activity in relation to typical private/public use of the property
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•
•
•
•
•
R v Banks (Squeegee Kids): Challenge to Safe Streets Act where violation of s 2(b)
(freedom of expression) was justified and no violations were found for ss 7 or 15 (life,
liberty, security; equality); poverty is not a coherent “group” with an equality issue
Committee for the Common Wealth of Canada v Canada: The government cannot
prohibit certain activities based on ownership if doing so involves a deprivation of a
fundamental human right
o s 2(b) confers no right to use private property as a forum for expression
o freedom of expression cannot be exercised in a vacuum and necessarily implies
the use of physical space, they can hand out pamphlets in an airport
Peters: the owner of a shopping plaza had sufficient control or possession of the
common areas as to enable them to invoke remedy of trespass to kick off public
boycotters
Grosvenor Park: the respondent exercised control over the premises, but not to the
exclusion of others – they could not maintain an action in trespass
Scmid: rights to protest on public property depends on: normal use, extent of public
invitation, and purpose of expression
Property Boundaries
Definitions
• Cujus est solum: Land owner owns everything above and below, forever
• Coase Theorem: By Ronald Coase. Whoever wants the property will always get it, so
long as there are smooth bargaining processes. Allocation of entitlement will adjust
between private parties for an economically efficient result (sans transaction costs).
• Meets and Bounds: A description to delineate the location of a perimeter from a known
reference point
• Ad Medium Fillium Acquae: Ownership up to the middle of the waterbed.
• Accretion: Boundary shifting due to gradual and imperceptible change in water. New
boundaries set as a result because water access is important.
• Avulsion: Boundaries not shifting because the change is rapid (decades = rapid).
• Riparian Rights: Rights of landowners with water boundaries (right of access, take
emergency measures, limited to ordinary uses to conserve water).
• Personal Property: Chattels, goods, choses (things) in possession; including IP,
intangibles, and investments.
• Real Property: Land, fixtures, fittings, immovable things.
• Copyright: Intangible ownership of expression. Must be an original expression (not
idea), protected for life of creator + 50 years.
• Patent: Ownership of something new, useful, and innovative (think science and tech). A
product or process. Protection of 20 years from date of patent, with a monopoly.
• Trademark: Property in branding and good will. Less about the owner, and more about
the protection of consumers. Valid so long as it does not become generic. Infringed on
only when confusion is caused.
Didow v Alberta Power (Haddad JA): Freedom from permanent structures which in any way
impinge upon the actual or potential use and enjoyment of land [AB Legislature amended this
immediately]
Lord Bernstein v Skyviews (Griffiths J): Must have a balance in compromising the rights of
landowners against the general public; low-flying crafts will trespass
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Lacroix v R (Fournier J): cujus est solum is not suited to meet the development and invention
of today’s world and must be restricted without depriving the landowner of full enjoyment
of his property; it is limited by what he can possess or occupy for the use and enjoyment
of his land; air and space are res communis
Air Can v R (Monnin JA): Air and airspace are not owned by anyone but are res communis
(public domain - the state also does not own it)
US v Causby: The fact that someone is not using the airspace is not material
S Centre of Theosophy: supports doctrine of accretion due to fairness, convenience (quick
movements likely to move back), and triviality
Bea v Robinson: a conventional line boundary cannot be presumed to be the true line if there
exists a registered instrument that contradicts the agreement
Backhouse v Bonami: owner of land has a right to support from the adjoining soil and this right
is infringed on as soon (but not until) damage is sustained
Petrofina v Moneta: if a landowner mines on his own land and subsequently sells the surface
only, the owner of the surface can recover damages caused by old mine workings
Flewelling v Johnston: Latin maxim doesn’t apply in Canada because of local circumstances
which render it inapplicable with respect to navigable rivers
Boundary Qualifications – Air, Subsurface, Water, Support
Didow v Alberta Power, AB CA (1988) – Air Rights
Facts
Powerlines hung over Didow’s property, and he claimed it interfered with his
ordinary usage of land as it prevented him from aerial seeding, crop dusting,
growing trees, or using mechanical equipment.
Issues
Did AP trespass in the airspace on Didow’s property?
Majority
• Cujus est solum (to the heavens and hell) is not literal, but limited
(Haddad
• Air space is res communis at some point (Based on Bernstein, Lacroix, Air
JA)
Can, and Causby)
• Trespass occurred because Didow would crop spray, poles impeded use.
Held
• Alberta Power trespassed.
Ratio
• The Cujus est solum (to the heavens and hell) maxim is limited to the
ordinary use into the air of one’s property.
• At some point, air property becomes res communis (public property).
• The threshold for air rights is one’s ordinary use of their property.
• Owner has freedom from permanent structure impinging on actual or
potential use and enjoyment of land.
• If dealing with a drone, for example, you can distinguish this case based on
permanent structures (drone = nuisance, structure = trespass)
• If the maxim was literal, there would be a tragedy of the commons.
Edwards v Sims, KY CA (1929) – Subsurface Rights
Facts
• Edwards would not allow Lee to enter a cave that was a tourist
attraction, so Judge Sims ordered a survey to determine if it was under
his property too. Edwards appealed Judge Sim’s decision.
Issues
• Does the court have the power to invade on the rights to ownership to
determine if others also have an ownership share (subsurface)?
Majority
• Using Cujus est solum, Lee has rights if the cave is under his property.
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(Stanley J)
Dissent
(Logan J)
Held
Ratio
Links
•
Those putting in the effort and discovery to establish something (i.e. a
cave) should own it, for it is nothing without their work.
(in alignment with Locke’s labour theory and result in INS and Schmeiser.)
• Survey allowed.
• Applying cujus est solum, you have rights in property underneath the
surface of your land.
• Upholds Cujus
• Justice Logan connects to Locke’s labour theory/INS/Schmeiser
• Legal realism – Logan had a personal interest in cave ownership being
for those that discovered them.
Robertson v Wallace, AB QB (2000) – Land Boundry Rights
Facts
• A river boundary shifted, adding 20 acres to Wallace’s land.
• There was a fence on the west side of the river (Wallace’s land) and water
moved southeast.
• The Robertsons said boundary was the fence, not the river
Issues
• Who owned the land where the river shifted?
Majority
• The fence was not the boundary, because it had another cause (cattle)
(Nation J)
• Water demonstrated boundary, based on where cattle grazed for years.
• To prove a conventional boundary (fence = boundary), four conditions must
be satisfied: 1) the parties are adjoining land owners 2) There is dispute or
uncertainty about the boundary 3) they agree on a division line and 4)
recognition the line as a common boundary. – Not satisfied here
Held
• For Wallace; Robertson did not meet burden of proof required
Ratio
• Water boundaries only move if the water mark shifts gradually and
imperceptibly (accretion, not avulsion.)
• Accretion: Gradual and imperceptible change in boundary line.
• Avulsion: Not gradual - even if it occurs over decades.
• General rule: water access is important, so boundary can be argued to
move.
• Conventional line doctrine: (1) adjoining land owners, (2) dispute or
uncertainty about location, (3) agree of division of line, and (4) recognize it
as common boundary
Blewman v Wilkinson, New Zealand CA (1979) – Right to Support
Facts
• Developer levelled slope for road, then subdivided and sold the parcels of
land separately
• Erosion threatened the higher home so the homeowner sued the developer
Issues
• Can the owner for the time-being sue the original landowner if the lot
collapses due to a lack of support result from the subdivision?
Majority
• From the time of its subdivision as a separate property this parcel never
(Cooke
enjoyed support from the soil removed in the cutting of the right of way
J)
• The idea of imposing strict liability on a subdividing owner when a
subsidence occurs perhaps many years later and not withstanding that he
acted on proper professional advice is unattractive
• Law of negligence is better suited
Held
• No, but they can under negligence law
Ratio
• Imposing strict liability on former subdividing owner when their practices
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were prudent would not be fair. Where sections of a subdivision are created
by excavation, the owner of the subdivision is not held to strict liability by
subsequent owners of sections where sinking occurs because of the
excavation, but they can be held as negligent – that is a tort claim however,
not property law. Similar to AP/Moore – not property issues.
The subdividing owner is not under a strict non-contractual duty to a subsequent
owner of a section on which subsidence occurs because of the excavation
but the principles of negligence law will apply
R v Nikal, SCC (1996) – Water Boundary Rights
Facts
• Nikal was fishing without a license; charged for doing so
• Claimed he had S35 rights, as well as the ad medium filum aquae maxim –
meaning they could fish there, as reserve bounded both sides of river
• Claimed the band has jurisdiction over the river as it is part of the reserve
Majority
• Ad medium filum acquae does not apply in Western Canada
(Cory J)
• The maxim applies to non-navigable waters; if it is navigable, it belongs to
the commons – tragedy of anti-commons is the result; public policy
• If the river is navigable in part (at its mouth), it is navigable
• Even if it applied; it would not to the ownership of fish
Held
• Statutory infringed on s35 rights, but they did not own the river
Ratio
• Navigable waters are commons, the maxim does not apply
• Non-navigable waters fall under ad medium filum acquae - you own from
the bed to the midpoint
Sky City Auckland v Wu, New Zealand CA (2002)
Facts
•
Issues
•
Majority
(Blanchard
and Anderson
JJ)
Held
Ratio
•
•
•
Wu was kicked out of the Sky City casino but claimed they could not
do that without justification because they were the only one in town
and licenced by the state
Does a monopoly of public privilege require reasonableness of
exclusion?
The purpose of s 67 is to make it clear that the holders of licences
pertaining to casinos are entitled to exclude members of the public
without assigning reason so long as they do not commit any breach of
the Human Rights Act
No, unless prime necessity or statute says so
Reasonableness of exclusion is only needed if access is prime
necessity or the state says otherwise
Fixtures – Degree of annexation and object of annexation
• Degree of annexation (how stuck is it) + object of annexation (is it there to make the
object better, or the thing its stuck to? e.g. carpet nailed to a hotel floor…)
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•
Personal Property includes: chattels, goods, choses (things) in possession; IP,
intangibles, and investments
17. La Salle Recreation v Canadian Camdex Investments, BC CA (1969)
Facts
Businessman bought a carpet on credit and a hotel with a mortgage. The carpet
was installed, but the hotel went bankrupt – the dispute was over which of the
creditors got the carpet.
