Origins and Meaning of Property Law ....................................................................................................... 6
 Ways of Conceiving Property ........................................................................................................................... 6
 A Rights-based Understanding of Property ................................................................................................ 6
Characteristics of the Bundle ................................................................................................................................................. 7
 Three Types of Property .................................................................................................................................... 7
The Right to Exclude ........................................................................................................................................ 8

(Sask CA 1964) ............................................................................................... 8

(SCC 1971) ....................................................................................................................... 8

............................................................................................................................................. 8
The Case for Private Property ...................................................................................................................... 8
 7 Arguments in Favour of Private Property (Ziff) .................................................................................... 9
Novel Claims: Information as Property .................................................................................................. 10
 Resolving Novel Claims ................................................................................................................................... 10

................................................................................................................................................................. 10

....................................................................................................................... 11
 Litman, “Information Privacy/Information Property” (1999) ......................................................... 11

.................................................................. 12
Canadian Legislation .............................................................................................................................................................. 12
 Bernard Dickens, “Morals & Legal Markets in Transplantable Organs” ....................................... 12
Social Class & Property ................................................................................................................................ 13
Wealth distribution in Canada .............................................................................................................................. 13
Homelessness and Freedom .................................................................................................................................. 14
Panhandling Laws ...................................................................................................................................................... 14

............................................................................................... 14
The Protection of Private Property – Immunity From Takings .................................................... 15
Constitutional Issues: USA ...................................................................................................................................... 15

........................................................................................... 15

............................................................................ 16
Constitutional Issues: Canada ............................................................................................................................... 16
Expropriation in Canada ......................................................................................................................................... 16

.................................................................................... 16

.............................................................................. 16
NAFTA ............................................................................................................................................................................ 17

...................................................................................................... 18
Aboriginal Property Rights ........................................................................................................................ 19

.................................................................................................................... 19

..................................................................................................... 20

............................................................................ 20
BOUNDARIES ................................................................................................................................................... 21
Airspace Rights ........................................................................................................................................................... 21

...................................................................................................... 21
US approach in U.S. v. Causby (1946) .............................................................................................................................. 21
Subsurface .................................................................................................................................................................... 21

................................................................................................................ 22
Lateral Boundaries .................................................................................................................................................... 22

..................................................................................................................................... 22
Land Bounded by Land ............................................................................................................................................ 22

.......................................................................................................... 23
1

Land Bounded by Water .......................................................................................................................................... 23

........................................................................................................................................ 23
Riparian Rights ........................................................................................................................................................... 23
POSSESSION ..................................................................................................................................................... 24
Defining Possession .................................................................................................................................................. 24
Theory of Possessory Title ................................................................................................................................................... 24
Establishing Possession ........................................................................................................................................... 24

.................................................................................................................... 24

....................................................................................................................................... 25

............................................................................................................................................ 25
Policy Consideration ............................................................................................................................................................... 25
Adverse Possession ................................................................................................................................................... 26

.................................................................................................................. 26

(Ont CA 1997) ...................................................................................................... 27
FINDERS AND GIFTS ...................................................................................................................................... 28
Finders ........................................................................................................................................................................... 28

............................................................................................................................................ 28
Finder v. Occupier (Recovery v. Finding) .......................................................................................................... 28

................................................................................................. 28

................................................................................................................ 28

.................................................................................................... 29
Gifts ................................................................................................................................................................................. 30
Baron Article .............................................................................................................................................................................. 30

................................................................................................................ 31

...................................................................................................... 31

................................................................................................................... 31
COMMON LAW ESTATE ................................................................................................................................ 32
The Fee Simple ............................................................................................................................................................ 32

.................................................................................................................. 33
The Fee Tail .................................................................................................................................................................. 33
The Life Estate ............................................................................................................................................................. 33

................................................................................................................................. 33

.......................................................................................................................... 34

........................................................................................... 35
Powers and Obligations of a Life Tenant ........................................................................................................... 35

................................................................................................... 36
Life Estates Arising by Operation of Law ........................................................................................................... 36
Equitable Interests ........................................................................................................................................ 36
Meaning of Equity ...................................................................................................................................................... 36
The Constructive Trust ............................................................................................................................................ 36

............................................................................................................................. 37

........................................................................................................ 39

................................................................................................................ 40
Future Interests .............................................................................................................................................. 41
Reversions & Remainders ...................................................................................................................................... 41

........................................................................ 41
Defeasible & Determinable Interests ................................................................................................................. 42
How do we tell them apart? - Wording ........................................................................................................................... 43
Two Main Practical Differences ......................................................................................................................................... 43
2

Vested Interests, Contingent Interests, and Conditions Precedent ......................................................... 43

........................................................................................ 44

........................................................................................... 44
Void Conditions and the Effect of Voidness .................................................................................................................. 45
State Limitations on Private Power ......................................................................................................... 46
Declarations of Invalidity ....................................................................................................................................... 46
Invalidity due to Impossibility in Law ................................................................................................................ 46

.......................................................................................................................... 46
Invalidity due to Uncertainty ................................................................................................................................. 46

................................................................................................................... 46
Invalidity due to Public Policy............................................................................................................................... 47

........................................................................................... 47

............................................................................................................... 47

................................................................................................................................. 48
Invalidity due to Restraints on Alienation ........................................................................................................ 48

.............................................................................. 48
The Rule Against Perpetuities ................................................................................................................... 48
Elements of the Rule ................................................................................................................................................. 48
Statutory Reform of RAP - Perpetuities Act ................................................................................................................... 49
Leases ................................................................................................................................................................. 50
Woods’ Summary ....................................................................................................................................................... 50
What is a lease? (or "tenancy") .......................................................................................................................................... 50
What is a licence? ..................................................................................................................................................................... 50
Types of Leases ........................................................................................................................................................... 50
Four kinds of leases at common law ................................................................................................................................ 50
Leases v. Licences....................................................................................................................................................... 51

................................................................ 52
Nature of the Landlord and Tenant’s Interests ............................................................................................... 52

................................................................................. 52

............................................................. 53
Obligations of Landlord and Tenants ................................................................................................................. 53
Right to Quiet Enjoyment ..................................................................................................................................................... 53
Residential Tenancy Reform ................................................................................................................................. 54
Rent Control ............................................................................................................................................................................... 54
Bailment ............................................................................................................................................................ 55
The Nature of a Bailment ........................................................................................................................................ 55

........................................................................................... 55
Obligations of the Bailee ......................................................................................................................................... 55
Onus of Proof ............................................................................................................................................................... 56
Duties of the Bailor .................................................................................................................................................... 56
Avoiding Liability ....................................................................................................................................................... 56
Assignment/sub-bailment ...................................................................................................................................... 56

......................................................................... 57

............................................................................................................................... 57
Covenants ......................................................................................................................................................... 59
Outline ........................................................................................................................................................................... 59
Covenant ....................................................................................................................................................................... 59
(Common) Law versus Equity ............................................................................................................................... 59
The Running of Burdens in Equity ....................................................................................................................... 59
3


...................................................................................................................................... 59
The Running of Benefits in Equity ....................................................................................................................... 60
The Running of Benefits at Law ............................................................................................................................ 60
Brief Summary ............................................................................................................................................................ 61

................................................................................................................ 61
Woods’ Final Note on Positive Covenants ............................................ Ошибка! Закладка не определена.
Restrictive Covenants – Impact on Housing and the Environment .......................................................... 62
Discussion on restrictive covenants ................................................................................................................................ 62
Easements ........................................................................................................................................................ 65
Characteristics of Easements ................................................................................................................................. 65
Four Characteristics (Re Ellenborough Park) .................................................................................................. 65
Creation of Easements .............................................................................................................................................. 65
Scope, Location, and Termination of Easements ............................................................................................ 67

............................................................................................................................. 67

................................................................................................ 67
Termination ............................................................................................................................................................................... 67

..................................................................................................................... 68
Co-Ownership .................................................................................................................................................. 69
Joint Tenancy ............................................................................................................................................................... 69
Requirements aka ‘the four unities’ ................................................................................................................................. 69
The Right of Survivorships – key characteristic of JT ............................................................................................... 69
Tenancy in Common ................................................................................................................................................. 69
Methods of Creation .................................................................................................................................................. 70

.................................................................................. 70
Severance ...................................................................................................................................................................... 70

.................................................................................................... 70
Rights and Responsibilities of Co-owners......................................................................................................... 71
Alternative Conceptions of Shared Ownership ............................................................................................... 72
Access to Public and Private Properties ................................................................................................ 73
Access to Public/State Property ........................................................................................................................... 73

...................................................................... 73

......................................................................................................... 73
Access to Private Property ..................................................................................................................................... 73

............................................................................................................. 73

.......................................................................................................... 74

(2007 NJ
SC) 74
Final Exam Review ........................................................................................................................................ 74
CASE LAW .......................................................................................................................................................... 75
Harrison v. Carswell .................................................................................................................................................. 75
International News Service v. Associated Press [1918] U.S. ....................................................................... 75
Victoria Park Racing and Recreation Grounds Ltd. v. Taylor [1937] Australia .................................. 76
Moore v. The Regents of the University of California (Cali. S.C. 1990) ................................................... 77
Pennsylvania Coal Co. v. Mahon (USSC 1922) .................................................................................................. 79
Peter v. Beblow ........................................................................................................................................................... 81
Aboriginal title at common law ............................................................................................................................ 83
Delgamuukw v. British Columbia ...................................................................................................................................... 83
Aboriginal Title (AT) .............................................................................................................................................................. 83
Content of AT ............................................................................................................................................................................. 84
4

AT under s.35(1) of Constitution Act, 1982 .................................................................................................................. 84
Proof of AT .................................................................................................................................................................................. 84
Test for justification of infringing on AT ........................................................................................................................ 85
T.Flanagan, “First Nations? Second Thoughts .............................................................................................................. 86
R. v. Bernard; R. v. Marshall ................................................................................................................................................. 86
Haida Nation v. British Columbia ...................................................................................................................................... 87
When the duty to consult and accommodate arises?................................................................................................ 87
Scope and content of the Duty ............................................................................................................................................ 87
Aboriginal land rights on reserves: [p. 424] .................................................................................................... 88
5

O RIGINS AND M EANING OF P ROPERTY L AW
 Ways of Conceiving Property o Civil law: moveable and immovable things o Common law: real property and personal property
 Similar, but not the same as “land and goods” … why? Because some things are regarded as
“property interests” that are neither land nor goods
 The key difference is the nature of the right , not nature of the thing
 Originally common law had 2 key distinctions between real and personal property: nature of recovery and transfer of title
Nature of Property
 Restitution, payment for damages done – personal property; Specific Restitution – real property
 Under current Canadian law, courts will recognize that there are some objects that are unique and special (ex. Family heirlooms) that they can justify specific restitution.
Transfer of Title
 Originally when one dies intestate (without a will), the property passes to the eldest son, or shared between daughters
 Current law demands the property divided evenly between children and widow o Modern distinctions between real and personal property:
 Real property rights subdivided into corporeal (land capable of being held in possession, ie. freehold estates) and incorporeal (interests in land that are non-possessory, ie. easements)
 Personal property rights subdivided into tangible (aka chose in possession, ie. your computer) and intangible (aka chose in action, ie. the right to sue for lost wages)
 There are other sorts of property rights, such as Aboriginal Property Rights that do not fall into the two categories above
When you claim an object as “yours”, you need to have some way of enforcing this claim and stop others from taking this object for their own. Otherwise anyone can claim the object as they please. You rely on the states to enforce such claim.
 A Rights-based Understanding of Property
“A BUNDLE OF RIGHTS”
Property is an enforceable claim to some useful benefits of something whether it is a right to share in some common resource, or an individual right in some particular thing. Property is different from possession; possession may be property. A legal title to a house will give you an enforceable right to use that house and forbid others from doing so. o Property is a bundle of rights, not simply a chattel or piece of land o Implications of treating property as a right rather than a thing?
 Property as natural state of affairs vs. property as an institution created by law
 Laws are designed to serve a particular social end. What is the purpose of the law or policy in question? o What is in the bundle?
 Single-variable essentialist: right to exclude is only one that matters
 The irreducible right to exclude is the necessary and sufficient condition of property
 P.8 William Blackstone I
There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims
6

and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.
 Multiple-variable essentialists: right to exclude is necessary but not sufficient
 Possession, use and transfer
 Nominalists: property has no (pre-law) fixed meaning
 Property is purely a conception that can be filled by any legal system o Think of the right as a tripartite relationship : person(s) X has a right over object Y which is enforceable against person(s) Z
 But then who is the enforcer? Private property requires some institutional structure to exist
 Institutional consensus
 Property is therefore more than just control over an object
1) Variable: size and shape of bundle of rights can vary over time and between jurisdictions
 Allows us to compare institutions of property in radically different societies with a common analytical language
 Can be recomposed: not only are there privileges, but also duties that are included in the meaning of ownership, by recomposing the bundle of rights (ex: Property Tax)
 We can socialize private property by imposing obligations on owners
2) Divisible: can be distributed among individuals in bits
 Ex: easements, right of one person to use the land owned by another
3) Limited/Not Absolute: rights, privileges, powers and immunities are subject to reasonable limits
 Three Types of Property o Common property
 Rights created by the states. It’s created by the guarantee that each individual will not be excluded from using the property.
 They are not owned by anybody but held for a benefit for everyone. All persons have a right to use it. This right is subject to following basic reasonable rules. Generally nobody can build a house on it
 Intellectual property that have entered into public domain
 Two Types of Common Property
 Full and Open Public Access: air, parks, and roads…
 Held collectively as common property by a certain group for the use of one specific group of people: gyms and swimming pools in condominiums. o Private property
 State creates the rights for individuals so that individuals hold the rights to exclude others from the use or benefits of the property
 Can also be held by artificial persons – corporations o State/public property
 Not an individual right. The state creates the rights but keeps for self: military, buildings for
Crown corporations, etc.
 Judges’ Chambers: public property but retains private characteristics
 Consider the Charter issues o In all cases, remember to think of the property in terms of rights… what does saying “this belongs to me” allow me to do?
7

T HE R IGHT TO E XCLUDE

(Sask CA 1964) o Sask. CA: inviting public general means relinquishing control over premises, cannot therefore invoke remedy of trespass

(SCC 1971) o Owner who has granted general right of entry can still withdraw it from particular members of public, can invoke remedy of trespass (Ont. CA) o General invitation to the public does not mean the owner has abandoned the control of the premises
(SCC) o Quote on withdrawing permission: Peters- [Gale C.J.O.] "....an owner who has granted a right of entry to a particular class of the public has not thereby relinquished his or its right to withdraw its invitation to the general public or any particular member thereof, and if a member of the public whose invitation to enter has been withdrawn refuses to leave, he thereby becomes a trespasser and may be prosecuted under the Petty Trespass Act".
 Basic Labour Law: lawful picketing is lawful even though it is interfering with the use and enjoyment of the business premises. Minor impedance to pedestrian traffic may occur. o The special factor in shopping centre picketing is the landlord (neutral in theory) of the shopping centre. Maybe we don’t have a problem with the states attempting to strike a balance between pedestrian traffic and labour unions. But can we expect the private owner of the shopping mall to do so? o Unless the picketing is allowed in the shopping centre, it is not.

o Dickson J. for the majority
 Peters determinative o Laskin J. dissent
 Mechanical deference to stare decisis unhelpful
 Peters was only about whether the owner of the shopping centre has relinquished the control of the sidewalk of the shopping centre; it is not applicable to Harrison because
Harrison is not about control but the right to picketing.
 Even if it did apply, it should not be about control. The consideration underlying the principles of private properties simply do not apply to shopping centre. Shopping centers are more similar to public roads in nature than purely private properties (personal homes).
 Quote Members of public are privileged… p.27-28 o Some important institutional arguments going on here re: role and operation of the court
 When do you think courts ought to abandon precedent? Why?
Thought exercise: thinking about property not as a “right to exclude”, but a “right to not be excluded” o Employee making widgets – who has rights to profits? What does this say about the law? Does it matter? o Parliament is concerned about election and votes. They are slow to make legislative changes. The
Court is justified in this case, based on the fact pattern, to adapt the precedents to the present circumstances.
T HE C ASE FOR P RIVATE P ROPERTY
 Laws should reflect social values
 Property as a “natural condition” or property as a construct of law? o Free market is no more free than any other construct of law; it should have regulations and rules – enforcement of contracts and regulations of securities
 If property law is a construct of law, what social values does it reflect or enhance? What values does it degrade or ham?
8

 Disconnect: Star Trek vs. the USSR o In Star Trek, there’s no concept of money or property. In reality, human beings are fragile, flawed and diverse. You cannot hope to satisfy everyone by fulfilling the basic needs and wants based on a reasonable notion. There always exist some people who want different things. o Star Trek exists in a vacuum. USSR did not.
 7 Arguments in Favour of Private Property (Ziff)
1.
Economic prosperity
The problem with using economics efficiency to justify Private Property is that it does not explain second order questions (should we create a legal market for babies?).
Legally enforced property rights let individuals internalize the burden, cost and profits of a piece of property.
Economic prosperity arguments are not wrong per se, but they are not enough to explain all cases.
2.
Utilitarianism: the common good
The problem is that it could in theory allow for tremendous suffering by minority so long as over all people benefit.
3.
Advancement of Freedom
Private properties can create a zone of non-interference. When you own and are inside this piece of property, you are essentially free and the state cannot interfere. The downside is that it thinks of freedom as only the absence of state interference.
But state interference sometimes is good for freedom. The freedom to walk on public streets depends on state regulation of cars.
Private property is still dependent on state protection.
Another problem is one particular individual may own great amount of property but others may be extremely poor.
4.
Protection of personhood & development of the self – human nature
In order for humans to achieve self-development and therefore realization as their potential as humans, they need to be able to control the resources in their environment and act on them as they please.
5.
Reward: desert, labour and consent
Desert – deserving something. The idea is when you work on something and create a value; you deserve to reap benefits from.
It does not matter if the object you worked on is converted to another object or not.
Labour - John Locke: I mix the labour and an object (previously common property or some property that did not belong to anyone else), so that the object is converted to something else, and thus am entitled to the final object.
The problem is that it does not take into consideration of property transfers. It is incomplete.
6.
Entitlement from occupancy
7.
Pluralism
Caselaw shows it’s more of a combination of the arguments above. Demonstrates property rights are mostly based on social values. You can advance any particular claim based on one or some of them.
9

N OVEL C LAIMS : I NFORMATION AS P ROPERTY
 Resolving Novel Claims
Property is not a fixed category but in flux.
Things people have tried to claim the as property:
 Sound of singer’s voice
 Entertainment spectacle
 Frozen sperm
 Human embryos
 Human cell lines
 Genetically modified plants and animals
 University degrees
The objection of property as owning a thing, in favour of property rights as a bundle of rights.
Advances in science and technology.
 Functions of property law
 Claims to new forms of property
 Competing judicial approaches
 ‘Family resemblances’ approach o Does this thing has any resemblance to what already constitutes as property o The problem is new species that do not carry resemblances to any existing property. This is particular true for new things created by technological advances.
 ‘Functional’ approach
Court thinks if we recognize this as a new property, what would be the effects? And if it reconciles with the existing social values?
 Ex, slaves as property in contradictory to human rights
 Why do we have laws that may be contrary to social values?
 May be because other values: economical
 A balance needs to be explored and evaluated

 Facts: AP claims INS is essentially pirating their new sources, claims a property right in the news
 Issue: Whether INS can be restrained from appropriating news taken from AP's bulletin boards issued by complainant or any of its members, or newspapers published by them for the purpose of selling it to defendant’s clients
 Pitney J: distinction between property right as against the public, and property right as against a commercial competitor.
 Homes J (dissenting): property is a creation of the law – it does not arise automatically in anything with value
 Brandeis J (dissenting): general rule is that knowledge and ideas become common property once they are communicated… also makes an institutional competence argument
The essential element of individual property is the right to exclude others from enjoying it. The AP loses the right to exclude others from their property from the news once they publish it.
However, the difference between Brandeis and Holmes is institutional competence argument.
Holmes thinks it’s not the job of judges to decide complex matters as property or not – should be left to legislature.
DISCUSSION
What if this were about blogging/re-tweeting?
Further, is the modern phenomenon of our accessing news for free to the detriment of the overall quality of news?
10

Different markets: high-quality news is still subscription-only (WSJ, The Economist, etc.) while the lower-end (in terms of cost), such as blogs or free news services (CNN), serves the societal interest in providing relatively good quality and prompt aggregated news to the interested general public
There is a need of striking the balance between quality and access. Example could be NYT’s proposal to offer a limited amount of news for free, while the rest is by payment.
The commentary provided by blogs also adds value. They should not be overlooked
Governmental regulation poses two potential problems: 1) ideological basis for this government body; and 2) freedom of expression
The profit of online news providers comes from advertisement revenues, which has decreased dramatically lately.
Bottom line: society should not interfere with private news businesses. News has values like other commodities do, let market do the job.
Who here would pay for the professor’s lecture notes?

 Facts: Taylor builds platform to view racecourse, reports results over telephone to a TV channel
 Latham CJ (majority): a ‘spectacle’ cannot be owned
 Dixon J (concurring): creating something of value does not automatically make it property
 Rich J (dissenting): there is a mutual interplay of rights between the parties… resort to tort nuisance
 Note the difference in Latham and Rich’s approach to dealing with precedent or lack thereof – again, a very important institutional competence argument is happening here
 “Rules + facts = decision” is far too simplistic… there is a whole world of interpretation in the law – think about who is doing the interpreting, and how they are doing it
 Litman, “Information Privacy/Information Property” (1999)
 Personal info in US can be freely collected by organization and subsequently bought and sold to other groups, unlike in the EU and in Canada
 EU: Data Protection Directive
 Canada: Personal Information and Protection of Electronic Documents Act (PIPEDA)
 Jerry Kang: “Market property right”: creating property right in personal information would give individuals greater control – those who cared about privacy could choose to not sell their info. They also have the right to sell it. o Harness the market in property rights and protect privacy
 Litman: problem with this idea is the difficulty of downstream use – once privacy has been sold, impossible to get back o The market force would push the personal data for all commercial exploitation regardless of your original consent o Facebook is one good example
 Property model would simply legitimize sale of personal info
 Argues ultimately for legislative model like EU and Canada
 Rights-based legislative model or market model – two different ways of thinking about personal information
 It amounts to commodification of person, therefore immoral and against societal interests
“dehumanizing”
The article was discussing proposals to consider personal information as a form of property as means of protecting privacy. Personal information now can only be a form of property when it is part of something else, such as a phone book -- individuals currently have no form of property right over their personal information in either Canada or the US. The article was discussing and critiquing proposals to create such a property right.
11

In the US, there are some statutes that deal with the collection of personal information by companies, but they are sector specific (like video rental records and health records) -- in general it is a free for all, where companies are free to collect and use any information about you they can glean -- "privacy policies" like those on Facebook are purely voluntary in the US. In contrast, in Canada PIPEDA governs the collection of all personal information (essentially, such collection must be done with the informed knowledge and consent of the individual concerned, and cannot be transferred to another organization without once again getting consent from the individual).
In neither case is the information the property of the individual, in terms of the usual bundle of rights that status brings with it.

