Contents
Aboriginal Title .............................................................................................................................................. 7
Aboriginal Property Rights come in THREE TYPES: ....................................................................................... 7
DOUGLAS TREATIES 1850-1854 ................................................................................................................ 7
TERMS: .................................................................................................................................................. 8
Are the Douglas Treaties a treaty or a transfer deed (signature of transferor only)?.............................. 8
Regina v. White & Bob (1965) – Supreme Court Decision - Douglas Treaties are TREATIES – exempt
from Provincial Hunting Laws ............................................................................................................... 8
ROYAL PROCLAMATION 1763 ................................................................................................................... 8
British North America Act 1867 s. 91 (24) Indians, and Lands reserved for the Indians .......................... 9
Grants legislative power to the Federal Government. ............................................................................. 9
But… .......................................................................................................................................................... 9
British Columbia Terms of Union 1871 ..................................................................................................... 9
St. Catherine’s Milling Lumber v. Queen [1888] PC - Aboriginal Title is a “personal and usuafructory
right” over the land – NOT a property interest – Aboriginals did not have a right to give property
rights to anyone, since they did not have them to begin with. .......................................................... 10
BC Gov’t position until the 1970’s ......................................................................................................... 10
Calder v. Attorney General of British Columbia, [1973] S.C.R. 313 – Canadian law acknowledges
that Aboriginal Title to land exists prior to the Colonization of the Continent. – NOT JUST
USUFRUCTUARY .................................................................................................................................. 11
Section thirty-five of the Constitution Act, 1982 .................................................................................... 11
R. v. Sparrow, [1990] 1 S.C.R. 1075 – fishing with a drift net 20 fathoms longer than allowed - The
governments of Canada have a fiduciary relationship with Aboriginals under section 35 of the
Constitution Act, 1982; any denial of Aboriginal rights under section 35 must be justified, and
Aboriginal rights must be given priority. ............................................................................................ 12
3 PART TEST: ....................................................................................................................................... 12
Priority Scheme… ................................................................................................................................ 12
R. v. Van der Peet, [1996] 2 S.C.R. 507 - aboriginal fishing rights did not extend to commercial
selling of fish - a practice must have been integral to the distinctive nature of the culture prior to
contact by Europeans ......................................................................................................................... 13
"Integral to a Distinctive Culture Test" ............................................................................................... 13
R. v. Gladstone, [1996] 2 S.C.R. 723 – herring eggs from kelp – commercial trade – valid by Van der
Peet test because it was the traditional practice of the Heiltsuk to trade in herring roe. .............. 14
Background ............................................................................................................................................. 14
Opinion of the Court ............................................................................................................................... 14
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, 1997 CarswellBC 2385 – oral histories ........ 14
Provincial government position .............................................................................................................. 14
Page 1 of 68
Supreme Court ruling .............................................................................................................................. 14
What is aboriginal title? ...................................................................................................................... 15
Where does aboriginal title exist in BC? ............................................................................................. 16
Will the decision affect private property? ........................................................................................... 16
How will aboriginal title affect the Province’s title to Crown lands? .................................................. 16
R. v. Bernard; R. v. Marshall – [2005] 2 S.C.R. 220, 2005 – Aboriginal logging claims - CarswellNS
317 ...................................................................................................................................................... 17
Background ............................................................................................................................................. 17
Opinion of the court ............................................................................................................................... 17
Tsilhqot’in Nation v. British Columbia (2007) (B.C.S.C.) – Difference between aboriginal title and
hunting and fishing rights – first time Aboriginal Title is found to exist, but sent back to trial on a
technicality. ......................................................................................................................................... 18
Haida Nation v. British Columbia [2004] 3 S.C.R. 511 – Weyerhauser logging in Haida Gwai’i - The
Crown has a duty to consult and accommodate Aboriginal groups prior to exploiting lands to which
they may have claims .......................................................................................................................... 20
Background ............................................................................................................................................. 20
Judgment of the Court ............................................................................................................................ 20
Equitable Interests ..................................................................................................................................... 22
Land tenure in England .......................................................................................................................... 22
Decline of land tenure ............................................................................................................................ 22
LIFE ESTATE & FEE SIMPLE ......................................................................................................................... 22
If rules of equity and law conflict, equity prevails .................................................................................. 23
Section 44 of Law and Equity Act [RSBC 1996] CHAPTER 253 ................................................................ 23
Trusts........................................................................................................................................................... 23
EXPRESS TRUST ....................................................................................................................................... 23
Resulting Trusts – arise in 2 ways: .......................................................................................................... 23
Equity prefers bargains over gifts. .......................................................................................................... 24
Presumption of Advancement definition: .............................................................................................. 24
Pecore v Pecore [2007] 1 S.C.R. 795, 2007 CarswellOnt 2752 – Resulting Trust or Outright Gift in
father/daughter joint back account/transfer = JOINT TENANCY vs. RESULTING TRUST (Remaining
Equitable Interest) ............................................................................................................................... 24
Ruling: the daughter holds both equitable and legal interest. ............................................................... 25
Property Law Act [RSBC 1996] CHAPTER 377 ......................................................................................... 25
Words of transfer ................................................................................................................................ 25
Constructive Trusts ................................................................................................................................. 26
Murdoch v. Murdoch [1975] SCC, - spouse claims trust – SCC rejects claim and says was mere loan –
PUBLIC PRESSURE AND STRONG DISSENT LEAD TO CHANGE IN LAW (this case is no longer valid) .. 26
Page 2 of 68
Rathwell v. Rathwell [1978], which had similar fact to Murdoch, SCC found a resulting trust based
on common interest, but has accepted that one of the ways to remedy unjust enrichment is by
creating a constructive trust in favour of the one who suffered from the unjust enrichment. ......... 26
Unjust Enrichment Test: ..................................................................................................................... 26
Remedial Trust Test: ........................................................................................................................... 27
Peter v. Beblow [1993] SCC Remedial constructive trust for housekeeping (common law spouses) 27
Soulos v. Korkontzilas - [1997] 2 S.C.R. 217 - Constructive trust -- Agency -- Fiduciary duties -- Real
estate agent making offer to purchase property on behalf of client – but then buys property himself.
............................................................................................................................................................ 28
CONDITIONAL GIFTS AND FUTURE INTERESTS ........................................................................................... 29
REVERSIONS v. REMAINDERS .................................................................................................................. 29
Reversion ............................................................................................................................................ 29
Remainder ........................................................................................................................................... 29
DEFEASIBLE v. DETERMINABLE INTERESTS ............................................................................................. 30
Defeasible Interest/(Condition Subsequent) – fails = absolute gift .................................................... 30
Determinable Interest – condition fails = gift fails.............................................................................. 31
VESTED v. CONTINGENT REMAINDERS ................................................................................................... 32
Vested Interest:................................................................................................................................... 32
Contingent Interest: ............................................................................................................................ 32
Vested Interest .................................................................................................................................... 33
Contingent Interest (or Condition Precedent) .................................................................................... 33
Where a will is ambiguous ................................................................................................................. 34
PUBLIC POLICY & UNCERTAINTY ............................................................................................................. 34
Freehold Estates – by G to “A for life and then to B in fee tail” ......................................................... 34
Stuartburn (Municipality) v. Kiansky [2001] QB - A remainder interest is vested, and thus a valid
freehold estate .................................................................................................................................... 35
Freehold interest:................................................................................................................................ 35
Life estate ............................................................................................................................................ 35
Seisin ................................................................................................................................................... 35
McKeen Estate v. McKeen Estate 1993 - Presumption against intestacy and inclination to vesting. 35
Personal = Contingent ......................................................................................................................... 36
(RULE IN) Browne v. Moody [1936] O.R. 422 (P.C.) - Rule: A gift is prima facie vested if the
postponement is to allow for a prior life estate. ................................................................................ 37
Rules of Construction .............................................................................................................................. 37
Caroline (Village) v. Roper (1987) ....................................................................................................... 37
St. Mary’s Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657, 1997 ................................................ 37
Covenants.................................................................................................................................................... 39
Page 3 of 68
Discriminating Covenants ...................................................................................................................... 39
Conservation Covenants......................................................................................................................... 40
Restrictive Covenants .................................................................................................................... 40
State Limitations on Private Power (pgs 502-534) ..................................................................................... 41
Unger v. Gossen 1996 CarswellBC 1248 (S.C.) – Unless it can be shown that the dominant intent was
the condition, and not a gift, then the condition alone must fail....................................................... 41
H.J. Hayes Co. v. Meade 208 A.P.R. 419, 1987 CarswellNB 66 (Q.B.) – In the case of ambiguity,
courts read condition as subsequent to allow for immediate vesting. .............................................. 42
Re: Leonard Foundation Trust (1990 ON CA) – State policy applies to any trust with significant public
element. .............................................................................................................................................. 42
Leases & Licences........................................................................................................................................ 43
4 (possibly 5) types of leases… ................................................................................................................ 43
Essential Elements of a Lease…............................................................................................................... 43
License… .................................................................................................................................................. 43
Fatac Ltd. (in liquidation) v. Commissioner of Inland Revenue [2002] NZCA 269- Substance not
wording defines lease ......................................................................................................................... 44
Metro-Matic Services Ltd. v. Hulmann 1973, 4 O.R. (2d) 462 (C.A.) – “Quiet Enjoyment” implies
exclusive possession, and restrictions allowed so long as confirm right to do business ................ 44
Southwark LBC v. Tanner [2001] 1 A.C. 1 (H.L.) – Quiet Enjoyment only applicable to Landlord – not
other tenants (PRIVITY)....................................................................................................................... 45
Petra Investments Ltd v. Jeffrey Rogers plc [2000] L. & T.R. 451 (Ch. D.) – Using the land in a way
that undermines profitability of a tenant’s business is not derogation. ............................................ 46
SHARED OWNERSHIP .................................................................................................................................. 47
Tenancy in common ................................................................................................................................ 47
Joint tenancy ........................................................................................................................................... 47
To be a Joint Tenancy… FOUR UNITIES… ................................................................................................ 48
Re Bancroft, Eastern Trust Co. v. Calder [1936] 4 D.L.R. 571 (N.S.S.C.) – if no express intention –
common law assumes JOINT TENANCY .............................................................................................. 48
EQUITY DIFFERENCES against presumption of Joint Tenancy ................................................................ 49
Property Law Act (changes everything – but only for land – not shares in a corporation, chattels, leases,
etc!!)............................................................................................................................................................ 50
SEVERENCE OF JOINT TENANCY .............................................................................................................. 50
Williams v. Hensman (1861) - act of one joint tenant “operating on his own share” ........................ 50
Sorenson Estate v. Sorenson (1977) – Severance of joint tenancy ..................................................... 50
Three ways in which joint tenancies can be severed:......................................................................... 50
Feinstein v. Ashford, 2005 BCSC 1379, - severed the joint tenancy when he signed a transfer of his
interest in the land to himself, even though the transfer was not registered ................................... 51
Page 4 of 68
SERVITUDES OVER PROPERTY (Easements – RUN WITH THE LAND; Non Easements – DO NOT RUN WITH
THE LAND) ................................................................................................................................................... 51
Re Ellenborough Park ([1956] Ch. 131) - defining an easement ......................................................... 51
Shelf Holdings V. Husky Oil (1989-Alta.CA) [is building a pipeline too close to possessory interest
and is therefore not an easement?] NO – it is an easement .............................................................. 52
Profit a Prendre - A servitude which resembles an easement and which allows the holder to enter the
land of another and to take some natural produce such as mineral deposits, fish or game, timber,
crops or pasture. ..................................................................................................................................... 52
British Columbia v. Tener (1985), 32 L.C.R. 340 (S.C.C.) - Profit a prendre may be held
independently of the ownership of any land, i.e., they may be held in gross. In this they differ
from easements.................................................................................................................................. 53
National Trust Co. v. Bouckhuyt 1987 39 DLR 4th 60 (1987, Ontario): ............................................. 53
ACCESS TO PUBLIC AND PRIVATE PROPERTY (USUALLY HAS TO DO WITH FREEDOM OF EXPRESSION
WITH REGARD TO PUBLIC PROPERTY USES) ............................................................................................... 53
Director of Public Prosecutions v. Jones (1999) (HL) - Protest at Stonehenge .................................... 54
Michelin & CIE v. C.A.W.-Canada (1997) 2 F.C. 306 (Michelin Man cartoon stomping on workers).. 54
Re Drummond Wren [1945] - Land not to be sold to Jews or persons of objectionable nationality Wren asked that the covenant be declared invalid. ........................................................................... 54
Quotable quote ...................................................................................................................................... 55