Issues
The statutory priority of the creditors depended on classification of the carpet –
was it chattel or did it become a fixture?
Majority
Whether or not a chattel becomes a fixture depends on
(McFarlane
• (1) degree of annexation and (2) object of annexation
JA)
• If it is sitting on its own weight, it is chattel – if it is attached, fixture
• Other considerations: is the item often replaced, how is it held down, why
is it there, and is there a used market for it
Held
The carpet was a fixture because it was there for the better and more effectual
use of the building as a hotel and not the carpet as a carpet.
Ratio
• When determining if a chattel has become a fixture, we must look at (1)
degree of annexation and (2) object of annexation.
• For the object, the question is whether the goods were affixed for the
better use of the chattel or of the fixture.
18. Diamond Neon v TD Realty, BC CA (1976)
Facts
• Diamond neon had two signs, one in a pole set in concrete, one on the
roof of a shack. The sign manufacturer leased the sign out and other
contracts occurred before TD ultimately bought the land, removed the
signs, and sold them.
• The contract said the signs could be removed, but the contract was not
with TD.
Issues
Did TD commit tort of conversion when it sold the sign? Who owned it?
Majority
• Contracts did not matter. Had to collect the signs in a reasonable time.
(Robertson
• The objects had a high degree of annexation – set out in concrete, and
JA)
their use was for the better use of the property (said what was going
on).
Dissent
• If you look at the nature of the signs, you can infer their intent
Carrothers
• There is a difference between a sign that says “Law Office” and “Law
JA)
Offices of Joe Smith” - the latter is useful to take with you, but the former
has a purpose related to the property
• Signs are unique - should have known they were chattel.
Held
• The signs were fixtures and TD Realty did not commit a tort since they
had a legal claim to them when Dueck’s land lease expired (as you can
recapture your tenant fixtures within a reasonable time if they do not
become fixtures)
Ratio
• See La Salle. When determining if a chattel has become a fixture, we
look at (1) degree of annexation and (2) object of annexation.
• For the object, the question is whether the goods were affixed for the
better use of the goods as goods or for the better use of the
building.
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Intangible Resources – Copyright, Trademarks, and Patents
Intellectual Property
IP Terms
Copyright
• Original artistic work
• Arises automatically and lasts for life of author plus 50 years
• Copyright in artwork does not constrain the owner of the tangible property embodying
the copyrighted expression (Theberge)
• Copyright includes the right to perform, distribute, or adapt the work
Trademark
• Intended to prevent consumer confusion (Mattel), not protect the corporation
• To prove trademark infringement, the contested trademark would have to cause
confusion in the marketplace
• Valid so long as they don’t become generic (e.g. Kleenex, Thermos)
• Have to register a trademark
• Distinctive, not descriptive (e.g. Molson can’t allege trademark infringement if a beer is
accurately described as a Canadian beer)
• Protects brand and goodwill
Patent
• Patents may be had if the innovation is new, useful, and inventive/not obvious
• Lasts 20 years from date of patent application
• Schmeiser: Ownership of tangible property does not necessarily permit use of the
intellectual property within the tangible property
• Schmeiser proposes that patent owner is entitled to full benefit of the patent monopoly
• Moore also applies – cell line was innovation.
• You can patent a product or a process, but not higher life forms (Harvard Mouse)
Théberge v Galerie d’Art du Petit Champlain, SCC (2002) - Copyright
Facts
• Art gallery bought prints of Théberge’s work and chemically lifted the ink
from the paper onto the canvas; resold for profit; Theberge alleged
infringement of his copyright, and a baliff seized it (note: seizure of goods
by bailiff ONLY if economic copyright infringement occurred in Quebec
Civil Procedure)
Issues
• Was Theberge’s copyright infringed?
Majority
• Two kinds of rights: economic (money) and moral (reputation)
(Binnie J)
• Economic rights include a bundle of rights to copy, perform, distribute, or
adapt
• No reproduction in this case as there was no new copy, just a change in
physical characteristics of the existing copy
• The proper balance among policy objectives will consider the Creator’s
Rights (reward for work, protect) vs. User’s Rights (use, obtain profit) vs.
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Gonthier J
(Dissent)
•
Public Interest (inefficient to overcompensate, public domain to
incorporate and embellish)
Transfer of poster was an act of fixation, therefore an infringement of
copyright. Wrong use/interpretation - Trying to argue that transfer to a
new backing = fixation & constitutes a new “reproduction”
Held
•
Economic interest was not infringed. There was no reproduction.
Ratio
•
Once you purchase the tangible item, you have economic rights to do
what you want with it, economically. Balance btwn moral/economic
interests of © owners.
Copyright in artwork does not constrain the owner of tangible property
which embodies copyrighted expression
Changing the physical characteristics of a copyrighted object does not
mean you have reproduced, weigh the public interest, owner’s rights, and
creator’s rights
Two kinds of copyright rights: economic and moral
Utilitarian Argument: Excessive control by copyrights holder may unduly
limit the ability of the public domain to incorporate and embellish creative
innovation in the long-term interests of society as a whole, or create
practical obstacles to proper utilization.
If Theberge had argued that the nature of his work was bound to the way
they were reproduced, or about the lack of his name, he may have had a
case
Personhood Theory – Hegel for moral rights, work is an extension of him
•
•
•
•
Links
•
•
Swan v Eaton Centre (1982 Ont HC) Sculptor successfully objected to Eaton
Centre putting ribbons on Geese. Physical geese owned by Eatons but
expression owned by artist. Violated moral rights: artistic integrity of the work.
•
Théberge affirmed the separation of ownership between a classic (tangible) and
intellectual property, a principle that can be applied to any material substrate, including
canvass or a concrete wall.
20. Monsanto v Schmeiser, SCC (2004) - Patent
Facts
• Monsanto invented genetically modified canola and sold it under the
trade-mark brand “ROUND UP READY” – patent on cells and genes
• Schmeiser identified RR in his fields, saved the seeds, and replanted
them, leading to them consisting of 99% of his crops – but to use them,
Monsanto had a licensing fee
• They were never sprayed with herbicide however
• Monsanto found out and sued for patent infringement
Issues
Majority
(McLachlin
Issue not of property rights, but patent protection
• Was patent valid?
• Was patent infringed?
• What damages were caused?
• Monsanto has the exclusive right to make, use, and sell
• Patentee gets “full enjoyment of the monopoly”
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CJ and
Fish J)
Held
Ratio
•
•
•
•
•
•
Commercial uses normally infringing
Stand-by value creates presumption of use
Gene/cell patents are valid
Physical ownership is no defence to a breach of the Patent Act –
interference with full use and enjoyment of patent holder.
Genes and cells are valid patents as they are patenting the genes, not the
actual plant.
IP Rights displace physical property rights
Harvard Mouse (2002) (McLachlin CJ): an invention must be new, useful, inventive and a
product or process; a mouse is not an invention – a decision made prior to Monsanto.
• Higher-life forms are not inventions, but the building blocks are
21. Mattel v 3894207 Canada Inc., SCC (2006) - Trademark
Facts
• Mattel produces Barbie, a well-known toy. 3894207 (Barbie’s) is a chain of
restaurants in Quebec that barbecue and grill, geared towards primarily
adults. Mattel opposes the restaurant’s trademark registration.
Issues
• Was the trademark board unreasonable to grant the TM?
• Can a producer in another industry use a common name associated with
someone else’s trademark?
Majority
• The purpose of trademarks is to differentiate wares; nothing more
(Binnie J)
• Trademarks are for a public benefit of preventing consumer confusion, so
they can buy what they presume is what they want in terms of quality they
expect
• Trademark confusion is based on evidence of various factors: inherent
Held
• There is a difference between dolls and restaurants, so people will not be
confused. The appeal is dismissed.
Ratio
• Trademark infringement occurs when there is a possibility for confusion
• The potential for confusion is set out by “all the surrounding circumstances,
including:
• A) The inherent distinctiveness of the trademarks, or names and extent to
which they are known
• B) The length of time the trademarks have been in use
• C) The nature of wares/services/business
• D) The nature of the trade
• E) The degree of resemblance between trademarks to names in
appearance or sound
• Objective test: would it confuse the ordinary consumer?
Electronic Property – How far do property rights extend?
Tucows v Renner, ON CA (2011)
Facts
• Tucows is a wholesaler of domain names (30,000+), had renner.com (Brazil
company) – brought a civil procedure move in Ontario to declare the
domains as real or personal property instead of arbitration with ICAN
Issues
• Is a domain name property? If so, is it in Ontario?
Majority Ziff says that property is comprised of a “bundle of rights”
(Weiler
• Ownership and quasi-ownership interests in things
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J)
Held
Ratio
•
•
•
•
Rights that are enforceable against others (exclusion)
Money
Cashable rights – can it be monetized, can it be sold?
Tucows has a bundle of rights in the domain name, thus it is property
•
•
Domain names are property
Legal realism: more sympathy from a Canadian judge for a Canadian corp
than you would get from ICAN in arbitration – this lets Tucows to settle for
what its worth to Renner
The bundle of rights in a domain name constitutes personal property
because of ownership and quasi-ownership interests, other rights which are
enforceable, money, and cashable rights
•
23. Intel v Hamidi, Cal SC (2003)
Facts
• Hamidi, disgruntled ex-employee, on 6 occasions over 2 years sent up to
35,000 e-mails to current employees criticizing Intel’s employment
practices. Intel suing for the tort of trespass to chattels
Issues
• Was the spam a trespass to Intel’s chattels (e-mail system)?
Majority
Trespass to chattels is not a tort of conversion (the interference with someone
(Werdegar else’s possession) so Intel is denied a right to it here.
