PROPERTY SUMMARY
Contents
Sources of Canadian Property Law & Common Law Estates: -ADD IN REST OF TITLES
Sources of Canadian Property Law: ............................................................................................... 4
Aboriginal Legal Traditions:....................................................................................................... 4
Nanabush v. Deer, Wolf et al: Case Comment ....................................................................... 4
Witsuwit’en Law:.................................................................................................................... 5
Doctrine of Tenure: ..................................................................................................................... 6
Feudalism: ............................................................................................................................... 7
Free Tenures: .......................................................................................................................... 8
Unfree tenures ....................................................................................................................... 10
Typical English Manor: ........................................................................................................ 10
Gradual Disintegration of feudal system: ............................................................................. 11
Reception of English law .......................................................................................................... 12
How Property law in common law provinces derive from English law: .............................. 12
Current Canadian Situation: .................................................................................................. 12
Common Law Estates: .............................................................................................................. 13
Types of Estates: ................................................................................................................... 13
Origins of Equitable interests: ...................................................................................................... 18
The Conveyance to Uses:.......................................................................................................... 20
Enforcing the Use: .................................................................................................................... 20
Development of Chancery: ....................................................................................................... 21
Equity and the Use: ................................................................................................................... 21
Use Mechanics: ............................................................................................................................. 21
Statute of Uses: ............................................................................................................................. 22
Limitations of Statute of Uses: ................................................................................................. 23
Emergence of Modern Trust: ........................................................................................................ 25
Equity as Protector of Women: ..................................................................................................... 25
General Rationale: .................................................................................................................... 25
Doctrine of Coverture: .............................................................................................................. 25
Equity’s Darling: ....................................................................................................................... 26
Types of Trusts in Canada today: ................................................................................................. 26
1. Express trusts ..................................................................................................................... 26
2. Resulting trusts................................................................................................................... 27
3. Constructive trusts ............................................................................................................. 27
Peter v. Beblow ..................................................................................................................... 29
Future Interests: ............................................................................................................................ 30
Stuartburn v. Kiansky: .............................................................................................................. 30
Forrestall: .................................................................................................................................. 31
Vested and Contingent interests: .................................................................................................. 31
Condition Precedent: ................................................................................................................. 33
Condition Subsequent: .............................................................................................................. 33
McKeen Estate v. McKeen Estate ............................................................................................ 33
Defeasible Vested Interests: ...................................................................................................... 34
Aboriginal History: ....................................................................................................................... 35
General: ..................................................................................................................................... 35
Hudson’s Bay ............................................................................................................................ 35
British Proclamations: ............................................................................................................... 35
Treaty Process: .......................................................................................................................... 36
Aboriginals and Constitution Act 1982 .................................................................................... 36
Indian Act: (1876) ......................................................................................................................... 36
Aboriginal Title on Reserve ...................................................................................................... 37
Implications of the Indian Act: ................................................................................................. 38
First Nations Commercial and Industrial Development Act: ................................................... 39
De Soto...................................................................................................................................... 40
Potlatch: ........................................................................................................................................ 40
Guest Lecture Professor Kent McNeil – Aboriginal Title: ........................................................... 41
Aboriginal Title:........................................................................................................................ 41
Preamble to Delgamuukw: .................................................................................................... 41
Delgamuukw v. BC:.............................................................................................................. 41
R v. Bernard, R v. Marshall: ................................................................................................. 46
Roger Williams Case: ........................................................................................................... 46
Priorities at Law and Equity: ........................................................................................................ 47
Priority basics: .......................................................................................................................... 47
Chippewas of Sarnia Band v. Canada (A.G.) (2000)(Ont CA) ................................................ 48
Registration: .................................................................................................................................. 49
Situation before registration systems: ....................................................................................... 49
Proving title pre- registration systems: ................................................................................. 50
Registration system: .................................................................................................................. 50
Ontario system: ......................................................................................................................... 51
Title Fraud and different approaches: ....................................................................................... 52
Lawrence v. Wright: ............................................................................................................. 52
Basic principles of Co –Ownership: ............................................................................................. 54
Scope of what co-ownership contains: ..................................................................................... 54
Traditional Co- Ownership: ...................................................................................................... 54
Creating Co- Ownership: .......................................................................................................... 55
Rationale for Joint tenancy: ...................................................................................................... 56
Rationale for Tenancy in Common: .......................................................................................... 56
Re Bancroft, Eastern Trust Co v. Calder: ................................................................................. 56
Severing a Joint Tenancy: ............................................................................................................. 57
Re Sorensen & Sorensen:.......................................................................................................... 58
Public Policy ................................................................................................................................. 59
Re Leonard Foundation Trust ................................................................................................... 59
Bailment basics: ............................................................................................................................ 61
Definitions: ............................................................................................................................... 62
Letourneau v. Otto Mobiles: ..................................................................................................... 62
Difference between license and bailment: ................................................................................ 65
Parking as Bailment: ................................................................................................................. 65
Bailee’s liability: ....................................................................................................................... 65
Bailees and sub-bailees: ............................................................................................................ 66
Punch v. Savoy: .................................................................................................................... 66
Excluding liability for fundamental breach .............................................................................. 68
Sources of Canadian Property Law &
Common Law Estates:
Sources of Canadian Property Law:
1) Aboriginal legal traditions
2) Doctrine of Tenure
3) Reception of English Law
Aboriginal Legal Traditions:

John Borrows, Recovering Canada: The Resurgence of Indigenous Law
Nanabush v. Deer, Wolf et al: Case Comment
 Borrows reading
 comment on case decided by Anishinabe Nation [live in Great Lakes region, especially
Lake Superior, 3rd largest Indian tribe in North America] a long time ago
o one of the major cases defining the relationship between the tribe and the land
 2 key elements
o oral tradition/ storytelling practices adopted and utilized by Borrows
 although students may not recognize the similarity between common law
and storytelling and like the trial judge in Delgamuukw – discount
aboriginal storytelling as mere myths
o feast as a public practice which cements and acknowledges legal relationships for
the Witsuwit’en
 Nanbush broke law by
o disregarding the balance required by law in the relationship between humans and
animals by disregarding the promise of respect embodied in the treaty between the
Anishinabek and the deer
 principles come from precedent (earlier legal tradition among the nation
about the treat concluded between the humans and the deer/ caribou)
 precedent – Crow et al v. Anishinabek
 facts: birds had taken deer and caribou prisoner, humans came to
rescue, deer not desire to be rescued, liked it better with birds
because humans were treating them badly, humans ask what can



do to make it right – enter into solemn pact of treaty to have
humans respect the lives and beings of the deer
 promise to respect Deer’s lives and beings in life and death, not
waste their flesh, desecrate their bones ; preserve fields forests for
their homes, leave tobacco leaf at kill sites (to prove commitment
to having a second chance)
 Nanabush disregarded all these things
 tricked deer
 desecrated its body (wore skull on its head)
 broke bones
 wasted meat
Borrows use of figure of Nanabush and the indigenous tradition of storytelling in much of
his legal scholarship- trying to enact blending of common law and aboriginal legal
traditions that is gestured at in some of our common law Canadian judgements (ex.
Delgamuukw)
why Borrows use this method
o central point in writing this way= establish that the oral traditions in the tribe are a
form of law making
 telling and retelling of the stories is how the law is made in the nation
o also emphasize similarity between the tribes law reasoning and common law
reasoning
 do things like
 analogize
 reference to earlier decisions
 so not as dissimilar to common law cases as judges, like trial judge in
Delgamuukw had thought
 in Delgamuukw found that oral history evidence from dozens of
elders (many of whom died before the case was heard and reversed
by SCC) to be on the whole “unreliable” and preferred the
anthropological evidence offered by witnesses for the Crown
o almost satirizing –ex. refer to deer as thin skulled
to the extent any single case can tell you anything – this case tells us about
o conceptions of property- relationships between humans and the land and resources
o lawmaking
o hints at least about relationship between aboriginal legal seem and British/Canadian
legal systems
Witsuwit’en Law:
 nation in BC
 governs relations among people and with land, animals, spirits



Witsuwit’en was one of 2 groups whose land claims were adjudicated in Delgamuukw v.
BC
o lawsuit about jurisdiction over approximately 50,000km2 land in northern BC
claim process led to a lot of research and reflection about the legal systems in nations
discussed in A Mills, Eagle Down is Our Law: Witsuwit’en Laws, Feasts and Land
claims
o key points: and similarities and differences to “state” law
 as with the Canadian state property law, legal rules governed relationships
among people in relation to access to and sue of valued resources
 like trap lines, any resources to be had from the land (berry patches
etc)
 but do more than that
o relationships between humans on one hand animals and
spirit world on the other
 Witsuwit’en = matrilineal society
 each member is a member of a clan or house
 your right to make use or land and resources depends on
membership in clans/ houses
 clans/ houses connected together in complex link of intermarriages
o provide a form of federation between different
communities
 political bond
 rights and responsibilities in the land
 public dimension of property law
 public validation of all land transactions at potlatch (feast)
 ownership of any territory was communal, but was a rule of trespass
 person not among person entitled to use a particular area or engage
in a particular activity would need consent of people who had the
right to use it
 wide range of remedies to trespass
o warning
o go all the way though to sickening and death
 system of both property and government
 not distinguishable like they are now
Doctrine of Tenure:


one of the most basic elements of English law received into Canadian law
2 pillars of feudal system of landholding
1. Tenure
2. Estates