 Facts: doctor patented cell line from Moore’s bodily tissues
 Moore claims tort of “conversion” – interference with ownership or right of possession
 Penelli J: patented cell line is legally and factually distinct from the cells themselves… institutional ßand economic arguments made… Regents did not obtain informed consent, but there was no conversion
 Mosk J (dissenting): more policy considerations at play than just economic benefit… bodily autonomy, equity
 Royal Commission on Reproductive Technologies (1995) (obv. Not legislation but this Commission ultimately led to the AHRA) o “It is fundamentally wrong for decisions about human reproduction to be determined by a profit motive – introducing a profit motive to the sphere of reproduction is contrary to basic values and disregards the importance of the role of reproduction and its significance in our lives as human beings. Commodifying humans beings and their bodies for commercial gain is unacceptable because this instrumentalization is injurious to human dignity and ultimately dehumanizing, We therefore consider commercialization for reproductive materials and reproductive services to be inappropriate.”
 (Ontario) Trillium Gift of Life Network Act (RSO 1990, c. H. 20) o s.10: “No person shall buy, sell, or otherwise deal in directly or indirectly, for a valuable consideration, any tissue for transplant, or any body or part or parts thereof other than blood or a blood constituent, for therapeutic purposes, medical education, or scientific research, and any such dealing is invalid as being contrary to public policy.”
 (Federal) Assisted Human Reproduction Act (2004 c.2) – under challenge by QC in SCC, still good law o s.2(f): “trade in the reproductive capabilities of women and men and the exploitation of children, women, and men for commercial ends raise health and ethical concerns that justify their prohibition”
 Section 7(1): No person shall purchase, offer to purchase, or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor
 Section 7(3): No person shall purchase, offer to purchase, or advertise for the purchase of a human cell or gene from a donor or a person acting on behalf of a donor, with the intention of using the gene to create a human being
 Bernard Dickens, “Morals & Legal Markets in Transplantable Organs”
 Why regulate sale of organs and other human tissues?
Rights-based approach o Right to life? – No, international law does not regulate right to life due to capital crimes in some countries o Right to liberty? o Right to security of the person? – Right of individual to be healthy, that might mean the right for individuals to have access to transplantable organs. But on the other side, the right of individual to autonomy of choices, which seems to be against regulated rights
12

o Posthumous rights? – No property rights after you die. The body does not become part of your estate after you die. All you can do is to request what you next of kin can do with your body. o Right to family? – Grounds the right to donate of family members but would not extend beyond family members. o Right to non-discrimination? – Everybody in the society has equal rights to transplants. But what about strict regulations on liver transplants on alcoholics?
Arguments against a market economy in organs/tissues: o Inducement
Recognize a market value in organs and tissues does not enhance human dignity. Would a student be required to sell a kidney before being eligible for OSAP? o Less altruism
Donating blood should be out of the goodness of your heart. o Commodification
Like slavery, you cannot buy human or their body parts. Slippery rope.
Arguments in favour of a market economy in organs/tissues: o Free choice (tied to personhood theory of property)
Should let people themselves to decide what they wish to do with their own body. An important concept is self-actualized individual in society. People have autonomy. o Possible increase in available organs
If you create a monetary incentive, people will response. That overall has a net benefit to society.
Whether it be sperm or other tissues, whether it be for transplants or medical research… will be good for society. o Excesses of the market can be controlled through appropriate regulation
Property right does not have to be all or nothing. o Already a black market anyway
Dickens’ 7 Point Scale of Donation… at what point you intervene with state action/regulation?
1) A parent donates a kidney to his or her sick child
2) A parent cannot donate a kidney to his or her child on medical grounds, but donates the tissue to a bank that in turn supplies the child’s needs
3) A child needs drugs or an implanted device the parent cannot afford, so the parent sells a kidney to assist the child
4) A child needs special or higher education the parent cannot afford, so the parent sells a kidney to buy the schooling
5) A parent needs job training to support his or her family, so a kidney is sold to pay education fees -
- in order to gain skills to provide for the family
6) A parent sells a kidney so that the family can go on vacation together
7) A person has lost money through gambling, and sells a kidney to recoup the losses
S OCIAL C LASS & P ROPERTY
▪ Statistics and stratification o 65% of Canadians live in owner-occupier dwelling is now 50% larger in size than it was in 1960… but, average occupancy has decreased from 3.9 persons/unit in 2961 to 2.6 persons/unit in 2001 o Top 20% of Canadian households control 70% of the wealth of the country, while the bottom 20% control only 2.4% o In 2003, 12% of Canadians lived below StatsCan’s ‘low-income cut-off line’: more than 50% of income spent on food, shelter and clothes o In 2000, there were over 1.2 million Canadians children living below the poverty line, the 5 th highest rate of child poverty amongst the world’s 19 richest nations
13

Waldron: “[homelessness is] one of the most callous and tyrannical exercises of power in modern times by a
(comparatively) rich and complacent majority against a minority of their less fortunate fellow human beings”
 Homeless people have no place where they can be whenever they chose, and so their freedom depends on common property
 For homeless people, private property imposes an endless series of restrictions about where that person can actually be and perform day to day functions
 The homeless are negatively unfree: they have the capacities and abilities to do the same things as the rest of us, but what stands in their way is the likelihood that someone else will forcibly prevent their action. Others are authorized to deliberately drag them away from wherever they chose to be.
 Property rules limit freedom in that they engage a concern about liberty
 The moralization of liberty is discouraged – it results in the believe that the only freedom that is relevant is the freedom to do what is right.
 Property is a set of rules that provides freedom and prosperity for some by imposing restrictions on others, and so long as everyone enjoys some of the benefits as well as the restrictions, the correlativity is bearable. It ceases to be bearable when a class of person bear all of the restrictions and nothing else.
Property is partially about who has the right to be where. If you don’t have the right, it is trespass. Anything we do, must be done somewhere. It is the homeless people that suffer the most through our property law rules. Rules like the Safe Street Act, which limits what people can do on otherwise common property, disproportionately impact the homeless. Example: subway, rules say you’re not allowed to sleep on subway because purpose of subway is commuting. It makes sense for majority because majority can sleep at home; but the homeless do not have the luxury. So they are forced to confine the activities in public property.
Discussion
▪ The homeless cannot “opt-out” of the property law system because it is forced upon them by the majority
(democracy) and state power.
▪ From a legal perspective – does it matter why we have homeless and poverty? o Yes. Because it cannot be divorced from morality and specifically reality.
▪ Presumably there is a middle ground between the communism and capitalism. Where should the line be? o Regulatory Capitalism (David Levi-Faur) – state steering, business rowing
▪ (Professor) Waldron thinks Libertarians are just free market advocates with particular point. They are not in fact truly Libertarians.
▪ Time, manner, and place o Vancouver: no panhandling after dark o Toronto: no panhandling near banks… Safe Street Act
Problem is that threatening activity is already illegal. Some people argue the laws are against the free market values.
Panhandling should be just another transaction; ex., squeegee on highways for money.

Challenge to Ontario’s Safe Streets Act: R. v. Banks (Ont CA 2005)
Constitutional challenge on 4 grounds
1.
Division of powers – challenged as beyond competency of Ontario legislature as criminal law
Court says it is not division of power issue. The province is regulating streets for public interest.
2.
2(b) – challenged as an infringement on freedom of expression
Almost any activity can be expression contemplated in Charter. Of course, 2(b) is infringed by the Act, however under s.1 it is justified because the state is regulating rules with respect to public safety.
3.
7 – challenged as an infringement on security of their person
Court says yes there’s an infringement. But they are allowed to panhandle anywhere else not prohibited. Therefore it is justified under s.1
14

4.
15 – challenged as an infringement of equality o s.15 lists basically examples but we will also find other characteristics of human that are analogous:
something that’s not changeable and inherent in the person. o The extreme poor or the homeless should count as an analogous ground (race, age, gender, sexual orientation…) for discrimination.
Discussion o If the characteristic is only changeable at extreme personal cost, then it amounts to something that’s
not changeable and inherent in the person. o Is it true that as long as the homeless do not have mental illness, they can get a job if they try hard enough?
SCC declined leave to appeal
Comments from Professor
It shows the flaw of using the Courts to trying to pass public policy. Problem is that a lot of the lawyers to use
Constitution to attack bad policy. That’s very difficult. Government is allowed to make bad policies. I understand very much why people want to challenge the Safe Street Act, but it’s hard to say that the government of Ontario does not have legal right to regulate pedestrians and cars.
T HE P ROTECTION OF P RIVATE P ROPERTY
I MMUNITY F ROM T AKINGS
US: explicit protection in 5th Amendment
 Cannot deprive someone of their property without due process of law
In the US:
PCC v Mahon = it is not only direct takings of private property by the State that will lead to a right of compensation, but also where the
State interferes with that property in certain ways.
What precisely the level of interference with the owner's rights would trigger a right to compensation was not clear from PCC v Mahon, and so that's what the SC was trying to clear up in Lucas.
Lucas v SCCC = the State will have to pay compensation where regulatory action impacts private property in two situations -- 1) where the regulations compel the property owner to suffer physical invasion of the property, no matter how small, 2) where regulation denies all economically beneficial or productive use of the land. The justification for this is fairness -- if the state is regulating the use of land for some public purpose, it is unfair that the burden of that decision ought to fall only on the private landowner whose land has been regulated.
In Canada:
Mariner Real Estate v NS = Canadians are not judging whether the burden of public regulation of land is distributed "fairly" (as in Lucas)
-- that is the job for the legislature. The courts simply ask whether or not the public regulation of land in question entitles the landowner to compensation under the Expropriation Act. In Canada, restrictive land regulations do not count as expropriation. De facto expropriation in Canada is when "virtually all the incidents of ownership have been taken away". A decline in the value of land is not the same as the loss of an interest in land -- "preclusion of residential development... is not, of itself, the extinguishment of virtually all rights associated with ownership."
If you read the 4th paragraph on p. 143 of your textbook (beginning "The US constitutional law has...", that's a pretty solid summary of the difference in the two approaches.

 Is regulating a ‘taking’ that requires due process and/or compensation? Holmes J v. Brandeis J. o Holmes says making it commercially impractical to mine coal is the same as appropriating it…
15

o Brandeis says this is just regulation by the state aimed at preventing the owner from interfering with the paramount rights of the public
 Is regulating in the Kohler Act a “taking” that requires due process and/or compensation? Does the statue eliminate rights of mining in such a way that warrants compensation by the state?
o Holmes J.: Yes. So state must compensate (result) for the taking.

 Re-issue of “over-regulating” and takings
 Scalia J for the majority decides that “an owner deserves compensation where her private property is being pressed into some form of public service under the guise of mitigating serious public harm”
 The Jurisprudence has created two discreet categories that will lead to compensation o Compels property owner to suffer physical invasion of private property o Regulation or law that eliminates all economically beneficial or productive use of the land. This is a balancing test concerning issue of fairness.
 This is unfair and Lucas is entitled to compensation
No explicit constitutional protection for property in Canada, but constitutional & quasi-constitutional elements can exert influence on development of laws
 Division of Powers
 Charter s.92(13), (5), (10)…
 Non-constitutional provisions (ie 1960 Bill of Rights) o Recognizes the right to enjoy property. o Bill of Rights till in effect but applicable only to federal regulation o Can be overridden by legislation
What happens if the government has not straight taken the property but regulated to a de facto taking?

Facts: Beach property of P regulated by province; not to build private homes, which P wishes to do. P asks for compensation because statute amounts to ‘regulatory taking’.
Decision: Court rejects Lucas. No taking that leads to compensation.
Analysis:
 Cromwell JA: two principles:
1) valid legislation may significantly restrict owner’s enjoyment of private land;
2) courts may order compensation to owner of that land only where authorized to do so by relevant legislation (ie. Expropriation Act).
 Role of Canadian court is very different from American. In Lucas, the Court took a balancing approach weighing fairness. This is not the style of Canadian courts. o cf. Lucas v South Carolina Coastal Council
 A loss of value is not the same as a loss of interest… only a loss of interest is compensable under the Act o In the states, the loss of value leads to compensation. Not in Canada.
 “Proof of an extinguishment of key interest in land, not just a loss of business interests or values….”
 “When the government precludes on environmental sensitive land, that in itself is not an extinguishment of a key interest in the land, may just be reduction in value. That in itself will not lead to compensation.” o Key interest example: right to sale

 Expropriation at common law: what is a ‘de facto taking’?
 McL CJ says plaintiff must prove
16

(1) that the government has acquired a beneficial interest in the property; and
(2) this acquisition has removed all reasonable uses of the property from the P’s hands
 CPR fails on both accounts here o City has gained nothing that can be construed as a taking (see case summary below) o They did not remove all reasonable uses of the land
Facts: Vancouver adopted a by-law as part of its city plan which designated a corridor of land owned by CPR as a public thoroughfare for transportation. The effect of the by-law was to freeze the redevelopment potential of the land and confine CPR to uneconomic uses. CHR claimed that the by-law constituted a taking for which compensation was due.
Analysis:
 The city has gained nothing more than the assurance that the land will be used or developed in accordance with its vision – this is not a benefit that can be construed as a taking
 The bylaw does not remove all reasonable uses – this requirement is to be considered having regard to the nature of the land and the range of possible uses to which it has actually been put
 Land can still be used as a railway
 The by-law does not prevent maintenance of the railway track
 The by-law does not preclude CNR from leasing the land for use in conformity with the by-law and from developing public/private partnerships o Such as transportation purposes
Ratio:
For a de facto taking at common law, two requirements must be met
(1) an acquisition of a beneficial interest in the property or flowing from it
(2) removal of all reasonable uses of the property
Note: CNR clearly provides the test for a state taking, but it is still unclear exactly what constitutes the acquisition of a beneficial interest
NAFTA art.1110
 Allows government expropriation of a foreign investment in very limited circumstances
 Guarantees due process & compensation 0 in effect imports the US standard into Canada for American investments here
 See for example Metaclad v. Mexico (2000)
General information:
 Agreement between Canada, the United States, and Mexico
 Goal was to facilitate and ensure free trade between the nations
 It is the Charter of Rights and Freedoms for international investors
 Article 1110(1): No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment, except: o For a public purpose o On a non-discriminatory basis o In accordance with due process of law and Article 1105(1) AND o On payment of compensation in accordance with paragraphs 2-6
 This gives American and Mexican investors stronger protection against state takings than Canadians enjoy under domestic law
17

 There is an enforcement provision in NAFTA where the private party can bring a complaint if they have been adversely affected, and arbitrators have the power to award compensation if they determine that there has been a violation (Article 1120)
 “Take a measure tantamount to nationalization or expropriation” – to what extent does NAFTA limit police power, and to what extent can the state regulate without being in violation?

Facts: US-based company was interested in building a hazardous waste site in Mexico, and engaged with Mexican authorities and got assurances that the project would be approved. On this basis, they acquired land, but when they applied to local authorities who had legal authority to issue permits, they were refused. The project was stopped when local authorities issued ‘Work Stop Order’ and the corporation filed a claim under NAFTA that the actions of the government were tantamount to expropriation.
Analysis:
 Interference with use of property has deprived the owner of economic benefit. This is essentially the
American standard – balancing the private interests and state interests on the basis of fairness.
 Case provided the definition of indirect expropriation under NAFTA
 This case has been criticized because the tribunal didn’t take into account the reasonableness of relying on federal authorities when regulatory power was actually with local authorities
Ratio: An indirect expropriation includes a convert or incidental interference with the use of property which has the effect of depriving the owner, in whole or in significant part, of the reasonably-to-be-expected benefit of the property, even if it is not necessarily to the obvious benefit of the host state.
18

A BORIGINAL P ROPERTY R IGHTS
“[W]hat s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the
reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”
-R. v. Van der Peet, [1996] 2 S.C.R. 507, at ¶31, per Lamer CJ
Charter s. 35(1): “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

 Crux of the problem is reconciliation between assertion of Crown sovereignty and fact of pre-existing
Aboriginal societies prior to European contact
 s.35(1) of the Constitution Act, 1982: “the existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed”
 R. v. Van der Peet: an aboriginal right is a practice that is integral to the distinctive nature of the culture prior to contact by Europeans – usages rights (hunting, fishing… cultural rights)
 But Delgamuukw is about aboriginal title, so is focused on the land
 Starting principle: aboriginal title is sui generis (unique) at p. 389-390
 Aboriginal land is inalienable to third parties, i.e., cannot be sold or transferred to anyone except the Crown o Does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests (Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654, at 677)
 The source of original title is original (prior) occupation by the aboriginal people. But occupation is common law concept. Two sources of aboriginal title: 1) physical fact of occupation, proof of possession in law, as per common law; and 2) the fact of prior occupation by the aboriginal people before assertion of British sovereignty
 Aboriginal title is always held by the community (collective right), never by an individual
 Lamer CJ: three key questions to be answered in Delgamuukw:
1) What is the content of aboriginal title?
2) What is the proof of that title? Does it require a different test than other aboriginal rights (ie, not the Van
der Peet test)
3) When can aboriginal title be infringed?
What is content of aboriginal title?
 Delgamuukw claims fee simple
 BC claims it is just a right to engage in aboriginal rights on the land in question (e.g. hunting, fishing rights)
 What does Lamer C.J. say? o Aboriginal title is a right in the land and therefore is more than just the right to engage aboriginal rights. o It confers the right to use the land for a variety of purposes, not all of which need to be practices that are integral to the distinctive nature or culture o Limits: the range of uses of aboriginal title is subject to limitation that the uses are not irreconcilable of the nature of the attachment
What is the proof of aboriginal title?
Recall purpose of s.35(1) – Van der Peet test is only half of it
To make out a claim for aboriginal title, must demonstrate
1) Land was occupied prior to assertion of Crown sovereignty
19

unlike Van der Peet, not looking at activities, but occupation
2) There must be continuity between present and pre-sov occupation (if present occupation is relied on as proof of pre –sov occupation)
-
Unbroken chain of continuity is not necessary (p.399)
3) At time of assertion of Crown sovereignty, occupation must have been exclusive a.
This is a common law concept b.
Proving exclusivity will rely equally upon common law understanding and aboriginal understanding c.
Even if there were other people on the land, not fatal to exclusivity (p.401)
When can aboriginal title be infringed?
 P.401-403… Test of Justification (two parts)
 Seems almost anything can justify infringement, though Crown is under a fiduciary duty to act in interests of the aboriginal people o Duty of consultation p.405
 Provinces can infringe but not extinguish aboriginal title (by virtue of s.88 of the Indian Act) o Division of power issue
 Title can only be extinguished by surrender through treaty or through valid federal legislation that manifests a clear and plain intention to extinguish title

 Page 411
 McL CJ wants to better outline the standard of occupation required for a successful claim to aboriginal title
(Lamer CJ’s ‘proof of title’ in Delgamuukw)
 Court must translate a pre-sov practice into modern legal right – this cannot be done in a formalistic or narrow way (p.413)
 We cannot look to European-style notions of occupation to understand what Aboriginal occupation of land is
 Need a sensitive and generous approach o In common law, act of exclusion is required to demonstrate exclusive occupation; this is not amenable to aboriginal tradition o All we need is effective demonstration of effective control – such annual return to a piece of land for hunting and fishing activities
 Summary at p.417: exclusive possession in the sense of intention and capacity to control is required to
establish aboriginal title.

 P.418
 Fiduciary Duty – Crown is committed to a meaningful process of consultation; does not mean aboriginal people have a veto power to Crown’s proposal. o A commitment to the process does not require a duty to agree o Does require good faith efforts to understand each other’s concerns and move to address them
 P.422-423: spectrum of cases; what constitutes meaningful consultation in each set of circumstances.
 Balance and compromise are inherent in the motion of reconciliation o Where accommodation is required in making decisions that may adversely affect as yet unproven
Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests
20

BOUNDARIES
 Cujus est solum ejus est usque coelum et ad injeros: whomever owns the soil holds title all the way up to the heavens and down to the depths of the earth o In reality, rights are not unlimited but are balanced o In general, the owner of the land has the rights to the extended airspace; but the rights can be severed from the surface rights and allocated to different people o Interests of landowners v. interests of public o Contrast to mines, where the balancing is competing private interests
 Possessory vs usfructuary (rights of use) rights – why is the distinction important? o What the claim of action is.
 Tort of trespass if possessory right.
 Tort of nuisance in usfructuary.

 Didow’s Complaint: o Unsightly, etc., sounds like right to use. o The old Latin maxim.
 Alberta’s Power: o Didow is not making use of the airspace. Therefore it is not Didow’s. o Making analogy to airplanes. Airplanes can overfly your land because you are not using the airspace.
 Court says Alberta’s Power’s argument (above) fails because airplanes occupy space transient manner at a height that’s not likely to interfere with landowner’s reasonable and ordinary use of the airspace. o “a direct invasion by a permanent artificial invasion constitutes a trespass” o There has to be a balance between the old Latin Maxim and public necessity. Airplanes are definitely public necessity. o “A landowner is entitled to freedom from permanent structures which in any way infringe upon the actual or potential use and enjoyment of her land.” o The power cross-arms infringed Didow’s POTENTIAL use of the land. Even though Didow did not use the land at the time, it does not matter, it infringed on the future use.
 Trespass claim is made out
 Alberta later passed legislation that leave land owners uncompensated for similar power infrastructure builds.
“The land owner owns at least as much of the space above the ground as he can occupy or use in connection with the land”
Discussion
-
The ruling may curtail power company’s willingness to invest in R&D technologies because they may be forbidden to appropriately build the infrastructure to earn revenue.
-
The Court’s application of the balancing test is almost speculative: there was no hard evidence made out as to the “potential future use” of the land. Power lines are good for public interests. Should have at least required a harder onus of proof.
-
The power lines could be buried underground. Government or private sector may not be willing to invest.
-
Economic analysis of law: recognizing land owner’s right would facilitate economic efficiency. If Alberta
Power values the airspace more than the owner, they can offer to pay to buy that space. If the owner values it more than the price offered, he has the freedom to retain the space. o In case of public utility: depending on competitive right from Alberta Power. o Are there any other technological alternatives?
 Treated differently than airspace, which is treated as common property
 Subsurface is private property in general
 Less case law in Canada
21


 “The Great Onyx Cave Case”
 Stanley J: application of traditional Latin maxim, but deferential to role of court o Individual has dominion over all that is above and below land, but there are limitations on the right of enjoyment an owner has. o Ordinarily, ownership of land includes right to exclude. You cannot use the property to interfere with next neighbour’s right. o The court clears has the right to invade the right of exclusion. Claiming the right to property does not stop court actions.
 Logan J (dissenting): maxim is not true – the rule is not absolute and should only apply to what can be taken… here, rights over cave belong to the one who owns cave-mouth… o Investigation would deprive Edwards of rights which are valuable, but provide Lee with nothing since he can’t access the cave o The rule should be “he who owns the surface is owner of everything that may be taken from the earth and used for profit or happiness… anything he takes is thereby subjected to his dominion, and
[therefore] belongs to him” o Cave belongs to Edwards because he has put a lot of efforts into developing the cave. o Economic analysis: labour spent by Edwards, should be awarded proportionate economic reward
 Policy argument – Logan seems to advance dessert/land justification (Locke). o Hypothetical: if Lee developed a vertical elevator on his own property and has access to the cave – equitable remedy?
-
Unjust Enrichment case possible
-
Economic efficiency possible (selling rights; splitting profits) o Flip side of Labour justification is economic analysis: there’s nothing stopping Edwards from paying
Lee for the rights. o Reasonable and ordinary use – cave is not.
 Township or grid division system in Canada
 Description of the land in deeds
 Extrinsic evidence
 Whichever method used, there’s always room for error: legal description in deed does not match up with actual boundaries.

 Artificial markers are less reliable than natural ones
1.
Natural boundaries a.
Rivers b.
Hill c.
Line of trees
2.
Lines actually run and corners actually marked at the time of the deed
3.
Lines and courses that extend from other tracts
4.
Courses and distances
 Problem is the reference point these markers depend on may shift.
 Less an issue these days with GPS, accurate systems for making new lots, etc.
 What do you do when there is disagreement about the dividing line between two parcels of land?
 If there is agreement by both sides as to the appropriate line, and one party subsequently builds to that line, the other party is estopped from later denying it is the true line (Grasset v. Carter)
22


 Recognition of line can be oral, in writing, or through conduct, but evidence must be clear and definite… onus upon party claiming benefit of usage line
 Where no evidence of agreement as to line, court must look to conduct of two parties
 Robertson – bears onus of poof because she challenges the stated line o Claim fence is the boundary o Evidence for her claim:
-
Both families repaired and maintained the fence; mutual interests in fence
-
Cattle were pushed back when crossed the fence
 Wallace o Claim river is the boundary o Evidence for her claim:
-
As a kid she crossed the fence without need for permission
-
Originally the fence was not built to be the line for property division
 Use of fence was not evidence that it was intended to be actual boundary between lands – why? o Purpose of the fence was simply a convenient way of separating the cattle. o Location of the fence was never along the river line.
 Sounds like a discretion of the court
 ad medium filum qauae – presumption that boundary of a piece of land bounded by a body of water is at the centre line of that water
 But, remember this presumption changes depending whether the river is navigable or non-navigable
(Canadian courts no longer ask about “tidal” or “non-tidal”) o Presumption only applies to non-navigable rivers. If the river is navigable, the presumption does not apply. The river is then public property.

 Nikal claimed right to fish in Bulkley River – why? o According to Latin maxim o Reserve own both sides of the river, therefore it owns the entire river and rights to fishery
 SCC rejected his claim for 3 reasons
1.
Bulkley River is navigable a.
Nikal says where he fished it was not navigable b.
Court says the entirety of river is considered navigable when it is navigable both above and below the reserve; parts that may not navigable do not lead to change in legal property (see
test)
2.
Right to fishery is not bundled to the right of ownership
3.
When the land was granted by Crown, right to fishery was explicitly reserved by Crown
 Common law rights to usage of water o Include usage in settlements o Access to water and emergency evacuation in case of flooding
 Ordinary use o Unlimited amount for domestic use and amount you need to care for animals
 Extraordinary Use o Manufacturing or crops o Cannot diminish the flow of the river in neither quality or quantity
 Codified in Ontario
 Most commonly seen in cottage area
23

POSSESSION
 Nine-tenths of the law?
Every day meaning of possession is often different than the legal meaning.
Constructive possession: even though we don’t have it in my hands, I still have it under my possession.
Claims in property law are always relative, almost ever absolute. For example, if someone has title of land, someone else may still have superior possessory interest than legal title (for example a tenant).
Having possession of something can create a proprietary claim, not always.
 The first possession is the root of title.
No single definition of what possession is, the meaning of possession shifts with the facts of the case.
 Components:
- animus possidendi (intention to possess)
- factum/corpus (actual control)
 But total possession rarely required by courts. Do not always need the two elements of possession in their extreme forms o What counts as control? How much control is needed? Whether intention or control is more important or equally important? Key point is context always counts o Possession is flexible
Example: Person finds a ring on the beach (it obviously belongs to someone). Beachcomber tries to take it from them.
1) Possession is the root of title
 When someone takes possession of something, they acquire root of title that is good against all others, except someone with a better title
 Idea that possession places a significant role in the law
2) Possessory titles are relative
 You can have different claims that have different levels of validity
 If a person finds a ring on a beach, they have a title that is good against all the world, except the true owner
3) Strength of possessory title is determined by “first in time, first in right”
 In the example above, there would be three roots of title: the owner, the finder, and the beachcomber who took it from the finder
 The finder has a better title than the beachcomber
 If the first finder put it down, then the abandoned his title to it
4) There is no defence of jus tertii
 Possessory title is not defeated by showing that a third party may have better title than both the plaintiff and the defendant

 Popov claims conversion, trespass to chattel, injunctive relief, and constructive trust – important thing for our purpose is conversion claim o Conversion is the wrongful exercise of the dominion over someone else’s property. Civil counterpart of “theft” in Criminal Code. Popov must first prove that the baseball is his property. If he cannot prove that the ball is his, then naturally claim of conversion fails o Popov must show either title or possession of the ball, obviously he does not have either
24

o Context and custom matter. Still need two keys: physical control and intent
-
For example, in soccer, the custom is the soccer ball gets returned if it gets kicked into the crowd
 Popov needs to establish title or possession before claim to conversion can be made out… so did he posses the ball? Intent? Physical control?
 “Unequivocal Dominion” o Baseball custom establishes that the fan needs to have complete control of the ball o Did he obtain unequivocal control of the ball before he was tackled? NO.
-
Pre-possessory interest is reached when the actor is actively engaged in efforts to retain control o Court says Popov should have had a chance to catch the ball before interference from the crowd
-
But for the interference from the crowd, Popov would have caught the ball – right to possession.
 What is Popov’s pre-possessory interest? How does it compare to Hayashi’s interest? o Hayashi did not commit illegal interference, he obtained the ball lawfully and had complete control and intent o Balancing of two competing interests o Court applies equitable solution. The Court will recognize an undivided interest in property in proportion to the strength of the interest o Popov and Hayashi have equally strong interests in the baseball. Therefore the ball will be sold and profit shared equally among the two
 RULE: where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by unlawful acts of others, the actor has a legally cognizable pre-possessory interest in that property, which constitutes a qualified right to possession that can support a cause of action for conversion.