J)
Existing law:
• Tort requires proof of harm (none here)
• Mixed results from previous cases → telemarketing (volume of calls is so
high it prevents the use of your phone), spam, bots
• Might be a harm to intel, but not to its property
Under California law, the tort does not include electronic communications that
neither a) damage the recipient computer system nor b) impairs its functioning.
Communication at hand did not constitute actionable trespass to personal property
Trespass on digital space occurs when it actually did, or threatened to, interfere
with the intended functioning of the system as by significantly reducing its memory
and processing power
•
Dissent
(Brown J)
Held
Ratio
Links
Tort of trespass of chattels allows recovery for interferences with
possession of personal property “not sufficiently important to be classed as
conversion, and so to compel the defendant to pay the full value of the
thing with which he has interfered” - No evidence of Hamidi impairing the
system in any way
Does not share “antipathy (aversion) toward property rights” – analogy to Napster,
creative individuals will not create if they cannot limit the terms of transmission
• Individuals will be less inclined to develop IP if they cannot limit the terms
of its transmission
• No injury caused. Intel not entitled to summary judgement in its favour / No
trespass occurred.
• Trespass to chattel is not actionable if it does not involve actual or
threatened injury to the personal property or to the possessor’s legally
protected interest in the personal property.
• Tragedy of Anti-Commons if we privatize everything online
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Must be left to government
Other Property Boundaries Cases
• S Centre of Theosophy: supports doctrine of accretion due to fairness, convenience
(quick movements likely to move back), and triviality
• Bea v Robinson: a conventional line boundary cannot be presumed to be the true line if
there exists a registered instrument that contradicts the agreement
• Blackhouse v Bonami: owner of land has a right to support from the adjoining soil and
this right is infringed on as soon (but not until) damage is sustained
• Petrofina: if a landowner mines on his own land and subsequently sells the surface
only, the owner of the surface can recover damages caused by old mine workings
• Carabin v Offman: remove tenant fixtures before the end of the term if you want them
back, if not landlord gets them and can benefit off of them
• Black v Molson: ICAN says to get the domain name, you must establish 1. The domain
name is identical to the trademark you have 2. The defendant has no legitimate interest
in the domain name, and 3. The domain name was registered out of bad faith (extorting
settlement is bad faith)
o Molson has no interest in the word “Canadian,” clearing house for Canadian
business is not in bad faith, etc.
• Michelin – can’t use someone’s trademark for your creative expression
In successful cyber trespass cases, the plaintiff was able to show some interference with the
efficient functioning of its computer system (Hotmail v Van Money Pie, AOL v IMS,
Ticketmaster v Tickets.com)
Possession of Property
Pierson v Post (Tomkins J): In order to possess an animal that is ferae naturae, you must
have physical possession of it
Clift v Kane (Hoyles CJ): Animals having been killed and marked to be treated are property,
even if left with an intention to return
Parker v British Airways (Lord Donaldson): If something is loose, you must have manifest
intent; if embedded, property owner has superior rights; object must be abandoned and
then controlled by the finder
Charrier v Bell (Ponder J): Buried artefacts are not abandoned; to abandon something, you
need intent and control
Baird v British Columbia: a person should not be able to gain from their own wrongdoing
(criminal acts)
24. Pierson v Post, NY SC (1805)
Facts
• Post was pursuing a fox on a hunt
• Post intervened, killed the fox, and took possession
Issues
• Who owns the fox?
Majority
• The mere pursuit gave Post no legal right to the fox, but that he became
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(Tomkins
J)
Dissent
(Livingson
J)
Held
Ratio
•
•
•
•
•
•
the property of Pierson, who intercepted and killed him
Done for the sake of certainty (what if everyone chases a fox)
Preserves peace in society
Post (the pursuer) should win
Property of ferae naturae should be acquired if the pursuer was within
reach or had a reasonable prospect of taking the animal with an intention
to converting to his own use
Pierson (the killer) gets the fox
In order to have possession of an animal who is wild (ferae naturae), you
must physically possess it
25. Clift v Kane, Nfld. SC (1870)
Facts
• Clift, the 1st ship, killed seals and piled their bodies on the ice while
transporting them to the ice from the ship
• Kane, the 2nd ship, found the dead seals and took them on his ship
Issues
• Who owns the seals?
Majority
• Clift gets the seals because he killed and marked them
(Hoyles
• Had the intention of coming back
CJ)
• Or else less incentive to hunt
Dissent
• Kane should get them because the pelts could have still escaped due to
(Robinson
the shifting of the ice
J)
• He deemed the pelts abandoned property
• Or else incentive to overhunt
Held
• Clift gets the seal pelts for killing them and having the intention to return
Ratio
• Animals having been killed and marked are to be treated as property, even
if left with an intention to return
LINKS
• Majority – economic look (Posner)
• Dissent – tragedy of the commons, by encouraging over-hunting
26. Popov v Hayashi, Cal SC (2002) – Pre-possessory rights
Facts
• The ball hit Popov’s glove but it is unclear if it was secured
• As he was catching it, he was tackled and thrown to the ground by a mob
of people
• Hayashi did nothing wrong except picking up the ball
Issues
• Who has possession of the ball?
Majority
• Makes up the rule of pre-possessory interest because the remedy sought
(McCarthy
by Popov was a declaration that the ball was held in constructive trust on
J)
his behalf
• Equitable remedy allows the court to achieve a “fair” result
• Popov had not established full possession, but this was due to unlawful
activities
• “Hayashi was not a wrongdoer, he was a victim of the same bandits”
• Popov has a pre-possessory interest; Hayashi had possession. Thus,
50/50 split.
Held
• As an equitable remedy, the ball was sold at auction with proceeds split
between the two.
Ratio
• Possession requires the intention to control and the actual physical control
over an object. When the effort is interrupted by unlawful actions, there is
a pre-possessory interest in the property.
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Links
•
•
Trust and Equity: Popov said it was being held in constructive trust for him,
so we invoke equity
Yanner – Judgemaking stuff up on the fly
Other Cases Regarding Possession of Property
• Doyle v Barlett: if you abandon a dead animal due to inability to reach them or
incapacity to stow them they revert back to the common stock and become the prize of
the first finder
• Armory v Delamirie: The finder of a lost chattel acquires a right to keep it against all but
the true owner or those in a position to claim through the true owner or one who can
assert a prior right to keep the chattel which right was subsisting at the time when the
finder took the chattel into his care and control
• Baird v British Columbia: a person should not be able to gain from their own
wrongdoing (criminal acts)
The rules for finders
27. Trachuk v Olinek, AB QB (1996)
Facts
• Trachuk is the owner of leased land around the well site where a bag of
money was found. Olinek is a contractor who, along with his team, found
the money when servicing pipes
Issues
• Who should get the money? (de facto occupancy)
Majority
• Difference between lost and hidden property: if hidden, subject to prior
(Gallant J)
possessor
• Trachuk was not in prior possession because he did not own the land that
it was found on, he had no intent to control, and never had actual control
Held
Olinek wins because they had superior possessory rights.
Ratio
Where a person has possession of land/house, with intention of controlling it and
everything on/in it, if something is then found, they are presumed to be the owner
– in this case, Trachuk could not claim a de facto title since he didn’t use the land
and built a fence solely to keep his cattle out and not to exclude others from
access, as to legal title, that also was not established as he did not apply
dominion to that land.
The finder of a lost object has rights over everyone except the true owner or
anyone with a pre-possessory right.
The question wasn’t who owns the money - it is who had the stronger claim
• Owner has stronger rights than the finder
• “The finder is a bailee” (apparently)
28. Parker v British Airways, UK CA (1982)
Facts
• Parker found a bracelet in Heathrow lounge, gave it to BA, and asked for
it back if no one claimed it
• BA refused to give it back and Parker sued for conversion
Issues
• Did Parker own the bracelet?
Majority
Finder’s Rights:
(Lord
• No rights by a finder unless it is abandoned or lost and he takes it into his
Donaldson)
control (hidden does not equal lost or abandoned)
• Finder acquires very limited rights over it if he takes it into his care and
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•
•
•
Held
Ratio
control with dishonest intent or in the course of trespassing
Finder has right against all but the true owner, those in a position to claim
through the true owner, or one who can assert a prior right which was
subsisting at the time
Employees find for employers
Must try to acquaint with true owner
Occupier’s Rights:
• An occupier has rights to chattels attached to land
• If loose, he has superior right if intent was present
• Under an obligation to take such measures to return the lost chattels to
the true owner
• Ships, cars, etc. are the same as land, buildings
• British Airways did not obtain possession as they had no intent and must
return it to Parker
• If something is attached/embedded, the owner of the property has
superior rights to it (if attached to plane)
• If something is loose, you must manifest intent (have employee look for
lost goods)
• Ships, cares, and planes are the same as land and buildings
• Object must be abandoned and then controlled by finder
29. Charrier v Bell, LA TD (1986)
Facts
• Amateur archaeologist excavated Tunica burial ground with permission
from the caretaker, not owner
• Claimed ownership of artefacts or else unjust enrichment
Issues
• Who has a right to the artefacts?
Majority
• The fact that the members of other tribes are intermixed with the Tunicas
(Ponder
does not negate or diminish their relationship to the ancestral tribes
J)
• Buried objects are not abandoned objects
Held
• The Tunica Indians have the right as they are descendants
Ratio
• Buried artefacts are not abandoned
• Abandonment must consist of the intent and control
Finders’ Keepers – Notes
• General legal principle: a finder of property has rights against everyone except its true
owner, but issues can complicate a finders’ scenario.
o One is if an occupant of land or buildings on/in which property is found makes a
competing claim against the finder (e.g. Trachuk v. Olinek, Parker v. British
Airways)
• The overriding objective of the legal solution is to reunite the lost property with its true
owner (Parker v. British Airways)
o Had they leased the relevant part of the property, the lessor having exclusive
possessory rights to the land would have the best claim to items found. Students
drawing even more subtle distinctions between the exclusive legal rights of a
lessee and the fact of occupancy were highly rewarded.