Noble v. Alley [1951] S.C.R. 64 - Court struck down a restrictive covenant that restricted
ownership of a section of land to "persons of the white or Caucasian race” - covenant did not
touch and concern the land – but rather was attached to the owner – therefore invalid restrictive
covenant – no word on public policy ................................................................................................. 55
Land Title Act [RSBC 1996] CHAPTER 250 ................................................................................................... 56
Registration of covenant as to use and alienation ................................................................................. 56
Discriminating covenants are void .......................................................................................................... 57
PRIORITIES ................................................................................................................................................... 58
Legal and Equitable Interests ...................................................................................................................... 58
Chippewas of Sarnia Band v. Canada (A.G.) (2000) 41 R.P.R. (3d) 1 – Aboriginal Title is Sui Generis –
therefore subsequent legal title takes priority. .................................................................................. 60
TITLE REGISTRATION (as opposed to “Deeds”) .......................................................................................... 61
1.
Registration Principle… ................................................................................................................... 61
2.
Indefeasibility Principle… {KILLS THE NEMO DAT PRINCIPLE}......................................................... 61
3.
Abolition of Notice Principle {KILLS THE requirement for NOTICE} ................................................ 63
4. Assurance Principle {Compensation only to earlier titles – no absolute ownership – registration
trumps but there can be compensation.} ............................................................................................... 63
FRAUD ..................................................................................................................................................... 64
Assurance Fund? ..................................................................................................................................... 66
Page 5 of 68
Validity of documents ............................................................................................................................. 67
Credit-Foncier Franco v. Bennett (1963) BCCA - if you are dealing with the registered FS owner, you
are protected – if not then not ........................................................................................................... 67
Canadian Commercial Bank v. Island Realty Investments Ltd. (1988) CA) - you can assume validity of
documents and can rely on protection afforded by indefeasibility if you trace them back to the fee
simple owner (this was NOT the case in CF). At CL, Almont would not have taken priority but this
does not determine the outcome here .............................................................................................. 67
Priority as between charges.................................................................................................................... 68
Page 6 of 68
Aboriginal Title
Aboriginal Property Rights come in THREE TYPES:
1. Reserve Land (Federal Gov’t holds in trust for Indian People)
2. Treaty Land (Indian people own in fee simple.)
3. Aboriginal Title Lands (to date we have a TEST but no actual defined lands.)
Background to Aboriginal societies of British Columbia
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Columbia river becomes the main transportation route through the “Oregon Territory” – which
includes most of what is currently Oregon, Washington, and British Columbia.
1846 – establishes the boundary of the 49th parallel – the “Oregon/Washington Treaty”.
The Hudson Bay Co. can no longer operate via the Columbia River.
1849 Hudson Bay Co. moves its operations (from what is now Vancouver, Washington) to and
establishes colony of Vancouver Island.
The British gov’t and the Hudson Bay Co. begin to form treaties with the Aboriginal people on
Vancouver Island.
The DOUGLAS TREATIES (14 of them) were signed from 1850-54. But that’s it. No more
treaties.
DOUGLAS TREATIES 1850-1854
Between 1850 and 1854, James Douglas, made a series of fourteen land purchases from aboriginal
peoples.
The Douglas Treaties cover approximately 358 square miles [tiny chunk of land – unlike rest of Canada
– treaty negotiation began and ended here – this is why there is still much dispute with current
Aboriginal Land Claims, because it wasn’t dealt with again until the 1990’s.] of land around Victoria,
Saanich, Sooke, Nanaimo and Port Hardy, all on Vancouver Island.
Treaty negotiations by Douglas did not continue beyond 1854 due, in part, to a lack of funds and the
slow progress of settlement and industry in the 1850s.
Douglas' policies were generally consistent with British principles. Those of his political successors,
however, proved to be not as consistent.
Land was surrendered "entirely and forever" in exchange for cash, clothing, or blankets. The signatories
and their descendants retained existing village sites and fields for their continued use, the "liberty to
hunt over unoccupied lands" and the right to "carry on their fisheries as formerly."
Douglas' land purchases have consistently been upheld as treaties by the courts (R. v. White and Bob,
1964; R. v. Bartleman, 1984; Claxton v. Saanichton Marina Ltd., 1989). In 1987 the Tsawout Band
successfully obtained a permanent injunction restraining the construction of a marina in Saanichton Bay
on the grounds that the proposed facility would interfere with fishing rights promised to them by their
1852 treaty.
Page 7 of 68
TERMS:
“The condition of our understanding of this sale is this, that our village sites and
enclosed fields are to be kept for our own use, for the use of our children, and for
those who may follow after us; and the land shall be properly surveyed, hereafter. It
is understood, however, that the land itself, with these small exceptions, becomes
the entire property of the white people for ever; it is also understood that we are at
liberty to hunt over the unoccupied lands, and to carry on our fisheries as
formerly.”
Are the Douglas Treaties a treaty or a transfer deed (signature of transferor only)?
Implications – if it is treaty then it has Constitutional protection and supremacy. If it is not a
treaty, then things like provincial hunting laws apply and are enforceable.
If it is a TREATY three possible interpretations:
1. Take the TEXT as the whole treaty.
2. Take the TEXT PLUS surrounding circumstances and documents.
3. The ORAL agreement is the treaty – and the TEXT is ONLY evidence of the ORAL
agreement, which may or may not be complete.
Regina v. White & Bob (1965) – Supreme Court Decision - Douglas Treaties are TREATIES –
exempt from Provincial Hunting Laws
The decision found that early agreements inked by B.C.’s first governor and Hudson Bay chief
factor James Douglas were treaties within the meaning of the Indian Act and recognized First
Nations peoples’ rights to hunt in exclusion of the B.C. Game Act.
ROYAL PROCLAMATION 1763
“And whereas it is just and reasonable, and essential to our Interest, and the Security
of our Colonies, that the several Nations or Tribes of Indians with whom We are
connected, and who live under our Protection, should not be molested or disturbed
in the Possession of such Parts of Our Dominions and Territories {this is an
assertion of Sovereignty} as, not having been ceded to or purchased by Us, are
reserved to them, or any of them, as their Hunting Grounds.--We do therefore, with
the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no
Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or
West Florida, do presume, upon any Pretence whatever, to grant Warrants of
Survey, or pass any Patents for Lands beyond the Bounds of their respective
Governments, as described in their Commissions: as also that no Governor or
Commander in Chief in any of our other Colonies or Plantations in America do
presume for the present, and until our further Pleasure be known, to grant Warrants
of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the
Page 8 of 68
Rivers which fall into the Atlantic Ocean from the West and North West, or upon any
Lands whatever, which, not having been ceded to or purchased by Us as aforesaid,
are reserved to the said Indians, or any of them.
And We do further declare it to be Our Royal Will and Pleasure, for the present as
aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use
of the said Indians, all the Lands and Territories not included within the Limits of Our
said Three new Governments, or within the Limits of the Territory granted to the
Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of
the Sources of the Rivers which fall into the Sea from the West and North West as
aforesaid.
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects
from making any Purchases or Settlements whatever, or taking Possession of any of
the Lands above reserved, without our especial leave and Licence for that Purpose
first obtained.
And, We do further strictly enjoin and require all Persons whatever who have either
wilfully or inadvertently seated themselves upon any Lands within the Countries
above described, or upon any other Lands which, not having been ceded to or
purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to
remove themselves from such Settlements.”
1858 – Gold rush – establishment/creation of the colony of “British Columbia” by Queen
Victoria.
1871 – “British Columbia” joins the Canadian Confederation.
British North America Act 1867 s. 91 (24) Indians, and Lands reserved for the Indians
Grants legislative power to the Federal Government.
But…
British Columbia Terms of Union 1871
13. The charge of the Indians, and the trusteeship and management of the lands
reserved for their use and benefit, shall be assumed by the Dominion Government
and a policy as liberal as that hitherto pursued by the British Columbia Government
shall be continued by the Dominion Government after the Union.
To carry out such policy, tracts of land of such extent as it has hitherto been the
practice of the British Columbia Government {10 acres per family – doesn’t
match the national policy of large treaties and large tracts of land } to
appropriate for that purpose, shall from time to time be conveyed by the Local
Page 9 of 68
Government to the Dominion Government in trust for the use and benefit of the
Indians on application of the Dominion Government; and in case of disagreement
between the two Governments respecting the quantity of such tracts of land to be so
granted, the matter shall be referred for the decision of the Secretary of State for the
Colonies.
Numbered Treaties 1871-1921 of the “Northwest Territorties” (which includes what is now
most of Manitoba, Sask, Alberta, part of BC (N.E.) and a chunk of the current NWT).
St. Catherine’s Milling Lumber v. Queen [1888] PC - Aboriginal Title is a “personal and
usuafructory right” over the land – NOT a property interest – Aboriginals did not have a right to give
property rights to anyone, since they did not have them to begin with.
Aboriginal Title is a “personal and usufactory right” over the land
Facts: From 1670-1870 HBC had Crown rights to Rupert’s Land. In 1870 Fed purchased it from HBC and
granted a timber lease to PL. Fed claims that it had acquired the land from the Ojibwa Treaty 3, and it
was in their power to give timber rights. ON claimed it was Crown land, and it was provincial jurisdiction
allocating the timber rights.
Issues: What rights did the Fed acquire from Ojibwa in Treaty 3?
Discussion:
• FED: Ojibwa held the land in a fee simple sort of a thing, and were free to give it to the Fed in the
treaty
• ON: Ojibwa did not have fee simple, they merely occupied the land, and they did not have a right to
give property rights to anyone, since they did not have them to begin with. Treaty 3 was merely political.
• PC: Crown had an estate interest and the Aboriginal interest was a mere burden. Aboriginal have a
“personal and usufactory right” over the land - occupation and use (hunting and fishing) of the land,
NOT exclusive possession.
Ruling: Natives did not have possession rights, thus were not able to give them away. The land and its
timber and mineral rights are Provincial and the land is Provincial.
BC Gov’t position until the 1970’s
BC gov’t maintains the position that the Royal Proclamation does not apply to BC since it was unknown
at the time of the Royal Proclamation – Provincial position is that “we do not make treaties”, we have
few land transfers, but they are not treaties.
Page 10 of 68
Calder v. Attorney General of British Columbia, [1973] S.C.R. 313 – Canadian law
acknowledges that Aboriginal Title to land exists prior to the Colonization of the Continent. – NOT JUST
USUFRUCTUARY
In 1967, Frank Arthur Calder and the Nisga'a Nation Tribal Council brought an action against the British
Columbia government for a declaration that aboriginal title to certain lands in the province had never
been lawfully extinguished.
The Supreme Court found that there was indeed an aboriginal right to land that existed at the time of
the Royal Proclamation of 1763. However, the Court was split 3 to 3 on whether the claim to land was
valid.
One group claimed that though title existed it had been extinguished by virtue of the government's
exercise of control over the lands, while the other group required that more be done to show
extinguishment. 4TH Judge says the lawsuit is invalid because Nisga’a did not follow proper procedure.
Justice Judson (part of the 3 that would have it extinguished): “Although I think that it is clear that
Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when
the settlers came, the Indians were there, organized in societies and occupying land as their forefathers
had done for centuries. That is what Indian title means and it does not help one in the solution of this
problem to call it a “personal or usufructuary” right.”
Section thirty-five of the Constitution Act, 1982
The provision provides that:
“
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed.
(2) In this Act, "Aboriginal Peoples of Canada" includes the Indian, Inuit and Métis peoples of
Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of
land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in
subsection (1) are guaranteed equally to male and female persons.”
Page 11 of 68
R. v. Sparrow, [1990] 1 S.C.R. 1075 – fishing with a drift net 20 fathoms longer than allowed - The
governments of Canada have a fiduciary relationship with Aboriginals under section 35 of the
Constitution Act, 1982; any denial of Aboriginal rights under section 35 must be justified, and
Aboriginal rights must be given priority.
FACTS
Ronald Edward Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45
fathoms (82 m) in length, 20 fathoms (37 m) longer than permitted by the band's fishing licence under
the Fisheries Act. Sparrow admitted to all the facts in the charge but justified it on the ground that he
was exercising his aboriginal right to fish under section 35(1) of the Constitution Act, 1982.
ISSUE
To the Supreme Court was whether the net length restriction violated s. 35(1).
HOLDING
The governments of Canada have a fiduciary relationship with Aboriginals under section 35 of the
Constitution Act, 1982; any infringement of Aboriginal rights under section 35 must be justified, and
Aboriginal rights must be given priority.
{In this case there is a valid purpose – regulating commercial fiseries – but it violates the priority of
Aboriginal Rights – therefore not valid.}
"recognized and affirmed" – government has a fiduciary duty to the Aboriginal peoples which requires
them to exercise restraint when applying their powers in interference with aboriginal rights.
This further suggests that aboriginal rights are not absolute and can be encroached upon given
sufficient reason.
Extinguishment of rights can only occur through an act that showed "clear and plain intention" on the
government.
3 PART TEST:
1. Is there a right? (e.g. to a food, social and ceremonial fishery)
2. Has it been infringed? (e.g. by a regulatory regime that gave prior access to sport and
commercial fishers)
3. Onus shifts to the Crown… is the infringement justified?
a. Compelling and substantial justification (e.g. salmon conservation)
b. Not a breach of the fiduciary duty of the Crown (e.g. conservation for the benefit of the
sport and commercial fisheries.)
Priority Scheme…
1. Conservation
2. Aboriginal food, social, and ceremonial fishery
Page 12 of 68
3. Commercial and sport fishery
R. v. Van der Peet, [1996] 2 S.C.R. 507 - aboriginal fishing rights did not extend to commercial
selling of fish - a practice must have been integral to the distinctive nature of the culture prior to
contact by Europeans
R. v. Van der Peet where Chief Justice Lamer's majority decided that to be considered an aboriginal right,
a practice must have been integral to the distinctive nature of the culture prior to contact by
Europeans.
In order to be an aboriginal right an activity must be an element of a practice, custom or tradition
integral to the distinctive culture of the aboriginal group asserting the right."[1] The exchange of fish for
money or other goods did not constitute a practice, custom or tradition that was integral to Sto:lo
culture.
"Integral to a Distinctive Culture Test"
to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The
Test has ten main parts:
1. Courts must take into account the perspective of aboriginal peoples themselves
2. Courts must identify precisely the nature of the claim being made in determining whether an
aboriginal claimant has demonstrated the existence of an aboriginal right
3. In order to be integral a practice, custom or tradition must be of central significance to the
aboriginal society in question
4. The practices, customs and traditions which constitute aboriginal rights are those which have
continuity with the practices, customs and traditions that existed prior to contact
5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in
adjudicating aboriginal claims
6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis
7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent
significance to the aboriginal culture in which it exists
8. The integral to a distinctive culture test requires that a practice, custom or tradition be
distinctive; it does not require that that practice, custom or tradition be distinct
9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that
the practice, custom or tradition is only integral because of that influence.
10. Courts must take into account both the relationship of aboriginal peoples to the land and the
distinctive societies and cultures of aboriginal peoples.
Page 13 of 68
R. v. Gladstone, [1996] 2 S.C.R. 723 – herring eggs from kelp – commercial trade – valid by Van der
Peet test because it was the traditional practice of the Heiltsuk to trade in herring roe.
Background
William and Donald Gladstone were members of the Heiltsuk Band in British Columbia. They were both
charged with selling herring spawn collected from kelp contrary to the federal Fisheries Act. In their
defence, the brothers claimed that they had a right to sell herrings under section 35 of the Constitution
Act, 1982. At trial, they presented evidence showing that trade of herring spawn was a significant part
of the Hieltsuk band's way of life prior to contact.
Opinion of the Court
Chief Justice Lamer, for the majority, found that there was an aboriginal right to sell herring spawn
under the Van der Peet test.
ALSO - the regulation of commercial fishing the regard should be given to regional fairness among all
people when distributing fishing resources.
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, 1997 CarswellBC 2385 – oral
histories
Claimed ownership and legal jurisdiction over 133 individual hereditary territories, a total of 58,000
square kilometres.
On appeal, the claim changed to Aboriginal Title and Self-Government.
The Gitksan and Witsuwit'en used their oral histories as principal evidence in the case.
Provincial government position
The Province insisted that all First Nations land rights in British Columbia were extinguished "whenever
the intention of the Crown to do so is clear and plain."
(In the Court of Appeal, the Province changed its position to argue that aboriginal land rights
had not been extinguished.)
Supreme Court ruling
No decision on the land dispute, insisting that another trial was necessary. For the first time,
however, the Court directly addressed the issue of Aboriginal title.
Page 14 of 68
Aboriginal title is different from land usage rights. Land governed by Aboriginal title can only be sold
to the Federal Government, not to private buyers. {SUI GENERIS}
The legitimacy of Indigenous oral history ruling that oral histories were just as important as written
testimony.