What establishes possession of wild animals?
 Fox hunting. Post chased the fox; Pierson came in, wounded and captured the fox.
 Majority: mortal wound/ capture? o Court says act of chasing the fox is irrelevant, what matters is the mortal wound or a capture that would allow the hunter to exercise unequivocal dominion of the animal.  Intent AND physical control.
 Dissent: the saucy intruder! o The saucy intruder will come in and capture the animal after the original hunter has paid efforts o Based on intent so long as the hunter has a reasonable intent of doing so.
 Professor thinks the problem is that if we are going to assign possession prior to the kill or capture, we need some kind of principle as to when to assign – what kinds as reasonable chance of hunting? Is there a reasonable chance when he starts chasing?... seems a bit muddled. o Majority is based on a defined, clear act to the rest of the world (mortally wounding or capturing), this is theory of efficiency. o Dissent is based on labour theory of property. Initial hunter puts all the efforts in, it is unjustifiable if another comes in to take the tired animal. o In reality, the difference may not be great.
 Clift v. Kane (1870)
 Seal hunting
 Majority: killed and marked o Original hunters by killing the seals, established possession
 Dissent: killing not enough o Once the original hunters were stuck on ice and could not retrieve the seals, they were deemed to have abandoned the seals. The latecomers who hauled the seals onto their ship had possession instead. Killing is not enough.
 Possession based on effort? Intent? Ability to use?
 Policy: inducement to conserve, tame and control.
25

o Economic approach to law
 Under principles of adverse possession, the rights of the true owner to sue the person who’s in possession of their land in trespass become statute barred.
 Statutory rules – Real Property Limitation Act (s.4), Land Titles Act (s.51) o The time period for adverse possession claim to be made out is 10 years under RPLA. o However, Land Title Act says no possessory interest can be gained through adverse possession claim for land that’s registered under this Act o Two kinds of land – Registry System and Land Title System (new).
-
Registry System is old. Boundaries could shift.
-
Land Title System is computerized, boundaries are fixed. All lands built after 1971 are in
LTS. Adverse possession cannot be applied to lands in LTS.
-
ON EXAM, if there’s no indication as to which system the land is registered in, STATE
ASSUMPTIONS
 I’m assuming the land is registered in RS (or LTS)… therefore adverse possession applies (or not)…
 In Canada, you can sue in trespass, which is both civil and criminal. o To stop the limitation clock, the owner must bring an action in court for trespass or have the cops lay trespass charges
 In England, an eviction of squatter can only be done through Court because trespass is civil only.
 Why have adverse possession? o Protects settled expectations of long term possessors – provides certainty for someone who’s accidentally occupied the land of another person o Adverse possession encourages efficient use of land. Encourages the true owner of title to know what is completely going on o Criticism: effectively creates expropriation without compensation. Someone could lose a piece of land because he has been unaware of the activity or boundaries of the land. After ten years they’d lose the land.
-
Part of reasons why Ontario shifted to LTS
 Elements of the common law rule: intention and physical control; possession must be open and notorious, adverse, exclusive, peaceful, actual and continuous. If any element is missing during the ten years, claim of adverse possession fails. o Open and notorious: does not mean true owner has to be notified by the squatter. The active squatter must have been easily discoverable by the true owner. The policy encourages the true owner to be aware of what’s going on at the property. o Adversity: the squatter must not have had permission of the true owner of the land
-
If A comes to B and says, “may I build a shed?” – claim fails.
-
Will not succeed with prior permission
-
Court also says adverse means squatters must not have acknowledged true title of the owner within the ten years.
-
Modern interpretation of adversity rule: the squatter has to be using the land that’s inconsistent with either the rights or the way in which the true owner wishes to make use of her land. o Peaceful: NO adverse possession if squatter rejects to leave when true owner so asks
 Keefer v. Arillotta (Ont CA 1976)
 Facts:
A strip land between the Keefer, respondent (residential) and appellant (business), originally owned by the same person. Cloy conveyed the right-of-way to respondent. Keefer is now claiming that the right of way is under title belongs to appellant is now his through the law of adverse possession.
 Broad interpretation of “inconsistent use” – Keefer didn’t exclude Arillotta from the land through inconsistent use because Arillotta had no particular desire to use the land and so had no reason to prevent
Keefer from doing so o Look at the conducts of the parties in order to make out “inconsistent use”
26

 3 elements to make out a claim: actual possession for statutory period, such possession was with intention of excluding true owner, inconsistent use of what true owner wishes to do (Pflug and Pflug v. Collins) o The fact that Arillotta has not wanted to make much use of the property does not help Keefer o Keefer failed on 2 nd and 3 rd elements
-
2 nd : invited Arillotta to BBQs
-
3 rd : Arillotta did not want to make use of the strip of land in dispute in the first place
 CASE IMPLICATION from Hargreaves
An owner of a piece of land is free to not use it. He can simply hold onto the land with an eye to reselling it in the future as a legitimate use of land. Effect: this makes it very difficult to claim adverse possession based on that the physical control of the land was inconsistent with true owner’s intention to enjoy the increased future value of the land.
 Teis v. Ancaster (Town) (Ont CA 1997)
 Facts: Teis claims adverse possessory interest. A case of mutual mistake for ten years. Both Teis and City of
Ancaster thought Teis owned the land. o Trial judge granted right-of-way over the laneway to public and possessory title of land to Teis, upheld by this court
 Issue is whether a person claiming possessory title must show “inconsistent use” when both the claimant and the legal paper titleholder mistakenly believe that the claimant owns the land in dispute.
 Court backs away from Keefer interpretation of inconsistent use, says it is irrelevant in cases of mutual mistake. o The owner cannot have intended use for land that they do not know belonged to them o Teis could not act that was inconsistent with the intention of the City because the City did not know they owned the land in dispute o Lack of intention of true owner leads to inapplicability of test
 As a result, only two elements of test remain o Actual Possession – open, notorious, adverse, continuous o Intention to Exclude Owner – reasonably inferred from claimant’s mistake
 Laskin J: policy is law should protect good faith reliance on boundary errors and the law should be less generous when a knowingly trespass seeks to dispossess the rightful owner. Policy of inconsistent use is to strength the hand of true owner in face of an adverse possession claim by a knowing trespasser.
 Adverse Possession of Municipal Park Land (304) o In Alberta and Ontario, statutes protect public land from adverse possession or encroachment claims o As a general rule, cannot be lost by adverse possession over the prescriptive period
27

FINDERS AND GIFTS
 Law of finders no longer relevant to land o Just chattels o Land is all registered so we know who the actual owner is
 Issue of morality/criminality o Bird v. Fort Francis, below
 General principle: finder is in a position inferior to that of subsisting prior claimants, but superior to those arriving afterwards
 What happens when owner of land upon which chattel is found and finder of that chattel are different?
-
A traditional description of law of finders: finders of chattel acquires title to it that is good as against the entire world except for the true owner o Not completely true - sometimes no true owner (ie. abandonment)
-
Why grant title to a finder? o Facilitates efficient use of objects (finder of chattel is req'd by law to have taken steps to find owner) o If we didn't grant some possessory or ownership interests to finders, it would end up creating some sort of free-for-all situation; it could be repeatedly taken from that person who found it if they didn't have legitimate claim
-
Same legal protection for finders even when they find the objects in somewhat dubious circumstances (Bird
v. Fort Francis)
 Bird v. Fort Francis
 Young boy was trespassing neighbour's house, finds tin of money and conceals his discovery but police soon find out and take it. No one claims it. Boy asks for it back but police refuse.
 Court looks at issue of morality and criminality (but don't define what reaches threshold of immoral act)
 General principle: finder is in a position inferior to that of subsisting prior claimants, but superior to those arriving afterwards (timing is a big issue then)
 What happens when owner of land upon which chattel is found and finder of that chattel are different?
 Rule: if object is embedded in soil, occupier of land prevails (if he has possession of land); if not embedded, occupier has superior claim over finder only if the object is within an area of the land over which the occupier has a manifest intention to control o When the object is imbedded in soil of land (recovery), the occupier of land has right on property. o When not imbedded in the land (finding), then the occupier has a superior claim over the object only when they have demonstrated a claim to manifest control over all the objects in the area.
 Armory v. Delamirie (1722, King's Bench)
 Young chimney-sweep finds object with jewels, takes it to goldsmith to ask what it is...goldsmith takes out the stone, says value is 3.5 p...boy declines, asks for object back, goldsmith gives it back to him without the stones
 Boy brings action for 'trover' (now called conversion)
 Court: finder of a jewel does not acquire through the finding an absolute property or ownership, but has a property right that will enable him to keep it against all but the rightful owner – modified later in Parker.
 Trachuk v. Olinek (1996 Alta. QB)
 Facts: Marathon grants easements to 3 corps to allow mining. Those three corps hired people to do work.
Workers found money while digging. They say they are entitled to it against everyone except for true owner.
 Trachuck's claim is based on being occupier of land, Olinek is the one who found the actual money
 Dispute is re: timing of Trachuck's purchase of the land (the finder doesn't acquire an absolute property interest but against the true owner, unless someone can make a prior claim)
28

 Court says this is more an issue of recovering than finding, since money wasn't lost but hidden...if chattels
are under land or affixed thereto, recoverer’s rights to possession are first subject to those of the owner/occupier of the land - when someone has possession of land with intent to exercise control as part of that possession, the presumption is that they own anything recovered on that location on the land.
 Issue therefore is whether Trachick had de facto possession of lands...if not, then Olinek has the superior claim.
 Because Trachick didn't have constructive possession over the land, therefore Olinek had superior claim over the money
 So even if the object is hidden under the land, the occupier must demonstrate de facto possession before claiming it over the finder (recoverer)
From Wood: When an owner leases land from a tenant, they give up the right of possession to the tenant. The finder cases look to see who has possession or occupation of the land. The owner of the land is very unlikely to prevail if there is a tenant who is claiming ownership. The rules seem to favor the occupier who is controlling access to the land.
From Wood: A right of way is not a possessory interest. Thus people with a right of way do not have a right to ownership of things on the land.
 Parker v British Airways (Eng. CA 1982)
 Facts: Gold bracelet found by Parker in lounge at airport, he left it with BA staff with a note that he wanted the bracelet back if true owner didn't come up. o BA is not claiming that they found the bracelet… what they're saying is that they had rights on the bracelet before Parker's rights kicked in
 Court claims that neither BA or Parker has an ownership claim over bracelet
 The principle is that an occupier will only have superior rights to the finder of lost goods where they can demonstrate manifest intent to control the lands, buildings, and (crucially) things upon it – i.e. lost chattels found on those lands. We discussed some examples of what this manifest intent may be -- lost and found programme, cleaners searching every night and collecting up lost objects, etc.
 'Manifest’ means 'obvious and clear' or 'demonstrable'
 On common law, claim that the occupier of land has right on all lost chattels on that land whether or not the occupier knows about it:
The finder has the right against all but the true owner or one who can assert a prior right to keep the object, a right that existed when the finder took possession.
(So this modifies the Armory rule to include lessees of land, etc)
1.
Occupier has a better right than the finder to “chattels in or attached to” land or building, whether or not the occupier is aware of the object (similar to hidden under surface; recovery)
2.
Occupier has a better right than the finder to “chattels in or on but not attached to” the land or building, only if before the chattel was found, the occupier manifested an intention to exercise control (finding)
In the case, the court found that the D had not shown intent as required in point 2, and thus had no right to the jewel
 Finder's rights: o Finder acquires no rights unless the chattel has been abandoned or lost and he takes it into his care and control o However, the finder only acquires very limited rights if he takes it into his care with dishonest intent or while trespassing o Valid finder acquires the rights against the rest of the world except the true owner or someone who can assert a prior right o An agent (i.e. an employee) who finds something in the course of an employment does so on behalf of his employer. o The finder has a responsibility to try and find the true owner and care for the object in the mean time.
 Occupier’s rights: o Occupier may have superior rights to the find (possible)
29

o Occupier has superior rights only if before the chattel is found, the occupier has manifest intention to exercise control over things on the land/building o The occupier who manifests such an intention is still under the obligation to find the true owner and care for the goods in the meantime.
 Court concludes Parker’s right to lost bracelet is superior to BA’s… why? See below.
 Court says that P was not a trespass in the exec lounge; when he took the bracelet he did with honest and the court assumes that he discharges his obligations as a finder (taking steps to find rightful owner). o He wasn't finding bracelet as part of his job so therefore his rights aren't displaced in favor of his employer
 In contrast, BA cannot assert any title to the bracelet based upon the rights of an occupier because it was not attached to the building (this is a finding/loss case)
 So BA's claim has to be based on manifest intention to control all loose chattels in the building
 Courts assessed this: they do control who has access to lounge, but there's no manifest intention over custody and control over items. o No evidence to show that they had a program to handle lost things
 One of the rights listed was "the occupier of the chattel, such as the ship, car, plane - needs to be treated as an occupier for the purpose of these goods" - what does this mean? Is it because normally chattels don't have occupiers but these types of chattels are unique and can be said to have occupiers - so the courts are just making it expressly clear for these unique chattels – YES.
 Differences between this and the Trachuk and Parker cases: Loss vs. Recovery o For lost articles, the occupier has to demonstrate manifest intention to control over things (lost items) – finding o For recovered things, the occupier has to demonstrate control over just the land – recovery o 'Manifest' means 'obvious and clear' or 'demonstrable'
One way to make a gift is through a signed deed - "signed sealed and delivered"
When there is no signed deed:
 Elements of a perfectly constituted gift: intention to donate, acceptance of gift, sufficient act of delivery (by word or act)
 A court will no perfect an imperfect gift (requires all elements)
 Once you give a gift you cannot legally ask for it back
 Gift inter vivos (during the life of the grantor) v. gift donatio mortis causa (a gift given in contemplation of death, elements are modified)
 A gift is a legal transfer without consideration -- what’s the difference between a gift and a standard contract? – see Baron article below.
 Donatio mortis causa (DMG gift), gift made in contemplation of death... 3 requirements o Impending death from an existing peril o Delivery of the subject matter o The intent to show that the gift was meant to take effect upon death. And would revert to the donor if she recovers. (if you don't die, you intend to get gift back) o Reversion upon recovery -- key difference from an inter vivos gift
 Gifts are seen as donatives transfers vs. bargains (contracts)
 Gifts requires delivery vs. contracts has binding effect without delivery
 Gifts are also exchanges, because they involve the exchange of commodities for non-commodities (such as status or obligations)
 The persistence of formal requirements carries the message that gifts are uncommon, untrustworthy, unimportant
 Delivery Element
30

 Shows unilateral promise, allows people to change their minds (it makes no sense to force people to make gift)
 However, if the gift giver will hold the gift in trust, it is instantly binding o Linguistic difference. i.e. If someone say "they will hold in trust": a car in trust for someone else then it is legally binding. o Usually done in writing, if done orally the validity would have to be determined in court
 Constructive delivery is acceptable when the goods are unwieldy o i.e. Watt...if a key to a car is given...Cases look at whether the donor kept a key of the car to determine if there was constructive delivery
 Nolan v. Nolan & Anor (2003 Aus)
 Equity will not assist a volunteer
 Problems in establishing ‘delivery’ of gifts between cohabiting couples
 Court decides intent can be shown without words of gift in unusual cases, but the onus is on the claimant to still demonstrate intent
 Estate of mother says that Nolan gave mother a gift of 3 paintings which was willed to daughter. But 3 paintings are not in the collection. Nolan’s estate (with paintings) was willed to another person. Daughter sues saying that the gift was given to mother. Nolan and mother were living together.
 Issue: delivery is difficult to prove because both parents are dead and they lived together, so there is no proof of delivery.
 Onus is on daughter to show mother gave her the three paintings.
 Enforcing involuntary transfers would be unjust
 Mackedie v. Mackedie Estate (1998 BC)
 Five Paintings were $35000 each. Son said father gave one painting to him (Graham) each year for five years. Each painting was wrapped up and says happy birthday Graham but put on wall after.
 When father dies he leaves paintings to someone else
 Intend (wrapping and writing happy birthday)
 Gift was accepted
 Symbolic presentation counted as delivery
 Re Bayoff Estate (2000 Sask QB)
 Facts: Man suffering from terminal cancer. Give wife safety deposit box key and says everything there is yours. But at the bank additional paper work required to get ownership. He dies prior to this.
 Court: on the surface it’s a DMC, but the court find that it was meant to take effect immediately, it must be an inter vivos gift.
 Three requirements: intent to donate, acceptance, and delivery o Easy on the first two, but delivery is issue, but delivery is not perfect (as required) o Key was gifted but it is insufficient as constructive delivery. She did not have contents of the box.
 Once something of sufficient bulk and size to make it delivery difficult, would allow constructive delivery.
 Here the inter vivos gift fails o More relaxed requirements for delivery for DMC...here, change in control over key was not enough because it was inter vivos. If it was DMC is may count as delivery
 But court finds subsequently the gift was perfected when she began as the executor of the estate. She gained temporary possession of the gift when she became executor. Even if the contents were willed to another, she had 'possession' o The gift was perfected automatically because the receipt by the executrix constituted the 3rd requirement for a valid gift (delivery).
31

COMMON LAW ESTATE
Blackacre – a piece of imaginary piece of land
Three types of freehold estates: the estate in fee simple, the estate in fee tail, and the life estate.
The estate in fee tail is no longer relevant in Canada.
“To A and her heirs” explained -> “To A” are words of purchase, describing the intended recipient of the property.
“And her heirs” are words of limitation, delineating the extent of the right conferred on A.
Fee simple will endure as long as A has someone who gets the property by sale, gift, will, or operation of law. So: F.S. can last forever. But if person dies w/out heir, property ascends to Crown (Escheats and Forfeitures Act).
Current Ontario Law: "TO X" - presumes fee simple, if Life Estate - must use clear language (i.e. "for life”)
= PURCHASE
= LIMITATION
TO X
FOR LIFE; AND HIS HEIRS
The Life Estate
- Duration of LE determined by reference to continued existence of a life or lives. A gift of land to “A for life” confers on A an estate pur sa vie, lasting as long as A is alive. It is transferable to B or C and so on, but still will only be B's as long as A is alive. A is the "measuring life" (cestui que vie). Where A holds life estate for the life of B, and A dies first, modern wills now provide for the unexpired portion of the life interest to devolve along with A's estate.
X grants to A for life - X gets fee simple in reversion after A dies
X grants to A for life, then to B and his heirs - B acquires fee simple remainder (passes to him after A dies)
 No absolute ownership of land in Canada – the ultimate landowner is the Crown.
 Fee simple = ‘virtually absolute’ o If owner dies without will (intestate), the land escheats to Crown if no application of valid statutory rules Escheats and Forfeitures Act o Potentially infinite duration o Confers the largest bundle of rights compared to the other kinds of estates o Can descend various heirs and successors; will continue after the death of current holder, so long as it is passed through will or valid statutory rules if no wills o Benefits:
-
Simplify transactions; economic consideration
-
Encourage current owner to conserve the land they own for future generations
-
The value of the land comes from the fact that it can be passed on
-
Perpetual land rights (fee simple) exists not only in Canada but other countries
 Creation and Operation of a fee simple o Language requirements differ inter vivos (gift while alive) vs. a will (at common law)
-
Inter vivos
 Common law magic words: “to A and her heirs” or “to A, his heirs, and assignees” o Rule of law; at common law these words must be used in order to convey fee simple estate
-
At will: no magic words requirement, just sufficiently clear language
 Difference in treatment because a will is hard to modify as testator has died
 Inter vivos transfers: could technically ask the original grantor for intent o Statutory modification (Ontario): Conveyancing and Law of Property Act, s.5
-
Note operation of NB version of this statute (slightly different requirements) in Thomas v
Murphy (1990 NB QB)
-
Would be unfair to not transfer just on the lack of these magic words
32

s.5: In conveyancing, it is not necessary in fee simple to use the words “heirs”. Unless otherwise stated, the transferor transfers their entire interest: if they hold a fee simple, they transfer fee simple; life estate, they transfer life estates.
 Thomas v. Murphy (1990 NB QB)
 Thomas acquired title to land… this title derived from a deed given by beneficiaries under a will… under the will, the beneficiaries had received only a grant to dispose of the property for benefit of the state… this was less than a fee simple, said Thomas o A in his will leaves the land to beneficiaries (B); B did not want to deal with the land and granted a third party (C) to dispose of the property for benefit of the state; C then conveyed the property to
Thomas
 This means Thomas had to repair the title through a quit claim conveyance – a ‘quit claim’ is a kind of release, that basically says “I release any interest I have in this land, though it’s possible I don’t have any interest in it”… a quit claim by the beneficiary served to repair Thomas’ title
 Thomas sues Murphy for the cost of this, since Murphy was his representative
 Murphy says the quit claim was unnecessary because beneficiaries had a fee simple
 Issue: did the grantees in the trust deed receive a fee simple which they could convey? – If not, then they
(the grantees) could not possibly convey the estate to Thomas in fee simple
 The Court looks to Ontario statute, and says there’s no requirement of words of limitation (“heirs”)
 Court says the grantee apparently received a fee simple estate even though the will did not say “heirs” because construed as a whole, the instrument showed it was conveying a fee simple estate
 Holding: Thomas’ appeal dismissed; he was conveyed fee simple estate; quit claim was unnecessary
 An estate granted in ‘fee tail’ devolves only to lineal descendants – allows for perpetuation of family dynastic o Purpose was that wealthy families wanted to make sure one silly genetic member would not convey the land out of the family; to preserve wealth and prevent squandering by any family members o Under common law: genetic heirs of the body – children; children of children; not nephews or nieces;
 Eliminated in Canada through statute
 Why? Need for alienability
 What is the difference between a life estate and an estate in fee simple? o Lesser interest than a fee simple o Cannot be given away or transferred o The recipient of the life estate only has the right to use the estate… rare circumstances coupled with power to encroach on capital for maintenance o Generally, if no fee simple is found, life estate is automatically deemed
 Duration: determination by reference to a life o However, no need to restrict to the same person (recipient and the reference life)
 Creation: no magic words at common law, but generally “to A for life” or “to A for the life of B” will create a life estate
 Remainder: the ownership of property after life tenant deceases
 Issues of construction: was a life estate granted or something lesser (i.e., temp license to use the land)? Or something more (i.e., a fee simple)? o Not determined in a numeric way but the existence of someone’s life o Complications arise when there are both ‘fee simple’ and ‘life estate’ words in the language
 Re Walker (Ont CA 1924)
 Languages in will seemed to contain two conflicting gifts – “[to my wife] all my real and personal property…
should any portion remain at time of her death, to be divided as follows…” o All my real and personal property – fee simple o Should any portion…her death… a remainder - life estate
33

o Two conflicting gifts because fee simple is ‘perpetual gift without limitation’; life estate has a limited duration and limited rights to use
 Why is the lack of the ‘magic words’ for fee simple not determinative? o It is a will, so look at the intent
 Issue: whether or not Walker’s will gave his wife the estate in fee simple or life estate? o Court says an individual that intends to give all interests and rights coincidental to ownership cannot then put a limitation on the interests and rights conveyed
 Court had 3 options in Re Walker o Reduce to life estate o Ignore remainder option – convert to fee simple o Recognize a hybrid interest – life estate coupled with power to encroach upon the remainder
-
Allows the life tenant to have the power to sell VERY RARE
 Which did they choose and why? o Court says hybrid option is usually fine but clearly Walker did not intend such o First part is the dominant component – the fee simple o Second part of the gift is a plain attempt to deal with that which remains undisposed of by the widow at her death; and this is in conflict with the overall intent of the will o Declares the second part of the gift repugnant and void o Gives the wife fee simple
 Problem: the Court never really explained why first part of the gift was the dominant component o The language in the will “should any…” indicates an assumption that all rights are conveyed to her
 Re Taylor (1982 Sask. Sp. Ct)
 Language in will: “to wife to have and to use in her lifetime”…Is this a fee simple or life interest? Why does it matter? o Power to encroach is not the same as absolute interest or fee simple
-
Power of disposition is a stronger indication of fee simple
-
Power of encroachment – more associated with life estate; to do what’s necessary to maintain her life o Phrase “in her lifetime” is clear indication to create life estate
 Court says Re Walker does not apply because there is no inconsistency in the will
 Court goes with something more like hybrid option o “to use in her lifetime” creates intent to grant hybrid option - life estate with power to enroach
 Important distinction between disposition v. encroachment
 The court found in Taylor that intent was not to create just a life interest, but a life interest with the power to encroach if necessary (they determined this by the language "to have and to use"). The power to encroach is very different than the power of disposition normally associated with a fee simple. Power of disposition lets you do whatever you want -- sell the whole thing, etc. Power of encroachment on the capital in a life estate allows to do a limited range of acts where necessary for the maintenance of the person granted the life estate. So the power of encroachment might allow the holder of a life estate to take out a small mortgage on the property that generated enough income to allow them to live. The difference with Martini is that the
court found no evidence that the testator wanted to grant power of encroachment in Martini.
Woods - (husband gave LE only, wife can't use it all up)
(Scheibel J.): Taylor wills stuff to his wife to “have and use during her lifetime,” after which his daughters get anything left. She has power to encroach on capital for maintenance. Wife dies and in will says to take her estate, convert in money, split in half, give one half to charity and the other half to five people.
Issue: does wife get absolute interest under husband's will (in which case her will trumps) or is it only life estate (in which case his will stands)?
Ruling: husband's intent to give wife LE only clear. It is argued that a right to use capital w/out limits and which may use up the entire estate amounts to an absolute interest. If the donee can have the whole estate then the law allows him to have what he can accomplish w/ it. I reject this line of reasoning- it assumes b/c same result can be achieved by a gift of absolute interest and by a gift of LE that the two are the same.
In Re Rankin, wording “to my sister to be used by her and at her death if any of the money is left to X” was found not to constitute enough of a reference to the life of the sister as being a limitation on the enjoyment of the estate. But this is not authority for this case because there is a clear intention by the husband to give the wife only a life interest:
34