• Parker v British Airways states the principle that an occupier’s rights are superior to a
finder’s where chattels are found in or attached to the land.
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•
•
Disputes between co-finders, as in Perry v Gregory, would not impact their collective
rights vis-à-vis third parties
Millas v BC suggests that it would not matter if the coins were proceeds of a crime, as
long as the true owner was unknown and the finding couple were not themselves
wrongdoers (like in Baird v British Columbia).
Gift-Giving: Inter vivos and Donatio Mortis Causa
30. Nolan v Nolan, Vic SC (2003)
Facts
• Jinx Nolan (daughter) claims paintings were gifted to her mother, Cynthia,
and when she died the paintings went to her. The three in question were
not in the inventory and Sid continued to live with them until he died
Issues
• When Sidney’s estate gets distributed, who gets the paintings?
• Were they gifted over to Cynthia?
Majority
To establish a gift inter vivos: you can…
(Dodds• put it in a deed b) issue a declaration of trust or c) deliver the gift.
Streeton
J)
However, if there is no deed or declaration, you must have…
• 1) intention to make a gift 2) intention to accept and 3) delivery of gift.
•
Held
Ratio
•
•
The Court will not complete an imperfect gift – if delivery does not occur,
the gift is not complete. When the alleged donor is dead, there will be
skepticism. If you can ask if they’re alive, then do that.
The paintings were not gifted to Cynthia
Inter vivos gifts require (1) an intention to give, (2) an intention to receive,
and (3) actual delivery (actual, constructive [keys to a car], symbolic [BMW
Hat for a BMW])
31. Re Bayoff Estate, Sask. QB (2000)
Facts
• Terminally ill cancer patient gives keys to safety deposit box to executrix
and signed a note to the bank. Bank rejected the informal paperwork and
Bayoff passed away before they could complete the required forms.
Issues
• How should the estate be distributed? Was there a gift?
Majority
• Donatio Mortis Causa: requires impeding death from existing peril, has
(Krueger
relaxed selivery of subject matter, and effective only on death (if recovery,
J)
reverts back)
• This case is not a DMC because it was effective immediately
• The constructive (means to control the gift)/symbolic (symbol that
something will be done later) delivery failed to perfect the gift, but the gift
was perfected when Simard was executrix as it was delivered to her at that
time
Held
• The gift was inter vivos because it was effective immediately and
perfected delivery took place when she became executrix
Ratio
• An imperfect inter vivos gift can be perfected for the designated recipient if
they are named an executor of the estate or receive control through a will
(Strong v Bid)
• Donatio Mortis Causa: the giver must be 1) facing impending death, 2)
delivery (constructive is alright) 3) the gift is only to take effect upon death
and will revert to the donor should he/she recover
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•
Key delivery is insufficient for inter vivos, but may be enough for DMC
Gifting
• The Court will not complete an incomplete gift
When interpreting wills, the cardinal rule is to look for what the donor intended to have happen
Nolan v Nolan (Dodds-Streeton J): Inter vivos gifts require an intention to give, an intention to
receive, and actual delivery (or constructive/symbolic)
• However, there is a need for caution when interpreting gifting by a deceased person
Re Bayoff Estate (Krueger J): Donatio mortis causa requires impeding death, relaxed delivery,
and effective only on death (not applied)
Re Cole: Husband says “It’s all yours” and tries to avoid having furniture taken in bankruptcy;
Harman LJ says you need an act of delivery or change of possession
Lock v Heath: Where it is not possible to physically deliver a gift due to its size, symbolic
delivery will suffice
Brown v Rotenberg: Constructive delivery (giving a key) will suffice for delivery in DMC cases,
but not inter vivos
Strong v Bird: An unfulfilled gift will be treated as complete if the recipient becomes an
executor
Alternatives to Delivery (Hovious & Youdan - “The Law of Family Property”):
Symbolic delivery: Instead of the thing itself, some other object is handed over in its name and
stead (p.350) (sufficient for “donatio mortis causa” /a gift in contemplation of death (e.g. a hat,
car keys, a picture)
Constructive Delivery: Something that is not a delivery is treated as if it were one in two
situations:
1. Where the donor gives up to the donee the power and control over the subject matter
of the gift
2. There is no change of factual possession, but there is a change in the capacity in
which that person has possession (i.e. subject matter → actual ownership) (e.g. transfer of title)
Principles of Equity & Trusts
Overview of Trusts/Equity
• Tie to Aboriginal title (not a trust, but treating it with a
mind for the future)
• Once you bring up trusts (constructive trust in Popov),
you can invoke principles of equity
• Can vary with whims of judges (tie to Legal Realism)
• Settlor (owner) gives legal title to trustee and beneficial
interest to beneficiary (splitting up the bundle of rights)
but trustee not responsible to settlor/beneficiary
EXPRESS TRUST
Settlor
(Testamentary or Inter Vivos)
Trustee
(Bare, fixed or
discretionary)
Legal title
Beneficiary
(Person or
Purpose)
Beneficial interest
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•
When you give physical delivery, equity assumes you meant it as a trust (makes it even
harder to gift)
• Express Trusts: intentionally splitting legal (to trustee) and beneficial title (to
beneficiary)
o Can be a person, trust company (trustee) or person, purpose (beneficiary)
• Operation of Law: trusts that the settlor did not expressly create, causing the law to
create a separation of legal and equitable title
Operation of Law
• Resulting Trusts: ties up loose ends
o Gap Filling: testatrix sends only part of the interest to a third party
▪ To my trustee and her heirs, to hold for the benefit of my wife for her life
▪ We presume based on equity that trustee holds remainder interest at the
end of the life estate in trust for the testator so that the remainder (even
though trustee holds legal title) for the beneficial interest goes to the
estate
▪ Whenever you see a trust with partial disposition such as a life estate or
conditional transfer and a remainder undisposed of, that remainder
interest is held in trust for the person who created the trust
o Gift Giving: principles of equity apply so that when you give something away in
the absence of an express intention otherwise, you are presumed to be giving
the donee legal title to hold on your behalf (even if effected delivery)
▪ Example of making sense: situations where an older parent allows their
adult child to handle finances
▪ Example of not making sense: to avoid probate taxes parents often give
money to children prior to the will or by making them joint tenants
• Constructive Trusts: equitable remedy imposed against those not acting in good
conscience to retain the beneficial interest and make the holder of title a trustee
o Relational: arise on the account of a particular relationship (fiduciary, equitable
obligation)
o Remedial: arise most commonly with unjust enrichment (non-marital, conjugal
relationship)
Constructive Trusts
• Advancement: historically, from parent-minor child, and husband to wife.
o Historically, wife-husband had a resulting trust relationship
• Constructive Trust: remedial purpose
Pecore v Pecore, SCC (2007)
Facts
• Father put $1.2M in joint account with daughter, saying it was not a gift.
Father died, leaving residue to daughter and ex-husband. Ex-husband
claimed part of $1.2M as residue of estate.
Issues
• Does daughter take joint property by survivorship? Was it a gift for the
daughter or a resulting trust for father?
Majority
• The law will presume an intention of advancement/gift between spouses
(Rothstein
or parent-minor child relationships
J)
• Law will presume a resulting trust with adult child, but you can rebut
based on relation, needs, words, and control – the siblings supported the
daughter here.
Held
• Father advanced $1.2M as a gift to daughter
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Ratio
Connections
3. Presumption of resulting trust = applies to adult children
a. Burden of proof to show that is was gift by that adult child
b. Show things like: relationship, still dependent on parent, why it
would not go to other siblings (i.e. estranged relationships) or
spouse (i.e. Are they expected to die first)
c. Does not require there to be a relationship but could be a
fiduciary duty
4. Presumption of advancement = applies to minor children
a. Burden of proof on party claiming that it was not an advancement
to show that it was a trust
b. Applies when there is a duty of care (spouse/spouse;
parent/child)
• Madsen Estate (2007 SCC): Same situation, but the siblings fought – a
resulting trust because presumption not rebutted.
Remedial Constructive Trusts & Unjust Enrichment
Murdoch v Murdoch, SCC (1973)
Facts
• Irene applied for separation and wanted resulting trust in property – she
did a lot of farm work and faced domestic violence. Name of property
was entirely in Husband’s name. No legislative remedy at the time.
Issues
• Did Irene have a legitimate claim to the farm property?
Majority
• No – she did expected farm work, so no common intention resulting
(Martland J)
trust. Would need to do something extraordinary to get this.
Dissent
• What good are property rights if a wife has none or is forced to stay at
(Laskin J)
home and work + raise kids?
• Parliament should act, but we shouldn’t sit around waiting
• If traditional jurisdiction of Courts can conduce equitable result, it should
not be withheld because it may be difficult and because distinctions
would make for slow, painful evolution of law
Connections
• Judicial activism by Laskin
• Right to property if you don’t have any in your name
• Rathwell (1978): Laskin now joined by Dickson, Spence JJ in finding
constructive trust for separation
• Pettkus v Becker (1980): Laskin now had majority to find constructive
trust for common law partners
Kerr v Baranow; Vanasse v Seguin, SCC (2011)
Facts
• Ms. V and Mr. S: 12-year common law couple, she quit her job so S
could start company, bought home jointly, at split, he was worth
$8.45M and she was worth $332K
• Ms. K and Mr, B: 25-year common law couple in their 60s, he cared
for her 15 years post-stroke, he split and put her in a home, she
claimed share and he claimed her unjust enrichment
Majority
• Common intention resulting trust = no role in domestic
(Cromwell J)
relationships.
Held
• Kerr is complex - needs a new trial
• Vanesse – wife wins, made contribution to joint family venture
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Ratio
Unjust
Enrichment
Test
Remedy
1.
2.
•
3.
•
Enrichment for one partner
Deprivation for the other partner
Do the math to establish this.
No juristic reason for the enrichment
First, check established categories: is the enrichment
from a gift, did the partners have a contract, or did a
statute provide the enrichment. Plaintiff must prove
none apply.