The decision confirmed aboriginal title does exist in British Columbia, that it’s a right

to the land itself — not just the right to hunt, fish or gather.
When dealing with Crown land, the government must consult with and may have to
compensate First Nations whose rights are affected.

When a First Nation sits down at the treaty table, it recognizes there is some
legitimacy to the claims of title, ownership and jurisdiction by Canada and
BC.

Similarly, Canada and BC recognize there is some legitimacy to the claims of title,
ownership and jurisdiction by the First Nation. The challenge is giving that
recognition practical expression.
What is aboriginal title?
The court said that aboriginal title is a right to the land itself. Until this decision, no Canadian court had
so directly addressed the definition of aboriginal title. Other cases had dealt with aboriginal rights in
terms of the right to use the land for traditional purposes such as hunting.
Aboriginal title is a property right that goes much further than aboriginal rights of usage. Permitted uses
of aboriginal lands are no longer limited to traditional practices. For example, mining could be a
permitted use, even if mining was never a part of the First Nation’s traditional culture. – however, see
note below (re: cannot be inconsistent with continuing relationship)
In many ways, aboriginal title is just like ordinary land ownership. The owner can exclude others from
the property, extract resources from it, use it for business or pleasure. But there are important
differences, too.

Aboriginal title is a communal right. An individual cannot hold aboriginal title. This means that
decisions about land must be made by the community as a whole.

Because aboriginal title is based on a First Nation’s relationship with the land, these lands
cannot be used for a purpose inconsistent with that continuing relationship. For example, if
the people’s culture was based on hunting, their aboriginal title lands could not be paved over
or strip-mined if that would destroy their cultural relationship to the land.

Aboriginal title lands can be sold only to the federal government. {Inalienability}
Page 15 of 68

Aboriginal title has the additional protection of being a constitutional right. No government can
unduly interfere with aboriginal title unless the interference meets strict constitutional tests
of justification.

Except for these limitations, aboriginal title holders can use their lands as they wish.
Where does aboriginal title exist in BC?
Nobody knows yet. It will have to be either agreed on through a treaty process or decided by the courts
on a case-by-case basis. If First Nations decide to go to court to establish title to lands, they will have to
prove that they occupied the land to the exclusion of others before 1846, the year Britain declared
sovereignty over the area that became British Columbia.
Then they have to prove some degree of continuity from that occupation until today.
The Delgamuukw case does say that courts must be willing to rely on oral history, including traditional
stories and songs, in a way that until now they have not. However, it is still far from clear exactly what
level of proof will be enough to establish a claim of aboriginal title.
Will the decision affect private property?
The Gitxsan and Wet’suwet’en made no claim to private lands, so the court did not directly address this
question.
However, the court’s decision clearly suggests that there are private lands in BC that are subject to
aboriginal title, or at least were wrongly sold. This is because the court confirmed that the province
had no authority to extinguish aboriginal title after union with Canada in 1871, yet the province has
been selling land to private interests since 1849.
Still, the remedy for First Nations is more likely to be the payment of compensation than any adjustment
to private ownership.
How will aboriginal title affect the Province’s title to Crown lands?
This is a difficult question and one that cannot be answered with any certainty right now.
The court does indicate that the Province will still have a limited right to deal with Crown land that is
subject to aboriginal title, for example by granting resource tenures.
The limits on that right are expressed in a two-pronged test:
1. It would have to be for a purpose that is compelling and substantial. (The court gives
agriculture, forestry, mining, environmental protection and economic development as possible
examples, which would have to be examined on a case-by-case basis);
Page 16 of 68
2. The government’s action must be consistent with the fiduciary relationship between the Crown
and aboriginal peoples, which is a relationship of trust. This means that the Province will need
to consult with First Nations before granting any interest in aboriginal lands to others. Whether
this means that a First Nation’s consent would be required will depend on the circumstances.
Consent would likely be required for provincial laws regulating hunting and fishing on aboriginal
lands. Cash compensation will be another factor. First Nations are entitled to share in the
economic benefits derived from their lands.
The court’s decision concludes with these words:
Ultimately, it is through negotiated settlements, with good faith and give and take on
both sides, reinforced by judgments of this Court, that we will achieve… “the
reconciliation of the pre-existence of aboriginal societies with the sovereignty of the
Crown.” Let us face it, we are all here to stay.
R. v. Bernard; R. v. Marshall – [2005] 2 S.C.R. 220, 2005 – Aboriginal logging claims CarswellNS 317
Background
This decision considers two separate cases.
Stephen Marshall and 34 other Mi'kmaqs were charged with cutting down timber on Nova Scotia
Crown land without a permit.
Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw
mill that was cut from Crown lands.
In both cases all of those accused argued that their status as Indian gave them the right to log on
Crown land.
Opinion of the court
McLachlin, writing for the majority, held that there was no right to logging under the treaties. From the
evidence she found that it did not support the conclusion that logging formed the basis of the
Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.
IMPORTANT NOTES FROM CASE…

Aboriginal Title needs to “comport, correspond, compare” with Common Law

(from the judgement)… “the requirement of exclusive occupation that exploiting the land, rivers
or seaside for hunting, fishing or other resources may translate into aboriginal title to the land
if the activity was sufficiently regular and exclusive to comport with title at common law.”
Page 17 of 68

(from the judgement)… “to say that title flows from occasional entry and use is
inconsistent with these cases and the approach to aboriginal title which this Court has
consistently maintained.”

(from the judgement)… “practices must be assessed from the aboriginal perspective. But, as
discussed above, the right claimed also invokes the common law perspective. The question is
whether the practices established by the evidence, viewed from the aboriginal perspective,
correspond to the core of the common law right claimed.”

(from the judgement)… “unaided by formal legal documents and written edicts, we are required
to consider whether the practices of aboriginal peoples at the time of sovereignty compare
with the core notions of common law title to land. It would be wrong to look for indicia of
aboriginal title in deeds or Euro-centric assertions of ownership. Rather, we must look for the
equivalent in the aboriginal culture at issue.”

(from the judgement)… “acts of exclusion is not required to establish aboriginal title. All that is
required is demonstration of effective control of the land by the group, from which a
reasonable inference can be drawn that it could have excluded others had it chosen to do so. “

(from the judgement)… “whether a nomadic people enjoyed sufficient “physical possession” to
give them title to the land, is a question of fact, depending on all the circumstances”