“during her lifetime.” = These are words of limitation. Must look at the context. If grammatical sense of words used in a will don't matter at all, no combo of words would be enough b/c reliance couldn't be placed on their traditional meanings. Bad idea. Some other factor must be found which would destroy the plain meaning of the testator's words.
 Christensen v. Martini Estate (1999 Alta. CA)
 Testator left the wife the use of half a duplex (in which they had resided together) until she had no need for it, at which point it was to be given to two of his friends
 Other half of duplex went to wife as result of litigation against first wife
 Question of Wills - Court focuses on intent, finds that wife has been given life estate without power of encroachment o Intent is clearly to benefit both the wife and the friends (Christensen) o Second wife has seen granted a life estate but without the power of encroachment because the intent of will seems clear that at some point, he intends for Christensen to have the property
 “Absence of the words ‘in her lifetime’ does not negate the possibility of a life estate”
 The court is especially generous when interpreting a will written by non-lawyers. They will try very hard to determine the intent
 May not commit certain acts ‘waste’ (see Conveyancing and Law of Property Act)
 The Conveyancing and Law of Property Act says: A) tenant for life or years and guardian of estate are liable for waste, b) estate for life without impeachment for waste does not confer upon tenant for life any legal right to commit waste unless intention to confer right is expressly stated in will, etc. c) joint tenants are liable to co-tenants for waste, and d) lessees making or suffering waste on demised premises without license of lessors are liable.
 The essence of waste is that is an act that causes injury, or does lasting damage, to the land. There are four types: ameliorating, voluntary, permissive, and equitable.
 Ameliorating Acts o An act by the life tenant that actually results a benefit that’s not injurious to the land. o Example: the life tenant improves the property to such an extent the owner of the remainder is subject to higher property tax o Courts are reluctant to punish this; ameliorating act is only punishable where it completely transforms the nature of the property o General kinds of renovation – adding window, roof, etc. – not actionable o Building a new mansion in place of old run-down cottage – maybe actionable
 Permissive Waste o The failure to act to preserve the property o However, it only applies if in the instrument granting the life estate also creates a duty to preserve the property o Example is “to A for life so long as she keeps the house in good condition” o If this specific language is not used; then no actionable permissive wastes o Problem: that means the life tenant could let the property deteriorate without recourse against
 Voluntary Waste o Wrongful acts such as smashing a window o Usually actionable; exceptions are clearing land for cultivation or cutting down trees for good reasons
 Equitable Waste o Extravagant acts of destruction o If in the will it says “to A with life but can do whatever with it including burning it down” – a wavier; then life tenant could potentially destruct the property without punishment
35

o Owner of remainder could file a claim in court for equitable waste because he has remainder interests in the property o Court would issue injunction to stop the current life tenant from extravagant acts of destruction
 Powers v. Powers Estate (Nfld. TD 1999)
 Application for declaratory order respecting responsibility for certain expenses related to a property in which the applicant has a life interest (the brother)
 Testator to maintain the property to for the mother then for his brother after death of mother o Mother: maintenance for property and for her o Brother: maintenance only for property
 Issue: can holder of an equitable life interest require executor to encroach (sell the capital) upon assets of the estate for purposes of maintaining the property?
 Court will only interfere with executor’s discretion where she is exercising her powers unfairly o Executor has absolute discretion o Maintenance of the property only includes repairs necessary; nothing more o There is nothing unfair in her discretion
 Discussion: what should maintenance of property include? o Powers:
-
Expenses directed to the preservation of the house can be paid out of capital
-
Replacement of a fence, deck is capital
-
General home insurance is capital
-
Heating bill, lawn care… are life tenant o What if the mother has an extravagant lifestyle? – To the extent that she squanders all the capital in the property for maintenance of her particular taste in lifestyle
-
Look at the original will of the husband
-
Competing intentions: a) wife’s life estate and lifestyle and b) brother’s continued enjoyment of property o Court is reluctant to meddle in wills or people’s private lives
 Tenancy by courtesy o Husband could require life estate in case wife diseases intestate
 Tenancy by dower o Reverse of by courtesy
 Basically irrelevant in Canada now due to modern intestate statutes and family relief legislation (i.e. protection of non-title holding souse’s interest in marital home. Spousal/child support, etc)
E QUITABLE I NTERESTS
- Useful to skim the historical background
- Will be exam question on basic principles of equitable interests
 Equity – multiple meanings, but essentially we are concerned about fairness
 Remember that in a conflict between the common law and equity, equity will prevail – appeals to equity are aimed at remedying an unjust situation caused by the typical application of the common law
 At its core, a trust is an arrangement whereby property is managed by one person for the benefit of another… usually 3 parties: the settlor, the trustee, and the beneficiary o The settlor is the people that give property for the benefits of another o Trustees hold legal title to the property but are obliged to hold it for the benefits for another person or group of people, known as the beneficiaries
36

o Trustees have fiduciary duty to the beneficiaries o The beneficiaries have equitable title: meaning they are beneficiary title, not legal title
 A trust can be created for many reasons… a common one in property law is to provide protection for an individual lacking in capacity... Person A creates a trust for the benefit of person B, executed by the trustee
Person C -- Person B receives income from the trust, but has no control over the property from which the income is derived… that power lays with Person C
 A constructive trust is one imposed by the courts, rather than created by Person A – it is imposed out of a concern for equity… the courts are creating a proprietary interest where none was before o Legal fiction because the court ignores the tri-party relationship o The court deems essentially the trust has been raised without the express agreement of the three parties o Order the beneficial title transferred to the beneficiary immediately o Trustee need not be the person that that caused the injustice; trustee often becomes a bank or some other entity that is given the duty by the court to manage the property for beneficiary
 Typical trusts are created for children or adults lacking capacity in some way, and because they only hold beneficiary interests, they cannot sell the property… bundle of rights… legal title remains with the trustees
 Two kinds of constructive trusts: o Remedial (see Peter v. Beblow, Garland v. Consumer Gas), responds to finding of unjust enrichment when someone as trustee has acted inappropriately o Institutional (see Soulos v. Karkontzilas), the court will impose this on a individual who has acted in inappropriately manner with a property that he either knew or should have known that he was the trustee of
Some Differences Between Married Couples and Cohabiting Couples Upon Relationship Breakdown
 Division of Property
Married: assuming no pre-nup, at the end of marriage, there’s automatically right to equalize all property acquired during the marriage; that means all property obtained after date of marriage will be split equally
Common Law: no such rights
 Possession of Matrimonial Home
Married: at end of marriage, there’s automatically right to stay in the matrimonial home even though the legal title of the home may be under only one person
Common Law: no such rights
 Special Treatment of Matrimonial Home
Normally, any property gained before marriage remains. Not applicable to matrimonial home. If one person owns the matrimonial home before marriage, it needs to be split after marriage
Common Law: no such rights
 Spousal Support
Marriage: eligible for support; no time limit for application of spousal support
Common Law: only if lived together for three years or have a child together; must apply within two years of separation
 Orders restraining assets
Married couple can apply for orders to freeze the assets during process of divorce
 Succession Rights on Intestacy (without will)
Married couple automatically receives particular share of the partner who dies without a will
Common law couple has no such right
 Peter v. Beblow (SCC 1993)
 Case summary section
 Why did this end up in the courts? What is the defect in Ontario’s family law legislation?
37

o Peter and Beblow lived together for twelve years and separated. Peter assumed she could keep the house even though she did not pay for it. Her argument was Beblow was able to profit from her labour and services done in the house so he could do his business and etc. o Peter wants declaration that Beblow still owns legal title to the house but subject to constructive trust on her behalf. This is because Beblow bought the house before coupledom o If the property is held for your benefit, then you get to live in it. So she wants to stay in the house o Peter says in the alternative she cannot have the beneficiary benefits in the house, she wants monetary interests for her labour and services
 McLachlin: equitable concept of unjust enrichment can be used as a basis of remedying the injustice that occurs where one person makes a substantial contribution to the property of another without compensation
 Requirements for a claim of UE: 1) an enrichment 2) a corresponding deprivation 3) the absence of a juristic reason for the enrichment
 If all three requirements are fulfilled, the court can either order constructive trust or monetary compensation; constructive trust can only be raised if monetary compensation is inadequate.
However not just fairness is considered, also policy concerns
 Policy concerns – does public policy support allowing this kind of enrichment? SCC says No. o Enrichment: she took care of kids; cleaned the house; etc. to allow him to work and pay off the mortgage o Deprivation: she gave up the opportunity to work for herself; she was never paid for her work in the household o Absence of juristic reason:
-
Beblow says it was either a gift or done out of marriage-like relationship; Peter was obliged to do so.
-
McLachlin says it’s historical prejudice…two points: 1) a common law spouse has no obligation to perform work or services for the other partner; 2) it’s clear not a gift because it is not given without any expectation for enumeration
-
House care and childcare are worth recognition of any other services rendered. There is no reason Unjust Enrichment cannot be extended to house care and childcare.
 Choice of remedies – monetary damages or constructive trust? – CHECK CASE SUMMARY SECTION o McLachlin looks at two ways
-
1) how much her labour was worth – value received
-
2) how much he gained – value survived o Monetary damage is inadequate: values survived – what’s overall benefits he obtained including increased value of the house is much great than the value received – what her services were equivalent to in money o Constructive trust if monetary damage inadequate; and link must be close between services rendered and property in trust
-
There is definitely a link between services and property in this case; value survived >> value received
 Why was Peter awarded a full interest in the house, rather than half? o Peter gets to live in the house; B. holds the full title in constructive trust for Peter
 “Absence of juristic reasons” concerns o Court does not really deal with what counts as juristic reasons
-
A 'juristic reason' in Peters was defined as "in pursuance of a valid common law, equitable, or statutory obligation owed". The court found that there wasn't one as a matter of fact (ie, none of those obligations existed given the facts of the case). o The way the three elements are laid out places onus on defendant to demonstrate the absence of juristic reason; much easier to prove presence than absence
-
In Garland, the court gave a more specific list of things that would be juristic reasons: contract, disposition of law, donative intent, other valid common law, equitable obligation, statutory obligation. They also said this list wasn't exhaustive. They went on to explain that test as follows: if the facts of the case do not present a juristic reason that falls under one of the above categories, then the P has made out a prima facie case under the juristic reason component of the 3 part analysis determining the necessity of a constructive trust.
The onus then shifts to the D to show that there a new category of juristic reasons ought to be recognized, or that there is another reason to deny recovery.
38

 Policy Concerns o Re: argument that some types of services in some types of relationships ought not to be recognized as supporting legal claims…
-
McLachlin: “the notion is a pernicious one that systematically devalues the contributions which women tend to make to the family economy”
-
She seems to be thinking about the traditional role wife plays in terms of household activities and childcare
-
But how would it apply to modern world where it’s double income family, and wives earn a higher income etc.? How about the blurred distinction between common law and marriage couples?
-
However, this should be done on a case-by-case analysis; the expectation to enumeration is not systematic in all couples.
-
In this case, Peter actively forfeited her original job in order to take care the children and household chores at home
-
It is disturbing that the court is trying to project an across-the-board monetary value upon the dynamics and intimacy of a married couple or alike in a family. It is a slippery rope: at what point do you stop assigning financial interest in things people do for a family?
-
Personal autonomy for women: the court is seemingly to assume a traditional and protective role for women. This policy though relieves women the pressure to go out look for a job because housework has equal value o What about same-sex cohabitation relationships? See Buist v. Greaves [1997] O.J. No. 2646 – court rejected claim to constructive trust on ground there was unfairness o OLRC recommends extension of property entitlements to all cohabiting relationships (1993)… no action by legislature o What about the institutional argument that the legislature has declined to extend marital property sharing to common-law couples?
-
Marriage and common-law couples ought to be distinguished; it is not hard nowadays to get a marriage license from City Hall
-
There is quite often a good reason for couples to choose common-law/cohabitating instead of marriage: they explicitly do not wish to be burdened by the perspective of complex of property sharing etc.
 Garland v. Consumers Gas (SCC 2004)
 Refines Peter v. Beblow – details how the third question ought to be approached (“absence of juristic reasons”) o “The test for unjust enrichment has three elements: (1) an enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of juristic reason for the enrichment. The proper approach to the juristic reason analysis is in two parts. The plaintiff must show that no juristic reason from an established category exists to deny recovery. The established categories include a contract, a disposition of law, a donative intent, and other valid common law, equitable or statutory obligations. If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case. The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. Courts should have regard at this point to two factors: the reasonable expectations of the parties and public policy considerations.”
 What did SCC conclude as some acceptable juristic for an UE would be? ie situations in which they would
decline to impose a constructive trust o Contract (Pettuks) o Disposition of law (finding of court) o Donative intent (Peter) o Following instruction of a will o Common law, equitable or statutory obligations (Peter)
 SCC also in effect splits the onus -- what must the P show? What must the D show? Does this seem like a fair balance? o The plaintiff has the burden to prove that the enrichment did not fall into one of the five reasons above, if so he is deemed to have made a prima facie case for UE; then the burden shifts to the
39

defendant, who has to prove why they should be allowed to retain the enrichment even though the was not one of the five reasons o The five reasons above are not closed list; but examples that count as juristic reasons unless defendant can show there is another reason that counters this juristic reasons
 Soulos v. Korkontzilas (SCC 1997)
 Deals with institutional rather than remedial trusts
 Facts: Korkontzilas is real estate agent for Soulos bidding on a property. Kork’s wife bought the property instead with the bid Soulas authorized Kork to put out. Soulos was told someone else bought the property.
Property decreased in value after purchase.
 Issue: does the real estate who (or whose wife) buys a piece of property for which he has been negotiating on be half of his client, does that real estate have to return the property to the client even though the client can show no loss? o No loss because the value of property decreased tremendously after his wife bought the property
 Soulos sued for constructive trust o No loss, no enrichment, no UE, so not a remedial issue
 SCC Issue: should construction trust be granted even in the absence of enrichment and
corresponding deprivation? Court says YES
 McL says constructive trust should not be limited only to situations in enrichment and corresponding deprivation; also applies to wrongful conduct and maintain a relationship of trust
 As real estate agent, defendant was under fiduciary duty to client -> institutional trust. McL feels institutional trust can be used to protect relationships of trust and the institution depends on relationship.
 McL outlines 4 conditions for the granting of an institutional trust o Equitable obligation that gives rise a relationship of trust o The assets at issue must be shown to have come into the possession of the defendant due to a breach of his or her equitable obligation (fiduciary duty in this case) o There is a legitimate reason for proprietary remedy such as monetary remedy o No other factors that would make imposing a constructive trust unjust
 What was the difference between the approach of the judge of first instance and McL writing for the SCC?
Why did the JFI reject imposing a trust?
40

F UTURE I NTERESTS
 Typical conveyance from holder of FS: “to A for life” o A receives a ‘particle’ of the fee simple (aka ‘a particular estate’) o The grantor retains an interest known as a ‘reversion’
 “To A for life, then to B in fee simple” o A receives a particular estate, vested in possession o B receives a ‘remainder interest’ o Grantor retains no interest
-
Because end of the chain is a fee simple with no restrictions, the grantor retains no reversion or other interests.
 Ont. Stat. Reform: Perpetuities Act also specifies max of 40 years for right of reverter under a determinable fee simple, if more than 40 it is deemed void for remoteness and the gift becomes absolute (s.15)
 Stuartburn (Municipality) v. Kianskey (Man. QB 2001)
 Residency/ land-holding requirements for elected office
 Kiansky has remainder interest in a piece of land subject to prior life estate in favour of grandmother
 Is this a ‘freehold’ estate in land or merely a future interest that has not yet vested?
 Court says these kinds of remainder interests are not future interests but in fact present – his remainder interest vested immediately as soon as the conveyance took place or will made. o Even though he has no present possessory estate to the land o He has present right – an vested interest (not vested possession) in the land
 Interests subject to a condition precedent do not vest immediately (see below) o To A for life, remainder to B, when and not before when B turns 25 o Can still have vested interests after condition is fulfilled
 You can also have condition subsequent, interests are vested immediately, BUT subject to being divested o Estate terminates on the happening of a particular event allows original grantor to re-enter the estate within statute of limitation period o Even long-term tenant of the land can be evicted on the non-fulfillment of a condition o The law has all kinds of rules on when these conditions are acceptable or when they are not
 Most importantly: the remainder interest is a present right o Coexists with the life estate even though enjoyment and possession of the real property, is postponed until the termination of the life interest
 Arises from CL required that there be no abeyance of seisin (there could be no abeyance of the ownership or transfer of the ownership of the freehold interest if the transfer was to be effective)
 Therefore, an instant vesting took place o A grant of a life estate to one with the remainder in fee simple to another was and remains a grant to each effective as of the time of the grant o Seisin does not require actual possession, although it requires possession in the sense of title or ownership
 P.492 in text suggests that anyone with only a remainder interest is not in fact seised of the land. o “To A for life, then to B in tail, remainder to C in fee simple” (all three persons have estates in the land and they exist in the present)
These several estates may exist in three forms:
1. Possession: when entitled to immediate life estate he is entitled to enjoy it in possession
2. An estate in Remainder o Is created when a person is given an estate but he is not entitled to possession until the expiration of a prior estate created by the same instrument o Remainder interest is a present right that can coexist with a life estate
3. An estate in Reversion
• Is the estate retained by the grantor when he conveys away a lesser estate
41

o Conveyance by G to “A for life and then to B in fee tail” o A has a life estate in possession, B has an estate in fee tail in remainder and G retains an estate in fee simple in reversion
 Estates are said to be vested in that they are presently existing, even though the owners are not all immediately entitled to possession
 Vested = “vested in interest” and “vested in possession”
 A future interest is an interest in property in which the right to possession or enjoyment of property is postponed to a future time—nevertheless, it is a presently existing interest in the property and it is thus part of
 the total ownership of property
Decision: K’s remainder interest allows him to be classified as a present owner of a freehold estate
Consider this scenario also (seisin = possession ≠ remainder interest):
-
Mulroney needed to pass GST, appointed eight new Senators. Constitution requires Senators must be seised of land. One held only remainder interest in land (Forrestall). Is he entitled to hold Senate seat?
-
Was Forrestall seised of land?
-
Depends on meaning of “seisin” o Seisin rests only in the owner who is entitled to immediate possession o Seisin is synonymous with possession o So holder of remainder interest is not seised of the land
-
A remainder interest, although a future interest in one sense, is a present interest that can be enjoyed in the present (can be sold, bought, bequeathed)
Notes [p.491]
1. If S. creates a trust in favour of A for life, with no allocation of the remainder of the beneficial interest, the trustee holds the fee simple in reversion on a resulting trust for the benefit of the settler or the settlor’s estate
A. Some key event must be satisfied before fee simple is granted – contingent interest for grantee
1.
Fee simple subject to a condition precedent
B. Some event would cause the fee simple to end – vested interest for grantee
2.
Fee simple subject to a condition subsequent (aka a defeasible fee simple)
3.
Determinable fee simple
 A defeasible interest is one that can be brought to a premature end on the occurrence of a specified event – aka fee simple subject to a condition subsequent
-
“X to A in fee simple on the condition that A does not marry Y”
-
A receives defeasible interest; the grantor retains a right of re-entry
 Right of re-entry only occurs on the condition of A marries Y – contingent interest for X!
 Therefore X’s right is subject to condition precedent, and the rule against perpetuities applies
-
X has the option to re-enter the estate; it’s not automatic because X needs to exercise the option within statute of limitation period. If X chooses not to exercise the option pursuant to the prescribed limitations by law, X loses the estate of re-entry and A retains fee simple absolute.
-
A has vested interests granted by X and X retains contingent interests in right of re-entry
 A determinable interest is very similar
-
“X to A in fee simple until B marries”
-
A receives a determinable fee simple, X retains the possibility of reverter, different than the right of reentry
 Difference from defeasible is that if B marries, then the estate automatically reverts back to X, without
X’ need to commence some positive action
42

-
Legal fiction adopted for possibility of reverter in common law (no clear reason why):
 Even though X’s right is subject to a condition precedent per se, it is not considered contingent but
vested because it happens automatically; and not subject to rule of perpetuities
-
If B dies without getting married, then condition becomes impossible to fulfill, and the determinable interest converts to an absolute fee simple for B (or B’s estate) and X loses the estate of reverter.
 Why does it matter? Different outcomes in case of judicial finding of invalidity (next class) o If a court finds a transfer is invalid AND if it’s a fee simple subject to condition subsequent
(defeasible), they just strike the condition out, and it would become a fee simple absolute transfer. o If however, the court finds it’s a determinable interest transfer that’s invalid, then the entire gift/transfer is invalid and fails. Court is very reluctant to do this because it would be generally against the grantor’s original intention.
 In general, courts look at the specific languages as indications to identify defeasible and determinable interests
 Defeasible: “on the condition that”, “but if”, “provided that”, “if it happens that”
 Determinable: “while”, “during”, “so long as”, “until”
 This is a general proposition, not a hard rule – courts will apply a variety of rules of construction in an attempt to find the intent of grantor o Underlying policy reason is that lay people don’t distinguish between these words – so non-lawyers draft the documents in a way that could be interpreted by the court in a manner counter to original intentions
 Briefly: estates subject to a condition precedent o “X to A on the condition that she marries B” o Once the condition is met, A would receive absolute fee simple and X retains no interest o Possible condition precedent could be found invalid and thrown out by the Court
 Example: Defeasible? Determinable? Condition precedent? o “X to A when he reaches 30 provided that he stays on the farm” o Defeasible/condition subsequent (“stays on farm”) and condition precedent (“reaches 30”) o Once A reaches 30, it’s vested interest subject to divest by condition subsequent (“leaves the farm”); the condition subsequent itself then is subject to rules against perpetuities
1) Termination
 Where an interest is a determinable estate, the interest terminates automatically on the occurrence of the terminating event
 When there is a condition subsequent or defeasible, the grantor has discretion whether or not to exercise their power to terminate the interest
2) Consequences of an Invalid Condition
 Where an interest is a determinable estate, and the condition is invalid, the entire grant fails
 Where an interest is subject to a condition subsequent, if the condition is invalid, then just the condition fails
 Property interests can be either vested or contingent o All interest not vested are contingent
 A vested interest is when there’s no condition or limitation – “to A for life”: A’s interest is vested
 An interest is contingent if vesting is delayed until the occurrence of some condition precedent, the happening of which is not inevitable – “to A for life, remainder to B when and not before B turns 25”: A’s interest is vested, B’s interest is contingent on her turning 25 o However note that in case of “to A for life, remainder to B”, both interests are considered vested, because the condition precedent (the ending of A’s life) is bound to happen.
-
But two people are vested with different interests
43

-
A is vested in possession; B is not vested in possession but vested in interests
 However, even when an interest is vested, this does not mean it cannot be ‘divested’ – for example, “to A for life, remainder to B so long as B has an income of less than $100K/year” = B has vested interests to the property as A’s death is inevitable, but it will revert to the grantor if B’s income rises to the specified level
 Court always tries to find vested interests if possible, why? o Vested interests are more certain, they promote property conveyances o Rule against Perpetuities only for contingent interests o Finding of vested interests allow easy and rapid distribution of estates when people die. In case of contingent interests, you’d likely have to wait for years before estates are properly transferred o However, vested interests can be subject to divest…condition subsequent
 McKeen Estate v. McKeen Estate (1993 NB QB)
 Conveyance to wife for life, then to sisters… language: “… equally between my sisters if they are both alive at the time of the death of the survivor of me and my wife” o Sisters died before wife but after testator o The condition becomes impossible to fulfill
 What was the sisters’ interest? Why does it matter? o If contingent interest (C.P.): testator died partially intestate; residual estate would go to other relatives as per the NB laws governing intestacy o If vested interest (subject to C.S./defeasible or determinable): residual estate would go to sisters’ estate
 Court: “paramount importance is to give effect to the intentions of testator… we presume testators intended to not die intestate” o Testator did not intent to die partially intestate o His intention was to provide for his wife and sisters
 Construction in favour of vesting
 Rule in Browne v. Moody (a gift is prima facie vested if the postponement is to allow for a prior life estate – same as in Stuartburn) o The prior life estate granted to wife o Wife was vested in possession, sisters were vested in interests – either way it was vested
 What does the presumption lead to court to conclude? o No condition precedent o Vested interests for sisters so residual estate goes to sisters’ estate
 Caroline (village of) v. Roper (Alta. QB 1987)
 Village holds deed on a piece of land with a condition requiring it to be used for a community group, seek to have condition struck
 Language in original deed: “[to A] but shall revert [to Roper] if used for other than a community centre” o Transfers the legal title
 Is the grant a determinable fee simple with a right of reverter or a defeasible fee simple (aka a fee simple with conditions subsequent)? Why does it matter? – It matters in case of invalidity
 Rule: it is a determinable fee simple with a right of reverter if the determinable event sets the limits for the estate first granted; in contrast, it is fee simple subject to a condition subsequent (defeasible) if the condition subsequent is an independent clause added to a complete fee simple that would be defeated
 Court says the words used here create a FS with condition subsequent (future tense that refers to something may or may not occur in the indefinite future), but with a limiting event/condition that could occur at any point in future… court finds this violates the rule against perpetuities (essentially a condition that is too ‘unknowable’ as to its likely occurrence in a long chain of events) so strikes it out o Because it is indefinable future, the condition violates the rule against perpetuities o As a result, the transfer becomes feel simple absolute sans any condition
 But, the Court in its infinite wisdom recognizes that transference was not drawn up by lawyers – rectifies the deed to express the original parties’ common intention via a trust o Need to focus on what the parties were trying to do o All they were really trying to do was not to get rid of the land but to make it easy for the community group to use the land for a community centre
44

o Was not trying to transfer a fee simple
-
All the issues about rules against perpetuities only matter if it’s a fee simple with contingent interests o We cannot give the land to Caroline because that’s clearly not intended by Ropers
IN-CLASS EXAMPLE
For each of the grants or devises below, consider the type of interest that is created. Does the grant or devise create determinable fee simple, a fee simple subject to a condition subsequent, or a fee simple subject to a condition precedent? What interest, if any, does X, the grantor or testator, retain?
1.
X grants to A and his heirs so long as A lives on the farm a.
Determinable: “so long as” i.
The qualified estate ends if this event stops happening b.
A has vested fee simple subject to a condition c.
X retains possibility of reverter when A no longer lives on the farm d.
A: vested interests subject to divest e.
X: vested interests by legal fiction
2.
X devises to A and her heirs on condition that she lives on the farm a.
Defeasible (fee simple subject to condition subsequent): “on condition that” i.
This qualified estate ends if specified condition happens b.
X retains right of re-entry (contingent on A does not live on the farm) c.
In the event that A leaves the farm, X can choose to re-enter but if X does not do so, A’s interests are converted to absolute fee simple after the statute of limitation period and X loses right of re-entry d.
A: vested interest e.
X: contingent interest and rule against p. applies
Grounds of Invalidity … details see next section
1) Uncertainty: particularly little toleration in conditions subsequent, more toleration in determinable estates and conditions precedent because if you find that it is invalid, the person gets nothing
2) Alienation Issues: previously, courts were more tolerant of these sorts of restrictions, but more recently, they are less willing to tolerate these restraints.
 “O to A in fee simple, provided that the property remains in the family forever”
 Policy concerns: discrimination issues, permanently removing the property from circulation
 Courts will only give effect to these restrictions when they are fairly narrow
 Two reasons courts don’t like them: i.
It fucks up the bundle: Property rights like an estate in fee simple come as a predetermined bundle of rights, and one of those elements is the power to alienate. It is undesirable to allow radically different compositions of bundles of rights to be created, since it creates fee simples that aren’t really fee simples because the holder has such a restricted interest. ii.
Economics/Market issues: a fee simple bundle lowers transaction costs – things get too complicated when the bundle of rights is always different. Very hard to have markets in land if large amounts of property are tied up because of restrictions on alienation, and the class of people who are eligible to get the property is very small.
 Current view: a broad restriction on the power to alienate is repugnant to the interest being granted
45