• Second, the defendant can attempt to rebut the
categories to justify the enrichment.
• If the defendant cannot, there is unjust enrichment.
Money or property.
1. Money: valuation of contributions, considering the
joint family venture based on four criteria:
• Mutual effort, economic integration (shared
bank account), actual intent, and family
priority (children care)
• Split the valuation proportionately to
contribution – this is not always equal
• Consider the benefit at claim and remedy
2. Alternatively, property
• Same test to determine valuation, but it would
be for a % share of the property
• Typically the home, also corp shares (V&S)
• The property has to be linked to the enrichment
• Will be used when there is no $
Other Cases and Considerations for Constructive Trust in Relationship Breakdowns
• Family Law Act: equalization of net family property; household chores are joint
responsibilities that entitle spouses to the net family properties
• Rawluk: A constructive Trust can supplement statutory equalization
• Peter v Beblow: Don’t need extraordinary contributions to have constructive trusts, just
household contributions
• M v H: Family Law Act cannot discriminate against same-sex partners
• Walsh v Bona: Family Law Act can discriminate against unmarried partners
• Sorochan: constructive trust includes contributions to maintain/improve property postseparation
Wills and the Future of Property
“Estates is about how you can give land, who can get land and under what conditions land can
be given.”
Ellickson, “Property in Land”
• Perpetual property right (fee simple) encourages:
o Enhancement of the property – invest in it, because its certain you own it, and
can get market value for those improvements
o Conservation of resources – less of an incentive to exploit immediately,
comparable to the tragedy of the commons
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•
Critique: You don’t need private property to incentivize stewardship [anti-commons]
Vested Interest, with strings: Condition Subsequent and Determinable Limitation
A vested Interest can branch off with two different qualities:
• 1. Condition Subsequent (but if, provided that, etc): The property is granted to the
recipient, who now has a vested interest. Their vested interest may be taken away later,
if an identified event does not occur (e.g. To A, but if used as a hospital ground, back to
my estate)
• 2. Determinable Limitation (while, during, so long as): An interest in property that
may last forever, but will automatically terminate upon the happening or non-happening
of a specified event. (e.g. A receives a fee simple determinable, and grantor retains a
possibility of reversion when the limitation is breached. The land will return to the
grantor or estate in fee simple absolute (e.g. To A and his heirs as long as used for
church purposes)
When violations of the qualities occur…
• Condition Subsequent: The gift-over recipient or estate will have the right of reentry
• The recipient after a violation of the condition subsequent has a contingent
interest because the condition subsequent is their condition precedent.
• Determinable Limitation: This is a vested interest for the estate; a right of
reversion when the terms are violated to the estate/grantor. This is a legal fiction.
More Terminology
•
•
•
•
Life Estate: A estate with a duration measured by life of holder or another person (per
autre vie); life tenants have the right to possess and enjoy profit, but cannot make
significant alterations of waste or alienate full title owner as they have the grantor has
the fee simple in reversion
o No special words to create a life estate – construed from intention (Re Walker,
Re Taylor)
Remainder: When a person receives an interest in an estate but is not entitled to
possession until the expiration of the preceding estate.
A qualified future Interest:
o Condition Precedent: An event or condition (express or implied) that must
happen before an estate can vest.
o Contingent Interest: An interest contingent on a condition precedent occurring
o Vested Interest: a present right to future enjoyment (K had a present right to use
the house once Mary passed away; once she passed away his estate in fee
simple will then be vested in possession or go to his will)
▪ Black’s Definition: a present right or title to a thing, which carries with it
an existing right of alienation, even though the right to possession or
enjoyment may be postponed to some uncertain time in the future
Freehold Estate: a freehold is a measure of the nature and degree of interest in land
that includes a life interest and fee simple for an indeterminate period where the life
interest expires on death and fee simple can be inherited; estate is synonymous with the
words right, title, and interest; so a freehold estate can be interpreted to mean a
freehold right, title, or interest in land
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Vested Interest: An interest which has no conditions or limitations; the property is
alienable and can be sold
o E.g. To A for life, then B in fee simple means that A has a life estate vested in
possession while B has the remainder vested in interest
Contingent Interest: When vesting is delayed due to a condition precedent which is not
inevitable (courts dislike contingency, and favour early vesting)
o E.g. to A for life, so long as he gets married
Condition Precedent: A condition that must be fulfilled before an interest is vested (if,
when, as)
Determinable Limit: A restriction on an interest that ends it when something occurs/the
restriction is violated (so long as, while, until, during)
o If event occurs, possibility of reversion sends it back to grantor with no
formalities – if the determinable limit is invalid however, the gift fails entirely
Condition Subsequent: Grantor retains rights of re-entry into his estate if a specified
event happens but must bring a cause-of-action (but if, provided that, on the condition
that)
o Vesting happens, then the subsequent event occurs which could lead to re-entry
o If invalid, the condition is removed and gift is absolute
Freehold: An ownership right defined by a reference to an event that can happen in the
future – including fee simple, fee tail, and life estate
Real Estate: An interest, usually but not necessarily in land, that apply to property
Fee Simple: broadest ownership right in terms of time (not rights), where the estate is
potentially forever-lasting (until it is transferred e.g. to A and his heirs; say fee simple)
Escheat to Crown: If you have no wills or heirs, your property may eventually revert
back to the Crown in fee simple (as Succession Law Reform Act in Ontario)
Fee Tail: When death occurs, property reverts to estate or genealogical heirs – even if it
is sold. Can only transfer current possession, making property a family asset (No longer
exists in Canada)
Measuring Life: Self-explanatory.
Gift Over: Giving over the remainder after after the measured life ends
Remainder: What is left after an expiration of measured life
Donatio Mortis Causa: Gifted at death
Inter Vivos: While alive
The Future of Property – Class Notes
The fundamental rule to be applied by a court in construing a will is that the intention of
the testator is to be ascertained from a consideration taken as a whole
Freehold: includes fee simple, fee tail, and life estate; a right defined by a reference to an
event that can happen at some time in the future (i.e. death)
Real Estate: an interest, usually but not necessarily in land, that apply to property
Fee Simple: broadest in terms of time (not rights) where the estate is potentially perpetual
and lasts forever until you transfer it (To A and his heirs; say fee simple)
Escheat to Crown: if no heirs, your property goes back to the Crown as fee simple
Fee Tail: when you die, property reverts back to your estate or genealogical heirs (once
original owner’s life ended it reverts back to lineal heirs, even if you sell it)
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Thomas v Murphy (Creaghan J): Must focus on the agreement as a whole and the intention
of the donor, not on “magic words”
→ Link to estates in gifting, ON Conveyancing and Property Act (words of intention)
and ON Succession Law Reform Act (assume fee simple unless contrary intention)
Re Walker (Middleton JA): Once you transfer an estate in fee simple it is irreversible
Re Taylor (Scheibel J): Using the words “for her lifetime” denotes a life estate
Vested Interest: A present right or title to a thing, which carries with it an existing right of
alienation, even though the right to possession or enjoyment may be postponed to
some uncertain time in the future
→ To A for life, then B in fee simple means A has a life estate vest in possession
while B has the remainder vested in interest
Contingent Interest: when vesting is delayed due to some condition precedent which is not
inevitable (courts dislike this and favour early vesting)
→ To A for life so long as he gets married
Condition Precedent: condition that must be fulfilled before an interest is vested (if, when
as)
Determinable Limitation (while, during, so long as): an interest in property that may last
forever, but that will automatically terminate upon the happening or non-happening of a
specified event; A receives a fee simple determinable and grantor retains a possibility of
reverter; when the land is not used as specified, the grantor or his estate will get it back in
fee simple absolute (ex. To A and his heirs as long as used for church purposes)
→ If invalid, the entire gift fails
Condition Subsequent (but if, provided that, etc.): the property is first granted – the
recipient’s interest vests in interest – though the entitlement may later be taken away
should the identified event not occur (ex. TO A, but should the land ever be used as a
hospital, this interest shall revert to the grantor); right of re-entry that goes to the next
person in line to get it when the condition subsequent is violated; always corresponds to
condition subsequent
→ If invalid, condition is removed and gift is absolute
Life Estate: an estate whose duration is limited to or measured by the life of the person
holding it or that of some other person (per autre vie); life tenants have right to
possession and to enjoy profit, but not the power to make significant alteration of
waste or to alienate full title as the grantor retains the fee simple in reversion
Stuartburn v Kiansky (Wright J): A remainder interest is a present, vested interest in land,
even though the holder is not entitled to possession until the expiration of the life
estate
Re McKeen Estate (Landry J): Courts should presume that testators intend to dispose of all
of their property by will as to avoid a partial intestacy and that they intend to create
vested rather than contingent interests (favour early vesting)
Caroline (Village) v Roper (Cavanagh J): If the terminating event is an integral and
necessary part of the formula, the result is the creation of a determinable interest
(unless it ceases to publish accounts); but if the terminating event is external to the
limitation, if it is a divided clause form the grant, the interested granted is an
interest upon condition (on condition that the accounts are published annually)
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Unger v Gossen (Stromberg-Stein J): When you have an impossible condition, it is invalid; if
the testator knew it was impossible the gift is absolute as long as it was not the sole
motive
Hayes v Meade (Godin J): When uncertainty surrounding CP or CS,
Test for CP: Is it capable of a reasonable interpretation at the time?
Test for CS: Can you see from the beginning precisely what event will determine?