(from the judgement)… “claimants must establish they are right holders…The right is based on
pre-sovereignty aboriginal practices. To claim it, a modern people must show that the right is
the descendant of those practices. Continuity may also be raised in this sense.”
Tsilhqot’in Nation v. British Columbia (2007) (B.C.S.C.) – Difference between
aboriginal title and hunting and fishing rights – first time Aboriginal Title is found to exist, but
sent back to trial on a technicality.
Facts: Natives seek a declaration that they hold aboriginal title to their area.
Issues: Is there aboriginal title or hunting and fishing right?
Discussion:
• The judge finds about half of the disputed area to be aboriginal title
• The other half is seen as a hunting and fishing rights area
• There is no “postage stamp” approach to title (scattered panoply of small sites)
• A proper approach is that of a blanket coverage of the area: village sites, cultivated fields, and
everything covered by a network of trails and waterways.
Ruling: The judicial opinion gives aboriginal title, but the matter goes back to trial again on a
technicality.
Page 18 of 68
What it means…
-If aboriginal title is declared to exist, the Tsilhqot'in Nation will have the exclusive right to use and
occupy those lands;
-This would be the first case in Canada to recognize aboriginal title to specific lands;
If aboriginal title is declared to exist, the provincial Forest Act will not apply to those lands, for
two reasons:
-The Forest Act only applies to provincial Crown lands, and lands held under aboriginal title do
not fall within the definition of Crown lands under the Act; and
-The provincial Legislature does not have the power to make laws that conflict with the
Tsilhqot'in Nation’s exclusive right to determine how to use the land and the resources on the
land;
-The granting of fee simple title to land by the provincial government does not extinguish any aboriginal
rights or title that may exist in or on that land;
-The Tsilhqot'in Nation was declared to have hunting and trapping rights, the right to capture wild
horses, and the right to trade skins and pelts as required to secure a moderate livelihood; those rights
were declared to have been unjustifiably infringed by the provincial forestry and land use planning
regimes; and
-First Nation expectations with respect to the extent of aboriginal title lands in B.C. have been
heightened significantly by the decision, which ironically will likely make the negotiation of treaties
much more difficult.
What It Doesn’t Mean:
The Tsilhqot'in Nation do not have aboriginal title to any land as yet:
-No declaration has been made, and the decision may yet be appealed — very likely that the
decision is not the final word on the scope of aboriginal title lands in British Columbia;
-Even if the Tsilhqot'in Nation is ultimately recognized as holding aboriginal title to all or some of
the lands in the Claim Area, that does not give it unlimited rights on the land:
-Aboriginal title brings the right to use the land for a variety of purposes, but does not allow a
First Nation to use the land for mining, forestry, or other developments that are inconsistent
with its attachment to the land;
-If the Tsilhqot'in Nation wants to develop land held under aboriginal title for an inconsistent
purpose, it will have to surrender its aboriginal title to the federal government — for example,
through a negotiated treaty;
Page 19 of 68
-The decision does not mean that other First Nations in British Columbia may also hold
aboriginal title up to 45 percent of their traditional lands — this case dealt with a relatively
remote area of the province where there are no overlapping claims from other First Nations and
the Tsilhqot'in Nation had a relatively strong case for continued existence of aboriginal title;
Haida Nation v. British Columbia [2004] 3 S.C.R. 511 – Weyerhauser logging in Haida
Gwai’i - The Crown has a duty to consult and accommodate Aboriginal groups prior to
exploiting lands to which they may have claims
Background
In 1961 the provincial government issued a "Tree Farm Licence" (TFL 39) over an area of land to which
the Haida Nation claimed title.
The Haida Nation also claimed an Aboriginal right to harvest red cedar in that area.
In 1999 the Province transfered to Weyerhauser Co. These actions were performed unilaterally,
without consent from or consultation with the Haida Nation.
The Haida Nation brought a suit, requesting that the replacement and transfer be set aside.
Judgment of the Court
Chief Justice McLachlin, writing for a unanimous court, found that the Crown has a "duty to consult
with Aboriginal peoples and accommodate their interests". This duty is grounded in the honour of the
Crown, and applies even where title has not been proven.
The scope of this duty will vary with the circumstances; the duty will escalate proportionately to the
strength of the claim for a right or title and the seriousness of the effect upon that potential right or
title.
McLachlin CJ
10
I conclude that the government has a legal duty to consult with the Haida people about
the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm
Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida
concerns in the harvesting of timber, although what accommodation if any may be required
cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach
agreement. The duty to consult and, if appropriate, accommodate cannot be discharged by
delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to consult
with or accommodate the Haida people’s concerns, although the possibility remains that it
could become liable for assumed obligations. It follows that I would dismiss the Crown’s appeal
and allow the appeal of Weyerhaeuser.
20
Where treaties remain to be concluded, the honour of the Crown requires negotiations
leading to a just settlement of Aboriginal claims.
Page 20 of 68
Where there is a strong prima facie case for the claim and the adverse effects of the government's
proposed actions impact it in a significant (and adverse) way, the government may be required to
accommodate. This may require taking steps to avoid irreparable harm or minimize the effects of the
infringement.
On the facts of the case, the Court found that the Haida Nation's claims of title and an Aboriginal right
were strong, and that the government's actions could have a serious impact on the claimed right and
title. Accordingly, the Crown had a duty to consult the Haida Nation, and likely had a duty to
accommodate their interests.
The Crown's duty of good-faith consultation does not extend to third parties, and cannot be delegated
to them by the Crown.
Accordingly, the Crown's appeal was dismissed and Weyerhauser Co.'s appeal was allowed.
While it is open to the Haida to seek an interlocutory injunction, they are not confined to
that remedy, which may fail to adequately take account of their interests prior to final determination
thereof. If they can prove a special obligation giving rise to a duty to consult or accommodate, they are
free to pursue other available remedies.
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests
where claims affecting these interests are being seriously pursued in the process of treaty negotiation
and proof.
The content of the duty to consult and accommodate varies with the circumstances. Precisely
what duties arise in different situations will be defined as the case law in this emerging area develops.
40
In Delgamuukw, supra, at para. 168, the Court considered the duty to consult
and accommodate in the context of established claims. Lamer C.J. wrote:
The nature and scope of the duty of consultation will vary with the circumstances. In
occasional cases, when the breach is less serious or relatively minor, it will be no more
than a duty to discuss important decisions that will be taken with respect to lands held
pursuant to aboriginal title. Of course, even in these rare cases when the minimum
acceptable standard is consultation, this consultation must be in good faith, and with the
intention of substantially addressing the concerns of the aboriginal peoples whose lands
are at issue. In most cases, it will be significantly deeper than mere consultation. Some
cases may even require the full consent of an aboriginal nation, particularly when
provinces enact hunting and fishing regulations in relation to aboriginal lands.
In the end… Weyerhaeuser was able to continue its logging activities… but it confirms that the Crown
has (moving forward) a duty to “consult and accommodate.”
Page 21 of 68
Equitable Interests
Equity = a judicial cure for perceived shortcomings and complexities of the (common) law. The source
of Equitable Doctrines was/is the Crown and its royal prerogative.
Land tenure in England
A complicated pyramid of feudal relationships.
At the bottom of the feudal pyramid were the tenants who lived on and worked the land (called the
tenants in demesne and also the tenant paravail).
In the middle were the lords who had no direct relationship with the King, or with the land in question referred to as mesne lords.
Land was granted in return for various "services" and "incidents". A service was an obligation on the part
of the tenant owed to the landlord. The most important were payment of rent (socage tenure), military
service (Knight-service), the performance of some form of religious service (frankalmoin) and
personal/official service, including in times of war (serjeanty tenure).
On the death of the tenant, an important incident was that of escheat, whereby the land of the tenant
by knight service would escheat to the Crown in the event either of there being no heirs, or the
knight's being convicted of a felony.
Decline of land tenure
The feudal system in England gradually became more and more complex until eventually the process
became cumbrous and services difficult to enforce. As tenancies came to an end, the number of layers
in the feudal pyramid was reduced. The Tenures Abolition Act 1660 abolished knight service, converting
all free tenures to socage tenure.
LIFE ESTATE & FEE SIMPLE
You are a knight about to head off on one of the crusades. You know the chances of your returning are
not very good. As a result, you want to transfer title in your land to your trusted friend so that if you
were to die, some of the incidents or tenure related to inheritance would not be triggered. But you are
giving the property to your friend so that it will be preserved for the benefit of your daughter and
yourself, should you return. As a result, your daughter is to have the benefit of a life estate while you
wish to retain the benefit of fee simple.
Draft a single sentence conveyance that will achieve this goal…
“to FRIEND and his heirs, to the use of MY DAUGHTER for life.”
or…
“to FRIEND and his hers, to the use of MY DAUGHTER for life, with remainder to the use of B
(whomever B may be – including self) and his/her heirs.”
Page 22 of 68
If rules of equity and law conflict, equity prevails
Section 44 of Law and Equity Act [RSBC 1996] CHAPTER 253
44 Generally in all matters not particularly mentioned in this Act in which there is any conflict or
variance between the rules of equity and the rules of the common law with reference to the
same matter, the rules of equity prevail.
In sum – An equitable right will trump a legal one, so long as equity considers that justice is
served by doing so.
Trusts
“Property settled on trustees who are directed to hold the interest for the benefit of someone or
something else.”
EXPRESS TRUST
- a trust created by the free and deliberate act of the parties involved (usually on the basis of written
documentation)
direct trust
trust - something (as property) held by one party (the trustee) for the benefit of another (the
beneficiary); "he is the beneficiary of a generous trust set up by his father"
Resulting Trusts – arise in 2 ways:
A resulting trust (from the Latin 'resultare' meaning 'to jump back') is the creation of an
implied trust by operation of law, as where property gets transferred to one who pays
nothing for it; and then is implied to have held the property for benefit of another
person.
a. The beneficial entitlement in a trust has not been properly disposed of or transferred.
i. “To A in fee simple to hold in trust for B for life” (see page 446) – when B dies,
the fee simple does not go to A – they were only the “HOLDER” of the fee
simple interest - the undisposed of equitable interest results back to the
settler (or that person’s estate).
b. Property transferred in the form of a gift…
Page 23 of 68
i. “a gift to A in trust for all of my grandchildren who reach 18 years of age.” (see
page 446) – if no one ever qualifies for the gift, the equitable title will remain
where it has been reposed in the meantime: with the settler.
Equity prefers bargains over gifts.
So… essentially… if a gift is given… the recipient owns the “legal” title, but not the
“equitable” title, unless the recipient can prove otherwise.
In certain circumstances this presumption is reversed and the onus is reversed. This is called
an “advancement.”
Where there is “joint” tenancy, the surviving tenant immediately acquires ownership.
Presumption of Advancement definition:
A presumption in trust, contract and family law which suggests that property transferred from a
parent to a child, or spouse to spouse, is a gift and would defeat any presumption of a resulting
trust.
Pecore v Pecore [2007] 1 S.C.R. 795, 2007 CarswellOnt 2752 – Resulting Trust or Outright Gift in
father/daughter joint back account/transfer = JOINT TENANCY vs. RESULTING TRUST
(Remaining Equitable Interest)
Facts: Father and daughter hold a shared bank account. Upon the death of the father, the daughter
assumes the share of the deceased party (the legal interest). Her ex-husband claims that the equitable
interest was held by the deceased estate and therefore that a share of it passed on to him by virtue of
the deceased will.
Issues: Did the father intend that daughter hold the beneficial interest in the account, or did he withhold
it to be distributed upon his death? Did the shared account give rise to a resulting trust or an
advancement?
Discussion:
• Difference between joint/common tenancy: joint goes to the other tenant upon death, common is
passed to heirs.
• If a gift is made, the presumption is that there is resulting trust
• But, if husband transfers to wife, or parent transfers to a child, law will presume an advancement
Page 24 of 68
• But what about independent adult children, as the daughter was when the account was opened?
• Presumption of advancement only applies to minor children
• However, presumptions are mere guidelines, the will of the deceased is the ruling factor
• There is sufficient evidence to rebut the presumption of resulting trust in favour of an advancement.
Ruling: the daughter holds both equitable and legal interest.
Held: Appeal Dismissed
Majority: The trial judge erred in applying the presumption of advancement because Paula was not a
minor child. However, the error did not affect the decision. The trial judge found ample evidence in
support of Hughes’ intention to have the balance in the joint accounts go to Paula upon his death
through survivorship. Had the trial judge applied the presumption of resulting trust, the result would
have been the same as proof that a gift was intended would have been found on the evidence.
Minority: Abella J. reached the same conclusion as the majority, albeit through a different analysis.
Abella J. concluded that the trial judge applied the correct legal presumption to the facts of the case.
Unlike the majority who maintained that the principal justification for the presumption of advancement
is the parental obligation to support their dependant children, Abella J. concluded that the rationale for
the presumption is grounded in parental affection. Abella J. agreed with the majority of the Ontario
Court of Appeal in Madsen Estate on this point (Para 96 Pecore; Para 21 Madsen), asserting that
because the justification for the presumption of advancement is parental affection, it does not need to
be limited to non-adult children.
Property Law Act [RSBC 1996] CHAPTER 377
Words of transfer
19 (1) In the transfer of an estate in fee simple, it is sufficient to use the words "in fee simple" without
the words "and his heirs".
(2) A transfer of land to a person without words limiting the interest transferred, or to a corporation
sole by his or her corporate designation without the words "successors", passes the fee simple or the
greatest estate or interest in the land that the transferor has power to transfer, unless the transfer
expressly provides that a lesser estate or a particular interest is being transferred.
(3) A voluntary transfer need not be expressed to be “for the use or benefit of” the transferee to
prevent a resulting trust.
So, unless otherwise stated, a gift passes legal and equitable title, abolishing the presumption of the resulting
trust.
Page 25 of 68
(4) Subsections (1) and (2) do not prevent an instrument from operating by way of estoppel.
c. Evidence of a common intention to create a trust. – (Common intention of trust… e.g.
spouse who is not on the title but who, by contribution and/or intent is meant to have
an equitable interest.)
Constructive Trusts
A trust which a court declares or imposes onto participants in very specific
circumstances such as those giving rise to an action for unjust enrichment, and
notwithstanding the lack of any willing settlor to declare the trust.
• A constructive trust is one imposed by equity, most commonly as a remedy for unjust enrichment.
• It is situation based: it arises in a number of established specific instances, usually for common law couples.
• “Remedial” constructive trust has been developed to respond to situations of unjust enrichment
Murdoch v. Murdoch [1975] SCC, - spouse claims trust – SCC rejects claim and says was mere loan –
PUBLIC PRESSURE AND STRONG DISSENT LEAD TO CHANGE IN LAW (this case is no longer valid)
PL claimed an interest in the property of her husband, which was bought and developed on her blood,
sweat and tears: partly on the financial contributions to the purchase of original property, partly on the
indirect contributions through her work. Majority of SCC dismissed the claim and said that it was a mere
loan to be repaid, but a DISSENT by Laskin CJ advocated a constructive trust imposition, to
respond to unjust enrichment by PL’s husband.
Rathwell v. Rathwell [1978], which had similar fact to Murdoch, SCC found a resulting trust based
on common interest, but has accepted that one of the ways to remedy unjust enrichment is by creating a
constructive trust in favour of the one who suffered from the unjust enrichment.
A finding of unjust enrichment does not always result in a trust, sometimes
monetary compensation is an option.
Unjust Enrichment Test:
1. There is an enrichment
2. There is a corresponding deprivation
3. There is an absence of juristic (justifiable by way of contract) reasons for enrichment
• PL must first show that no previously recognized juristic reason to deny recovery
applies at present case
• D then bears an onus to establish that a juristic reason exist.
Page 26 of 68
Remedial Trust Test:
1. There was unjust enrichment
2. Monetary compensation is inadequate
3. There is a connection between the services done and the property in dispute.
Peter v. Beblow [1993] SCC Remedial constructive trust for housekeeping (common law spouses)
Facts: PL and D cohabit (common law) for 12 years, with PL doing domestic work in D’s property,
which allowed D to save $350 a month on housekeeper fees, pay off the mortgage, and get some swag
and bling. After a breakup, PL claimed interest in the property. Lower court found that D unjustly
enriched over PL, and due to the extent of her contributions, the entire property went to her.
Issues: Is there unjust enrichment and what is the remedy?
Discussion:
• There is unjust enrichment:
• Housekeeping was enrichment to D
• The work was uncompensated, thus a deprivation to PL
• There is no plausible reason to deny compensation
• SCC thinks that D’s suggestion that domestic services cannot found a claim is BS
• What is the appropriate remedy?
• SCC: for a constructive trust to be ordered:
• monetary compensation has to be inadequate
• a link should exist between the services and the property in dispute (the nature and strength
of the connection is vague?)
• If so, PL is entitled to a constructive trust based on “value survived” approach.
• Value survived: amount by which property has been improved. This will capture the increase
in value of the property due to the work of PL, including interest and all that. How did PL’s
contribution enhance the assets?
• Value received: value of D’s services. Will not capture the increase in property.
• What about the fact that PL did not pay rent?
Ruling: PL awarded 50% equitable interest in the property.
Page 27 of 68
Soulos v. Korkontzilas - [1997] 2 S.C.R. 217 - Constructive trust -- Agency -- Fiduciary
duties -- Real estate agent making offer to purchase property on behalf of client – but then buys
property himself.
FACTS: Vendor rejecting offer but advising agent of amount it would accept -- Agent buying property
for himself instead of conveying information to client -- Market value of property decreasing from
time of agent’s purchase
ISSUE: Whether constructive trust over property may be imposed and agent required to transfer
property to client even though client can show no loss.
RULING: YES – there is a constructive trust – property should go to client.
Per La Forest, Gonthier, Cory, McLachlin and Major JJ.: The constructive trust is an
ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold
persons in different situations to high standards of trust and probity and prevent them from
retaining property which in “good conscience” they should not be permitted to retain. While
Canadian courts in recent decades have developed the constructive trust as a remedy for unjust
enrichment, this should not be taken as expunging from Canadian law the constructive trust in other
circumstances where its availability has long been recognized. Under the broad umbrella of good
conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of
loyalty, and to remedy unjust enrichment and corresponding deprivation. While cases often involve
both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.
The following conditions should generally be satisfied before a constructive trust based
on wrongful conduct will be imposed:
(1) the defendant must have been under an equitable obligation in
relation to the activities giving rise to the assets in his hands;
(2) the assets in the hands of the defendant must be shown to have resulted
from deemed or actual agency activities of the defendant in breach of his
equitable obligation to the plaintiff;
(3) the plaintiff must show a legitimate reason for seeking a proprietary
remedy, either personal or related to the need to ensure that others like the
defendant remain faithful to their duties; and
(4) there must be no factors which would render imposition of a
constructive trust unjust in all the circumstances of the case.
Here K’s breach of his duty of loyalty sufficed to engage the conscience of the
court and support a finding of constructive trust. First, K was under an equitable obligation in
relation to the property at issue. His failure to pass on to his client the information he obtained on his
client’s behalf as to the price the vendor would accept on the property and his use of that information
to purchase the property instead for himself constituted a breach of his equitable duty of
loyalty. Second, the assets in K’s hands resulted from his agency activities in breach of his equitable
obligation to S. Third, a constructive trust is required to remedy the deprivation S suffered because of
Page 28 of 68
his continuing desire to own the particular property in question. A constructive trust is also required in
cases such as this to ensure that agents and others in positions of trust remain faithful to their duty of
loyalty. Finally, there are no factors which would make imposition of a constructive trust unjust in this
case.
CONDITIONAL GIFTS AND FUTURE INTERESTS
Ways and means of giving land conditionally.
The law frowns on conveyance of land which are conditional and which complicate ownership
and title.
"seisin" = has actual possession of land.
REVERSIONS v. REMAINDERS
Reversion
"To Bob for life” the property reverts back to the grantor (or his heirs) upon the death of Bob.
This reversion can be alienated (i.e. bought or sold or conveyed by will) and is immune from
the rule against perpetuities because they are vested.
Remainder
"To Bob for life and after his death to Susan in fee simple" creates a remainder - upon the
death of Bob, the land is transferred to Susan. A remainder is a future interest but it is vested,
it can be bought and sold even before it comes to term.
In the above example, Bob holds a life estate and Susan owns "a fee simple in remainder."
Page 29 of 68
DEFEASIBLE v. DETERMINABLE INTERESTS
Defeasible Interest/(Condition Subsequent) – fails = absolute gift




"on condition that"
"but if"
"provided that", and
"if it happens that."
This interest resembles a reverter insomuch as it is also the grantor that re-takes in this case,
except that this is a contingent interest and not a vested one. It is not only conditional or
"contingent" on the condition being broken but it is also contingent on re-entry by the grantor
or his/her heirs.
"To the United Church in fee simple, on the condition that if the land shall no longer be
needed for church purposes, my estate may re-enter."
If the event happens or if the beneficiary does or does not do something specified, the interest
is "defeated." Thus, this is a "defeasible interest"; a fee simple that can be defeated upon the
occurrence of a specific event.
A defeasible interest is also referred to as a condition subsequent upon which, if it should
occur, the fee simple becomes voidable and the land may be reclaimed by the grantor or his
heirs when they re-enter the land.
BC does not allow the right to re-enter linger on forever. British Columbia's Limitations Act
(section 3(5)(f)) requires that the re-entry occur within 6 years of the breach of the condition
subsequent.
If condition subsequent is invalid, then the gift is absolute (fee simple)
A defeasible interests/condition subsequent if the following words are used:




"on condition that"
"but if"
"provided that", and
"if it happens that."
Page 30 of 68
Determinable Interest – condition fails = gift fails




"while"
"during"
"so long as", and
"until."
"To the United Church in fee simple until the land is no longer needed for church purposes."
A determinable fee simple creates an estate and then says clearly how long it is to last. The
terminating event is part of the estate granted.
A reversion to the grantor or his heirs - automatically when the "land is no longer be needed
for church purposes." In lawyer's words: "A determinable interest comes to an end
automatically upon the occurrence of the terminating event." It is like a time bomb wrapped
around the estate, detonating when the event occurs.
Words which the courts have held to mean a determinable interest include:




"while"
"during"
"so long as", and
"until."
If the condition is a determinable interest and it found to be void (eg.
against public policy or uncertain), the entire gift fails.
Words in a conveyance, such as a will, are not always clear and the differences can be subtle.
One author suggests that the words "as long as she continues to reside in Canada" or "but only
so long as" could be interpreted either way.
Page 31 of 68
VESTED v. CONTINGENT REMAINDERS
Qualities of Interest
Vested Interest:
•
•
•
•
•
•
•
•
A vested interest is immediate.
An interest is vested when no conditions or limitations stand in the way of
enjoyment
Prior life estates are allowed.
In “to A for life, then to B in fee simple”, both interests are vested.
A is vested in possession and B is vested in interest.
Being vested in interest means having a right to future enjoyment.
An interest vested in possession can be divested if it is determinable or
defeasible.
All vested interest are fully alienable and can be sold or transferred in any
way.
Contingent Interest:
•
•
•
A contingent interest is one where vesting is delayed pending the
occurrence of a condition precedent, the happening of which is not
inevitable.
A right of re-entry is contingent, because it is subject to a condition
precedent.
Courts dislike contingent interest and favour vesting whenever such
interpretation is available.
"An
estate is vested in interest when there is a present fixed right of
future enjoyment. An estate is contingent when a right of enjoyment
is to accrue on an event which is dubious and uncertain." {Pearson v. IRC
(1981) AC 753.}
All future interests are either vested or contingent.
The owner of a vested interest is guaranteed his estate; he or she has nothing to do but wait.
So a vested interest is more valuable than a contingent interest.
Under common law, a contingent interest was not something you could sell, since it may
transpire to be worthless, if the condition never occurs.
Page 32 of 68
Vested Interest
All reversions are necessarily vested, by its very nature as the grantor stands ready to reclaim
the estate.
An interest with no condition or limitation, not even the determination of the recipient, except
the natural end of the present estate, are called "vested interests."
The estate is fixed and certain either immediately or in the future. There are no "ifs" or "buts"
about it. The two conditions of a vested interest are, therefore:
1. The person(s) entitled to take is ascertained; and
2. The interest is ready-to-go subject only to the termination of the prior estate.
When in doubt between a vested or contingent interest, as far as concerns land, Canadian
courts prefer vested interests so as not to leave the estate uncertain. This is a rebuttable
presumption.
"To Adam for life, remainder to Barbara."
The classic example of a vested interest, Adam
vested in possession, Barbara vested in interest.
"To Adam for life with remainder to Barbara Since Adam's death is not a "dubious and
for life with remainder to Charlie in fee
uncertain" event, but a certainty, Barbara's interest
simple if he survives Adam."
is vested but Charlie's is contingent.
Contingent Interest (or Condition Precedent)
Contingent interests are subject to the rule against perpetuities.
An interest is said to be contingent if vesting is delayed until some condition precedent occurs.
A condition precedent suspends an interest from vesting unless or until a certain event takes
place such as leaving a house to "the first person to place flowers on my grave."
A remainder..


can be vested ("to Sam for life with remainder to melanie in fee simple") or
contingent, if the remainderman is not ascertained, ("To Sam for life with remainder
to Melanie's oldest child living at her death").
If a real property conveyance is attached to a condition precedent which is void,
the entire conveyance is void (the law is different if the property is not realestate).
Page 33 of 68
Where a will is ambiguous
There is a presumption that the condition is a condition subsequent and NOT a condition
precedent.
"To Adam's oldest son living at his death."
This is a contingent interest.
"To the survivor of Barbara or Charlie."
This is a contingent interest.
"To Barbara, a child, if she attains the age of 21."
This is a contingent interest.
"To Barbara if she becomes a member of the Law Society." This is a contingent interest.
PUBLIC POLICY & UNCERTAINTY
Conditions are themselves subject to some basic rules:

Conditions which operate as absolute restrictions on the alienation of the fee
simple estate are void. The court's guideline is "whether the condition takes away the

whole power of alienation substantially" (Re Macleay 1875 L.R. 20). A condition which forbids
sale to the whole world except to, or without the permission of a specific person, is void as an
absolute restraint on alienation;
A restraint that is partial, such as disallowing leasing, is valid;

Restrictions based on first marriage appear to be void on grounds of public

policy but, oddly, not so for second marriages.
A condition preventing a beneficiary of a will from challenging the will
through litigation is void as contrary to public policy (Re Bronson (1958) Ontario Reports

367);
The law of contract governs most of the other validity of conditions such as voidness for
uncertainty or impossibility.
The test for uncertainty in the case of conditions subsequent is that the beneficiary of the

estate must be able to know, clearly, what act(s) would defeat the estate
(Sifton v. Sifton 1938 A.C. 656).
It is much more difficult to have a condition precedent held void for uncertainty as the

courts will be satisfied if the condition is capable of "some meaning."
Freehold Estates – by G to “A for life and then to B in fee tail”
1. in possession – right to posses/occupy – A has a life estate in possession
2. in remainder – following a life estate – B has an estate in fee tail in remainder
3. in reversion – G retains an estate in fee simple in fee simple in reversion
VESTED
Page 34 of 68
Stuartburn (Municipality) v. Kiansky [2001] QB - A remainder interest is vested, and thus
a valid freehold estate
Facts: D is an official in the city, under the condition that all officials are owners of land. D sold
his property, but has a remainder interested to a life estate of his grandmother.
Issues: Does the remainder interest qualify as being a current owner of land?
Discussion:
• freehold estate can be interpreted to mean freehold right, title or interest in land
• remainder interest is a vested interest, though it is an interest vested in interest, not in
possession
• thus it allows D to be classified as a present owner of a freehold estate
Ruling: Ruling for D – a remainder interest is vested and thus is a valid freehold estate.
Freehold interest:
a freehold is a measure of the nature and degree of a person’s interest in land including both a
life estate and fee simple.
Life estate
is a bridge from the past to the present. The transfer to the remainderman is automatic upon
the death of the life estate holder.
Seisin
(possession of land) lies in the person w/ present ownership (life tenant) but any and all
remaindermen are capable of present ownership (just have to wait to occupy). The remainder
interest is a present right.
McKeen Estate v. McKeen Estate 1993 - Presumption against intestacy and inclination
to vesting.
Facts: Testator dies and leaves estate in trust for his wife for her life, and on her death divided
in fee simple “equally between his two sisters, if they are both alive at the time of death of
said wife”. Both sisters die before the wife.
Page 35 of 68
Issues: Was the intent to make sisters’ interest contingent on them surviving the wife, or
vested in interest?
Discussion:
• The first thing to look at is the intention of the testator
• If it is unclear, the court will decide what a reasonable person might have intended
• There is a presumption against intestacy
• Where the construction of the will is doubtful, the court assumes that the
testator did not intend to die wholly or partially intestate
• If there is a clear intention that the testator intended to fully dispose of the
property, but it is ambiguous as to how, the court prefers a reading that will
effect a complete disposition of the whole.
• There is a inclination in favour of vesting. See rules in Browne v. Moody and Phipps v.
Ackers
• A will that makes no reference to the time of vesting should always be held to take
effect at the testator’s death, and lead to vesting in interest.
• Here, the testator did not intent for intestacy
• Court disagrees with the suggestion that the gift was accompanied by a condition that
both sisters are alive
Ruling: Ruling for the estates of the deceased sisters. (The interest is in fee simple, as a
remainder vested in interest, and is vested equally in both sisters which only would have
been divested of one of them if only one sister survived the life tenant.)
Personal = Contingent

Where the reason for postponement of the vesting of interest is personal to the
recipient (donee) we will assume that the gift is contingent. To A when A marries (A
has to marry before she gets anything). Same rule for requirement of reaching a
particular age.

When there is ambiguity in the language, construe in favour of the gift being vested.
**Presumption against intestacy**
Page 36 of 68
(RULE IN) Browne v. Moody [1936] O.R. 422 (P.C.) - Rule: A gift is prima facie vested if the
postponement is to allow for a prior life estate.
Rules of Construction
1. Testator’s intention paramount
2. Presumption against intestacy
3. Construction in favour of vesting
4. Rule in Browne v. Moody - A gift is prima facie vested if the postponement is to allow for a
prior life estate.
5. Rule in Re Francis – The rule in Browne v. Moody, except when the conditions are personal
to the donee (achieve the age of 19, provided that she marry Fred, provided that she not go
to law school)
6. Rule in Phipps v. Ackers – Where a gift with conditions, and then a gift over if conditions are
not met, then the first gift is presumed vested. “to A, if and when A attain the age of 19
years, but to C if A does not attain the age of 19 years” A’s interest is presumed to vest even
before A turns 19.
Caroline (Village) v. Roper (1987)
“This acre… Transferred to the Caroline Community Hall this day, Shall revert back to the late
Thomas Roper Estate if used for other than a community centre…” [498]
St. Mary’s Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657, 1997
In 1966 the appellants surrendered part of their reserve for full market value to the Federal Crown for
use as a municipal airport and subject to the stipulation that it would revert to the band if it ceased to
be used for public purposes. The Indian Act limits a band’s property tax power to interests of land “in
the reserve”, but in 1988 the Kamloops Amendments amended the Indian Act to provide that certain
forms of surrendered land -- land surrendered “otherwise than absolutely” -- would be brought within
the legal definition of reserve. The appellants levied property taxes in 1992 on the ground that the
stipulation to the surrender made the transfer “otherwise than absolut[e]” with the result that the
surrendered land fell within the “designated lands” category of the reserve.
Page 37 of 68
When the respondent refused to pay, the band successfully sued but the judgment at trial was reversed
on appeal. The Attorney General of Canada was granted intervener status because the band claimed
taxes from it under identical circumstances but in a separate action.
The central question before this Court was whether the appellants’ surrender was made “otherwise
than absolutely” such that these surrendered lands now fall within the definition of “designated lands”
under the current Indian Act. This required the Court to consider whether the sui generis nature of
native land rights means that common law real property principles do not apply to the surrender of the
Indian reserve lands under the provisions of the Indian Act.
Held: The appeal should be dismissed.
Given the sui generis nature of native land rights, the Court must go beyond the
usual restrictions of the common law (which would embrace the minutiae of the
language in the surrender documents and traditional distinctions between
determinable limitations and conditions subsequent) and look more closely at
the respective intentions of the band and the Crown when the lands were
surrendered.
The appellants intended to part with the land on an absolute basis. First, the band surrendered the land
for sale. Second, the band entered into negotiations with the Crown upon the full understanding that
the impugned lands were to be sold for use as an airport. Third, in return for its surrender, the Crown
paid the appellants the full market value of the land. The mere fact that the band included a rider in its
surrender does not necessarily mean that the surrender was other than absolute. “Absolute” and
“conditional” are not mutually exclusive terms -- either conceptually or under the scheme of the Indian
Act. A key element of both the 1952 and 1988 versions of the Indian Act is that they expressly provide
that a surrender can be both absolute and conditional.
The Kamloops Amendments created a two-tier system of surrenders which was intended to clarify the
status of reserve lands surrendered for lease primarily for purposes of taxation. Surrenders for lease fall
within the definition of “designated lands” and surrenders for sale remain beyond the definition of
reserve. The broad phrase “otherwise than absolutely” allows for other limited forms of surrenders
(such as a right of way) to be considered designated land and yet ensures that other forms of permanent
surrenders, be they conditional or unconditional (such as an exchange or gift) remain beyond the notion
of reserve land. The definition of “designated lands” therefore does not capture the airport lands.
Page 38 of 68
Covenants
o To run with the land (Tulk v. Moxhay)
 Negative
 Intended to run with the land
 For the benefit of the dominant land
 Must enhance the dominant tenement
 Must touch and concern the land
 Only a restriction on alienation will not run
 Restraint of trade will be subject to rule of contra proferendum
 General limitations of equitable principles
 Must have notice
Discriminating Covenants
o Re Drummond Wren (1945)
 Land not to be sold to Jews, or persons of objectionable nationality
o Noble and Wolf v. Alley
 Excluding anyone but Caucasians
 Court said didn’t touch and concern the land
 Attaches to characterestics of the person owning the land, not about the land itself
o Property Law Act
 S. 222(1)
 Eliminates all discriminatory covenants
o You can establish covenants that requires to certain building guidelines
 So, say you can’t build a house under $1,000,000 on the land, you can use to discriminate
Page 39 of 68
o Essentially allows for a private zoning system
Conservation Covenants
o Statutory creatures
o Prevents developments of wetlands, etc.
o Only available to certain actors
 Crown, Crown Corp, Municipality, etc.
o CAN BE NEGATIVE OR POSITIVE!
and CAN excerpts:
Restrictive Covenants
o Tulk v. Moxhay
 Negative in substance
 Intended to run with the land
 For the benefit of the dominant land
 Must enhance the dominant tenement
 Must touch and concern the land

Only a restriction on alienation will not run

Restraint of trade will be subject to rule of contra proferendum
 General limitations of equitable principles
 Must have notice
o Discriminatory covenants have been eliminated by operation of Property Law Act s. 222(1)
 Previously courts had struck down covenants restricting potential buyers based on race as not touching
and concerning the land (Noble and Wolf v. Alley)
o Covenant made with Crown, Crown Corps, and other governmental bodies (usually for conservation)
can
Page 40 of 68
 Be positive in substance
 Registered in gross (no dominant tenement needed)
 Restrict the use, development, alienation of that land, or demand such
 And still be a valid covenant running with the land

Land Ttile Act s. 219
State Limitations on Private Power (pgs 502-534)
Declarations of Invalidity- law has limited tolerance of conditional transfers. At core, private act won't
be tolerated by courts if it offends some sort of public policy. If court declares a condition subsequent
to be invalid, then invalid condition is removed and gift becomes absolute (if that's the only
condition). *If determinable limitation or a condition precedent is found invalid, then the entire gift
fails. Ontario has recommended abolishing the condition, but not yet.
Unger v. Gossen 1996 CarswellBC 1248 (S.C.) – Unless it can be shown that the dominant
intent was the condition, and not a gift, then the condition alone must fail.
Woman dies and leaves to sister, but sister dies first, so goes to her nephews on condition that they
move to Canada within 15 years (afraid of USSR taking money). Under Immigration Act, they were
ineligible to immigrate to Canada. Estate makes application to Court to see if they can distribute estate
to the nephews. If they become residents of Canada seems to be condition precedent (meaning the
whole gift would fail). However, doesn't happen here, because performance of condition was not
reason for gift. Gift motivation of testator,
condition – USSR as an evil state – no longer exists).
not the condition (and reason for
Invalidity Due to Impossibility in Law- condition found invalid if requires person to do something legally
impossible.
Page 41 of 68
H.J. Hayes Co. v. Meade 208 A.P.R. 419, 1987 CarswellNB 66 (Q.B.) – In the
case of ambiguity, courts read condition as subsequent to allow for
immediate vesting.
Hayes dies and leaves son property with condition that he reside upon and cultivate the land, if not
then goes to other son if gives first son $1,000. Second took land because first didn't reside upon it, and
subsequent condition is invalid. D argues conditions were invalid.
Court says, if condition precedent couldn't vest in James, because he didn't reside, but also not Harold,
because he didn't pay James. Court decides it is a CS, but is it void due to uncertainty? James did build
house on land later. But nothing in will explains what counts as cultivating and residing upon.
Court declare invalid and strike conditions, becomes absolute gift for James.
Condition subsequent (rigorous test): must be a clear and precise divesting condition
Interest would vest from the start (court favours vesting). In uncertainty, the condition is struck
out but the interest remains (unconditional)
Condition Precedent (generous): if residency is required before interest vests, court takes ‘wait and see’
approach
If cultivating land before it vests is required, CP is void for uncertainty and entire interest fails
Invalidity due to Uncertainty- won't be enforced, if they can't be interpreted by the Court. Has relatively
low threshold. Interpreting limitation for retaining property a bit more complicated. A CS/DL more likely
to be declared invalid than a condition precedent.
Re: Leonard Foundation Trust (1990 ON CA) – State policy applies to any trust
with significant public element.
- scholarship designed for white Christians people, and only 25% women. Human Rights Commission files
complaint against trust. Problem because trust was private.