S TATE L IMITATIONS ON P RIVATE P OWER
 Laws have limited tolerance on conditional transfers based on public and private interests. Effects are important. o Basically at its core, private acts won’t be tolerated by the state if it offends some kind of public policy.
 If a court declares a “condition subsequent” to be invalid, then the invalid condition is removed, and the gift is made absolute (i.e., it continues but without the condition) o “to A for life, then to B in fee simple unless she becomes a lawyer” would become “to A for life, then to B in fee simple”
 IN CONTRAST, If a court declares a “determinable limitation” or “condition precedent” as invalid, then the entire gift fails (the gift would become part of the residue of the estate) o “to A in fee simple when she commits her first crime” would fail entirely… A gets nothing
 Ontario Law Reform Commission has recommended abolishing the distinction, but no change yet
A condition will be found invalid if it requires an individual to do something which is legally impossible
 Unger v. Gossen (1996 BCSC)
 Will essentially was “to my sister for life, then to my 3 nephews providing they become residents of Canada within 15 years of my death” o She did not wish for assets to be confiscated by the communist state
 At time of testators death, all three nephews were senior citizens, living in Germany, little education, few resources… no chance of qualifying for resident status in Canada
 So conditions of will are impossible to fulfill under Canadian law – since it’s a condition precedent, whole gift should be declared invalid
 But, court distinguishes facts – performance of condition was not reason for gift, and reason for condition no longer exists… so, should still distribute in accordance with testator’s wishes o The intent of the testator was to distribute wealth to nephews without having them taken away by the state power of a Communist state
 This is invalidity due to impossibility in Canadian Law
 “When looking at the intent of the testator, unless it could be shown that the testator’s principle concern was
having the condition fulfilled, and not the transfer of the gift, the condition alone must fail” (pg. 504) o Not necessarily a "general rule", but that was the approach the court took in that case, with regard to that specific scenario (impossibility in law). You shouldn't expand it beyond that. Certainly the general proposition is that courts will try and give effect to the testator's intent, and in Unger they determined that the intent was to give the gift, not ensure compliance with a particular condition.
 Interpreting a condition precedent for purposes of obtaining property has relatively low threshold – one has to know with certainty whether or not the person subject to the condition has met the condition so he/she can take the property.
 Interpreting a condition subsequent or determinable limitation for retaining property is more complicated
– need to be able to specify exactly what events will give rise to a reversion or right of re-entry
 Thus, a CS/DL more likely to be found invalid for uncertainty
 HJ Hayes v. Meade (1987 NB QB)
 “to son James if he resides upon and cultivates it, if not then to son Harold if Harold pays James $1000”…
James never resided or cultivated land, Harold never paid James $1000
 Issue: are these conditions subsequent or precedent? o If they were CP, the land could not have been vested in James or Harold: James did not reside or cultivate; Harold never paid $1000 o Whole gift would be void if CP declared failed by court
46

 Court has “preference for vesting construction”, so declares them to be CS o Justice is more likely to be resolved by interpreting the clause as CS (policy not rule)
 Question then is whether CS are void for uncertainty o James did build a house later on the land o Nothing in the will that explains what counts as residing or cultivating
 So the CS is declared invalid due to uncertainty; gift became fee simple absolute and James got the gift
 Conditions that contravene ‘public policy’ will not be enforced
 Institutional role of the courts? How do courts interpret good morals? o Encouragement to break the law o Undermining parental rights o General restraints on institution of marriage
Problems of construction – ‘i.e., to A on the condition that he remains unmarried”
Is this an invalid financial inducement to remain single, or a means of providing support for someone living alone?” o Courts need to find out what the underlying purpose of the provision is before say this is against the public policy. It is not prima facie invalid due to public policy right away o Usual answer is: if language shows a CS it is invalid as an improper financial inducement and restraint on marriage (“if he remains unmarried…”), but if language shows a determinable limitation it is okay (“…until he is married”)
 Sources of public policy o Charter can reflect values, but does not apply to private transactions
 Re Lenoard Foundation Trust (1990 Ont. CA)
 Original trust specifies that only to white, Protestant students… and at most 35% to females
 Problem was this is a private trust, not the government o At what state do we want state to interfere with private rights?
 Court decides even though the foundation is privately founded, it has obviously public aspects in its administration so foundation has a “quasi-public” character o Striking something down on the basis of public policy is a serious step; generally Court does not do so. However this is a case where the Court must. o The provisions of providing only to clear contravention of public policy in Ontario o Trust created in 1920, back then it would be acceptable by majority of Ontario residents. o In 1990s it no longer is. Public policy and standard evolves.
 Does not strike down entire trust, but just removes objectionable restrictions o Charitable trust for scholarships and education – important purpose
 Court is clear that the right of an individual to dispose of their property is not absolute… says and ameliorating trust would probably be okay, but doesn’t create any real guidance for future o Ameliorating: so a trust designed to award only minority students might be okay
Class Discussion
-
Majority/minority defined on most just population, but socio-economic backgrounds
-
Did the Trust really have public harm?
The decision seems to be mostly on policy grounds. Problem is the white race as a whole may not have an institutional advantage over the other races in Ontario.
Counter: ‘meritocracy’ is usually cited as a reason for abolishing all types of affirmative actions. However the assumption is flawed. Not all groups of people have the equal opportunity to advance or make way on meritocracy.
Without types of public policy on ameliorating groups/affirmative actions, there would always be minority groups who are marginalized.
 Nobel and Wolf v. Alley (1951 SCC)
 Restrictions on sale of land to non-whites; upheld by SCC
 Statutory change since then o Invalidate any restriction based on race, gender…
47

 Fox v. Fox (1996 Ont. CA)
 Mother (executor) attempted to deprive son of estate because he married outside his family’s faith
 Court found mother had inappropriately exercised her power as executor, and on a basis contrary to public policy (marriage)
 Even if the deceased father could have changed his will for any reason he liked, after his death the wife was just the executor of the estate and under fiduciary duty to administrate strictly
(aka the ‘doctrine of repugnancy’)
 Law promotes alienability and so conditional transfers that impose acceptable restraints on the transfer of property are invalid… ie “to A on the condition that it never be sold”
 Why? o Economic reasons- facilitate easy and efficient transfers of land on the market o Property can enhance economic efficiency and freedom; at this case the two values contradict each other
 “Alienate dead hand of the testator reaching out from the grave”
 3 ways of restricting alienation – mode, class, and time… courts tend to look at all three to determine
“whether the condition takes away the whole power of alienation substantially” (Re Macleay (1875) LR) o Mode – this property may not be mortgaged or sold o Class – this property can only be sold to a particular group of people (white Christians); would fail for violating public policy and restraints on alienation o Time – this property cannot be sold for 50 years
 Some restrictions are okay. But if they take away substantially the power to alienate, then invalid.
 Trinity College School v. Lyons (1995 Ont. Gen. Div.)
 Bennet signed agreement with TCS regarding a piece of land o First condition - First Right of Refusal – If Bennet decided to sell the land, TCS would have the first crack at it. o Second condition – TCS would have the option to buy the land upon death of Bennet at a fixed price of $9000
 Bennet conveyed the land to daughters in 1930s…who now argue the prior agreement no longer enforceable
 Court says alienation is one of the key incidents of an estate in fee simple
 A right of first refusal is okay, does not count as an undue hindrance on alienation
 However, a right of option to purchase upon death (at fixed price) is void o Place the option to sell the land in the hands of TCS rather than Bennet’s successors
T HE R ULE A GAINST P ERPETUITIES
 NOT ON EXAM
 The basic rule: an interest is only good if it must vest, if it vests at all, no later than 21 years after the death of a ‘life in being’ who was alive or conceived at the creation of the interest. If no such ‘life in being’ was in existence at the creation of the interest, then the term of 21 years only is allowed.
 Purpose: to guard against interests that vest at too remote a time in the future o Similar to invalid due to uncertainty, which is uncertainty of meaning. o Here is uncertainty of time.
 ‘an interest’: RAP applies to contingent interests, not vested… only to interest that vests too remote a time in the future. Remember that possibility of reverter is deemed to be vested (under common law, note change by Ontario statute)
 ‘must vest’: RAP is not concerned with interests that last indefinitely – that is the purpose of a fee simple. It is concerned only with contingent property rights – they ‘must vest’ within the defined period
 ‘if at all’: RAP does not care if the contingent interest ends up vesting or not, only whether it is possible for any vesting can occur outside the defined period
 ‘with the perpetuity period’: calculated according to a formula that consists of the duration of all ‘lives in being’ plus a period of 21 years
48

 ‘life in being’: must be human; must be living or conceived of at date of interest; if it is a group of people that group must not be capable of increasing in number after the date of creation of the interest; if it is a group it must be ascertainable… ‘life in being’ must be mentioned in gift explicitly or implicitly o Example, ‘from X to X’ children upon X’ death’ is valid but ‘…to grandchildren upon X’ death’ invalid o The lives in being can be third parties and completely irrelevant parties
 If at the commencement of the period it is theoretically possible to construct circumstances in which vesting would occur outside of the period, the rule is infringed
 Summary: RAP requires that an interest in property will vest no later than 21 years after death of some ‘life in being’ in existence at the creation of the interest. If there is a chance that the interest will not vest in that period, the gift fails (time begins at date of transfer for grants, date of death of testator for devises/wills)
(assume A has no children at time of grant/devise)… remember, we looking for “IF it’s going to vest, it MUST vest within 21 years of the death of a life in being”
1.
“From X to the first child of A to reach 21”
If A has any children, if they reach 21, they will certainly reach 21 within 21 years after A’s death = valid
2.
“From X to the first child of A to marry”
It is possible that A will have children, but there is no certainty that they will marry within 21 years after A’s death = invalid
3.
“From X to A for life, then to A’s oldest child in fee simple”
If A has a child, the gift will immediately vest (in possession) upon the death of A = valid
It would also vest immediately in interest for A’s oldest child, so valid anyway
4.
“From X to the first of her children to become a lawyer”
If she has children, and if they become lawyers, it is not certain that any of X’s children will become lawyers within 21 years of X’s death = invalid
 Problem with the RAP if you are interested (google the following phrases):
 The unborn window
 The fertile octogenarian
 The precocious toddler
 These are all related to the ‘life in being’ requirement
Perpetuities Act
 Some US jurisdictions eliminate RAP entirely with a 90 year period; others (including Ontario – Perpetuities
Act) adopt a statutory ‘wait and see period’ (s.4)
 Perpetuities Act also avoids the ‘fertile octogenarian’ and ‘precocious toddler’ scenarios (s.7)
 Perpetuities Act also specifies max of 40 years for right of reverter under a determinable fee simple, if more than 40 it is deemed void for remoteness and the gift becomes absolute (s.15)
49

L EASES
Woods’ Summary
o An interest in land conferring right to possess it for a limited time ( Fatac ) o Payment of rent is not required, leasehold may be given as a gift o Must relate to a given property between ascertained persons (landlords/tenants) o Must also contain a grant of the leasehold interest; a demise as it is called o Four kinds recognized by Common Law:

Fixed term (time period i.e. one year) - starting date must be ascertainable and its maximum duration must be certain or ascertainable at the commencement of the term ( Black v. Blair )

Periodic (fixed times, i.e. weekly)

A tenancy at will (determined by parties) - may be terminated at any time by either landlord or tenant

A tenancy at sufferance (when tenant overholds the land after lease term expires) o
By statute: a perpetual lease can be created
o A mere permission to be on the land, with or without additional permission to perform specified acts there ( Fatac ) o i.e. invitation to a friend's home for dinner
Instrument
Lease
Party granting Access to land
(Landowner)
Landlord or Lessor
Party getting access to the land
Licence Licensor
Lease v. Licence: Why Does it Matter? Tenants have more options/rights!
Rights against Third parties
Tenant or Lessee
Licensee o Lease gives rights against whole world, including subsequent purchaser of leased premises o Licence is personal, doesn't usually bind third parties even with notice o Exception: Licensee may have enforceable right to stay when he spends $ in reliance on reasonable expectation created by landowner that he will be permitted to stay ("licence coupled w/ an equity", Inwards v. Baker ) o Tenants have availability of relief against forfeiture, the right to distrain for unpaid rent, assignability and liability to pay local body rates
Remedies for Breach o Wrongfully evicted tenant can recover land, non-breaching party has special statutory processes and remedies o Licensee can only recover damages, no special rules
 A lease is a demise (temporary transfer) of land under which exclusive occupation is conferred by a landlord on a tenant… during the lease, the landlord retains a reversionary interest, and the landlord’s right to actual possession is suspended during the tenancy
 Landlord and tenant law is really a mix of contract law and property law
 Statutory reforms have mostly divided leases into commercial and residential leases (heavily regulated) o 35% of Canadians live in a rental property o Statutory reform has aimed at protecting tenants from unfair practices from landlords
 Tenants tend to be in lower socio-economic ladder
 Statistics o Average net worth of Canadians who own their living place $226,000 dollars o Average net worth of renters is $14,000 dollars
 Fixed-term
50

o So long the period of the lease is stated and certain
 Periodic o Such as a month-to-month o At common law, the requirement of notice period to terminate a periodic lease is equivalent to the tenancy period o Statutory reform has modified this rule
 Tenancy at will o Has no defined period and can be terminated at any time by either the landlord or the tenant
 Tenancy at sufferance o Very rare o What happens if the person inappropriately stays beyond the end of their lease
 Statute can also create a ‘perpetual lease’ o No defined term o Cannot be terminated automatically with a notice period o Only situation is the Crown can create a perpetual lease for the embassy o In Canada, only the Crown can create a perpetual lease
 A lease is a grant of exclusive possession, while a licence is not
 A lease creates an interest in land, while the grant of a licence does not o Rights associated with interest in land for a leasehold: a vested interest; can transfer or sub-let
 If you lease something to me, unless the contract says otherwise, I can then transfer the interest to someone else o If all I have is a licence, I cannot sell or transfer that licence to anyone
 A licence is not binding on a purchase of the land over which licence is granted o Lease is opposite: if A leases B an apartment and A sells to C, C must keep leasing to B per contract o Licence does not have the binding power over C
 Licence is a temporary permission to use/enter the land in some manner that would otherwise be considered trespass. An example is paying to enter into and hike/canoe inside Algonquin Park.
 Some easements (ie rights of way) look like licences, but they are distinct creatures. A licence is just a temporary permission to use land in someway, given in exchange for a fee. An easement is a privilege without profit that is annexed to the land, allowing an owner of another piece of land to prevent the owner of the first piece from using his land in some manner. For example, if my house is behind your house and I need to use your driveway to get to the road, even though you own the driveway I will have an easement over it, which will prevent you from building a wall on it, blocking my path, even though it is your property.
51

 Fatac Ltd v. Commissioner of Inland Revenue (2002 NZ CA)
 Facts: GST payment: if licence, owner has to pay; if lease, tenant has to pay
 Spotting the difference between a tenancy (lease) and a licence tends to revolve around whether there is
exclusive possession – EP = lease
 It doesn’t matter what the parties called their agreement; the key is intent
 Why is exclusive possession an important thing? o If you have EP, you can use the property and exclude everyone else including the reverter
(landlord) o Tenant enjoys fundamental rights in the land, albeit temporary o A licence lacks these fundamental rights and just have temporary uses
 But some refinements to the exclusive possession test: o E.P. that is terminable at will is a licence o Rent suggest a lease, but is not determinative o E.P. is not synonymous with unqualified range of uses… but, granting certain rights to landlord might negate a tenancy (lease)
 Basic theory of tenancy is fundamental rights in land that look like ownership
 But, even if limitation of rights exist, still possibly a tenancy
 Question is if such limitation of rights goes into the heart of ownership of exclusive possession o Example: sometimes employer has a property and the employee can stay there for as long as he works for the employer. However the employer can kick the him out if he loses the job
 This is not tenancy
 Because lacking incidents of exclusive possession o If an occupier occupies only small portion of total land of contract and that occupation can be terminated for reason other than use/payment, it is probably a licence o Basically, is the core of ownership of exclusive possession?
 Under a tenancy (lease), lessee obtains a leasehold interest in the land, which confers upon her the right of exclusive possession, even as against the lessor
 So the tenant can either assign or sublease the land to a new tenant o Assignment: transfers the whole of the tenant’s interest; the assignee becomes to the new tenant and stands in the same position as the original tenant did
 Original tenant has privity of contract and privity of estate
 New tenant has privity of estate only o Sublease:
 Original tenant has privity of contract with new tenant that he subleased to
 There is no privity of estate nor privity of contract between landlord or new tenant
 Landlord receives rent from new tenant, but if new tenant refuses or defaults in payment, original tenant still is obliged to pay to landlord
 The lessor holds a reversionary interest
 A covenant over land can be used to create rights enforceable by one landowner against another, even in the absence of privity of contract between those two parties
 Merger Restaurants v. DME Foods (1990 Man. CA)
 DME is allowed parking by Lakeview on a strip of land which originally was Merger’s parking space
 Is a provision within a lease a covenant that runs with the land?
 Rules in Spencer’s Case – covenant runs if it touches or concerns the subject matter of the land o Subject matter: affects the value of the land as land
 Court: the extent/availability of parking spaces in a shopping plaza like this affects the nature/value of land, therefore Merger’s rights to these spaces are a covenant that runs with the land o If Merger’s customers don’t have parking spaces, then they can’t do their business
 Therefore Merger’s rights with this space runs with the land and is a covenant enforceable against Lakeview
(the existing landlord) even though there is no privity contract between these two
52

 Sundance Investment v. Richfield Properties (1983 Alta. CA)
 Richfield owns shopping plaza, Sundance is a major tenant, wants to sublease part of their space o Under the lease, Sundance can only assign or sublease with the consent of Richfield…the nonconsent must be reasonable… it is not unreasonable if consent is withheld because the other major tenant objects to the nature of the business by the proposed sub-lessee o The other major tenant objected to the sublease because the proposed sub-lessee, Swiss Chalet, on the grounds that they’d take away parking spaces available to them now
 When can a lessor withhold consent to the lessee assigning their interest in the lease to a sub-lessee? o Common law rule is consent cannot be unreasonably withheld o In reality, contract can modify rights to assign/sublease
 Seems largely a contractual issue… if contract is silent, under common law burden is on lessee to prove the withholding was ‘unreasonable’… court says that it is not unreasonable to withhold consent in order to protect that landlord’s own financial interests o Here the contract was not silent
 Dissent: the parking goes to every business. This should not count as reasonable withholding of consent.
 “The usual covenants” = at common law, a standard set of terms in a contract that need not be specified
individually (ie., obligation to pay rent, obligation to keep property in state of good repair, etc.)
Central term is “the right to quiet enjoyment”
 Essentially means the peaceful enjoyment of the property without substantial interference from the landlord, includes protection against direct physical interference by the landlord but can also include indirect interference
 Extent of this? See
(1997 Ont. Gen. Div.) o The court said the breach of the right to quiet enjoyment would arise from any act of follows: the tenant’s reasonable peace, comfort or privacy being interfered with whether due to liquid, gasses, vapors, solids, odors, vibration, noise, abusive language, threats, fire, withholding of heat, electricity, water or gas, or other central services, or the removal of windows, doors, walls or other parts of premises

(2001 HL) – “quiet enjoyment” = without interference o Whether noise due to apparent lack of insulation is violation of rights to peaceful enjoyment? o The lease signed by tenants does not contain any warranties as to sound proof, nor such warranties exist under common law (unlike the Ontario case) o The court says the quiet enjoyment does not mean really quiet enjoyment but essentially “without interference”
 One approach: It is fundamental any tenancy agreement that landlord gives no implied warranty as to the condition of the property. This can only be a breach of the covenant if the noise is something the tenant did not contemplate at the time of signing the lease
 Applying facts at hand, this is not a breach of covenant because she should have contemplated possibility of neighbours and their noises
 Another approach: also concerns interference, but including indirect interference. But in this case the noise is not included. Only the legislature should take care of such matter

(Ont) – “quiet enjoyment” = peace and comfort of tenant o Landlord gave notice of the renovation and invited all tenants to end the lease; student refused and was disturbed by the noises; student sued and won o Court says purposely calculated and indirect interference is breach of quiet enjoyment o The Landlord cannot breach the Tenant's right to quiet enjoyment. That is why the landlord lost in
Pellat. In order to carry out such substantial repairs/upgrades they should have followed the route laid out by s. 50(1) of the Residential Tenancies Act.
 Does tenant have an obligation to ensure the ‘quiet enjoyment’ of the other tenants?
53

o See the case of Caroline Cartwright – taken to court by her neighbours for overly loud sex o ABSO = ‘anti-social behaviour order’; if violated repeatedly you can end up in jail
 The reality of modern society is that you have neighbours – should be aware of others’ right to (reasonably) quiet enjoyment of living. Even though you have a private property, the other people do as well. There is no absolute power to do whatever you wish without regard to others’ welfare
 Ways of increasing security for residential tenants (Ziff) - p.627
-
Greater security of tenure for tenants and lodgers
-
Increased termination notice periods
-
The fixing of standard obligations of both landlords and tenants in a way that endeavours to allocate responsibilities and rights in a rational and fair manner
-
An increase in tenants’ remedies
-
The curtailment of landlords’ self-help remedies
-
The establishment of informal/inexpensive dispute resolution procedures
-
Prohibiting bargaining away of statutory rights
-
Creation of landlord and tenant advisory boards
-
Rent control mechanisms
Professor: I find it surprisingly how often landlords in Ontario do not appear to know their obligations under the Act
 In Ontario see the Residential Tenancies Act, 2006: o <http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_06r17_e.htm>.
 Rent control o Not common in Canada o Why is it controversial? o Pros/Cons
 Government brought in rent control so low income families have affordable housing
 Landlords have no incentive to maintain or improve the property
 Un-intentially harming the people government trying to assist because there is less rental properties available o Is it the responsibility of landlords or of the state to ensure an adequate supply of affordable rental accommodations?
 What is Ontario approach? Do you agree with it? See Part VII of the Act o Ontario approach: hybrid of formal rental control while you have tenancy and no rent control during vacancy o Even theoretically the landlord can raise the rent without limitation when they sign a new tenant, they are restrained implicitly by market price. If other landlords are demanding an average X dollars, you cannot arbitrarily ask for $X+Y because prospective renters would find cheaper places
54