If a condition can be either, Courts will say subsequent to favour early vesting
Trinity College v Lyons (Sheard J): Total restraints on alienation (time/class/mode) are
invalid
→ Link RAP
Re Millar (Duff CJ): Public policy is to be used only where harm is substantially
incontestable and not based on judges opinions (we don’t care if capricious)
Re Leonard Foundation (Robins JA): If trust is not purely private, it can be void due to
offensiveness (if treated specially as charitable trust)
The Future of Property – Other Notes
D’Arundel’s Case: in common law, you have to say “To A and his/her heirs” to bequeath
property in fee simple
St. Mary’s Indian Band v Cranbrook, SCC (1997): “Should not rely upon traditional
distinctions between determinable limitations and conditions subsequent in order
to adjudicate a case such as this” as they do not apply to native lands
Re MacDonald: Where a Testator grants a bequest, subject to a condition which is
impossible, the dominant intent must be the gift
Noble and Wolf, ON CA (1949): case where clause banned sale of lands to any Jewish,
Hebrew, Semitic, Negro, or coloured person; legislation since overturned
Re Ramsden Estate, PEI TD (1996): clause to give money to protestant students that wanted
the University to act as trustee; University could not but it is distinguishable from
Leonard because it is not based on blatant religious supremacy and can still act, just
not with the Uni as trustee
Fox v Fox Estate, ON CA (1996): mom wasted all of the money from dad’s estate so that the
son could not get it as she didn’t like him marrying outside of the religion; Court of
Appeal said she improperly exercised her power and that it is “abhorrent to
contemporary community standards that disapproval of a marriage outside of one’s
faith could justify the exercise of a trustee’s discretion
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Interpreting Wills
Thomas v Murphy, NB QB (1990)
Facts
• Plaintiff sues lawyer for issue with legitimacy of title
Issues
• Did the grantees in the trust deed receive a fee simple
interest in the property which they could sell?
Majority
• The clause in the will did not contain the “magic words” (to A
(Creaghan J)
and his/her heirs” – as a result, the clause is incapable of
doing what it was intended – in NB, you can just fee simple
• However, the court looks to intention
• Clause was obviously intended to convey fee simple
Held
• P’s action dismissed, Court looked at intention
Ratio
• D’Arundel’s Case: In common law, you have to say “To A
and his/her heirs” to bequeath property in fee simple however
• Must look at the agreement as a whole; intention
Notes
• ON Conveyancing and Property Act: if inter vivos transfer, all
you need are words indicating intention (conveyance, grant,
grantor, grantee)
ON Succession Law Reform Act: assume fee simple in
transfer, except when contrary intention is expressed
• NB Property Act: All you need to say is fee simple
Key Terms for Transfer Intention Identification
Inter Vivos
Testamentary
Conveyance
Bequest/Bequeath
Grant
Devise
Grantor/ee
Testator/trix
Gift
Beneficiary
Sale
Transfer
Harris (Tractor Will) – a will can be written on anything.
Re Walker, ON CA (1924)
Facts
Fight between husband and widow’s estate – will said if anything
was left, gift-over
Issues
• Did husband give his wife a fee simple or a life estate – what
was the prevailing intention?
Majority
• The secondary intention beyond giving his wife the fee
(Middleton JA)
simple was repugnant
• Two options: (1) the gift to the person first named prevails
and the gift over fails as repugnant or (2) the first name takes
a life-estate only and so the gift over prevails – go with the
first.
Held
• The gift to widow in fee simple prevailed; attempted gift over
repugnant and void
Ratio
• Once you’ve transferred fee simple, you can’t attach
conditions – primary intention will prevail
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Re Taylor, Saskatchewan Court (1982)
Facts
• Husband left wife with all his real and personal estate to use
during her lifetime - “Any estate of which she may be
possessed at the time of her death is to be divided equally
between my daughters”
Issues
• Was the estate fee simple or a life estate?
Majority (Scheibel J)
• A clear intention for life estate clear – will looked at in whole
• The words “for her lifetime” will indicated a life estate
Held
• Life Estate, gift over confirmed even when encroachment on
capital occurs
Ratio
• The fundamental rule to be applied by a court in construing a
will is that the intention of the testator is to be taken from
considering the will as a whole
• “For her lifetime” constitutes a life estate
Christensen v Martini, AB CA (1999)
Facts
• Husband says when wife “no longer needs” the property, to
give it to his friends – ambiguity as to what it means to “no
longer need” the property; was it a fee simple or life estate?
• The husband is trying to convey half of an interest under
tenants in common (major complexity)
Issues
• What type of interest was bequeathed?
Majority (Hunt JA)
• Appeals judge meets in the middle: it was a life estate
because when she “no longer needs it” can be interpreted as
when she dies
• When in doubt; fulfill the intention of the testator.
Held
• Life Estate, gift over confirmed
Ratio
• Absence of “during her lifetime” does not mean it is not a life
estate – a court should endeavour to give effect to th the
testator’s intentions
The Future of Property
Kinds of Interest:
• Remainder (Gift Over): A present right to a future enjoyment
• Reversion: A grantor’s interest (e.g.
o i.e. "G conveys to A for life": the interest granted to A is a life estate, reverting to
G when A dies.
• Vested: No limitation/condition on that right.
• Possession: The right to use the property now
• Interest: The right to use the property later
• Contingent: An interest that is subject to a prior happening of an event, which may
never happen – (this may creates uncertainty).
• Future Interest: An interest contingent on a future event occurring (it may not).
Real Estate Definitions
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Magic Words to keep in mind
Stuartburn v Kiansky, MB QB (2001)
Facts
• Kiansky’s ownership of land was the issue during an election
– statute said he had to be a present owner of land
• Kiansky had a remainder interest subject to his
grandmother’s life estate
Issues
• Does Kiansky’s remainder interest constitute owning land?
Majority (Wright J)
• Context of s. 5(1) means that the person must be the present
owner
• The ownership of B and C also exists in the present even
though A has the right to possession
Held
Ratio
•
•
Kiansky had a vested interest; therefore a home owner
A life estate is not a condition precedent; a remainder
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interest is a present, vested interest in the land.
Re McKeen Estate, NB QB (1993)
Facts
• Harry McKeen gave his life estate to his widow and
directed to divide the remainder amongst his sisters (jointly
or solely depending on if one or both were alive)
• However, both sisters died before the widow
Issues
• Did Harry (testator) intend to make the gift to his two sisters
contingent on them living longer than his wife?
Majority (Landry J)
• Look to the intention of the testator, both actual and
subjective
• If it isn’t clear, the court should consider what a reasonable
person might intend
• Intestacy: When the will is doubtful, court will act on the
presumption that the testator did not intend to leave their
estate partially or wholly intestate
• Vesting: When the words are not clearly contingent, the
courts is inclined to prima facie call a contingent gift a
vested in nature.
Held
• The remainder goes to the sisters, because the testator
had clearly intended for them to gain something from his
estate.
Ratio
• Courts should presume an intention to dispose of all
property VIA will to avoid intestacy, and that they prefer to
create vested and not contingent interests.
• A preference by the court for early vesting of interest
• If someone dying is a condition precedent, the court is likely
to vest interest instead going to intestacy
Caroline (Village) v Roper, AB QB (1987)
Facts
• Grantor (Thomas Roper Sr.) allowed community hall to be
built on his land with a condition that it would go back to his
estate if it was not used for that purpose.
• He dies - estate goes to his wife.
• Caroline Hall trustees ask for title transfer to build basement;
she agrees.
• Agreement said “If used for other than a community centre it
shall revert back to estate of Thomas Roper Sr.”
• Hall burned down; village wanted to sell for development.
Issues
• Was there a condition subsequent or determinable limit?
Majority (Cavanagh J)
• Lawyer for developer says this clause is invalid because it
violates the RAP / Qualifying the interest violates the RAP if
reversion/re-entry is not vested / Condition subsequent on
grantee leaves the grantor with a contingent right of re-entry
• A determinable limitation on grantee leaves the grantor with
a vested possible reverter
• Document void and unenforceable
Held
• Condition subsequent, but judge retroactively rectified the
clause to reflect the grantor’s intention
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Ratio
•
Notes
•
Links
•
“Shall revert if” is an indefinite, future event external to the
grant and is a condition subsequent
If the terminating event is an integral and necessary part of
the formula from which the size of the interest is to be
ascertained, the result is the creation of a determinable
interest (unless it ceases to publish accounts); but if the
terminating event is external to the limitation, if it is a divided
clause form the grant, the interested granted is an interest
upon condition (on condition that the accounts are published
annually)
Vested interest - conditions subsequent and determinable limitation
• Vested Interest branches off in to two different things:
o Condition Subsequent (but if, provided that, etc.): the property is first granted
– the recipient’s interest vests in interest – though the entitlement may later be
taken away should the identified event not occur (ex. TO A, but should the land
ever be used as a hospital, this interest shall revert to the grantor)
o Determinable Limitation (while, during, so long as): an interest in property
that may last forever, but that will automatically terminate upon the happening or
non-happening of a specified event; A receives a fee simple determinable and
grantor retains a possibility of reverter; when the land is not used as
specified, the grantor or his estate will get it back in fee simple absolute (ex. To A
and his heirs as long as used for church purposes)
• If you have a vested interest and the condition subsequent is violated, it reverts back to
either whoever gets the gift over or if no one specified back to the grantor’s estate
o This we call a right of re-entry that goes to the next person in line to get it when
the condition subsequent is violated; always corresponds to condition
subsequent
• Why does it go back to a contingent interest? Right of Re-entry is itself a contingent
interest because it is subject to a condition subsequent; before right of re-entry can take
effect, someone else has to breach a condition subsequent, the person second in line is
contingent upon first in line breaching condition; the exact same clause can
simultaneously create both a vested and a contingent interest; first in line gets a vested
interest (give laptop if stay in law school; person in law school has a vested interest if
they stay, a condition subsequent as if you drop out you lose it; charity is second in line
and they have a contingent interest contingent on first person dropping out of law
school)
o The right of re-entry is contingent because the grantor’s (estate’s) re-entry right is
subject to a prior condition precedent…the grantee’s breach of the condition
subsequent!