Court says even though private, clear “quasi-public” character.

Right to dispose of property is not absolute, and changing times mean that this is not acceptable
to majority of Ontarians.

Court says makes no sense to have entire trust fail, because is charitable trust, so they remove
objectionable restrictions.
Invalidity Due to Public PolicyPage 42 of 68

Conditions that contravene public policy will not be enforced.

Conditions that encourage people to violate the law, seek to undermine parental rights, mess
with marriage are not enforced.

Problem of construction- to A if he on the condition that he remain unmarried. Usual answer is
if language shows condition subsequent, it is invalid as an improper financial inducement (if he
remains unmarried), but if language shows determinable limitation is ok (until he marries)
Leases & Licences
4 (possibly 5) types of leases…
1.
2.
3.
4.
Fixed Term Lease (e.g. – 10 year lease)
Period Lease (such as from month-month)
Tenancy at Will (terminated at any time by either the landlord or tenant)
Tenancy at Sufferance (tenant overholds after the expiration of the term).
5. Perpetual Lease (NOT recognized by common law, but can exist by Statute)
Essential Elements of a Lease…
1. A demise of exclusive possession
2. Identification of the parties, property, term, date of commencement, and rent (if any).
3. DOES transfer to and bind a new owner(Landlord)
License…
1. Permission to do what would otherwise amount to trespass
2. Does NOT transfer to and bind a new owner
Page 43 of 68
Fatac Ltd. (in liquidation) v. Commissioner of Inland Revenue [2002] NZCA 269Substance not wording defines lease
FACTS: Puhuini granted Atlas right to operate quarry then sold land to Wellington
ISSUE: Which o the parties is liable for GST payment? Was it ‘tenanted’ property?
DISCUSSION: distinction-tenant v licensee: tenant has right to exclusive possession
What constitutes a lease? Must have fixed term, does not require that rent be
paid, cannot be terminated pursuant to another legal relationship (terminating
clause for [i.e. employment] relates to personal, contractual relations [where
landlord-tenant relates to land itself]), landlord cannot retain right to enter,
terminology doesn’t matter, limitations does not negate tenancy
Tenancy: temporary ownership
Licence: permission to be on land
Atlas was limited to quarrying one thing in small portion of property subject to
owners/subowners’ ability to come onto land (so long as didn’t interfere with
quarrying)
If contract primarily concerned with use of land there is no tenancy p. 574 and
where occupation can be terminated for reasons unconnected to occupation of
land, no tenancy (i.e. employment relationship, mortgagee in possession, living
in the white house, etc)
DECISION: Atlas’ right to occupation was not exclusive, it was a licence
RATIO: absent express contrary indication tenancy is found where usually understood
Doctrine: lease gives lessee rights against whole world (incl successor
landlords) where licence is agreement only between contracting
parties (not 3rd parties) Test: exclusive possession
Metro-Matic Services Ltd. v. Hulmann 1973, 4 O.R. (2d) 462 (C.A.) – “Quiet
Enjoyment” implies exclusive possession, and restrictions allowed so long as confirm right to
do business
Laundromat-landlord covenants to permit access to machines at all times, to be used only for
purposes of carrying on business of Laundromat, tenants to have free access at all reasonable
times.
Access to premises is in the nature of the business, but restriction from altering nature of
business-(freedom of licensee to use premises for desired purposes highly restricted)
Page 44 of 68
COURT OF APPEAL – Overturns – this is lease – it really looks like a Lease, but a whole lot of
restrictions, nevertheless there is great security given to the “tenant” that they
will be able to do what they need to do in order to continue their business…
*IF effect is to give exclusive right, subject to restriction, is in law a demise(lease)*
Therefore it is a lease!
Southwark LBC v. Tanner [2001] 1 A.C. 1 (H.L.) – Quiet Enjoyment only
applicable to Landlord – not other tenants (PRIVITY)
Complain of being able to hear all the sounds made by their neighbours . It is not that the
neighbours are unreasonably noisy. For the most part, they are behaving quite normally. But the flats
have no sound insulation. The tenants can hear not only the neighbours' televisions and their babies
crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The
lack of privacy causes tension and distress.
>>>>>>>
No warranty on the part of the landlord that the flat has sound insulation or is in any other way
fit to live in. Nor does the law imply any such warranty. This is a fundamental principle of the English law
of landlord and tenant. In Hart v. Windsor (1844) 12 M. & W. 68, 87 Parke B. said:
"There is no contract, still less a condition, implied by law on the demise of real property only,
that it is fit for the purpose for which it is let."
>>>>>>>
In Jenkins v Jackson (1888) 40 Ch.D. 71, 74, Kekewich J. felt obliged to point out that the word "quietly"
in the covenant "does not mean undisturbed by noise. When a man is quietly in possession it has
nothing whatever to do with noise... 'Peaceably and quietly' means without interference - without
interruption of the possession."
Likewise in Kenny v. Preen [1963] 1 Q.B. 499, 511 Pearson L.J. explained that "the word 'enjoy' used in
this connection is a translation of the Latin word 'fruor' and refers to the exercise and use of the right
and having the full benefit of it, rather than to deriving pleasure from it."
>>>>>>>
The tenant takes the property not only in the physical condition in which he finds it but also
subject to the uses which the parties must have contemplated would be made of the parts
retained by the landlord.
Page 45 of 68
>>>>>>>>
The present case is not concerned with whether the neighbouring tenants, in using their flats in the
ordinary way, are lawfully claiming under the landlord. They obviously are. The question is rather
whether their conduct amounts to a breach of the covenant for quiet enjoyment at all. In the present
cases, the rights of the tenants of neighbouring flats to use them in a normal way are not qualified in
any way. As against the appellants, there is nothing improper about their neighbours' use of their flats.
>>>>>>>
Accordingly for the reasons given by my noble and learned friends, I too would dismiss both appeals.
Petra Investments Ltd v. Jeffrey Rogers plc
[2000] L. & T.R. 451 (Ch. D.) – Using the land
in a way that undermines profitability of a tenant’s business is not derogation.
The Facts
The intention originally had been to make the mall into an upmarket department store. The floor on
which Petra was based was to have a particular bias towards high-fashion retail. This concept was not
achieved and the trading losses and consequent high turnover of tenants during the first few years
meant that the tone of the mall shifted progressively towards the mass-market end of the spectrum.
Petra blamed its losses on the creation of the new unit, the letting of a Virgin Megastore and
the prominent signs which Virgin had been allowed to put up advertising both itself and the
centre as a Virgin Megastore.
The Judgement
The Court examined the application of the doctrine of non-derogation from grant in this case and
reached the following conclusions:

The obligations imposed by the doctrine of non-derogation must be deduced from the
circumstances surrounding the original grant. In the present instance the landlord was under an
obligation not to alter the common parts of the centre in a way which would cause it to lose its
character as a retail shopping mall.

The landlord was under an obligation to take account of the expectations of its existing lessees
when contemplating substantial alterations to the mall. This requires a landlord not to do
something that could be foreseen to render a lease materially less fit for the purpose for which
it had been let.

A clause in a lease which gives the landlord wide powers to deal with retained land and common
parts cannot oust these obligations, nor are the obligations diluted by subsequent events. In the
present instance the fact that the original concept of the centre had already altered prior to the
arrival of the Virgin Megastore was not, in principle, relevant to the question of whether the
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landlord had breached its obligations under the doctrine of non-derogation from grant by
allowing Virgin to move in.

Had Petra not signed away the right to complain both of the conversion of a non-retail space
into a unit and of the letting of a unit for non-fashion use by accepting a service charge free
period, the Court would have found the landlord in breach of its obligations.

The Court further found that the landlord was not liable for the adverse effect the signage
SHARED OWNERSHIP
A concurrent estate or co-tenancy is a concept in property law which describes the various ways in
which property is owned by more than one person at a time. If more than one person own the same
property, they are referred to as co-owners, co-tenants or joint tenants. Most common law jurisdictions
recognize tenancies in common and joint tenancies, and some also recognize tenancies by the entirety.
Many jurisdictions refer to a joint tenancy as a joint tenancy with right of survivorship, and a few U.S.
States treat the phrase joint tenancy as synonymous with a tenancy in common.
The type of ownership determines the rights of the parties to sell their interest in the property to others,
to will the property to their devisees, or to sever their joint ownership of the property. Just as each of
these affords a different set of rights and responsibilities to the co-owners of property, each requires a
different set of conditions in order to exist.
Tenancy in common
This form of ownership is most common where the co-owners are not married or have contributed
different amounts to the purchase of the property. The assets of a joint commercial partnership might
be held as a tenancy in common.
Tenants in common have no right of survivorship, meaning that if one tenant in common dies, that
tenant's interest in the property will be part of his or her estate and pass by inheritance to that owner's
devisees or heirs, either by will, or by intestate succession. Also, as each tenant in common has an
interest in the property, they may, in the absence of any restriction agreed to between all the tenants in
common, sell or otherwise deal with the interest in the property (e.g. mortgage it) during their lifetime,
like any other property interest.
Joint tenancy
A joint tenancy or joint tenancy with right of survivorship (JTROS or JTWROS) is a type of concurrent
estate in which co-owners have a right of survivorship, meaning that if one owner dies, that owner's
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interest in the property will pass to the surviving owner or owners by operation of law, and avoiding
probate. The deceased owner's interest in the property simply evaporates and cannot be inherited by
his or her heirs. Under this type of ownership, the last owner living owns all the property, and on his or
her death the property will form part of their estate. Unlike a tenancy in common, where co-owners
may have unequal interests in a property, joint co-owners have an equal share in the property.
To create a joint tenancy, clear language indicating that intent must be used - e.g. "to AB and CD as joint
tenants with right of survivorship, and not as tenants in common". This long form of wording may be
especially appropriate in those jurisdictions which use the phrase "joint tenancy" as synonymous with a
tenancy in common. Shorter forms such as "to AB and CD as joint tenants" or "to AB and CD jointly" can
be used in most jurisdictions. Words to that effect may be used by the parties in the deed of conveyance
or other instrument of transfer of title, or by a testator in a will, or in an inter vivos trust deed.
Where no intent is used in the language, but a transfer is made to more than one person the
assumption at Common Law is that it will be in Joint Tenancy.
This presumption will only be rebutted if there are words of severance, such as…