B AILMENT
 A bailment is a temporary transfer of chattel under which the goods are transferred from a bailor to bailee o Anytime an owner parts with his/her possession of an object for a specified purpose (care, cleaning, loan, etc.)
 Contractual or gratuitous; usually but not necessarily consensual o Contractual: car repair example. Most times it is contractual o Sometimes courts will find a bailor-bailee relationship
 British Airways case: the “finder” of a lost chattel is quasi-bailee for owner
 The person who mistakenly has someone else’s goods, thinking it is his or her own, will be deemed a quasi-bailee
 Taking someone’s suitcase thinking its your own, you have responsibility to those goods till they are returned to real owner o Gratuitous: lending a book to a friend
 Under typical bailment, the bailed goods are supposed to be returned. Is it not always essential that the goods be returned to the original bailor. The obligations of a bailee may be to deliver them to someone else o Common carriers and postal services
 Length: fixed term or at will o When there is fixed term, the bailor’s right to possession is postponed till the end of the term except in one case where the bailee breaches the contract, then bailor will have immediate possession o Under bailment at will, the bailor has a right to immediate possession at will, at any time demanded
 Parallels to lease/licence dichotomy in finding existence of a bailment o Exclusive possession is distinct between lease/licence (land) o Exclusive possession is also present in finding a bailment/licence (chattel)
 Whether the possession has been sufficiently transferred from the bailor to bailee
 Bailee would be the licensor; bailor would be the licensee
 In the case of a sub-bailment, different from sub-lease scenario, the sub-bailee has a direction against the original bailee and vice versa (a juridical nexus)
 Constructive Bailment o Usually done in the case of cars in parking lot o If you bail the car, you’re also deemed to have bailed the items that are normally found inside a car; the bailee has a duty of care to all such items o Conversely, if the are items that are not normally found in a car, then the items would not be covered in the bailment and the bailee would not have a duty of care
 Minichiello v. Devonshire Hotel (1978 BC CA)
 Plaintiff paid C40 to park his car. As he drops off keys to the attendants, he let the attendant know there were valuables in the car. The valuables were a brief case containing $16000 dollars of jewels. This brief case disappeared. He sues hotel for loss.
 Court says he did tell the attendant that there were valuables in the car. This communication is sufficient to include jewels in the brief case. Therefore the jewels were part of bailment and the hotel owed a duty of care to them
 Class discussion: it is bad for parking attendants to steal valuables upon the knowledge given by owner intended to safe keep such goods. Encourage responsibilities and good faith. On principle of proportionately… this might be too severe. The plaintiff was stupid not to take the brief case out
 Nowadays there’re wavers of liability for loss of valuables in the car on all parking lots
 Bailee is governed by general law (i.e. he would be liable for stealing or converting the goods, for positive acts of negligence etc) but also specific duties imposed by bailment principles o In comparison Licensor owes duty of care owed to only general law (in bracket above)
 Originally a bailee was strictly liable for any damages occurred to the goods in bailment; this was too onerous of a standard and harmed the development of bailment and relationships. Too risky.
 Over time, as law of negligence developed, the courts evolved three different types of bailment and attached three different types of standards of care: o For sole benefit of bailor: example, gratuitous safekeeping of goods. Low duty of care, generally considered liable for gross negligence
55

o For sole benefit of bailee: ex, you borrowed a book from friend to use. High standard of care – not strictly liable though. But you’re still responsible for slight negligence (someone steals the borrowed book when you’re in a bathroom break) o For mutual benefits: in contract or alike. Ordinary standard of due diligence/negligence – what a
reasonable person would do in the circumstances, such as:
 If there is deviation from contract, then liability occurs
 Common carriers: wrongful delivery is considered deviation from contract even if it is done by an honest mistake o But: deviation from agreement may lead to strict liability; wrongful delivery usually considered deviation, even if it is due to a reasonable mistake
 In all cases the bailee owes a general duty of care to the goods o Bailee that claims a particular skill will usually be found to have a higher duty of care related to the object in question
 If you claim to be an excellent horse rider and I loan you my horse, you’d have a higher standard of care than a lay person
 Characterization of something as a bailment is crucial because of these duties o If it is just a licence, these duties would not apply, only general law duties exist for licence o For example, in parking lots, if the owner gives the key to the attendant, the transfer of the keys amount usually to a transfer of possession. o If on the other hand, the person parks via ticket, no control of the car has been transferred, and in fact the owner of the car is buying a licence to enter the parking lot
 The laws of bailment would not apply and the parking lot would not be liable for any damages or loss
 The terms of contract (say, on receipt of parking ticket) often have exculpatory liability clauses that wave liability for bailees even though the goods are in bailment o However, the clauses are a matter of contract law, not bailment law o The principles of bailment do not apply to whether or not the clause is valid, it’s a matter of contract
 General rule in civil actions: plaintiff bears burden of persuasion
 In bailment actions, there is a ‘presumption of negligence’
 The presumption arises, the onus then shifts to the bailee to rebut the presumption in order to avoid liability
 Triggering facts is that if the bailor can show the goods went missing in the time they were in bailee’s possession… the onus then shifts to bailee to demonstrate they met their duty of care
 The bailee does not need to demonstrate exactly what happened, all they need to show is that they had an adequate system in place for safeguarding the goods; and any failing of the system was not connected to the loss of the goods
 Bailor for reward has duty to ensure that chattels are reasonably fit and suitable for the purposes of hire (ie a rental car company has an obligation to make sure that the cars rented out are in good working order)
 Mutual benefits: standard of liability is negligence
 Bailor in a gratuitous bailment for benefit of bailee must warn of defects
 “Management not responsible for damage to items” – think of the slip you get at a dry cleaning shop or parking lot
 These clauses only apply if the bailor had actual or constructive notice (the sign) of the clause… accepted by both bailor and bailee o Constructive notice only applies when it’s a big sign in visible area… issue of contract law
 There is no general common law or statutes against bailment
 A bailee may sub-bail or assign provided terms of initial bailment permit it
 Bailor gains a direct right of action against any sub-bailee even in absence or privity of contract if: o Bailor has immediate right to terminate the principal bailment; and o The sub-bailee accepts the goods knowing they didn’t belong to the sub-bailor
56

 Punch v. Savoy
 Letourneau v. Otto Mobiles Edmonton (2002 Alta. QB)
 Facts: plaintiff parked trailer at a defendant’s neighbouring parking lot on the instructions of defendant, for the purpose of repairs. Plaintiff secreted the key as instructed. Trailer was later stolen. o Plaintiff: parked trailer according to D’s instructions and secreted keys as per instructed. Transfer happened as soon as trailer was dropped off at the lot specified by D o Defendant: 1) trailer was parked not on their property, and 2) P had separate keys. No transfer of possession happened.
 Court says there are two separate issues:
1) was there a relationship of bailor-bailee between the parties?
2) If so, did the bailee (Otto) fail to meet the necessary standard of care?
 1) Centre question – has there been a transfer of possession? Courts say the control of keys is a key factor, though not alone determinative
This is a contract of repair/work order, bailee for reward. Even though plaintiff did not hand over the keys, they did comply with the instructions with Otto. The only reason the P parked trailer was for repair, the possession was temporarily transferred at the moment the trailer was dropped off
 2) If there was a bailment, did Otto Mobiles fail to meet the necessary standard of care? o Court concludes the standard was not met – why? o Always a general duty of care o Obvious trailer went missing after plaintiff dropped it off. Onus of proof went to D to show an adequate system of safeguarding but D failed to demonstrate so: they asked P to drop off the trailer after hours and failed to take reasonable care of it
 Contributory negligence? o Not found because P was following instructions of D
 In the caselaw, courts have looked into the following factors in finding of bailment on parking lot o Whether or not the keys are transferred o Whether or not there was supervision of lot by attendant or security guard o Terms on the ticket stubs o General degrees of supervisions of the vehicles o Values of goods in question (proportionality) o Whether or not a fee has been charged o The nature of past dealings of bailor and bailee o Proximity of owner to the vehicles
 None of these are determinative, but transfer of keys is indicative of transfer of exclusive possession o On an exam, look to the keys o If owner has easy access to the car on parking lot, then it’s leaning towards licence. If the owner needs attendant’s help in locating the car, then it’s more likely to be found of bailment
 Punch v. Savoy’s Jewellers
 Facts: Punch had very expensive heirloom and sent to Savoy for repair, who then sent to Walker in Toronto for repair. Who contracted CN to send ring back to Savoy but ring was lost en route; likely stolen by driver
 Getting the parties straight: Punch – owner of ring, original bailor. Savoy – appraiser, original bailee. Walker
– a sub-bailee received the ring from Savoy. CN Rapidex – courier, another (last) sub-bailee.
 Duty of bailees o All bailees owe general, reasonable standard of duty of care (case of mutual benefit) o Bailees must also be responsible for any thefts by employees/servants
 Duty owed by Walker? Savoy? CN? o Walker: negligent in fixing the value of the ring at only $100; not something a prudent owner of an expensive piece of jewelry would do o Savoy: in breach of duty when he failed to ensure adequate and proper care was taken by using a un-tried carrier; failed to ensure adequate insurance for full value o CN: in breach of courier duty
 Effect of liability clause o Liability clauses are not automatically defeated
57

o But, since there was no contract between CN and Punch. Even though Punch can go after CN as a bailor to sub-bailee, Punch cannot be bound by the liability clause. Punch probably didn’t even know the existence of CN o The exculpatory liability clauses while can be okay, do not include thefts by employees
 Judgment o Savoy and Walker are both liable to Punch in breach of duty of bailees because they failed to take adequate care of the ring in transport o CN is liable to Punch for unexplained loss of the ring o Savoy and Walker are to be indemnified by CN for any loss they have to make good to Punch o However Walker is not entitled to recover legal costs against CN because Walker breached duty in not declaring the true value of the ring
Question: when an exculpatory clause will be upheld in the case of sub-bailment. In Punch the clause was not upheld, however, the reason was very specific in that the loss resulted from theft of an employee – which was not a provision explicitly stated in the contract.
However, in general where an object is lost by a carrier will an exculpatory clause be upheld? Does it matter if the owner of the chattel is aware of the sub-bailee?
If there is no general principle are there particular facts that would lean a court to decide on way or another?
Exculpatory clauses are generally governed by the law of contracts or the law of torts.. so if there is no privity of contract between the original bailor and the sub-bailee, I don't think they would apply in the case of a contact.. You can see that's what the court says in Punch at p. 664 -- the clause only applies between Walker and CN. Now the interesting thing would be what would happen if Punch went directly after CN -- CN couldn't rely on the clause b/c they had no contract with Punch; Punch would be coming after them with a claim of negligence.. the only way CN could avoid liability in that scenario, I think, would be if Punch somehow had notice of their waiver of liability, though it's hard to imagine how it would occur. You are right to spot this as complicated issue -- there is no clear answer as to what the courts would do in that scenario. If you look at the bottom of p. 668, you can see that Ziff wonders the same thing.
 Friday Writing Exercise #8 o What is the distinction between a licence and a lease? Why does it matter? o What is the difference between assignment and sublease? Explain with reference to the interests of the parties
 Both assignment and sublease are leases. The leasehold interest pertinent in both may be transferred. A transfer of the leasehold can occur in two distinct ways: the tenant may transfer the remainder of the term (called an assignment), or some smaller portion (a sublease). When an assignment is made, the assignee will be placed in a direct tenurial relationship the original landlord. There is no privity of contract between these two people in either assignment or sublease. However ‘privity of estate’ exists in the case of assignment. An assignment runs with all of the “real covenants” in the lease when transferred to the assignee.
 In the case of sublease, the original tenant retains an interest in the lease. o Assignment: transfers the whole of the tenant’s interest; the assignee becomes to the new tenant and stands in the same position as the original tenant did
 Original tenant has privity of contract and privity of estate
 New tenant has privity of estate only o Sublease:
 Original tenant has privity of contract with new tenant that he subleased to
 There is no privity of estate nor privity of contract between landlord or new tenant
 Landlord receives rent from new tenant, but if new tenant refuses or defaults in payment, original tenant still is obliged to pay to landlord o What is the parallel (shared principle) between a bailment of a chattel and a lease of land? o You are counsel to the owner of a commercial parking lot. She wants you to help her limit her liability in relation to operating the lot. What questions do you need to ask her? Why? How will her answers alter your legal advices?
58

C OVENANTS
Servitudes over property: covenants and easements
Both attach to real property so they can pass to one owner to next: running with the land
An easement is a non-possessory interest to use the real property in the possession of someone else for a stated purpose. Common example is right-of-way. A’s cottage behind B’s cottage: A has right of easement over B’s driveway to get access to the highway.
A covenant, in contrast, is a contractual promise to engage in, or refrain from using the land in a particular way.
 Definition – contractual promise to engage in or refrain from using the land in a particular way, even
in the absence of privity of contract.
 Historical use – Re Drummond Wren (1945) and Re Noble & Wolf (1948) o Restrictive covenants to restrict ownership/occupation of land to certain classes or races o Re Drummond Wren: court strikes down covenant restricting sales to Jewish o Re Noble & Wolf: court upheld the covenant because it’s cottage not basic sheltering; appealed to
SCC; before it reached SCC, Ontario passed laws restricting such covenants. SCC still said the covenant in question is void because covenants have to touch and concern a dominant piece of land.
Covenants based on just persons do not touch and concern the lands
 Uses – commercial zones, planned communities o Commercial Zones: Loblaws…negotiating lease with owner of shopping mall to include covenant that the owner cannot lease space to any other similar grocery store o Planned communities: Celebration, Florida
 A covenant begins with essentially a valid contractual undertaking made by a covenantor (who assumes the
burden of the promise) in favour of a convenantee (who obtains the benefit)… o The question is “when does a covenant run with the land?”… This allows rights of one landowner to be enforceable against another, even absent privity of contract or estate o Between the original covenantor and convenantee, it’s simply contract law; but once the property is transferred to third party, must look at specific circumstances, below
 The land burdened by the covenant is the servient tenement, while the land benefitted is the dominant tenement
 There was the historical division between the courts of law and the courts of equity in England… over time, they fused…
 But, we still have distinct principles of law and principles of equity… even though they are both applied by the courts, they remain distinct… equity is used by the courts to remedy unfairness that would arise from strict application of the law
 The rules about how benefits or burdens of a covenant run are different if the claim is made in law or in equity
 The different in making the claim comes down to the remedy sought – if you are making a claim for monetary damages, this is a ‘legal remedy’… if you are making a claim for an injunction that is an ‘equitable remedy’
 Note: this is a gross over-simplifications
 Tulk v. Moxhay (1848)
 Facts: Leicester Square in central London. Covenant restricting building on land. Subsequent owner did not want to comply with the covenant citing lack of contract. Court upheld the covenant in equity.
 Ratio: a restrictive covenant will run with the land in equity to apply against later owners
 Four requirements that allow a burden to run with the land in equity
59

o Covenant must be negative/restrictive
 Negative: “you must not build new houses”
 Restrictive covenant restricts the land in the manner it may be used – commonly understood as restricting height or types of buildings etc.
 Positive covenant imposes a positive duty on the owner of servient land to do something o Covenant must have been intended to run with the land and that land must be sufficiently described in the covenant
 Must show evidence that it was not just intended to restrict the original owner of land, but all owners
 880682 Alberta Ltd. v. Molson Breweries Ltd. (2002 Alta. QB)
 Original purchase agreement: not to operate a brewery on the land
 That purchaser sold it to 880682…
 Court said the covenant did not touch or concern the land because two pieces of lands (servient and dominant) were in two separate locations and not proximate enough o Covenant must be taken for the benefit of the dominant lands
 The covenant must ‘touch and concern’ the land, cannot just be a personal promise
 Statutory modification in Ontario: covenants in gross (no dominant land required) allowed for some circumstances (environmental conservation purposes, for example) o Equity must otherwise be prepared to enforce the covenant
 One requirement is the presence of notice. If there’s no notice, the subsequent owner would not be bound by the covenant because he/she had no knowledge of the covenant when purchase was made
 In Ontario, covenants are registered under Land Title Act
 Benefits can be transmitted in equity in three ways (all three also require that the land be sufficiently described and that the covenant touch and concern the lands):
1.
Annexation o Annexation means benefit is intended to pass to successors in title… o The Ontario Conveyancing & Law of Property Act deems that a covenant relating to a land of inheritance shall apply to covenantee’s heirs & assigns, even if not named -- suggests automatic annexation?
2.
Contractual assignment o Express assignment used where annexation has not occurred
3.
Building scheme o Also relates to burdens o Cluster of restrictive covenants in order to effect a particular commercial or residential development… a building scheme allows an easier way of doing this… the result is that each property owner is entitled to enforce covenant (requiring the benefits) no matter when each individual lot is acquired
 Any owner can enforce the covenant against the owner of any other lot. This in effect creates a local law, does not require municipal by-laws to affect the development o No dominant land required… but 4 additional requirements i.
Titles to properties derived from a common vendor ii.
Restrictions must be consistent with scheme of development benefits of all the parcels o Only negative or restrictive covenants apply to building schemes iii.
Restrictions must be intended for benefit of all the parcels of land within the scheme iv.
Parcels must have been purchased on the understanding that the restrictions are for the
 Equity (rather than the law) dominates this field for two reasons: o Equitable remedy of injunction, o Law refuses to enforce burden against subsequent landowners due to lack of privity of contract
60

 Remedies at law only relevant when new owner of benefitted land seeks to bring suit against original covenantor o Benefits can be assigned, burdens cannot
 Burdens of positive covenants cannot run in either equity or common law – a positive covenant can only be enforced against the original covenantor (remember – a positive covenant is one that requires the covenantor to do something) o Policy reason: the courts do not want to compel personal obligations on someone who did not agree to it originally
 Counterargument: like anything else, positive covenants are taken care of by purchase of lands… market argument
 Courts are wary about restraints on alienations
 Benefits of a positive covenant can run in law if annexed or assigned – though still only enforceable against
original covenantor o Example: “I will sell this land to you if you agree to spend $5000 on planting trees each year.”
 Successors of this land are not bound
 Negative/restrictive benefits can be assigned but burdens cannot.
 So, allowing burden of positive covenant to run requires statutory modification (i.e., legislation relating to condos allows both positive and negative obligations to be imposed on owners as they come and go)
 Amberwood v. DCC (2002 Ont. CA)
 Agreement stated provisions re: costs of shared facilities ran with the land
 Is a covenant to pay interim expenses related to an easement enforceable against the successor in title to the covenantor?
 Charron JA: it is settled law that positive covenants do not run with the land
61

o Says its not the role of the courts to change the longstanding principle that positive covenants do not run with the land; unwilling to adopt other principles (ie doctrine of benefit and burden or doctrine of conditional grant) in order to get around this o P.830 “…the call for reform is not one for the courts to answer but for the Legislature. Any change in the law in this area (positive/negative covenant) could have complex and far-reaching effects that cannot be accurately assessed on a case by case basis…the need to preserve certainty in commercial and property transactions requires that any meaningful reform be achieved by legislation that can be drafted with careful regard to the consequences.” o This is an institutional competency argument
 Benefits and Burden doctrine and Conditional Grant doctrine not important in this course
 Housing o Some, radical approach, argue that zoning by-laws ought to be eliminated entirely and replaced with use of restrictive covenants – allow the market to run rather than the state to plan residential areas
 Zoning hijacked by political interest rather to serve residents o Disney’s “Celebration, FL” o Others, more moderate approach, want to update legislation to enhance effectiveness of restrictive covenants in order to ensure affordable housing
 Ziff lays out major drawbacks of restrictive covenants: o They’re inflexible. Once they are established, it is very hard to vary or abandon o There’s another problem with enforceability – landowners are not usually willing to bring legal actions for the benefit of the whole community (free riders) o Relying on just restrictive covenants makes it difficult to have city-wide planning, they tend to focus on very local level o Gate community: those seeking social services would end up in ‘ghettos’ because wealthy people would not want social services in their community
 Environment o Environmental legislation (ie Conservation Land Act and Ontario Heritage Act) essentially allows positive covenants to run with the land
Against covenants
-
Wealthy homeowners would use restrictive covenants to keep undesirable, poor people out of the neighborhood: gated community
62

-
Creating ghettos where low-income families gather because they have no choice; lacking well-run social services and healthy community for young kids
-
Stereotype against poor people (that they are violate or have bad influence on children)… a horrible discrimination not conductive for the society
For covenants
-
Perhaps greater societal values at play: concept of autonomy, personal liberty and self- determination.
We’re allowed to choose our own neighbours and environment to raise children; it is easy to make arguments that exclusion is discriminatory. But any sort of community we create has some exclusionary characteristics: this is a dangerous slippery rope. o Especially considering Canada’s compassionate grounds for refugees… must citizens be forced to integrate with possibly dangerous/suspicious people?
-
Covenants are not the problem of gated community – the effect is not serious enough. Housing prices are. Even if you took away all covenants, there’d be still more or less same amount of gated communities
On Affordable Housing and Non-Single Family Use of Homes: A Waterloo Region Case Study [1993] [p.821]
- 2 groups advocate expansion in role of restrictive covs as instruments of land use control: moderate & radical
A) Moderate
- update legislation to enhance effectiveness, facilitate use (but preserve public sector regulatory system)
- use restrictive covs to complement zoning bylaws
- broaden scope of application; run both positive and negative covs, homeowners' associations can enforce them for benefit of all owners in scheme
B) Radical [U.S. - Ellickson and Siegan]
- replace zoning by-laws w/ restrictive covenants
- fundamental problem w/ zoning is that it represents an excessive public sector involvement in land development process
- zoning process susceptible to self-serving interests b/c of political nature
- inability to provide reliable protection of property values (gov'ts can grant variances at odds w/ character of neighbourhood)
- Ellickson: return to nuisance laws (corrective action when interferences arise)
- Siegan: looks at city of Houston- no zoning legislation - land use specialization takes place as efficiently whether zoning regs in place or not
- both Siegan and Ellickson see restrictive covs as foremost alternative to zoning
- covs more closely tailored to interests of residents; b/c employed for economic rather than political reasons, more efficient, less malleable (unaffected by political system) = more reliable protection
- social segregation as result of zoning by-laws
- lack of flexibility - hard to alter or delete them- must rely on courts, planning legislation allows for updates and variances
- value changes- ban on compost bins, clothes lines(concern for environment?) v. planning legislation allows for variance
- enforcement requires legal action; treats sectors as if cut off from rest of city
- capacity of frustrate planning objectives by isolating subdivisions fr. requirement to support their fair share of affordable housing (restrictions that stipulate single-family use of homes & building standards that rule out construction of affordable housing) = expectation of clashes btwn policy objectives and restrictive covs
-where a significant proportion of a city’s territory is under restrictive covenants, the potential exists for the creation of ‘ghettos’ where these types of land use would be concentrated
-zoning by-laws have to conform to official plans
 Waterloo Region: o Restrictive covenants do not necessarily threaten the meeting of city-wide affordable housing and nonsingle family use objectives b/c of plentiful availability of non-burdened sites
63

o Serious clashes b/w planning policy objectives and restrictive covenants seem inevitable in the future if current trend persists
- covs designed to produce controlled economic and residential development
- BUT origins in environmental conservation (Tulk v. Moxhay about preserving a patch of green space!)
- idea resurfaced that private covenants may have useful part in conservation
- statutory schemes provided purpose-built "conservation covs" (or "easements") enacted in many jurisdictions
- Owner may enter into covenant w/ conservation body (a) for conservation, maintenance, restoration or enhancement of all or a portion of the land or the wildlife on the land, may be assigned
- Valid whether or not conservation body or assignee owns an appurtenant land or land capable of being... benefited by the covenant.... regardless of whether the cov is positive or negative in nature
- even more expansive rights
- allows OHA to enter in covs w/ owners of land for conservation, protection, preservation of heritage of ON
- municipality may enter cov w/ property for conservation of historic buildings etc.
- positive or negative, can exist w/out dominant tenement; huge class of assignees (benefits transferrable to anyone)
64

E ASEMENTS
 An easement is a privilege without profit annexed to land to utilize the land of a different owner or to prevent the owner from utilization her land in a particular manner for the advantage of the dominant owner o NOT a possessory interest, but usage right o Similar to covenants, but the latter is a contractual promise o Usually does not involve money, but just an agreement. If money is involved, typically just symbolic
$1
 Positive and negative easements o A positive easement permits the holder to engage in some activity on the servient tenement
 ie, a right of way from dominant land through the servient land o A negative easement restricts activities on the servient land
 Very few negative easements, courts are reluctant to enforce them
 ie, a right to receive light on dominant land would prevent owner of servient land from building something that would block it
 Could severely prohibit productive use of servient land
 Statutory reform in Ontario
 Examples: it is implicitly in lease that you have access to the hallway to get to your room; the right to walk in gardens and along beachfront properties; building docks on someone else’s land so boat owners can get boats onto water o Access to beachfront is an improvement of the properties on beach (beach = servient, properties = dominant)
 There must be a dominant and a servient tenement o Cannot exist in ‘gross’ o Dominant tenement enjoys the benefit; servient tenement suffers the burden o Policy reason behind common law, since an easement can inhibit productive use of servient land, courts want to ensure any burden is created is matched by a benefit somewhere else o Not the case in U.S., where easement in gross in quite common – you could use easement to allow someone else’s helicopter to land on your roof
 The easement must ‘accommodate’ the dominant tenement o Must ‘touch and concern’ the land: the easement is necessary for the normal enjoyment of dominant land o ‘Normal enjoyment’: it makes the dominant tenement a better and more convenient property o Important to note it is not for the owner of the dominant land; it must be for the land itself o ‘Reasonable proximity’ between two lands is required but courts have not defined the term
 The dominant and the servient tenement must be owned and occupied by different people o But, if one of the occupier is a temporary owner, such as in a lease… it is possible to grant an easement (hallway example) o See Shelf Holdings v. Husky Oil (Alta. CA) – some measure of occupation is ok
 It is okay that dominant tenement would interfere with servient tenement
 Key is owner of dominant land has sufficient control
 The right over land cannot amount to an easement unless it is “capable of forming the subject-matter of a grant” o There has to be some certainty as to what the easement is, cannot be too vague
 In general, easement tend to be created through reservation or grant – they cannot be conveyed by a transfer of possession o However, they are generally registered with title to the land, so they are ‘attached’ to the land.
That’s how they are automatically transferred… see s.44 of CLPA, below
P.750 of textbook
65

 Acquisition by express grant/reservation o Easiest way to create easement o Unless the grant/reservation explicitly stipulates a defined period for the easement, it is deemed to last the natural length through the lifetime of the land transaction.
 For fee simple transfer, the easement lasts through the lifetime of first owner than onto his heirs and successors, etc.
 For life estate, the easement lasts through the lifetime of first owner granted o Express Grant: when a vendor sells part of their land to a purchaser, and grants the purchaser a right of way over the land that the vendor retains.
 Right of way is over servient land held by vendor for dominant land held by purchaser o Express Reservation: a vendor sells part of land to purchaser but reserves the right of way over the
land sold.
 Right of way is over the servient land held by purchaser and vendor holds dominant land o S.44 Conveyancing and Law of Property Act
 “where by the terms of a conveyance of a land o right of way or easement is reserved or excepted from the land thereby transferred or charged, such reservation or exception is effectual and shall be deemed always to have been effectual to vest the right of way or easement in the transferor or chargor of the land notwithstanding that the transferee or chargee does not execute the instrument”
 Acquisition by implied grant/reservation o Easement of necessity
 Necessary incidents of property transaction
 Example automatically arises in favour of land that is landlocked (so require the land access to get to public streets) at the time of transaction, even if that easement is not stated in the transaction o Wheeldon v. Burrows – grantee must accept all “continuous and apparent” quasi-easements that existed at the time of the transfer
 If an owner of a large piece of land grants part of the land to someone, then the grantee
(purchaser) must accept all “continuous and apparent” quasi-easements that existed at the time of the transfer
 Quasi-easement because when the land was held by one owner, it could not be easement.
Easement is only created by the transfer of part of the land
 This is basically a type of consumer protection. This allows a purchaser of land to acquire all of the amenities that the land appears to have at the time of transfer
 Similar to easement of necessity…all four implied grant/reservation overlap o ‘General words’ statutory provision
 Statute: Conveyance Law and Property Act every conveyance, unless otherwisely specified, includes all lanes, waters, water courses, lights, liberties, privileges, and easements that existed at the time of transfer o Intended easements
 Courts look at evidence of intention of parties to ascertain the wills of both the grantor and grantee
 Acquisition by prescription o The claimant must show he is user as of right – enjoys the easement as if he were entitled to it but without the permission or agreement of the owner of dominant land
 This is the case that he or she is using the land without necessity or agreement
 Similar to adverse possession BUT it is not possessory interest
 With acquisition by prescription, threshold is much lower because it is just a recognition of right to use the land, instead of possessory interest o The lost modern grant (common law)
 Legal fiction that pretends that the easement was granted but the grant was lost
 To make a claim: show 20 years of continuous usage, so long as the use was obtained without permission, violence or secrecy o The Real Property Limitation Act
66