• If you have a vested interest and a determinable limitation, there is a possible reverter;
always corresponds to determination to end of determinable limit
• If any basis for separation, it is a conceptual level where condition subsequent is
separate from the grant itself, and when it is violated procedural mechanisms have to
happen; with determinable, fence is so inherent that the transfer only takes affect so long
as certain circumstances, once violated it immediately reverts back to the second in line
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Four grounds for limitation by the State – impossibility, public policy (discrimination),
uncertainty, and inefficiency/economic concern/inalienability
Impossibility - Unger v Gossen, BC SC (1996)
Facts
• Testatrix a portion of estate to people living outside of
Canada. The condition precedent attached is that they move
to Canada and become residents within 15 years of her
dying.
• Nephews were in their late 60s, poor, and uneducated, so
there was no chance they could get to Canada
• One descendant lived in Canada
Issues
• Can the descendant collect the amount, or does the estate
have to wait 15 years for the condition to expire?
Majority
• The court needed a way around voiding a condition
(Stromberg-Stein J)
precedent (move to Canada) because then the whole thing
will fail
• Limitation was there just to keep the money out of the
government’s hands
• All parties in agreeance to distribute the money
Held
• Condition is invalid, but everyone wants it distributed and the
intent was that they get it, so it is upheld
Ratio
• When you have an impossible condition, the condition is
invalid
• If condition precedent is impossible to fulfill (with/without the
knowledge of the Testator or by law) [per Feeny], then the
court will disregard that condition and grant the transfer
absolutely.
Uncertainty - Hayes v Meade, AB QB (1987)
Facts
• Father bequeathes property to eldest (James) son on the
condition he resides on it and cultivates it. However, there
was an option for another son to pay the brother (Harold)
$1000 for the property should he not choose to live on or
cultivate it. That son came back 30 years later.
Issues
• Is the clause a condition subsequent or condition
precedent?
Majority (Godin J)
• Court prefers condition subsequent/early vesting and we’d
rather James have a vested interest now
• Testator intended to produce an advantage for both sons
and that James was to get something – condition
subsequent is void
Held
• Condition Subsequent is void due to uncertainty and
ignored; James took absolute title upon death of father
Ratio
• Court prefers condition subsequent over condition
precedent because it provides vested interest to the
grantee
• If a condition subsequent is void due to uncertainty, the gift
is absolute
• Test for Condition Precedent: Are you able to determine
whether the individual meets it or not at a particular point in
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time (Is it capable of a reasonable interpretation at the
time?)
Test for Condition Subsequent: do you know from the
outset which acts will divest the interest (Can you see from
the beginning precisely what event will determine)
If a condition can be either precedent or subsequent,
courts will say subsequent to meet law’s desire for
early vesting with condition subsequent
Valid, but weighed the idea of public policy - Estate of Charles Millar, SCC (1938)
Facts
• Charles Millar left a lot of money for whichever woman had
the most children in Toronto over ten years after his death.
Issues
• Is it against public policy?
Majority (Duff CJ)
• Quoted Lord Denning: “Public policy is an unruly horse that
should be invoked only in clear cases where harm to the
public is substantially incontestable and does not depend on
the idiosyncratic inferences of judicial minds”
Held
• Not contrary to public policy or capricious
Ratio
• Public policy is to be used only where harm is substantially
incontestable; not based on judge’s opinion (“unruly horse,
as per Denning”)
• but judge’s interfere all the time (Logan, Laskin, Mosk,
Panelli)
Discrimination - Leonard Foundation Trust, ON CA (1990)
Facts
• Charitable trust set up for scholarships going to particular
individuals – discriminatory in nature (white Christian men)
• Civil liberties associations and universities complained
Issues
• Was the scholarship contrary to public policy?
Majority (Robins JA)
• This trust was not private because it had tax breaks and was
open to public universities
• Quasi-public aspect
• A will must be read as a whole, cannot ignore provisions in
its the recital
• Cy-Près Doctrine: if a trust created for a charitable purpose
cannot be carried out as specified by the settlor, the court
can revise the terms of the trust so as to carry out the
settlor’s intentions as nearly as possible
• Robins infers the violation is obvious based on social outcry,
so he intervenes for those reasons (but a critique can be
made this is very shaky)
Concurring
• Charitable trust treated specially
(Tarnopolsky JA)
• Quasi-public quality: taxation, exemption from RAP, don’t fail
from lack of certainty of objects, court will supply a scheme
where it is unclear
• apply cy-pres (above)
• Condition precedent not void for uncertainty
• Discrimination is sometimes contrary to public policy
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Held
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Ratio
•
Tarnopolsky looks at this from a judicial lens, and uses law to
rebut the legitimacy of the trust’s provision (statute,
constitution, HR code)
The trust offends public policy, must administer the funds as
near as possible but cannot do this (cy-pres)
If trust is not purely private, it can be void due to
offensiveness
Inefficiency - Trinity College v Lyons, ON Gen Div (1995)
Facts
• An arrangement set out for property next to a school – under
the agreement, the school had the right of first refusal for a
dollar amount much lower than what the property was worth
– the parents gifted the property to their daughters. School
brought a claim.
Issues
• Whether the option for a fixed price was unenforceable or
void as an inappropriate restraint on the alientation of the
estate in fee simple (can’t transfer if court says no)
Majority (Sheard J)
• Per Re MacLeay, you cannot transfer property with a
qualification that constrains the grantee’s rights to alienate
the property further by time, class, or mode
• Note: due to free market restrictions
Held
• This option was an invalid restraint
Ratio
• Total restraints on alienation (time/class/mode) invalid
Links
• Economic value of the law is recognized in the courts –
Posner
• Aboriginal title issues – in effect, had a market of 1 with the
school which destroys the economic value
• Restricting alienability of title undercuts the economic value
• Noble v Wolfe (1949): Noble is an example of a racially restrictive covenant. Such
covenants are prohibited under provincial legislation (Ontario’s Conveyancing and
Property Act).
•
Ramsden Estate (1996) PEI: Ramsden is a bequest left for people of financial need and
wanting to enter the field of ministry. Not seen to be discriminatory on the grounds the
Leonard Foundation was.
•
Fox Estate (1996) ON CA: Mother was trying to spend all the residue of a will that was to
go to son as soon as she died but she was spending it because he had entered into a
relationship with a woman of different religious faith. Courts held that she had improperly
exercised her power. She was a trustee so she is subject to court control - otherwise this
would be a private affair that court could not impose their will on.
•
Spence v BMO Trust (2016) ON CA: Father was racist, but not in the will. Will upheld
because it was a private matter.
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Aboriginal Rights
Ways in which to enforce or establish title
• Treaties: sui generis contract – generally involves the sacrifice of traditional territorial
land, in exchange for a reservation of land, and benefits like tax exemptions.
• Statutes: Indian Act, Aboriginal land rights on reserves
• Litigation in the courts: Tsilcohtin, the first successful establishing of title.
o Issues: Oral proof, historic records, different legal orders, language and concept
issues
• Extinguishment: title can be extinguished by the Crown under S91(24) of the
constitution, or by treaty.
o Extinguishment is comparable to expropriation
o Infringement is comparable to a regulatory taking
History of Aboriginal Rights in Canada (and generally)
Impossible to understand issues without socio-historical context of violence. Residential
schools, for example – attack on indigenous identity and communities
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Royal Proclamation, 1763: The source of fiduciary duty to aboriginal people (as per
Guerin). Full monopoly of the Crown over dealing with indigenous people and land.
o Paternalistic position to “protect” the indigenous people, but deprives land of
economic value.
John v M’Intosh (1823 US): Terra nullius in the US context – discoverer of “no-man’s
land” has first occupant rights. Sovereignty recognized, in terms of ownership.
Constitution Act, 1867: Indians (and their land) are federal jurisdiction.
Indian Act (1876): Primary document defining relationship between Federal
Government and First Nation Bands across Canada (not Metis or inuit)
St Catherines Milling (1888): Indians had a “personal and usufructory right” to use
land, which is analogous to an easement (a licence to occupy it)
Re Southern Rhodesia (1919) Lord Sumner: Some tribes are so low on the scale of
social organization that their use and conception of rights and duties cannot be
reconciled with a civilized society. Cannot impute to such people the rights of western
law, especially as to transferable property rights.
Tee-Hit-Ton (1955 USSC): Aboriginal land in the US = not protected under 5th amend –
not considered property
Calder v BC (1973 SCC): Suggested that aboriginal title had content beyond mere use
rights.
Constitution Act, 1982: Affirmed existing aboriginal and treaty rights in Section 35;
Aboriginal peoples includes Indian, Inuit, Métis
Guerin v The Queen (1984 SCC): Royal Proclamation put fiduciary duty on the
Crown; land has to be transferred to the crown for use beyond what is permitted to
them.
R v Sparrow (1990): Held that indigenous people have constitutional rights for certain
activities, such as fishing, under s35
Mabo’s Case (1992 HC Australia): Justice Brennan refutes terra nullius – continuing
to apply this would be perpetuating a bad precedent, so law is changed.
R v Van der Peet (1996) & R v Gladstone (1996): Broader circumstances set out for
justifying infringement of aboriginal rights
o Gladstone (1996): S35 has an internalized limit as opposed to the limit of S1
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Van Der Peet Trilogy (1996 SCC) – Defined and restricted aboriginal rights, building on
Sparrow for both
• To establish aboriginal right to an activity:
o 1. An activity must be an element of a practice or custom integral to the
distinctive culture of the aboriginal group… prior to the arrival of Europeans…
▪ The activity defines who they are culturally, either personally or as a
community
o 2. It must be proved that the activity was in that geographic area at a time before
European contact
▪ More recent for western Canada, older in Eastern Canada
▪ To prove activity was integral, you have to prove it was there before
European contract
• Once established, the right is not static (e.g. bow and arrow then v using gun now) – but
there are restrictions on the scale of the activity (e.g. individual vs. commercial fishing)
• Establishing a right does not protect it from extinguishment – the Crown may do that
under the section 91(24) with clear policy objective e.g. resource conservation (as per
Sparrow)
Delgamuukw v BC, SCC (1997) – Tests for Aboriginal Title and Infringement Established
• Test for Proof of Title:
1. Land must have been occupied pre-sovereignty
2. If using current occupation as proof, occupation must have been continuous
3. Occupation must have been exclusive at the time sovereignty was announced – and
this is a matter of intention and capacity
a. If you can’t prove title, you can still prove rights
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Test for Infringement on Aboriginal Title (Inside Section 35):
1. Infringement must be in furtherance of a legislative objective that is compelling and
substantial – determined on a case by case assessment
2. The infringement must be consistent with the special fiduciary relationship between
the Crown and Aboriginal people (i.e. giving priority to aboriginal people, consulting
them)
o The objectives of infringement: Reconciliation with other peoples in Canada,
Resource conservation, economic/regional fairness, public concern
o Extinguishment: under the jurisdiction of the federal govt (s 91(24) + Indian act)
o Fair compensation must be provided if Aboriginal Title is infringed.