“in equal shares”
“share and share alike”
“to be divided between”
“to be distributed in joint and equal proportions”
“equally”
“severally”
To be a Joint Tenancy… FOUR UNITIES…
1.
2.
3.
4.
Possession
Interest
Title (same instrument)
Time
Re Bancroft, Eastern Trust Co. v. Calder [1936] 4 D.L.R. 571 (N.S.S.C.) – if no
express intention – common law assumes JOINT TENANCY
6(b) To invest the other of the said shares … and divide the income thereof annually during the term of
the life of my said widow Clara E. Bancroft into four equal shares and pay one of the shares to my son
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Percy, one of the said shares to my son Aubrey, one of the said shares to my daughter Florence and the
other of the said shares to the children of my deceased daughter Minnie B. Calder. [Paul & Jean]
6(c) …, in equal shares per stirpes***.
CL presumption of joint tenancy= right of survivorship. Anything which in the slightest degree hints at
dividing property must be held to abrogate the idea of joint tenancy and create a tenancy in common.
* Appropriate words of severance “share and share alike” “equally amongst them or to them” are
taken to denote a tenancy in common
In this particular case there is no indication, and therefore this is a joint tenancy.
***Per Stirpes
EQUITY DIFFERENCES against presumption of Joint Tenancy
Three circumstances where Equity does not follow common law presumption of a joint tenancy:
1. co-owners contributed unequally to the acquisition of the property
2. commercial transactions
3. where co-owners held interest in property as security for a loan (Imagine a
scenario whereby somebody lends money, the property is the security, and then the lender dies.
The estate should not lose the interest in the land to secure the repayment of the loan.)
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Property Law Act (changes everything – but only for land – not shares in
a corporation, chattels, leases, etc!!)
11(2) If, by an instrument executed after April 20, 1891, land is transferred or devised in fee simple,
charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer
the land to 2 or more persons, other than personal representatives or trustees, they are tenants in
common unless a contrary intention appears in the instrument.
SEVERENCE OF JOINT TENANCY
Williams v. Hensman (1861) - act of one joint tenant “operating on his own share”
1. An act of one joint tenant “operating on his own share”
• Transfer to another
• Transfer to self - Property Law Act, s. 18(1) & 18(3)
• Mortgaging the interest
• Granting a lesser estate (e.g. life estate)
BUT can not sever a joint tenancy in a will.
2. Mutual agreement
3. Course of dealings
Sorenson Estate v. Sorenson (1977) – Severance of joint tenancy
Marriage broke up, parties divorced in 1969 but continued to hold 3 lots in joint tenancy (A, B, C); lot
with home (C) would be divided into two lots (C and D). Agreement said they’d hold A and B in trust, sell
D and let wife rent C at $1/year. Wife caring for kids, including mentally disabled son, learns she has
cancer in 1974 and executed a trust for her son (containing declaration of severance) to be registered on
her death. She wrote her will and started transfer proceedings right before she died.
BUT the creation of the trust (irrevocable) succeeds despite being unregistered and uncommunicated
because it was made in contemplation of death (donation mortis causa) = understood as a
testamentary disposition. (AND she tied speeding up the conveyance: her intent was obvious)
Three ways in which joint tenancies can be severed:
1. An act by any one of any one of the persons interested operating upon his own share may
create a severance as to that share.
2. By mutual agreement
3. By any course of dealings sufficient to intimate that the interests of all were mutually treated
as constituting a tenancy in common.
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Feinstein v. Ashford, 2005 BCSC 1379, - severed the joint tenancy when he signed a
transfer of his interest in the land to himself, even though the transfer was not
registered
Madam Justice Dorgan of the Supreme Court of British Columbia held that one of two joint tenant
owners of a house severed the joint tenancy when he signed a transfer of his interest in the land to
himself, even though the transfer was not registered before his death. In the result, the deceased's
estate was entitled to a half interest in the house.
Mr. Ashford and Ms. Feinstein went their separate ways, and listed the house for sale. On February 10,
2005, Mr. Ashford signed a transfer of a half interest in the land to himself. However, he died on
February 28, 2005, before the transfer was registered in the land title office.
Madam Justice Dorgan noted that a joint tenancy can be severed in three ways: "(i) by one person acting
on his or her own share; (ii) by mutual agreement; or (iii) by any course of dealing sufficient to intimate
that the interests of all were mutually treated as constituting a tenancy in common."
In this case, the Court found that when Mr. Ashford had signed the transfer, it was effective as against
himself on the date he signed it.
SERVITUDES OVER PROPERTY (Easements – RUN WITH THE LAND; Non
Easements – DO NOT RUN WITH THE LAND)
Re Ellenborough Park ([1956] Ch. 131) - defining an easement
The decision of Judge Danckwerts determined the following critera for defining an easement, which
were taken from Cheshire's "Modern Real Property":
(1) There must be a dominant and a servient tenement
(2) an easement must "accommodate" the dominant tenement
(“reasonably necessary for the better enjoyment of that tenement’)
(3) dominant and servient owners must be different persons
Property Law Act
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18 (7) Common ownership and possession of the dominant and servient tenements
does not extinguish an easement. {useful for property development where a developer
creates and easement or abides by an easement, and owns all the property until such
time as the property is then sold to each new individual owner)
(4) a right over land cannot amount to an easement unless it is capable of
forming the subject matter of a grant…
1. The rights under the easement must not be too vague
2. Cannot establish mere rights of recreation
3. Cannot extinguish the possessory rights of the servient owner to a part or all of
his/her property
It was decided from this that the occupiers of the properties in question were therefore the proper
beneficiaries and that they did enjoy an easement over the parkland in question.
Shelf Holdings V. Husky Oil (1989-Alta.CA) [is building a pipeline too close
to possessory interest and is therefore not an easement?] NO – it is an
easement
-
NO: even interests close to possessory interest can be easements – privileges granted do not
detract from the servient owner’s rights of ownership
Common easement in oil industry – underground pipelines
The interest conveyed in the grant of an easement is a right of way in the form of an easement and not a
grant of an interest in land consistent with ownership.
First three conditions for an easement were met – it is the fourth condition that was at issue – the Court
held that the privileges granted to Husky do not detract from the servient owner’s right of ownership.
The 7th term – upon abandonment of the right of way – Husky must restore land and the right of way
reverts to Shelf. Shelf is using the surface of the land. Granted Husky an easement valid and enforceable.
Grant of easement to Husky Oil to permit construction of a pipeline under lands owned by Shelf
Holdings. SH (servient tenement) could continue farming the land. Issue is whether it is an easement
[enforceable] or a possessory interest [not likely enforceable]. Trial court concluded that it was not an
easement. Court of Appeal reversed this decision.
Profit a Prendre - A servitude which resembles an easement
and which allows the holder to enter the land of another and
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to take some natural produce such as mineral deposits, fish
or game, timber, crops or pasture.
British Columbia v. Tener (1985), 32 L.C.R. 340 (S.C.C.) - Profit a prendre may be held
independently of the ownership of any land, i.e., they may be held in gross. In this they
differ from easements
Claim for compensation based on de facto expropriation - claimant owned mineral claims that were
incorporated into a provincial park - no formal expropriation but surface access to the claims was denied
under park regulations - owner was entitled to compensation.
“It is important to note that it is the right of severance which results in the holder of the profit a
prendre acquiring title to the thing severed. The holder of the profit does not own the minerals
in situ. They form part of the fee. What he owns are mineral claims and the right to exploit
them through the process of severance…”
“Profit a prendre may be held independently of the ownership of any land, i.e., they may be held
in gross. In this they differ from easements.”
The history of the doctrine was also described in…
National Trust Co. v. Bouckhuyt 1987 39 DLR 4th 60 (1987, Ontario):
"A profit à prendre is a right to take something off the land of another person. A profit includes the
power and privilege to acquire, through severance, ownership of some part of the physical substance
included in the possession of the land that is subject to the profit, or by reduction to possession,
ownership of some substance which, were it not for the existence of the profit, could be appropriated
only by the possessor of the land that is subject to the profit.
"A profit à prendre is an incorporeal hereditament and unlike an easement it is not necessarily
appurtenant to a dominant tenement but may be held as a right in gross, and as such may be assigned
and dealt with as a valuable interest according to the ordinary rules of property. It is in effect a grant of
the ownership of such portions of the land as are conveyed."
ACCESS TO PUBLIC AND PRIVATE PROPERTY (USUALLY HAS TO DO WITH
FREEDOM OF EXPRESSION WITH REGARD TO PUBLIC PROPERTY USES)
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Director of Public Prosecutions v. Jones (1999) (HL) - Protest at Stonehenge
Protest at Stonehenge
“If, as in my opinion it does, the common law recognizes the right of public assembly, I consider
that the common law should also recognize that in some circumsantces this right can be
exercised on the highway, provided that it does not obstruct the passage of other citizens,
because otherwise the value of the right is greatly diminished…”
“…the freedom of expression cannot be exercised in a vacuum… it necessarily implies
the use of physical space in order to meet its underlying objectives. No one could agree
that the exercise of freedom of expression can be limited solely to places owned by the
person wishing to communicate: such an approach would certainly deny the very
foundation of the freedom of expression.”
Michelin & CIE v. C.A.W.-Canada (1997) 2 F.C. 306 (Michelin Man cartoon stomping on
workers)
“It has not historically conferred a right to use another’s private property as a forum for
expression. A proprietor has had the right to determine who uses his or her property and for
what purpose. Moreover, the Charter does not extend to private actions. It is therefore clear
that s. 2(b) confers no right to use private property as a forum for expression…”
“In the balance of interests and rights, if the Defendants have no right to use the Plaintiff’s
“Bibendum” [Michelin Man], they have a multitude of other means for expressing their views.
However if the Plaintiff loses its right to control the use of its copyright, there is little left to the
Plaintiff’s right of private property. The Defendants seek to extend the scope of their right of
free expression to include the use of another’s property…”
Re Drummond Wren [1945] - Land not to be sold to Jews or persons of objectionable
nationality - Wren asked that the covenant be declared invalid.
World War II was over, the Allied Forces won, and Canadians took a collective sigh of relief. Fallen men
were mourned and surviving Canadian soldiers were welcomed home with open arms and parades in
towns across the country. As the celebrations came to an end, Canadians tried to make sense of their
losses and pondered the meaning of their great victory. A powerful wave of nationalism lead us to ask
"Who are we?" Drummond Wren was one who asked himself that very question. He didn't like his
answer. So, Drummond Wren took himself to court.
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You see, Drummond Wren had purchased a house by which he had assumed a discriminatory covenant.
It read:
"Land not to be sold to Jews or persons of objectionable nationality."
Uncomfortable with the notion of legal racial discrimination, Mr. Wren asked that the covenant be
declared invalid. A very simple, but very remarkable move.
What made Wren's case even more remarkable was that Wren's lawyer did not rely on the Racial
Discrimination Act. He didn't argue about jurisdiction or technicalities. No. He argued that the restriction
was against the public good and therefore void as being contrary to public policy. In other words, he
argued that discrimination was simply wrong.
Finally, a judge agreed. Judge Mackay believed that public policy must evolve as the society it serves
evolves. He spoke of the terrible price Canada had paid for freedom and justice. He quoted the San
Francisco Charter of the new United Nations, and leaders like Roosevelt and Churchill. Ultimately, the
covenant was declared invalid, and Drummond went home and slept a little better.
Yet isn't it ironic that, of all those who had challenged the legality of racial discrimination (Re
MacDougall and Waddell), it took a white man to win?
Quotable quote
" If sale of a piece of land can be prohibited to Jews, it can equally be prohibited to Protestants,
Catholics or other groups or denominations. If the sale of one piece of land can be so prohibited, the
sale of other pieces of land can likewise be prohibited."
Judge Mackay, from Re Drummond Wren
Noble v. Alley [1951] S.C.R. 64 - Court struck down a restrictive covenant that restricted
ownership of a section of land to "persons of the white or Caucasian race” - covenant did not
touch and concern the land – but rather was attached to the owner – therefore invalid
restrictive covenant – no word on public policy
The Court struck down a restrictive covenant that restricted ownership of a section of land to "persons
of the white or Caucasian race".
In 1933, Annie Noble had purchased a lot for a cottage in the Beach O' Pines area on Lake Huron. She
decided in 1948 to sell the lot to Bernie Wolf, however, it was noticed that the original deed contained
the following clause:
(f) The lands and premises herein described shall never be sold, assigned, transferred, leased,
rented or in any manner whatsoever alienated to, and shall never be occupied or used in any
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manner whatsoever by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or
blood, it being the intention and purpose of the Grantor, to restrict the ownership, use,
occupation and enjoyment of the said recreational development, including the lands and
premises herein described, to persons of the white or Caucasian race not excluded by this clause.
Though Wolf was Jewish, Noble still wanted to sell him the land and so they applied to the court to get
the covenant nullified, but faced opposition from the "Pines" community.
Noble and Wolf argued that the recent decision of Re Drummond Wren, where the Ontario Court struct
down a discriminatory covenant. However, At trial and on appeal the courts upheld the restriction.
The Supreme Court, in a six to one ruling, held that the convenant was invalid. They agreed with the
lower court's dismissal of Drummond Wren and instead looked at the law of restrictive covenants and
held that the language used in the restriction on alienation was too uncertain.
{the covenant did not touch and concern the land – but rather was attached to the owner – therefore
invalid restrictive covenant – no word on public policy issues by the Court here.}
Land Title Act [RSBC 1996] CHAPTER 250
Registration of covenant as to use and alienation
219 (1) A covenant described in subsection (2) in favour of the Crown, a Crown corporation or
agency, a municipality, a regional district, the South Coast British Columbia Transportation
Authority, or a local trust committee under the Islands Trust Act, as covenantee, may be
registered against the title to the land subject to the covenant and is enforceable against the
covenantor and the successors in title of the covenantor even if the covenant is not annexed to
land owned by the covenantee.
(2) A covenant registrable under subsection (1) may be of a negative or positive nature and may
include one or more of the following provisions:
(a) provisions in respect of
(i) the use of land, or
(ii) the use of a building on or to be erected on land;
(b) that land
(i) is to be built on in accordance with the covenant,
(ii) is not to be built on except in accordance with the covenant, or
(iii) is not to be built on;
(c) that land
(i) is not to be subdivided except in accordance with the covenant, or
(ii) is not to be subdivided;
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(d) that parcels of land designated in the covenant and registered under one or more
indefeasible titles are not to be sold or otherwise transferred separately.
(3) A covenant described in subsection (4) in favour of
(a) the Crown or a Crown corporation or agency,
(b) a municipality, a regional district, the South Coast British Columbia Transportation
Authority or a local trust committee under the Islands Trust Act, or
(c) any person designated by the minister on terms and conditions he or she thinks
proper,
as covenantee, may be registered against the title to the land subject to the covenant
and, subject to subsections (11) and (12), is enforceable against the covenantor and the
successors in title of the covenantor even if the covenant is not annexed to land owned
by the covenantee.
(4) A covenant registrable under subsection (3) may be of a negative or positive nature and may
include one or more of the following provisions:
(a) any of the provisions under subsection (2);
(b) that land or a specified amenity in relation to it be protected, preserved, conserved,
maintained, enhanced, restored or kept in its natural or existing state in accordance
with the covenant and to the extent provided in the covenant.
(5) For the purpose of subsection (4) (b), "amenity" includes any natural, historical, heritage,
cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land
that is subject to the covenant.
Discriminating covenants are void
222 (1) A covenant that, directly or indirectly, restricts the sale, ownership, occupation or use of
land on account of the sex, race, creed, colour, nationality, ancestry or place of origin of a
person, however created, whether before or after the coming into force of this section, is void
and of no effect.
(2) The registrar, on application, may cancel a covenant referred to in subsection (1) that was
registered before October 31, 1979.
(3) If the registrar has notice that a registered restrictive covenant is void under this section, the
registrar may, on the registrar's own initiative, cancel the covenant.
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PRIORITIES
Legal and Equitable Interests
Nemo dat quod non habet
No one can give that which they do not own
Ringo transfers Strawberry Fields to Paul.
Ringo then transfers Strawberry Fields to John.