 Under the Act, a claim for prescriptive easement, after 20 years, can be defeated if you can show that there was permission (oral/written), violence or etc.
 But after 40 years, the easement becomes absolute unless you can show written permission or violence
 However, easement does not arise automatically, still has to claim for it o Negative easements…such as one to light, I can stop you from building anything that would stop me from using the land.
 Under common law, if I’ve had access to this light for over 20 years, I could stop you forever from building on the land
 The Real Property Limitation Act rectifies that nobody may acquire prescriptive right to light or air for the benefit of a house, a workshop, or any other building
 The Land Titles Act, you cannot get prescriptive right to wires or cables… o Statutes have also created common areas for condos…
 Acquisition through proprietary estoppel
Scope and Location
 Focus is on intent of grantor… prime consideration is purpose for which grant was initially made o Always looks to intent of the parties… like in the case of testators, courts always construe the languages as per the ascertained intent instead of actual terms
 Laurie v. Winch (1953 SCC)
 Can the nature of easement change, or frozen in time?
 Previously farmlands, now it’s residential. Overtime various easements have been granted. One of them, according to the language, was ‘perpetual’. So Winch claims he has perpetual right of way of Laurie’s property.
 Laurie’s argument: 1) it was not an easement but personal licence. He bases it on the fact that there was no dominant land; and 2) the right of way should be limited to the purposes for which the easement was granted.
 Court agrees partially: there was an easement, even though there was dominant tenement. BUT, the right way should be limited to the original size as a road to farmland. You cannot extend the nature of easement for farm way into a road
 Ratio: seems you don’t have to limit yourself to plain languages of the original grant, it is acceptable that use of the easement changes over time, but nevertheless still has to relate in some way to
original grant. In this case it was the size of the right of way.
 Malden Farms v. Nicholson (1956 Ont. CA)
 Previous owners of eastern half granted previous owners of western half right of way for entering and leaving the land. They also agreed they’d maintain, keep in good condition the right of way. They further said it was okay if the western half owners wanted to put gates on the western half of property
 Overtime, these big lots divided up to smaller pieces. The convergences in the documents always included these rights of way. Down the chain of title, the current owner of western half, Malden, decided to convert part of his farmland into a beach resort. This was a commercial success. So the strip of land became used by more and more people; it became like commercial road.
 Issue is scope: original nature was entering and leaving farmland, now it’s commercial road to resort.
 Court says the current use of the right of way is far beyond the original intent/nature of it. Not good.
 Can end in a number of ways (time limit, unification of title and occupation/possession, abandonment) o If original grant had time limit, the easement o Can also end if dominant and servient tenements are unified (owned by same owner) o End by express agreement by both parties o Can be abandoned: courts look for intentions of abandonment and also manifestation of abandonment.
67

o In all cases, onus of proof lies on the individual claiming existence of abandonment
 Costa v. Janikas (2001 Ont. SCJ)
 Shared driveway originally but fences were built up, dividing the land into two halves each possessed by a separate family
 Court says both parties undertook activities that obliterated the use of the land as shared driveway… the current owners claiming use of the shared drive way are out of luck because the abandonment took place before the owners received the property
68

C O -O WNERSHIP
 2+ people hold the same interest – each JT holds the whole interest, nothing separately… the interests must be identical
o Unity of possession
 Refers to fact that each joint tenant is entitled, concurrently w/ the other joint tenants, to possession of the whole of the land that is the subject of the JT
 Is a shared right of possession of the entire object (definition of co-ownership) o Unity of interest
 Interest of each joint tenant be "the same in extent, nature and duration"
 Interest of each joint tenant must be the same. If one joint tenant is subject to a CS or CP, and the other is not, therefore there’s no unity of interest and it cannot be JT.
 i.e. can be no JT if person's interest indefeasibly vested and another's is subject to a condition subsequent
 Each joint tenant holds exactly the same interest in terms of the duration of the interest
 Tenants in common do not have this because they own a fractional share- distinction usually comes down to language in contract o Unity of Title
 Must be the same document or occurrence – same original deed, etc. o Unity of Time
 Each tenant’s interest must be vest at the same time
 Exception where it’s embedded in a will where testator intends to transfer property to unborn children – the interest would vest at different times as each child is born, but still can be unity of time in this case.
 Not required for a JT created by will or by conveyance employing a use
 i.e. JT may be created by a gift by will of land to kids born to A, even though the kids' interests will each vest at the time of their respective births
 Means that upon the death of the second-last tenant, the survivor tenant has the entire interest
 Right of surviving joint tenants to take the interest of a pre-deceasing joint tenant o When one joint tenant dies, interest is extinguished and surviving joint tenants share is correspondingly enlarged o Misleading though: death of one joint tenant doesn't cause interest to pass/be taken by survivors o Survivors are left as before but simply share their ownership with one less person
 Parties can have different quantum of interest, unlike in a JT o Tenants in common have distinct, separate interests so no need for the other three unities o But are still co-owners and have equal rights of possession over whole of land - each tenant in common holds an undivided share of the whole
 Requirements o Unity of possession o No requirement of unity of interest, title, or time
 40% of interest v. 60% interest o You could have the other three unities too
 No right of survivorship – when a tenant in common dies, his interests go to the estate and heirs.
69

o When one tenant in common dies, his or her interest in land does not pas to surviving tenants in common but forms part of deceased's estate and passes in accordance with will
 Looking for default rules of construction
 Assuming 4 unities are present, then determining JT or TIC is a matter of grantor’s intent… at common law, there is a presumption of a JT if the four unities are satisfied and there is no indication of a contrary intention
 In equity, 3 situations where a TIC will nonetheless be presumed even though four unities are met o Where 2+ advance money on a mortgage o Partnership property o Where purchase price for property is provided unequally but title has been placed in name of only one person
 Over time, common law shifted… courts negate presumption of JT in presence of language like “equally amongst them”, “equally”, “between”, “share and share alike”, “amongst”, etc. (‘words of severance’)
 Statute has altered these positions though – s.13 of Conveyancing and Law of Property Act reverses common law presumption and creates a presumption of a TIC (note – only applies to real, not personal property) o Essentially, in Ontario, creation of JT of land requires four unities plus a clear stated intention on the part of grantor
 Hargreaves: Joint Tenancy can be seen as an obstacle against alienation of land…
 Re Bancroft, Eastern Trust v. Calder (1936 NS SC)
 Facts: Someone died. Will says some specification to take care of his wife while she is alive…leaves some personal property for her. Everything else, half was to be invested with income to go to wife during her lifetime; the other half was invested, and divided to four parts ‘equally’ to son (1/4), two daughters (1/2 in total), and the two grandchildren (1/4 in total) to a deceased daughter. One of the grandchildren died.
Should the remaining grandchild receive the entire 25% or the piece goes to the deceased child’s estate?
 Issue: is the 25% to the two grandchildren JT or TIC?
 Court says no apparent intention on the testator to create tenant in common, four unities were satisfied, so assumption was JT. So the remaining grandchild receives the full 25%.
 If decided today, it would almost certainly be TIC.
 Joint tenancies can be ‘severed’ into tenancies-in-common
 The reverse cannot occur except for an express declaration that the parties are now JC
 Note: severance can't be effected by will = if joint tenant tries to devise his interest by will, surviving joint tenants will benefit from right of survivorship, devisee won't get anything
 Re Sorensen & Sorensen (1977 Alta. CA)
 Facts: two married own a few properties in Calgary. When they divorced and under the settlement, the wife kept the family home for life. However she agreed to lease it for a nominal fee ($1/year) to husband and she also agreed to pay for upkeep and repairmen of the home. They agreed to sell off the adjacent lot to help pay for the upkeep. The husband agreed to pay $100/month for child support, security against his remaining interests in the family home. Unfortunately wife is later diagnosed with cancer, she has a mentally challenged son. She executed a trust deed in which she declares that she’s holding the properties in trust for her son, and that she is ending the joint tenancy that she shares with the husband ‘I hereby declare I’m severing the JT…’.
 She appoints her daughters as executors of the estate and directs them to use the income from the estate to take care of the son. She also began an application to court to recognize the partition,;before court could decide, she dies.
 Husband says as JT, he’s now the sole owner of the property by right of survivorship. This means that there would be no capital in the trust held for the son.
 Issue: is there severance?
 A JT can be severed in three ways: unilateral action, mutual agreement, actions by both tenants that indicate an intention to end the JT
70

o Unilateral action
 If a joint tenant acts upon the property in some way that destroys the one of the four unities, JC is severed and they become TIC. Example: A and B are JT, A conveys then his interests to C, then JC ends AND B & C become TIC – unities of time and title are severed.
 If A, B and C are all holding as JC, if C conveys his interests to D, then A and B are still JT, but
D would hold a solitary, 1/3 interest as TIC to A and B. o Mutual agreements o Acton by both tenants that indicate an intention to end the JT
 Court says even if (between two JC tenants) one of the tenants sells his/her interests, even though that might be an unilateral action that would severe, IF they continue to have joint control of the proceeds, then that won’t severe the tenancy
 Means if A sells the property, the proceeds remain in a jointly held bank account between A and B – still JC. Only when the proceeds are separated between them, it is severed to TIC.
 Onus to demonstrate severance lies with those arguing for it
 Daughters say four actions severed tenancy:
1) Execution that settled the divorce o Court says however this did not severe, during the settlement talks, there is no apparent intent on the part of wife or husband to separate the TC o What about the lease? – Different in possession, the unity of possession is destroyed. Court says even though there is a lease, and even though a lease normally would severe, but in this case it did not because the nominal fee was clearly designed to last through the life of the wife, and at the end the property would revert back to the husband
 Under this logic, unity of possession would only be destroyed if the lease is to a third party
2) Trust deed o Court says no because the husband was never notified of the deed. But the deed was valid in transferring the beneficial interest of the property to the son and therefore this severs the title in only equity, not in law
3) Execution of the will – Court says no because right of survivorship is superior to will; otherwise it would completely defeat the purpose of having JC
4) Application for partition – Court says no because she died before it could be decided
Conclusion husband holds the entire interest by right of survivorship. And the beneficiaries are validly transferred, so husband holds the property in trust for son. He has to use the income for the son.
 Co-owners, whether TIC or JT, have right to possession of whole of the co-owned property
 Therefore, they generally do not have to account for the benefits of their occupation to the other tenant, except in certain circumstances: o Ouster – if one of the tenants unlawfully excludes the other tenant, the one who prevents the other from exercising the right of property would have to pay occupation rent. o Agreement – one can give up possession to other in exchange for occupation rent; the other(s) would have sole possession o Statute of Anne (enacted in Ontario under Courts of Justice Act)
 This allows one of co-tenant to bring action against the other for receiving more than the just share
 Example is if they own and rent out the property, and turns out A receives secretly 70% of the rent but his shared is 60% only in TIC… B can bring action to claim the 10%
 But, if each owns a separate bedroom, A is able to rent out at a higher price than B can for his bedroom, it’s okay too.
 Exception: farmland. A owns 60% of land but yields 70% of crops overall because he’s more productive … it’s okay. o Waste
 Co-owner can bring action if you go off to destroy the property o Equitable accounting
71

 When a JC is severed into a TIC: if a court finds there is some equitable reason that one tenant should pay something to the other, then okay
 Hutterite Colonies: Hofer v. Hofer (SCC 1970) o Communal properties. Hutterite colonies are designed to be less than 100 people. They have a religious rule against private ownerships. All real and personal properties in the community are held for the benefit for the community. When a colony becomes too large, part of it is separated into a new, smaller colony. o Appellants from Interlake Colony, used to be part of Lockelake Colony. Members of Interlake seeks an application as to declaration in an attempt to receive a ‘fair share’ of community assets.
Originally would not be a problem, but several members of Interlake tried to switch from Hutterian
Church to Radio Church of God, and as a result they were excluded from community… o Courts of Trial and Appeal: Since all property were held for community, the expelled members had no right to claim the property o SCC looks at articles of association of new colony, in which the land is referred to as being held by three individuals as joint tenants but the certificate of title has names to three different members, who later executed a deed saying they hold land in trust for the first three members o But in article of association it was clear that the land was held for benefit of entire community and
SCC says that’s superior interpretation to the land title or certificate o Even though it’s a farmland, SCC says it is not a commercial land because there is no right to private profit from the farming o The court holds that the expulsion of members is valid and there is no reason why a Church cannot have control over memberships of the community o Freedom of religion triumphs property rights
 Aboriginal conceptions of land
 Ownership of computer software through GNU general public licence
72

A CCESS TO P UBLIC AND P RIVATE P ROPERTIES
 Government regulation of public property is subject to review under the Charter
 Policy argument in favour of allowing use of public property: space is necessary for exercise of other fundamental freedoms

 Constitutional question re: right to distribute political pamphlets in airports
 Court says plaintiff has the right on the public property
 Expressive right is not unlimited, but the regulation has to be reasonable under the circumstances given the nature of the property (airport)

 Posting signs on public properties/street furniture. The city went around stripping off the signs on the public utility poles.
 Constitutional question re: right to post signs on public utility poles
 Policy concern: allowing citizens who do not have significant resources to allow their exercise of Freedom of
Expression to still exercise that right. Wealth people could buy
 Given this was a public property, did the individual have a right to stick signs on it as a right of expression?
Court says yes.
Class Discussion: how does (or should?) this apply to the Internet? Ought a right to internet access be granted to ensure modern rights to free expression are protected?
-
Maybe positive right to freedom of expression; but negative right to access to Internet
-
Internet is not public property in Canada but should you have (positive) fundamental right to access
Internet?
-
You don’t need to own a website to express yourself. Free blogs.
-
Plenty of ways to access Internet already
-
There is not positive right to access to news and radio, why Internet?
-
Net neutrality?
-
How about a social welfare program where a voucher is provided to citizens to get Internet from
Rogers or Bell services?
 More controversial… rights of private landowner not absolute, but Charter inapplicable
 Harris v. Carswell (mall owner trying to exclude picketer from premises)

 CAW is not trying to distribute material inside Michelin’s plants, but are claiming the right to use Michelin’s property (the “intellectual property” of the Michelin-Man logo) in order to convey their message o Claiming Copyright Act violates freedom of expression by not granting this additional exception as pursuant to fair use o Fair use: exceptions in Copyright Act that allow people to use trademarks in certain reasonable circumstances without permission of copyright owner…educational purposes, for example
 McL FC Court confirms Charter s. 2(b) does not apply to private properties but on public properties, a balance between government powers (and obligations) and private rights
 FC says no merit to claiming the IP as ‘quasi-public property’, it is a logo for advertising
 FC agrees the balancing of interests is still relevant, but the balance tilts in a different direction when the property at issue is private

73

 Sky City Auckland v Wu (2002 NZ CA)
 A common law right of access to private property can arise where a service over which a private owner holds a virtual monopoly is found to be a matter of ‘prime necessity’ o Usually done through acess to water or electricity in New Zealand
 Court says casinos, despite being somewhat of monopoly, do not fall under this prime neccessity
 BUT -- this doctrine has not received approval by courts in Canada
 Committee for a Better Twin Rivers (CBTR) v Twin Rivers Home Association (TRHA)
 Facts: TRHA is a private non-profit company who owns common area of this community. Seems like a political fight, some residents do not like the fact they cannot advocate for some candidates.
 Issue: whether rules/regulations enacted by homeowners association regarding posting of signs, use of community room, and access to newsletter violate New Jersey state guarantees of free expression
 Schmid Test: Political pamphlets distributed in Princeton University…
 Court applies Schmid test -- constitutional rights on private property might exist depending on 1) nature/purpose/primary use of that property, 2) extent and nature of the public’s invitation to use that
(2007 NJ SC) property, and 3) purpose of the expressional activity undertaken on that property
 Conclusion: TRHA permits expressive activity to take place but with some restrictions; these restrictions are not excessive in light of the test
F INAL E XAM R EVIEW
April 9, 2010
Final Grade
Participation: 5%
Midterm: 20%
Final: 75%
Exam Outline o 3 hours, open-book
Part 1: Short Answer Questions o Choose 5 of 7 or 8, 5 marks each = 25 marks o 10-15 minutes/each
74

CASE LAW
P19. (Mall owners have possession; can revoke privilege)
Facts: P sued D for trespassing because D was peacefully picketing on a sidewalk within a shopping center due to a labor dispute.
Issue: Does the owner of a shopping plaza have sufficient control or possession of the common areas, regarding the unrestricted invitation to the public to enter upon the premises, to invoke trespass as a remedy?
Analysis: (Dickson, maj): Ct. previously decided YES (Peters v. The Queen). Bound by precedent. Looking at circumstances here, management has never allowed people to distribute placards. Allowing picketing in plazas is at discretion of shopping centre owner, who has only two options: allowing anyone to picket (chaos) or selective picketing (result in commercial reprisals). Neither has a desirable consequence. Therefore it is reasonable not to allow anyone.
Case pits private property rights against right to picket. Legislation, while supporting right to picket, has clearly made right to picket permissible in some locations and not others. Jurisprudence strongly recognized right to enjoyment of property and absence of trespassing- if is to be any change in this law, it’s legislature’s job. Ruling for
P, picketer fined.
Quote on withdrawing permission: Peters- [Gale C.J.O.] "....an owner who has granted a right of entry to a particular class of the public has not thereby relinquished his or its right to withdraw its invitation to the general public or any particular member thereof, and if a member of the public whose invitation to enter has been withdrawn refuses to leave, he thereby becomes a trespasser and may be prosecuted under the Petty Trespass Act".
Dissent / Discussion: (Laskin, min): Not bound by precedent- Dickson being mechanistic. Weigh interests
involved. Peters diff't ("I was there"). Owner of plaza tells striking employee of a tenant business picketing not allowed. To say that a shopping center owner may at his whim order any member of the public out of centre on penalty of trespassing if he does not vacate doesn’t make sense if no proper reason in person’s conduct to justify order
to leave.
Trespass connotes unjustified invasion of another’s possession. A shopping plaza is more like public property than a private dwelling; what invaded interest is owner claiming here? Only misbehavior/vandalism/unlawful activity should merit expulsion from premises (“revocation of public privilege”). Shopping owner has no overriding or co-equal interest to serve in intervening in this labour dispute, seems to be acting for the struck tenant if anything.
Not saying should be no limits on the type of activities allowed in plazas, number of people participating, and cause being advanced, but in this particular case, the respondent/(D) is the injured party. Striker's right to picket in
lawful strike outweighs property owner's interest.
Analysis of the Two Judicial Approaches:
Dickson Majority approach: must follow precedent, no way to distinguish Peters - it's controlling. Courts should not legislate- should work incrementally from precedent, not depart from it radically.
Laskin Dissent: not bound by precedent. Should weigh interests involved. Role for court to reconsider precedents if social conditions changed, or considerations in new case not present in older case. Not remaking law (what legislatures do) but applying legal principles to present circumstances. Both labour dispute but Carswell is different
Peters in that employee of the tenant has a stronger societal interest and right.
P.48 (Quasi-Property in news)
Facts: One newspaper service (INS) bribing employees of other news service (AP) to give them its news and also they are copying P’s early dispatches and selling them to D’s customers.
Issues: Whether INS can be restrained from appropriating news taken from AP's bulletin boards issued by complainant or any of its members, or newspapers published by them for the purpose of selling it to defendant’s
75

clients (court poised right at moment where something recognized as property or not)
Sub Issues:
1.
Is there any property in news? - Yes, quasi-property.
2.
If so, does the property survive being published in the 1st newspaper to which it’s communicated by the news-gatherer (or property right abandoned)? – Yes between two parties; no against the public. Bundle of
Rights theory.
3.
Is the D’s admitted conduct (appropriating news for commercial use) unfair competition in trade?
P’s news is not copyrighted. Upon it being published anywhere, even as an early dispatch, D says that the right of property is lost. But news matter has a dual character – substance and form (collocation of words) - is both the creation of writer (words) but the substance of the news is not a creation of his, but a report of public matters.
P.50: With certain exceptions, the news of current events may be regarded as common property. At concern here however is the business of making the news known to the world.
Holding: "Regarding the news as the material out of which both parties want profits at the same time in same field, we hardly can fail to recognize that for this purpose and as between them, it is quasi-property.”
- Not making a decision as to whether it’s property between AP and the whole world, but AP and INS. Bundle of R.
- AP got its injunction, but injunction was a temporary embargo on using AP’s news information for a few hours only
(then it’s fair game). This is an interesting case. If you recognize property interest, why would it be time limited?
Reasoning:
Pitney (majority): News matter is stock in trade, to be gathered at the cost of enterprise, organization, skill, labour, and money and to be distributed and sold to those who will pay money for it, as for any other merchandise"
 Locke, organizational theory – reap what you sow. Perhaps also value theory of property.
“But in a court of equity, where the question is one of unfair competition… a competitor who is misappropriating it for the purpose of disposing of it to his own profit and to the disadvantage of complainant cannot be heard to say…”
Also, not only has it an exchange value for the gatherer, news has exchange value to one who can misappropriate.
Defendant selling it as its own is trying to reap what it has not sown-- unjust enrichment theory.
“The news element is not only the writer’s skill but the news of the day--the value of news is not in the keeping of it but the spreading of it.”
INS argued that whatever right AP had they abandoned by making it known to the public. Why is INS in a different position from general public? Because it is one thing for a reader to tell friends, it’s another for a competitor to steal it and make a profit on it. Majority is careful to say you can decide a property rights question between the two
parties without saying that person has property right against whole world. Property right is almost always relative--relativity of title--AP has to show that they have better claim to property rights than INS, not the whole world. INS cannot raise as a defense that some 3 rd party might have a better right. Bundle of Rights theory.
Holmes (dissent): property is a creation of the law; Courts are ill equipped to enforce a property right in the news.
Property does not arise from exchangeable value but on the exclusion from interference by law. As long as INS recognizes AP as a source, they can print.
Isn’t it still free riding for INS to have it after a few hours? No, because its value is in its freshness. The court decided that it would lose its value after a few hours-- INS wouldn’t be able to make much on it.
[1937] Australia
P.56 (No Property Right in Spectacle)
Facts: D built platform where people can view and broadcast racecourse, and racecourse loses stream of income.
76

Decision: law cannot by injunction erect fence which plaintiff is not prepared to provide. No property right in spectacles created by some facilitation of the land.
Latham C. J. - Majority: Victoria Park is asking us to say that someone may not open their eyes and tell someone what they see. A spectacle is NOT "quasi-property"- it can't be owned. The natural rights of an occupier do not include freedom from the view and inspection of neighboring occupiers.
Dixon J.: It is possible that a spectacle can be property. But the key here is that it is not the job for the court to decide if spectacle is property or not – it is the legislature’s job. Just because something has exchangeable value, does not mean it is automatically property.
“…English law is… clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers and of other persons who enable themselves to overlook the premises.”
“…The answer is that it is not because the individual has by his efforts put himself in a position to obtain value for what he can give that his right to give it becomes protected by law and so assumes the exclusiveness of property, but because the intangible or incorporeal right he claims falls within a recognized category to which legal or equitable protection attaches.”
Dissent by Rich J.: An individual does not have unlimited rights on his own land. Just because Taylor is on his land when overlooking the spectacle, does not mean he has a carte blanche. Bundle of Rights theory and harm of rights principle (my freedom to act as I wish on my own property does not allow me to impair the right of others on theirs). in building a tower so you can look into someone’s land is not an allowed use - an unnatural use of neighboring land.
This is undue interference based on tort principle. However it centers on nuisance, no opinion to copyright issue raised.
“It does not follow that because no precedents can be found, a principle does not exist to support the plaintiff’s rights.”
Our common principle is based on revolution of law and a set of precedents.
NOTES
This case does not recognize doctrine of unfair competition. Rejected by a U.S. court later in Pittsburgh v. KQV (p.61-
62).
Distinguish from I.N.S., p.61 n.2:
…in the Victoria Park case…but it should have also been recognized that they had no right to so contrive their activities that they appropriated the profits that could be made out of a spectacle that the plaintiff brought into
being by expenditure of labour and money and for the purpose of profit making.
P.62 (Excised human cells are not property)
Facts: Moore has leukemia, Dr. removes spleen, find commercially valuable proteins, patents cell line and makes $.
Dr. got Moore’s consent for all procedures, but didn’t disclose valuable use he was putting tissues to.
Issue: Does a person have a continuing property interest in separated bodily parts?
What were the issues in this: lack of informed consent (this guy has a claim, the court said, for this, and because it was a doctor who failed in this duty, it’s also a breach of fiduciary duty). Conversion is another issue--interference with personal property.
Holding:
Panelli (Majority) No action in Conversion.
Moore could base tort claim on breach of fiduciary duty and lack of informed consent.
Conversion must first establish actual interference with ownership or right of possession. If no ownership or possession - can't maintain action of conversion.
77