Haida Nation v BC, SCC (2004) – Establishing the duty to consult on potential claims
o The Crown has a duty to consult triggered with indigenous communities when they have
real or constructive knowledge of a potential claim AND contemplate that conduct
might adversely affect the community(‘s claim).
o Scope of Duty to Consult on Potential Claims: Affirming the spectrum of duty to
consult established in Delgamuukw (spectrum based on extent of infringement), Haida
Nation sets out the scope of duty owed to nations depending on the legitimacy of a
potential claim.
o If the claim is weak, at minimum provide notice – if it is strong claim, a deeper
consultation with potential claimants is owed in the Honour of the crown.
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R v Bernard; R v Marshall, SCC (2005) – Clarifying the Standards for Occupation
• To establish occupation for aboriginal title, a claimant must demonstrate that occupation
was:
o 1. Physical – Proximate occupancy is not enough, have to be there
o 2. Exclusive – Other communities could not be there
o 3. Continuous – Had to occupy it with frequency/consistently
Tsilhqot’in v British Columbia, SCC (2014) – The first successful claim for Aboriginal
Title, but opening the door for provincial infringement
• 1. Aboriginal title was established using the test set out in Delgamuukw (see above)
• 2. The SCC said infringement was not justified here – however, this result also opened
up the possibility that provinces could infringe on Aboriginal Title using the test set out
in Delgamuukw
Nanabush v Deer, Wolf, et al, John Borrow’s “Recovering Canada”
Facts
• Nanabush saw a deer, rubbed berries in his eyes, and killed it through
trickery before subsequent events led to issues
Issues
• Did Nanabush violate the balance required by law in the relationship
between humans and animals?
Discussion
• A full understanding of First Nations law requires familiarity with other
stories
• Crow, Owl, Deer et al v Anishinabek: humans promised to honour and
respect the lives of animals, not to waste their flesh, preserve fields and
forests, and leave tobacco as a gift
Held
• Nanabush did not respect the dignity of the deer
Ratio
• There is a significant intersection of the relationships in the natural and
human world where humans must respect animals, not waste their flesh,
preserve the environment, and leave gifts.
Richard Overstall: Encouraging the Spirit in the Land
• Primary Laws: respect and balance
• Secondary Laws: enable primary laws, give effect to the concept of respect and
balance (feast)
• Strict laws: constitutional law (not marrying within the clan; not being allowed to divide
hunting lands)
• Identity and Allegiances in the Clan System: Gitxsan’s governmental structure is a
complex web of authorities with different people holding different authorities; if you carry
out duties you get more authority and if you do not you get less; decentralized
Delgamuukw v British Columbia, SCC (1997) – Aboriginal title and infringement defined
Facts
• Issues regarding interpretation and application of the guarantee of
aboriginal rights in s 35(1)
• 58,000 km square, 372 days of trial, 400 page decision
Issues
• What is the content and nature of aboriginal title? How is it protected
by S35? What is required as proof?
Majority
• Aboriginal title is Sui Generis: of its own kind (unique, distinct,
(Lamer CJ)
different); a blend of the common law and Aboriginal perspectives
because they’ve been here since “time immemorial” – it is a burden on
the Crown’s title.
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Held
Ratio
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Connections
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Aboriginal title is inalienable: Title cannot be dealt to a party other
than the Crown (can’t lease, transfer, mortgage, etc.)
Aboriginal title is Communal: Never defined, must have a status
community and not be held by an individual
Aboriginal title is open-ended: Aboriginal people have rights beyond
aboriginal rights pertainining to activities; they can do whatever you
want as long as it is not inconsistent with nature of relation to space.
Aboriginal title is Constitutionally Protected: Protected under S35,
unlike any other property in Canada – this makes it comparable to the
5th amendment in the US.
Back to lower court.
Aboriginal title is distinct from aboriginal rights: they may use the
property for reasons not distinct to aboriginal culture, so long as they
are not irreconcilable with the attachment to the land (e.g. if historically
a hunting ground, can’t use it in a way that would destroy hunting
quality).
If land is to be used for irreconcilable reasons, it must be turned over to
the Crown to do so.
Test for Proof of Title:
4. Land must have been occupied pre-sovereignty
5. If using current occupation as proof, occupation must have been
continuous
6. Occupation must have been exclusive at the time sovereignty was
announced – a matter of intention and capacity (if this can’t be
proved, you can still prove rights use)
Test for Infringement:
1. Infringement must be in furtherance of a legislative objective that is
compelling and substantial (Case by case assessment)
2. It must be consistent with the special fiduciary relationship between
the Crown and Aboriginal people (giving priority to aboriginal people)
Ties to nominalism in sui generis (Lamer making it up)
Inalienable ties to bundle of rights (Honoure), personality theory in
relation to the land being a restrictive factor on their usage
Sui Generis ties to INS and ideas of quasi-property
Expropriation v protection under s 35
Devoid of economic value – Posner and De Soto
Communal quality – Ostrom
Haida Nation v BC, SCC (2004) – duty of consultation in face of potential land claims
Facts
• Claim launched by the Haida people for the lands of Haida Gwaii and
the surrounding waters where BC had given a private firm harvesting
rights
• Chambers judge held that the province had a moral, not a legal, duty to
negotiate with the Haida
Issues
Majority
(McLachlin
CJ)
•
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Was there a duty to consult with the Haida Nation?
Honour of the Crown: cannot run over Aboriginal interests where
claims affecting these interests are being seriously pursued in the
process of treaty negotiations and proof; the Crown must continue to
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Held
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Ratio
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manage resources, consult, and accommodate interests pending
resolution of the claim
In all cases, honour of the Crown requires them to act with good faith to
provide meaningful consultation appropriate to the circumstances
Duty to consult and compensate for breaches
The “trigger” for duty to consult: when the Crown has real or
constructive knowledge of potential claim and contemplates
conduct that might adversely affect
Scope of duty to consult: spectrum depends on claims’ strength (if
weak, give notice, disclose information, discuss issues; if strong, deep
consultation aimed at solutions)
Objectives of infringement: reconciliation, resource conservation, and
economic/regional fairness
Extinguishment: Exclusive federal jurisdiction under s 91(24)
R v Bernard; R v Marshall, SCC (2005) – Standards for occupation
Facts
• Bernard involves unlawful possession of spruce logs taken from
Crown land; Marshall involves unlawfully cutting timber on Crown
land
• Mi’kmaq Indians say their actions were lawful by virtue of either treaty
or Aboriginal title
Issues
• Which standard of occupation is appropriate to determine
aboriginal title?
Majority
• Perspective: Common law and Aboriginal
(McLachlin CJ)
• Occupation: Incidental/proximate NOT enough,
• Exclusivity: Intention and capacity
• If other groups asked to use your space, could strengthen position as
they felt they had to ask – not asking could also strengthen position if
exclusive, as no one dared to ask
• Evidence: Oral or written, as long as it is useful and reliable
Ratio
• Occupancy of a territory requires physical, exclusive, and
continuous occupation – incidental or proximate occupancy is
not enough.
Extinguishment
• Factors: economic development that is compelling and substantial,
environmental protection, balancing aboriginal rights against other
Canadians, public safety/concern
Tsilhqot’in v British Columbia, SCC (2014) (successful) - test for proof & infringement
Facts
• Province granted Carrier Lumber Ltd. a forest licence to cut trees in part
of the territory at issue
• Xeni Gwet’in First Nations objected and sought a declaration prohibiting
commercial logging on the land
• British Columbia Court of Appeal held that the Tsilhqot’in claim to title
had not been established, but left open the possibility that in the future,
the Tsilhqot’in might be able to prove title to specific sites within the
area claimed
Issues
• Did the honour of the Crown require duty to consult?
Held
• The evidence in this case supports the trial judge’s conclusion of
(McLachlin
sufficient occupation. While the population was small, the trial judge
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CJ)
Ratio
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found evidence that the parts of the land to which he found title were
regularly used by the Tsilhqot’in
Test for Proof: sufficient occupation = regular and exclusive use; not
intensive use of definite tract
Test for Infringement: Duty to consult and accommodate, compelling
and substantial objective, and consistent with fiduciary duty
(reconcilable with historic connections/rational connection, minimal
impairment, proportionate impact)
Differences between Aboriginal and Non-Aboriginal Land Title
• Aboriginal title is sourced from pre-sovereignty occupation – non-aboriginal title was
granted after.
• Aboriginal title is held communally
o An assumption here that the connection to the land is integral to the community,
a demonstration of personhood.
• Aboriginal title is inalienable, except to the crown
o Analysis: this diminishes the economic value of the land because it can’t be used
for equity. De Soto said this was important for economic development and the
rule of law.
o The Crown is taking a paternalistic position.
• Aboriginal title has restricted land uses.
o Cannot be irreconcilable with group attachment to land
▪ However, you can do anything else – not just a bundle of rights you can
use on the land, but a right to the land itself
• Aboriginal title is constitutionally protected under S35
o Analysis: a contrast with expropriation in Canada by provinces, which are not
protected
Tom Flanagan First Nations, Second Thoughts
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“The choice of communal, inalienable title is the choice of poverty”
It is not possible to achieve industrial age standards of living with hunter-gatherer
notions of asset management
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