Remains fundamental part of Canadian property law but has lost most practical
significance except 3 features of contemporary significance:
o Underlying Crown title to all land in Canada
 Proposition is contested by First Nations
 Is fundamental premise in Canadian system (no Canadian court will
contest that)
 Especially relevant to aboriginal rights
o Escheat (or modern equivalent)
 Land reverts to the Crown when person dies without a will or without any
statutorily recognized heirs
o Substitution- method of transferring interests in land
Doctrine of tenure is not the same thing as modern landlord-tenant law
o Although both emerge from feudal system
Feudalism:
 System of public order that arose out of disintegration of Dark Ages
 In tiem of insecurity put faith into someone who could protect you
o Individuals put their fates in hands of strongest of their fellows to protect their life
and land
 Began to cluster settlements around large compounds
 Weaker man (vassal) gave his land, loyalty and services to stronger man (lord) in return
for latter’s protection and support
 Vassal now held land (called fief or feud) “of” the lord
 Subinfeudation created long chains of lord-vassal relationships over same land
o Vassals make themselves into lord by doing same transaction with people below
them
 When state reasserted itself (after 1066 in England) kind emerged as supreme lord of all
land
 System of property and government
o Provide public order and allocation of right of land
o No sharp distinction between government and private relations
 Unfree- hold land at pleasure of lord according to customs of particular manner
 Some question as to if tenants in demesne (actual occupants of land) were actually
aristocratic (line fuzzy between tenants in demesne and unfree tenures)
Free Tenures:
 Grant of land in return for serving lord’s needs
 Forms of characteristic services:
o Knight service
 For security
 Vassal would furnish 40 days armed service per year to the lord
o Serjeantry
 For pomp and splendour
 People performing services at court
 Could be modest (ex. Barber) to more spectacular
 Granted land in exchange for providing these things
 Land = main form of wealth at this time, not a money economy
o Frankalmoign
 For salvation
 System by which the Church and the religious orders acquired land
 Form of tenure that allowed corporate body, the church, in perpetuity
o Tenures in socage
 For subsistence and other residual needs
 Miscellaneous other category
 Least aristocratic
 Most common
 Least aristocratic

 Only form of tenure introduced in Canada
 Food, subsistence, various others
Fee tenures also had certain incidents benefiting the lord
o Incidents during tenants life
 Homage
 Ceremony by which tenant became lord’s man
 Fealty
 Oath of loyalty
 Suit of court
 Obligation to attend lord’s court and assist in its deliberations
 The aids
 Tenants obligation to supply financial support to lord in certain
situations
o Various money payments required
 Magna Carta limited to
o Pay the lords
 Ransoming lord
o Knighting eldest son
o Made for marriage of oldest daughter
 Originally were important sources of revenue for lords, guarded jealously
by higher aristocracy
o Incidents upon the tenants death
 Escheat
 Lord escheated the land – the land reverted to lord if tenant died
without an heir
 Only feudal incident or service with modern corollary
o “where a person dies intestate in respect of property and
there is no surviving spouse, issue, parent, brother, sister,
nephew, niece or next of kin, the property becomes the
property of the Crown” Ontario Succession Law Reform
Act
 Applies to real and personal property
 Based on statute (not common law)
 Relief
 Feudal precursor to inheritance tax
 When tenants died – estate would have to pay for the privilege of
passing to the heir to take over the estate
 Payment was equivalent of one year’s produce (income) from the
land
 Even this was innovation
o Originally feudal relationship was highly personal- between
lord and individual vassal
 So when died no continuing obligations to accept
service from a tenant’s heir, could take land back
and give it to someone else
o Developed into principle that land would pass to the heir
upon payment of sum
o Became important in development of rules about life
estates, when landowners tried to avoid obligation to pay
relief through clever drafting