“Since Moore did not expect to retain possession of his cells following removal, to sue for conversion he must
have retained an ownership interest in them.” – Control theory.
Did Moore Retain an Ownership Interest in the cells? No
A) No reported judicial decision supports Moore's claim
B) California stat. scheme for biological waste- limits any continuing interest of patient in excised cell.
Legislation so completely divests patient of right to control these things- extinguishes any property right.
C) Patented cell line and the products derived from it can't be Moore's property -> factually and legally distinct from cells taken from Moore's body
Inventive effort- cell line is product of invention (labour/Locke theory). The very fact that the cell line can be and is patented goes to show that there is some inventive effort going into the production.
Why not extends Conversion Liability?
A) Policy Considerations
 Patient's right to make autonomous medical decision - fiduciary duty and informed consent - liability based on existing disclosure obligations, rather than an extension of conversion theory- protects patients without hindering research
 Don't threaten (with disabling civil liability) innocent parties engaged in socially useful activities - would
 restrict access to raw materials - human cell lines in tissue repositories
Economic effects of the court regulating this kind of activities. If they extend tort liability to this type of activities, then economic and scientific exploration in medical research – socially beneficial research would be hindered.
B) Legislature should handle the problem
C) No pressing need- conversion not necessary to protect patient's rights - enforcement of existing doctor disclosure
obligations are enough
Mosk (Dissent):
Did Moore Retain an Ownership Interest in the Cells? Yes
A) There are no judicial decisions rejecting his claim, either. Shouldn't refrain from applying conversion if it's right.
Functional approach to novel claims.
B) California statutes certainly didn't extinguish Ds rights.
C) Concepts of property and ownership are broad. Objects AND a "bundle of rights" which can be exercised with respect to the object- principally, right to possess, to use, to exclude others and to dispose of by sale or gift.
Limitations prune but don't extinguish property (title). At LEAST, P had right to do with his own tissue whatever D did.
D) Majority fails to recognize P's entitlement to compensation for D's use of tissues before patent. Also, there would have been no patent without his cells. Although not a joint inventor, policy reasons that inform Joint Inventor patents should apply to cell donors.
E) “The limitation or prohibition diminishes the bundle of rights that would otherwise attach to the property, yet what remains is still deemed in law to be a protectable property interest” (p.71)
Why Extend Conversion Liability?
A) Policy Consideration
 Researchers already have to deal with a chain of custody for controlling patents in biological materials. LESS access of researchers to cell lines and products. Record keeping already done anyway- would resolve any potential liability issues. An agreement with the patient will actually simplify matters. Tragedy of the anticommons: argue that too much private property is harmful--they have to get through thicket to actually produce something.
 “Society recognizes a profound ethical imperative to respect the human body as physical and temporal expression of unique human persona. One manifestation of that respect is our prohibition against indirect abuse of the body by its economic exploitation for the sole benefit of another person.” (p.76) every individual has a legally protectible property interest in his own body and its products. Possible suppression of economic activity is not sufficient to negate the societal interests.
 “Biotechnology depends upon contributions of both patients and researchers…BUT FOR…failing to compensate the patient unjustly enriches the researcher because only the researcher’s contribution is recognized.” (p.77) o HOWEVER, If Doctors should not obtain profit, why should Moore? (Professor)
78

B) Just because Legislature may intervene later doesn't mean courts should do nothing now.
C) A physician who intends to treat a patient in whom he has research/economic interest under fiduciary duty to disclose such interest - if not, give rise to non-disclosure cause of action BUT Mosk disagrees that it's better than conversion - unlikely to succeed; no part of the proceeds; may allow REAL exploiters to avoid liability
Case was allowed to proceed on basis on lack of informed consent, so the community responded by putting out consent forms requiring patients to relinquish rights to cell lines (or they don’t get the procedure).
Facts: D sold the surface rights to land but retained (in contract) the right to remove all coal from beneath, and things were built on the land. It would normally be implied that the owner of the surface also has a right to support, but because of this arrangement, there was a serious concern that roads, cities and private dwelling homes were at risk of collapse. The government passed the Kohler Act to prevent mineral extractions when it would affect subsistence of a surface structure used for human habitation. Penn Coal claims statute is invalid because it amounts to a taking without compensation.
Issue: is this a taking in law? The statue is interfering with contracts and property rights. Is regulating in the Kohler
Act a “taking” that requires due process and/or compensation? Does the statue eliminate rights of mining in such a way that warrants compensation by the state?
Analysis:
 Holmes: overreaching by the state and too great an imposition on private property owners = TAKING o If government regulates to the point commercially impractical to mind coal is the same thing as if the government has expropriated or destroyed the coal. This amounts to taking requiring due process/compensation, regardless of the purpose of the statue. o Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law – some values are enjoyed under an implied limitation and must yield to the police power o Holmes alludes to a number of factors in trying to assess where to draw the line:
 The extent of the diminution: to what degree does it deprive the owner of beneficial enjoyment of the property? What is the monetary loss?
 The purpose of the regulation: is it aimed at public safety, or conferring a benefit on other private individuals? It is not a legitimate exercise of police power to take value from one private individual and give it to another (this is what Holmes thinks is happening here).
There is much greater scope of police power when using it to protect the public at large.
 Average reciprocity of advantage: are the burdens and the benefits of the law equally enjoyed? When a zoning by-law is passed, all the residents of the area experience the benefit of the laws, as well as the restrictions, so there is average reciprocity. Here, Holmes says there is no such reciprocity.
 Past dealings: the state chose to buy the properties in question without a right of support, and presumably paid less for them for that reason. Instead of trying to purchase it now, they are imposing a regulation the coal mining companies that in effect forces them to surrender the support. If the state is grasping at a stick from the bundle that it didn’t purchase initially, it looks more like a taking.
 Human Nature to Take Until Private Property Disappears: once a seemingly absolute protection is found to be qualified by the police power, the natural tendency is to extend the power more and more until the right disappears
 Brandeis (dissent): legitimate public welfare regulation, and there is no need for compensation = NO
TAKING o The state is not taking or using the property. It’s simply regulating mining for public safety reasons.
79

o Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed – but restriction imposed to protect public health, safety, or morals from dangers threatened is not a taking. o Main points (meets Holmes on his first four points)
 Values are relative: although the coal companies are losing the value in the coal they cannot remove, it is necessary to look at the larger context – taking the coal can potentially cause very serious harm
 Prohibiting noxious use: if coal mines were polluting the air and the state prohibited it, it would not be an inappropriate use of state power, even if it did confer benefits of some private property owners and impose costs on others.
 Average reciprocity: Brandeis sees this a regulation to protect the public at large, whereas
Holmes sees it as regulation to protect specific private property owners. Brandeis says that reciprocity plays no role here.
 Past dealings: state power to protect the public cannot be bargained away – the fact that contracts were entered into whereby surface rights were not given with the support does not exclude the state from regulating them.
Decision: Government has to compensate Pennsylvania Coal Co. for regulatory taking.
Note: this is the first case in US constitutional law where a regulatory taking was acknowledged
Facts: This was an attempt to rely on the Canadian Bill of Rights by a group of veterans. The government had been acting as a trustee for the veterans’ pensions, and had not paid them the interest. The government had passed a law limiting their liability. There was no dispute that this constituted a deprivation of private property, but there was no way to challenge it using the Charter, so they tried to use the Bill of Rights. The Bill refers to “due process”, and the veterans tried to argue that this could also encompass substantive due process, rather than procedural process exclusively.
Analysis:
 This was clearly a taking – but was it a taking without due process?
 What process was due the veterans?
 Veterans claimed that they had a right to notice and to contest the passage of the legislation BUT the only procedure due Canadians is that proposed legislation get three readings
 If the legislation had created a tribunal to make decisions about whether or not the veterans would get the interest, then the individuals about whom decisions were being made would have a right to a hearing.
However, the legislation itself extinguished the right to interest, so there was no place for due process to occur.
 What substantive due process rights exist in relation to property?
 The Bill of Rights only protects rights that existed at the time of its passage, in 1960, and at this time it was undisputed (and it still is) that Parliament has the right to expropriate property if it made its intention clear
Ratio: The Bill of Rights does not protect against the expropriation of property by the passage of unambiguous legislation (there is no substantive protection against uncompensated state takings)
 Meaning, this case tells us that the state can explicitly say in legislation that it is taking property without compensation
Facts: Mining company acquired land rights from the provincial government. Park regulations became more stringent, and the company couldn’t mine without permission. Further legislation was passed, and the company couldn’t get permits to mine without a recommendation from the entity responsible for the park. Tener applied for a permit, was rejected, and the state compensated him for some loss – he thinks he was entitled to more.
80

Analysis:
 In the original grant, it said that the property was subject to changes in mineral regulations (Tener purchased a bundle of rights that had extra liabilities – similar to those who purchased land without right of subsurface support)
 One way to look at it is that the state was exercising its power to regulate, and the owners now wanted something they didn’t pay for
 However, the state shouldn’t be able to take back property rights completely – where is the line?
 Total deprivation of the property owner’s ability to use their property rights is the tipping point
 Here it was held that the government took value from the owner, and added it to the park, because the value of the park was clearly enhanced since they could no longer mine, therefore it was held to be an expropriation
Ratio: If the regulation effectively obliterates the private property owner’s ability to use his property beneficially, it will constitute a taking
Facts: California passed environmental regulations which prohibited a gasoline additive. Methanex claimed that it was taken to benefit the US ethanol industry, and it was tantamount to expropriation within Article 1110.
Analysis:
 Because there was no taking on the sense of property being seized or transferred, Methanex must establish that the ban was tantamount to expropriation
 Methanex is correct that an intentionally discriminatory regulation against a foreign investor fulfils a key requirement for establishing expropriation, BUT generally a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and which affects a foreign investor is not deemed expropriatory and compensable unless specific commitments have been given by the regulating government to the putative investor
 Very different (and narrower) definition of what constitutes a taking than in Metaclad, but neither decision is binding on future tribunals so it leaves us in a state of uncertainty
 GOODWILL: Items such as goodwill and market share may constitute an element of the value of an enterprise and pay be covered by compensation payments, but it is difficult to see how they might stand alone in a case before the tribunal
Ratio: (1) A non-discriminatory regulation for public purpose enacted with due process is not expropriatory and compensable unless specific commitments have been made
(2) You can claim goodwill if there has been a physical taking of property, but it is not a stand-alone claim
Note: NAFTA does not apply to Canadian investors in Canada, who are under the domestic regime.
Peter v. Beblow
[1993] S.C.R. 980 - Facts: Peter/Beblow lived together over 12 years in a house in B.C. owned by Beblow. Peter managed household, cared for children while she lived with him. Beblow was frequently away on business, Peter ran household in his absence. Before Peter lived w/ Beblow, he employed a housekeeper for $350/month.
Peter brought action against Beblow claiming Beblow had been unjustly enriched over years of relationship by
Peter's contributions in labour and money. Peter asked for declaration that Beblow held title is his house subject to a constructive trust on her behalf.
Held: Appeal allowed with costs.
Analysis:
McLachlin J. (maj): Can. courts have adopted equitable concept of unjust enrichment as basis for remedying injustice that occurs when a person makes a substantial contribution to P of another w/out compensation.
Three elements for successful action: 1) an enrichment
2) a corresponding deprivation
3) the absence of a juristic reason for the enrichment
81

After proving these, must determine the nature of the remedy: a) payment of services rendered on basis of quantum meruit (lit: "as much as he deserved") b) constructive trust (where one person had legal title to property in which another had an interst)
- arises where monetary damages are inadequate & there's a link btwn contribution that founds the action and the property in which the constructive trust is claimed (principle fr. Dickson J. in Pettkus v. Baker [1980]).
Do the facts of the case make out the elements?
1. Was enrichment - Peter's housekeeping, child-care services constituted a benefit to Beblow
2. Was a corresponding detriment - Peter did not receive any compensation for her work.
3. There was no juristic reason for the enrichment - no obligation btwn parties which to justify unjust enrichment
Main Argument in Appeal
 Should the law recognize "home-maker services" as a basis of an unjust enrichment action?
Argued- Peter voluntarily assumed roles; services arise fr. natural love and affection. Falls within third stage of
"test" - absence of juristic reason for enrichment. Main concern: legitimate expectation of the parties. ASK:
A) Did the plaintiff confer the benefit as a valid gift or in pursuance of a valid common law, equitable or statutory
obligation which he or she owed the defendant?
Argued Peter's services were part of the "bargain" she made when she came to live w/ Beblow.
No. A CL spouse owes no duty at CL, in equity or by statute to perform work/services for her partner. Also, no obligation arising fr. circumstances of the parties.
B) Does public policy support the enrichment?
Argued: some services in some types of relationships should not be recognized as supporting legal claims for policy reasons. Homemaking and childcare services should not give rise to equitable claims against the other spouse.
Some judicial precedent for claim - setting up house, having kids - referable to mutual love & affection of parties, not to claimant's belief she has an interest in the house. Distasteful to "put a price" on services provided out of love.
Argument no longer tenable - notion that domestic services not worthy of recognition by courts fails to recognize that these services are of great value- to family and to other spouse. Policy reason argument fails - provincial acts governing division of matrimonial property already recognize value of domestic services, no resulting social harm.
Conclusion: Homemaker services are valid basis for unjust enrichment claim. Now: REMEDY
Was the Remedy Justified?
- TJ awarded Peter title to the matrimonial home based on a constructive trust
- two possible remedies: monetary award on basis of value of services rendered or constructive trust
- for CT: plaintiff must establish a direct link to property which is subject of trust by reason of p's
contribution
Cory J. thought this link only necessary in corporate cases, not in family.
McLachlin (maj) disagrees- same principles re: rights/remedies for unjust enrichment should be same for all cases.
What is the Extent of the Contribution Required to Give Rise to a Constructive Trust?
A) Threshold test: "Whether the plaintiff's contribution was sufficiently substantial and direct as to entitle her
to a portion of the profits realized upon the sale of the.... property" (per Dickson C.J. in Pettkus v. Becker)
B) Then, amount of contribution governs extent of constructive trust: The extent of the interest must be proportionate to the contributions, direct or indirect, of the claimant.
Two Approaches to Determining Extent:
82

Either value of services claimant rendered ("valued received") or amount by which property improved ("value survived"). McLachlin endorses "value survived" for two reasons.
1) Doctrinal - principle "extent of interest must be proportionate to contribution". For monetary award, 'value received" approach better, but where claim is for interest in property, use "value survived".
2) Practical - "value survived" accords best w/ expectations of parties- couple expects to share in wealth generated from partnership (not "get paid for services performed")
Conclusion
Monetary judgment inadequate. How much for the trust? TJ used "value received" approach- Bablow had paid cleaning lady before Peter, multiplied $350/month for 12 years, subtracted 50% for "benefits received". McLachlin favors "value survived" approach, considers appellant's proper share in all family assets. All assets of family enterprise to which Peter contributed substantially. House a fair approx of value of Peter's efforts.
Comment
- third part of unjust enrichment test (juristic reason = J.R.) is most open-ended
- language used suggests that plaintiff must show absence of J.R. (prove a negative)
- Iacobucci in Garland v. Consumers' Gas Co. [2004] provides guidance: reason for third condition is ensure that test for unjust enrichment not purely subjective
- as an equitable remedy, necessarily involves discretion and questions of fairness
Two Part Analysis for Step 3 "Juristic Reason"
1) plaintiff must show that no J.R. from an established category exists to deny recovery
- closing list of categories eliminates problem with "proving a negative"
- categories: a contract, a disposition of law, a donative intent, and other valid CL, equitable or statutory obligations
- if no J.R. fr. established category = prima facie case under 3rd component
2) prima facie case rebuttable where defendant can show there is another reason to deny recover
- result: de facto burden of proof on defendant to show reason why enrichment should be retained
- courts considers reasonable expectation of parties and public policy considerations
- Court might find a new category of J.R.; there was a juristic reason in circs of case, but it doesn't support a new category of J.R. that can be applied to other circs or there was no J.R. for the enrichment (so recovery allowed)
Aboriginal title at common law
[1997, SCC]
Issue: What is the nature and scope of the constitutional protection afforded by s.35(1) to CL aboriginal title?
Discussion:

Aboriginal title is a distinct species of aboriginal right that was recognized & affirmed by s.35(1) (Adams)
 It’s a right in land and therefore is more than a right to engage in specific activities which may themselves be aboriginal rights o confers right to use land for various activities, not all of which need to be aspects of practices, customs and traditions which are integral to the distinctive cultures of AB societies o However, range of uses is subject to limitations- they must not be irreconcilable w/ nature of the attachment to the land which forms the basis of the particular group’s aboriginal title.

AT is described as sui generis in order to be distinguished from normal proprietary interests, such as fee simple o But also that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems

Various dimensions of AT a.
Inalienability – land can't be sold, transferred, or surrendered to anyone other than the Crown b.
Its source o Used to be thought that it was fr. Royal Proclamation, 1763. But it arises from prior occupation of Canada by aboriginal people. It’s legal right arises from possession before British sovereignty o First: physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law
83


Sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates like fee simple arise afterwards o Second: source of AT, relationship b/w common law and pre-existing system of AB law c.
It is held communally o It is a collective right of all members of the nation—decisions with respect to land also held by community

Summarized by two propositions:
1.
AT encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures o The uses to which lands held pursuant to aboriginal title can be put are not restricted to aboriginal specific activities

However, nor does AT amount to a form of inalienable fee simple o Inherent limit: these lands cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to aboriginal title

Importance of continuity of the relationship of AB community to its land over time

This limit is due to it being a sui generis interest
2.
That those protected uses must not be irreconcilable with the nature of the group’s attachment to that land o
Relationship between group and nature of land, important non-economic component, land has inherent and unique value in itself o Should not be prevented from continuing into the future o To do otherwise, goes against the original aboriginal claim to the land, that they have prior occupancy and a bond with the land o Therefore, land under AT cannot be alienated - not fungible – cannot destroy that value o This does not preclude possibility of surrender land to Crown in exchange for valuable consideration. o Common law idea of “waste”

AT at common law is protected by s.35(1)

S.35(1) constitutionalized these rights, but does not exhaust them o AB right at CL is sufficient, but not necessary, for the recognition and affirmation of that right by 35
 AT is “simply one manifestation of a broader-based conception of aboriginal rights”

Spectrum of aboriginal rights that vary with their degree of connection to land
AB rights that are practices, customs and traditions that are integral to distinctive aboriginal culture
Activities that out of necessity take place on land
And then, the AT itself: species of AR, distinct b/c it arises where the connection of a group with a peace of land “was of central significance to their distinctive culture”
AT confers more than site-specific rights, confers the right to land itself

The court has defined aboriginal rights in terms of activities o AT however is a right to the land itself o Thus, the Van der Peet test for aboriginal rights needs to be adapted for AT

Test for proof: i.
The land must have been occupied prior to sovereignty

Time period is different than for aboriginal rights – here it is at the date of sovereignty

Proof is from CL and aboriginal perspective

Therefore, any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants
 AT is a burden on the crown’s underlying title, but crown did not gain this title until it asserted sovereignty over the land—b/c it makes no sense to speak of a burden on underlying title before the title existed, AT crystallized at the time sovereignty was asserted
84

ii.
iii.

Any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants
If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation

Can show evidence of occupation as proof of pre-sovereignty occupation

No need to establish unbroken chain of continuity – there must be a ‘substantial maintenance of the connection’ between the people and the land

The nature of occupation does not have to be the same throughout

Exceptions – uses of land that are inconsistent with continued use by future generations of aboriginals
At sovereignty, that occupation must have been exclusive

The ability to exclude others from the lands held pursuant to that title

Mirror the right to exclude, but within the context of the aboriginal society at the time of sovereignty

Exclusivity is a common law principle derived from the notion of fee simple ownership and should be imported into AB with caution

Can show exclusivity even if another group present or frequented area—this presence can actually reinforce exclusivity (permission granted)

Proof is relied on from CL and aboriginal perspective

Concept of shares exclusivity is well-known to common law: shares exclusive possession is the right to exclude others except those with whom possession is shared

Rights under s.35(1) can be infringed by the federal and provincial governments
1.
The infringement of the aboriginal right must be in furtherance of a legislative objective that is compelling and substantial. o Compelling and substantial objectives were those which were directed at either one of the purposes underlying the recognition and affirmation of aboriginal rights

Recognition of prior occupation of NA by AB people and reconciliation of AB prior occupation with the assertion of the sovereignty of the crown o Must be for the broader good or sufficient importance to the community as a whole

Conservation, pursuit of economic and regional fairness
2.
An assessment of whether the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples. o Fiduciary relationship required that AB interest be placed first, but duty does not require that AB rights be given priority o
The duty is determined by each case at hand o Doctrine of priority requires that gov’t demonstrate that in allocating resource, it has taken account of the existence of AR and allocated the resource in a manner respectful to the fact that those rights have priority over the exploitation of the fishery by other users—both process of allocation and the actual allocation must reflect prior interest o Form of duty/degree of scrutiny required by the fiduciary duty is a function of the nature of AT – looking at 3 aspects of AT

Justification and AT
1.
AT encompasses the right to exclusive use and occupation of land

Relevant to scrutiny: allocation
 Gov’t process should put the AT at a priority
2.
AT encompasses the right to choose to what uses land can be put (limited by destroying ability to sustain future generations)

Duty of consultation that varies with the circumstances, minimum is consultation in good faith, intention of substantially addressing the concerns of the AB people whose lands are at issue
3.
Third lands held pursuant to AT have an inescapable economic component

This suggests compensation is relevant to the question of justification
85


Fair compensation required when title is infringed

Decision: s.91(24) of constitution gave legislative power over AB matters to federal government o Exclusive federal jurisdiction precluded provinces from having power to extinguish AB title
Questions [pg.407]
 5. two means of extinguishing AB title: first: surrender of lands by AB nation, often by means of treat; second, valid unilateral state action that manifests a “clear and plain intention” to extinguish title—intent need not be express, may be implicit (Sparrow)
 Delgamuukw’s principle of federal extinguishment will not apply straightforwardly in eastern Canada
 Lamer’s Doctrine in Delgamuukw is contrary to the way aboriginal property rights are thought to have been held.
They focused on family and community ownership, here, they can only sell the land to the Crown. o Evidence that AB rights if not individual, were held by families rather than community at large

Also, even if given large tracts of land, profitable uses would never be agreed upon by all community members

Principle of inalienability except to the Crown limits the usefulness of aboriginal title. o It will prohibit the owners not only from selling any of their lands but also from mortgaging them to raise investment capital. o Therefore, restricts economic usefulness o Economic use of land allows natural resources to find their most efficient use

Therefore, the choice of communal, inalienable title is the choice of poverty

Aboriginal title is the only property right that has constitutional protection, so how is it that the Crown can infringe on that right for the economic benefit of Canadian interests that are not protected?

Also problem of economic efficiency too, politicians will make allocative decisions that ought to emerge from market transactions

Delgamuukw only left the most pressing matters uncertain and will have to be decided through further litigations
(i.e. how much of BC is subject to AT and AR? How much consultation?)
 Our gov’t, laws and courts have kept Indians outside of world of individual property rather than encouraging them to step inside
[2005, SCC] [pg.411]

Bernard: unlawful possession of spruce logs taken from Crown land in NB

Marshall: unlawfully cutting timber on Crown lands in NS without authorization

Both cases, the accused claimed they had right due to treaty or AT
McLachlin:

CL theory of recognition of AT holds that an aboriginal group which occupied land at the time of European sovereignty and never ceded or otherwise lost its right to that land, continues to enjoy title to it.

Crown can impinge on AT only if it can establish that this is justified in pursuance of a compelling and substantial legislative objective for the good of larger society
Issue:

What is the standard of occupation required to prove title, including the related issues of exclusivity of occupation, application of this requirement to nomadic peoples, and continuity?

If title found, issues of extinguishment, infringement and justification

Type of evidence: when how orally transmitted evidence can be used
Analysis:

When considering, both CL and aboriginal law perspectives have to be considered; and how many aboriginal rights can be affirmed
Considering both perspectives: o Examine pre-sovereignty aboriginal practice and translate that practice, as objectively as it can, into a modern legal right

Question is: does that practice transform into a modern right? If so, what right?

Done with a generous view and should not insist on exact conformity to CL
86

o When looking at the practice, take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed
Range of Aboriginal rights:

Ask what modern right best corresponds to the pre-sovereignty aboriginal practice, examined from the aboriginal perspective

AT to land – established by aboriginal practices that indicate possession similar to that associated with title at common law o
Sensitive to context-specific nature of CL title and abo perspective o Occupation = physical occupation

Construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing, or otherwise exploiting its resources

Seasonal hunting/practices is sufficient

Some nomadic passage will ground title to land, but not all

Look to degree of occupation, regular use o Exclusive = right to exclude

Intention and capacity to retain exclusive control

However, not a required element to find AT

Can have joint title

Where a nomadic people enjoyed sufficient physical possession to give them title to land is a question of fact—not every nomadic passage or use will ground title to land

Delgamuukw: physical occupation sufficient to ground title to land may be established by regular use of definite tracts of land for hunting, fishing ,or otherwise exploiting its resources

Question is: whether a degree of physical occupation or use equivalent to common law title has been made out o Continuity is another requirement
 The group’s connection with the land must be shown to have been “of a central significance to their distinctive culture”

If they have maintained a substantial connection with the land since sovereignty, this established the required “central significance” o Oral history can be accepted as EV—provided onditions of usefulness a nd reasonable reliability met
[2004, SCC] [p.418]
The duty to consult with and accommodate aboriginal group

Government gave Weyerhaeuser licence to harvest trees on the lands of Haida which are under claim proceedings

Crown must respect land that a group is actively trying to claim, therefore, consult and accommodate

Duty begins with the assertion of sovereignty and continues beyond formal claims resolution (duty of honourable dealing)

Duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it

Content of claim determines degree of duty

Proportionate to the strength of the claim, and severity of potential adverse effects

Crown required to act in good faith, also aboriginal group

No duty to agree, just commitment to a meaningful process of consultation

Spectrum of consultation: (idea of possible actions) o Weak claim: give notice, disclose info, and discuss issues
87

o Strong claim (prima facie claim), risk of non-compensable damage is high: deep consultation, aim of solution, formal participation in decision-making process, written reasons why abo concerns were considered, dispute resolution process o Power of consent and veto spoken of in Delgamuuwk only applies in cases of established rights, and even there, not to every case

Accommodations from strong cases: o Amendment of Crown policy o Compromises o Balance both interests
Aboriginal land rights on reserves: [p. 424]

Governed by Indian Act o For land on reserves, as with AT, Rights are communal, but Act says individual allotments may be made

Indian Act: pg.425
88