What is the nature of the claims? LEGAL RIGHTS
Does Paul or John have the better claim? PAUL (Nemo dat quod non habet, plus first in time is
first in title)
Ringo transfers Strawberry Fields to Paul, but George held legal title
to Strawberry Fields, not Ringo.
Does Paul or George have the better claim? GEORGE (Nemo dat quod non habet)
Ringo agrees to transfer Strawberry Fields to Paul. Ringo then receives
a better offer from John and agrees to transfer Strawberry Fields to
John. Ringo has not transferred title to Strawberry Fields to either
Paul or John.
What is the nature of the claims? Competing EQUITABLE – CONSTRUCTIVE TRUSTS
Does Paul or John have the better claim? PAUL – first in time
Ringo mortgages his interest in Strawberry Fields to Apple Inc. in
exchange for a loan. Ringo then mortgages his remaining interest in
Strawberry Fields to Epstein Inc. in exchange for another loan. Ringo
defaults on the mortgages and the value of Strawberry Fields is
insufficient to cover the value of the two loans.
What is the nature of the claims? (at common law one transfers 100% title – (LEGAL INTEREST)
– in exchange for the mortgage. It is the EQUITABLE right of redemption allows for a second
mortgage.
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Does Apple or Epstein have the better claim? At common law APPLE – because a prior LEGAL
interest takes precedence over the EQUITABLE interest.
Ringo agrees to sell Strawberry Fields to Paul, the parties to complete
the transfer at a future date. Ringo then receives and accepts a better
offer for Strawberry Fields from John and transfers title to John.
What is the nature of the claims? Paul = equitable, John = legal
Does Paul or John have better claim? John
What does it depend on? Whether or not John is a bona fide (good faith) purchaser for
value without notice of Paul’s interest.
Ringo agrees to sell Strawberry Fields to Paul, the parties to complete
the transfer at a later date. Ringo then transfers absolute title to
Strawberry Fields to George as a gift.
What is the nature of the claims? Paul = prior equitable, George = subsequent legal
Does George or Paul have the better claim? Subsequent legal interest only takes
precedent if there is a bona fide “purchaser”. This is a gift. Paul has the better claim.
Ringo agrees to sell Strawberry Fields to Paul, the parties to complete
the transfer at a later date. Ringo then receives a better offer from
John, accepts the offer, and transfers Strawberry Fields to John. John
knew that Paul was interested in the property and that Paul had been
negotiating with Ringo.
What is the nature of the claims? Paul = prior equitable, John = subsequent legal
Does Paul or John have the better claim? John
What does it depend on? Unless… did John have actual notice? Or imputed notice? Or
constructive notice (ought to have known)?
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Ringo holds title to Strawberry Fields. Paul has leased the property for
many years and has indicated that he wishes to purchase the property
if Ringo ever decided to sell. Ringo decides to sell and agrees to sell
Strawberry Fields to Paul. Then, concerned that he settled for too low
a price, Ringo approaches John who had also expressed interest in the
property. John offers a better price, which Ringo accepts, and Ringo
transfers his interest to John.
What is the nature of the claims? Paul = prior equitable, John = subsequent legal
Does Paul or John have the better claim? John
What does it depend on? MUCH MORE LIKELY THAT THERE WOULD BE A
CONSIDERATION OF… constructive notice (ought to have known)?
GENERAL PRINCIPLE - FRAUD IS NOT REWARDED. (WITH REGARD TO THE PARTY THAT PARTICIPATES,
AND NOT AN INNOCENT PARTY).
100% RISK IS WITH THE PURCHASER.
A FRAUDLENT ACT NULLIFIES ALL SUBSEQUENT CLAIMS. {NEMO DAT}
COMMON LAW DEVELOPED A LIMIT OF 60 YEARS. (STATUTE HAS LIMITED THIS TO 15-20 YEARS
DEPENDING ON THE JURISDICTION)
Chippewas of Sarnia Band v. Canada (A.G.) (2000) 41 R.P.R. (3d) 1 – Aboriginal
Title is Sui Generis – therefore subsequent legal title takes priority.
The plaintiff, an aboriginal nation, claimed aboriginal title to a four-square-mile parcel of land in and
around the city of Sarnia, Ontario. The Court of Appeal dismissed the claim, upholding the lower court's
judgment although with different reasoning. The Chippewas of Sarnia sought leave from the Supreme
Court of Canada to appeal the decision, but leave was denied.
The Chippewas of Sarnia Band, legally an Indian Band pursuant to Canada's Indian Act, is now known as
Aamjiwnaang First Nation.
First, the aboriginal group was claiming ownership of privately held land. Previous aboriginal title claims,
such as in Delgamuukw v. British Columbia, had asserted title to crown land only, but here, the disputed
Sarnia lands had been taken from the aboriginal group and then transferred (mostly) to private
individuals and corporations. The Chippewas of Sarnia sought an order that the corporations vacate the
land and return it to the Chippewas of Sarnia. With respect to land currently occupied by individuals (i.e.
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houses), the Chippewas did not ask that it be vacated, but instead sought financial compensation from
the government.
DOCTRINES OF LACHES AND ACQUIESENCE applies.
[306] The good faith purchaser defence is an equitable doctrine and the Chippewas assert that
their interest in the lands is a purely legal one not caught by purely equitable defences. {COURT
SAYS THAT SUI GENERIS = MIX OF EQUITABLE & LEGAL} For reasons already given, we do not
accept this argument. To the extent that the Chippewas assert a claim for the return of the
lands, they assert a claim to an equitable remedy that is subject to equitable defences.
TITLE REGISTRATION (as opposed to “Deeds”)
1.
Registration Principle…
Unregistered instrument does not pass estate
20 (1) Except as against the person making it, an instrument purporting to transfer,
charge, deal with or affect land or an estate or interest in land does not operate to pass
an estate or interest, either at law or in equity, in the land unless the instrument is
registered in compliance with this Act.
(2) An instrument referred to in subsection (1) confers on every person benefited by it
and on every person claiming through or under the person benefited, whether by
descent, purchase or otherwise, the right
(a) to apply to have the instrument registered, and
(b) in proceedings incidental or auxiliary to registration, to use the names of all parties
to the instrument, whether or not a party has since died or become legally
incapacitated.
(3) Subsection (1) does not apply to a lease or agreement for lease for a term not
exceeding 3 years if there is actual occupation under the lease or agreement.
2.
Indefeasibility Principle… {KILLS THE NEMO DAT PRINCIPLE}
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Effect of indefeasible title
23 (1) In this section, "court" includes a person or statutory body having, by law or
consent of parties, authority to hear, receive and examine evidence.
(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive
evidence at law and in equity, as against the Crown and all other persons, that the
person named in the title as registered owner is indefeasibly entitled to an estate in fee
simple to the land described in the indefeasible title, subject to the following:
(a) the subsisting conditions, provisos, restrictions, exceptions and reservations,
including royalties, contained in the original grant or contained in any other grant or
disposition from the Crown;
(b) a federal or Provincial tax, rate or assessment at the date of the application for
registration imposed or made a lien or that may after that date be imposed or made a
lien on the land;
(c) a municipal charge, rate or assessment at the date of the application for registration
imposed or that may after that date be imposed on the land, or which had before that
date been imposed for local improvements or otherwise and that was not then due and
payable, including a charge, rate or assessment imposed by a public body having taxing
powers over an area in which the land is located;
(d) a lease or agreement for lease for a term not exceeding 3 years if there is actual
occupation under the lease or agreement;
(e) a highway or public right of way, watercourse, right of water or other public
easement;
(f) a right of expropriation or to an escheat under an Act;
(g) a caution, caveat, charge, claim of builder's lien, condition, entry, exception,
judgment, notice, pending court proceeding, reservation, right of entry, transfer or
other matter noted or endorsed on the title or that may be noted or endorsed after the
date of the registration of the title;
(h) the right of a person to show that all or a portion of the land is, by wrong description
of boundaries or parcels, improperly included in the title;
(i) the right of a person deprived of land to show fraud, including forgery, in which the
registered owner has participated in any degree;
(j) a restrictive condition, right of reverter, or obligation imposed on the land by the
Forest Act, that is endorsed on the title.
Page 62 of 68
(3) After an indefeasible title is registered, a title adverse to or in derogation of the title
of the registered owner is not acquired by length of possession.
(4) Despite subsection (3), in the case only of the first indefeasible title registered, it is
void against the title of a person adversely in actual possession of and rightly entitled to
the land included in the indefeasible title at the time registration was applied for and
who continues in possession.
3.
Abolition of Notice Principle {KILLS THE requirement for NOTICE}
Effect of notice of unregistered interest
29 (1) For the purposes of this section, "registered owner" includes a person who has
made an application for registration and becomes a registered owner as a result of that
application.
(2) Except in the case of fraud in which he or she has participated, a person contracting
or dealing with or taking or proposing to take from a registered owner
(a) a transfer of land, or
(b) a charge on land, or a transfer or assignment or subcharge of the charge,
is not, despite a rule of law or equity to the contrary, affected by a notice, express,
implied, or constructive, of an unregistered interest affecting the land or charge
4.
Assurance Principle {Compensation only to earlier titles – no absolute ownership – registration
trumps but there can be compensation.}
Page 63 of 68
FRAUD
What about the bona fide purchaser for value?
Immediate indefeasibility?
Deferred indefeasibility?
Andy held the fee simple interest in Zenyatta. Sting, believing that he
was dealing with Andy, contracted to purchase the fee simple
interest. However, he was actually dealing with Stewart who was
posing as Andy. Stewart forged Andy’s signature on the transfer
instrument (Form A) and Sting registered his interest. At this point,
Andy discovers the fraud and claims title.
STING REGISTERED HOLDER OF TITLE
Can Andy recover title …
if Sting has participated in the fraud? YES
if Sting is a bona fide purchaser for value within a system of immediate
indefeasibility? NO
if Sting is a bona fide purchaser for value within a system of deferred
indefeasibility system? YES
Andy held the fee simple interest in Zenyatta. Sting, believing that he
was dealing with Andy, contracted to purchase the fee simple interest.
However, he was actually dealing with Stewart who was posing as
Andy. Stewart forged Andy’s signature on the Form A and Sting
registered his interest. Sting then contracts to sell the fee simple
interest in Zenyatta to Sarah. At this point, Andy discovers the forgery.
Assuming Sting and Sarah are bona fide purchasers for value can Andy
recover title
…within a system of immediate indefeasibility? NO
Page 64 of 68
…within a system of deferred indefeasibility? YES – the interest hasn’t yet gone to Sarah – there is an
agreement but it hasn’t actually happened.
Andy held the fee simple interest in Zenyatta. Sting, believing that he
was dealing with Andy, contracted to purchase the fee simple interest.
However, he was actually dealing with Stewart who was posing as
Andy. Stewart forged Andy’s signature on the Form A and Sting
registered his interest. Sting then contracts to sell the fee simple
interest in Zenyatta to Sarah and on the closing date Sarah registers her
interest. At this point, Andy discovers the forgery.
Assuming Sting and Sarah are bona fide purchasers for value can Andy recover title
…within a system of immediate indefeasibility?
…within a system of deferred indefeasibility?
Andy held the fee simple interest in Zenyatta. Sting, believing that he
was dealing with Andy, contracted to purchase the fee simple interest.
However, he was actually dealing with Stewart who was posing as
Andy. Stewart forged Andy’s signature on the Form A and Sting
registered his interest. Sting then contracts to sell the fee simple
interest in Zenyatta to Sarah and on the closing date Sarah registers her
interest. At this point, Andy discovers the forgery.
Assuming Sting and Sarah are bona fide purchasers for value can Andy
recover title
…within a system of immediate indefeasibility?
…within a system of deferred indefeasibility?
Page 65 of 68
Assurance Fund?
296 (2) A person, in this Part referred to as the "claimant",
(a) who is deprived of any estate or interest in land
(i) because of the conclusiveness of the register, in circumstances where, if this Act had not
been passed, the claimant would have been entitled to recover the land from the present owner, and
(ii) in consequence of fraud or a wrongful act in respect of the registration of a person other
than the claimant as owner of the land, and …
-
deprived or any estate or interest in land?
because of the conclusiveness of the register?
would be entitled to recover absent a title registration system?
in consequence of fraud or wrongful act?
barred from bringing an action to recover land?
Barred from bringing an action to recover land?
25 (2) An action of ejectment or other action for the recovery of land for which an indefeasible
title has been registered must not be commenced or maintained against the registered owner named in
the indefeasible title …
Immediate Indefeasibility Comes to B.C.
Land Title Act
25.1(1) Subject to this section, a person who purports to acquire land or an estate or interest in land by
registration of a void instrument does not acquire any estate or interest in the land on registration of
the instrument. {restating NEMO DAT}
(2) Even though an instrument purporting to transfer a fee simple estate is void, a transferee who
(a) is named in the instrument, and
(b) in good faith and for valuable consideration, purports to acquire the estate,
is deemed to have acquired that estate on registration of that instrument. {even though nothing, good
faith purchaser for value – thus knocking down the NEMO DAT}
(3) Even though a registered instrument purporting to transfer a fee simple estate is void, a transferee
who
(a) is named in the instrument,
(b) is, on the date that this section comes into force, the registered owner of the estate, and
(c) in good faith and for valuable consideration, purported to acquire the estate,
is deemed to have acquired that estate on registration of that instrument.
{already in the registration system – still fixes any problems}
Page 66 of 68
Validity of documents
Credit Foncier v. Bennett: authority for the proposition that you cannot assume validity of the
documents on the basis of which registration of a charge took place. Authority for
interpretation for s. 26, still good law.
Court: s. 197 tells about process of registration not consequences of registration. Consequences of
registration found in s. 26, which provides that registered owner is deemed to be entitled to interest.
Contrast with s. 23, (strong language indicating immediate indef) indicates that s. 26 is rebuttable
deeming provision. This allows one to go behind the register. Effect of Credit Foncier seemed to be that
in the case of charges had to do old fashioned common law search of title.
Credit-Foncier Franco v. Bennett (1963) BCCA - if you are dealing with the registered
FS owner, you are protected – if not then not
Analysis: Why wasn’t CF protected since they were dealing with the registered charge? Court looked at
language – shall be deemed in s. 26 could be interpreted in one of two ways: Either irrebuttable
presumption, or presumed until contrary is proven. This was critical – they thought leg intended to have
lesser degree of protection applied to charges than they did to fee simple, based on the less strong
language in s. 26. Ratio: the presumption is in favour of B. You have to put limitations on the inquiry that
you will take in relation to s. 26.
-
How did the Island Realty case deal with the problem Credit Foncier created?
o The court in Island Realty focused on the fact that the holder of the 3rd mtg. was dealing
with the registered owner
o In Credit Foncier, the registered FS owner had never actually granted the mtg. The
original mtg. was a forgery so there was no connection between the assignee of the
mortgage and the Bennetts
o So the court effectively limits Credit Foncier, they disagree that CF should go so far that
every time we have a dispute, we should go behind the register to determine who holds
title, the court decided that this wasn’t necessary given the land registration system
o The bottom line is: if you are dealing with the registered FS owner, you are protected
o But of course registration of an interest does not guarantee the validity of the interest,
validity of interest can be challenged
Canadian Commercial Bank v. Island Realty Investments Ltd. (1988) CA) - you can
assume validity of documents and can rely on protection afforded by indefeasibility if you
trace them back to the fee simple owner (this was NOT the case in CF). At CL, Almont would
not have taken priority but this does not determine the outcome here
Result: you can assume validity of documents and can rely on protection afforded by indefeasibility if
you trace them back to the fee simple owner (this was NOT the case in CF). At CL, Almont would not
have taken priority but this does not determine the outcome here.
Page 67 of 68
Should there be legislative reform in this area as well?
Analysis: Here however, discharge released PM even if it was fraudulent and cleared their interest in
land. Almont did NOT take under void instrument. Cannot apply rule in CFF either – even though s. 23
says owner of fee simple is conclusively presumed to have title, where s. 26 does not offer this same
type of protection to chargeholder (rebuttable presumption).
Ratio: where mortgage is valid, bona fide purchaser will be protected.
Validity of the interest
Registration of charge does not constitute a determination by the Registrar that the interest was validly
created. Open to subsequent purchaser to convince court that this is not a valid interest.
Notice of terms and conditions
If a document that is filed at the LTO provides certain terms, does purchaser have to take these into
account? S. 27 provides that registration of a charge gives notice of any supporting document on file in
LTO—i.e. content of instrument creating the charge.
BUT note S. 27(1)(b) provides that this is so far as it relates to that registered interest. If a document
creates 2 interests (e.g. a lease with option to purchase), each must be registered separately.
Priority as between charges
S. 28 provides that when 2 or more charges registered, as between those charges, priority is determined
by dates of applications to register. Reverses common law which determined priority on the basis of
date of the creation of the interest.
Page 68 of 68