Forfeiture
 If tenant convicted of treason or felony would forfeit land, land
reverted to the lord (even if the tenant had heirs)
 Not uniform- different practice in Kent
 Fairly widespread custom
Wardship and marriage
 Deal with when tenant dies leaving a minor
 Warship meant lord had right to manage the land for his own profit
until the heir reached majority, plus right of payment of half year’s
profits as price of surrender to heir
 Marriage = Lord had right to select the spouse of the ward, right to
collect penalty if ward refused or married without Lord’s consent
Unfree tenures
 Essentially property of the lord
 Interests held by actual tillers of the soil
o Villeins and serfs belonged to manor
o In return for near- slavery, labouring on lord’s land and paying taxes, they were
protected from outside attack
o Held land at lord’s will if, at all; services were subject to lord’s discretion, not
predetermined
o No access to royal courts, only manorial court
 Presided over by lord and local gentry
 Lord was bound (in theory) by manorial custom
 So some check on completely arbitrary behaviour
Typical English Manor:
 Demesne
o Lord’s own land
o 1/6- 1/3 of total land
 Freehold






o Held by various free tenants (in socage or knight service)
Church land
o Held by the religious body in frankalmoin tenure (including the glebe (strips of
fields set aside for the church to cultivate)
Mill etc.
Village
Woodlands
Commons
Closes
o Formerly common land that was enclosed for private use by the lord or free tenants
Gradual Disintegration of feudal system:
 System gradually disintegrated
 More land held directly by the King
o Due to escheats and forfeitures
 Edward I want to concentrate power in his own hands
o One statute to do that was Quia Emptores, 1290 (“Because the purchasers”)
abolished subinfeudation
 Any free tenant who wants to transfer their land, must do so that the
person has same lord with same obligations
 You can’t be lord to someone else (can’t make someone else your
vassal anymore)
 King could still make himself new vassals
 Abolished need for Lord’s consent to transfer land unless lord was the
kind (still need his consent)
 Really freed up market in land
 Remains fundamental part of Canadian law- on statute books in all
provinces and territories
 Money economy began to be introduced- inflation, previously unknown really reduced
value of feudal obligations
 Significance of feudal obligations shrank:
o Kind developed standing army
o Most services and incidents were converted to fixed money payments
 Diminished rapidly in value with new phenomenon of inflation
o Tenures Abolition Act, 1660 abolished remaining incidents and converted all free
tenures to free and common socage (no services, no special incidents)
 All incidents of value destroyed except escheat
o Only one of nay value that remained = escheat
o Only kind of tenure ever introduced into Canada - Free and common socage
Reception of English law
How Property law in common law provinces derive from English law:
 Governed by rules of reception
o Distinguish between 2 kinds of colonial territories
 Conquered or ceded
 Territories retained pre-existing legal regimes until altered by
British sovereign
o Explains substantial elements of civil law in Quebec
o Indigenous territories- aboriginal territories were ignored
for purposes of reception of law but turned out later that
reception didn’t extinguish aboriginal entitlements (eg land
tenure, resource rights)
 Settled
 Settled territories – English statute and common law were received
insofar as they were appropriate for application in the new colony
o Analysis to be engaged in – this aspect of English law
appropriate for colony?
 Not really what happened
 Generally English laws were and still are accepted without much
fuss
o Outside of New France
o As recently as 1980s – have Ont CA declaring ancient
common law rule, everyone recognized was artifice of
bygone days, was part of common law
 Rationale: instrumental and normative reasons
o Notion British legal system was pinnacle
Current Canadian Situation:
 Crown claims underlying title to all land
 all privately owned land is held directly of the Crown in free and common socage
 the main vestiges of the old system are
o modern intestacy statutes (vestige of escheat)
o modern death duties (vestige of relief)
o alienation by substitution only, lord’s consent unnecessary (Quia Emptores, 1290)
 statute still in force
 Canadian and aboriginal property law systems coexist in ambiguous contested ways
o ambiguous and contested relationship between aboriginal and Canadian legal
system
Common Law Estates:



doctrine of estates = 2nd pillar of feudalism
tenure = about dividing up land at same time
o s many different people could hold property interests in same piece of land at the
same time
Doctrine of estates = about quantity of interest over time
o dividing interest in land over many people over time
o about conservative owners of land
o about how you allocate interests in the same piece of land to different people over
time
Definitions:
Term
Grant or conveyance
Grantor
Grantee
Devise
Devisee
Legacy
Bequest
Testator/testatrix
Executor
Estate
Intestacy
Heir
Successor
Assign
Trustees
Definition
Transfer of land ownership inter vivos
Person transferring ownership
Person acquiring ownership
Gift of land after death by will
The person acquiring ownership by will
A type of beneficiary (person receiving a benefit under a will)
Gift of personal property by will
Gift of any property by will
Person who makes a will
Person responsible for executing the provisions of the will
Deceased person’s property
The condition of dying without a will or without having disposed of
all estate by will
Person appointed by law to succeed to an estate in case of intestacy
Person who succeeds to another’s rights or obligations
Person to whom another assigns rights or obligations
Person who holds legal title to property in trust for another
Types of Estates:
 Freehold Estates
o Fee simple estate
o life estate
o fee tail estate (largely obsolete)
 Leasehold estates
o landlord- tenant
o main distinction from freehold estates- certainty of duration
 your landlord have fee simple estate, you probably have leasehold estate
 unfree (copyhold) estates

o never introduced in Canada
Aboriginal title
Fee Simple Estates:
 traditionally created by words “to A and his heirs”
 largest estate known to common law
o largest in terms of duration (can potentially last forever as long as there are heirs)
Creation of Fee Simple Estates:
 language maters in creation of fee simple (Thomas v. Murphy)
o Thomas v. Murphy –
 facts beneficiaries of a will convey interest in a piece of land to executors
for the purpose of selling it to a purchaser and distributing the
proceeds according to the will
 executors sell land to Thomas’- who retain a lawyer (Murphy) to
handle the purchase
 plaintiffs suing their lawyer who handled the purchase of land for
them (as part of handling purchase did title search to determine if sells
had a good and solid title to convey fee simple estate to the plaintiffs)
 issue- did executors have a fee simple estate they could sell to the Thomas’
 deed by which beneficiaries transferred the land makes intent clear – purpose=
convey all their interest in the land to the executors so they have god title to
convey to any purchaser
 no dispute that beneficiaries had fee simple
 problem = words
 language need to use to pass fee simple estate to executors in this
situation:
 at common law, word “heirs” was necessary to convey a fee simple
o ex. “and his heirs,” “and his heirs, executors and assigns”
o is a rule of law not a rule of construction
 rule of law = applies regardless of what was intended
(no matter if intended to pass title – have to use word
heirs – if don’t – not pass)
 rule of construction = when face ambiguity is a
principle to guide you to figure out what was really
intended
o in old days if not use words “heirs” – would be a life estate
 rule for devises was more relaxed
 devises were more generous than common law applicable to grants




devise passed fee simple as long as language of will clearly indicated
that intention
o ex. to A forever, to A and his issue, to A absolutely
in 19h century – all provinces passed statutes to relax these rules
 discuss New Brunswick and Ontario
o New Brunswick – not need to use word heirs in a conveyance –
just need to say fee simple
 very limited legislation
o Ontario –
 sufficient to use “in fee simple” or any other words
sufficiently indicating the limitation intended
 if no words of limitation used – the conveyance passes
entire estate subject to contrary intention appearing in
the conveyance
 devises – in absence of words of limitation – devise
passes entire estate, subject to contrary intention
appearing in the will
this case is in NB – but the statute is not enough to answer question in this
case because didn’t say heirs or fee simple
 NB statute is silent as to what words other than fee simple would
suffice
court concludes look for words that indicate an intention to pass the entire
estate
 very clear in this case because of preamble to will, use words
“successors and assigns”
BOTTOM LINE- dead or alive (rules essentially the same for wills [devises] as grants) -under
Ontario law TODAY- to convey a LIFE ESTATE have to use clear language- otherwise will be
presumed a FEE SIMPLE
PRINCIPLES ARTICULATED IN – Thomas v. Murphy
Traditional Common Law Rule
Current Ontario rule (since mid 19th
century reform)
Grants To create FEE SIMPLE- must use specific Common law reversed by statutory
term “heirs” (rule of law)
reform
“To A”, “to A forever,” “to A in fee
No special words needed for FEE
simple,” “to A and his issue” = LIFE
SIMPLE
ESTATE
Conveyance passes entire estate subject
to contrary intention appearing in grant
Presumption of LIFE ESTATE
“To A” = FEE SIMPLE
FEE SIMPLE requires magic word “heirs”
Presumption of FEE SIMPLE
LIFE ESTATE requires clear language
Devise passes entire estate subject to
Devise More generous than common law
applicable to grants
To pass FEE SIMPLE – must use words
indicating intention to convey FEE
SIMPLE (ex. forever, “and his issue”)
contrary intention appearing in will
“to A= FEE SIMPLE
Presumption of FEE SIMPLE
LIFE ESTATE requires clear language
Any words indicating intention to give FEE
SIMPLE – sufficient (even if precise words
were not used)
“To A” = LIFE ESTATE
Weak presumption of LIFE ESTATE
(weak because any evidence of intention
for FEE SIMPLE- not necessarily need to
use the precise words – would mean
interpretation as a FEE SIMPLE)
FEE SIMPLE requires clear language
significance of “and his heirs”:
 “and his heirs” = terms of limitation
o delimit the size of the estate conveyed (ex. whether it’s a life estate or a fee simple)
 courts quickly had to determine what interest if an heirs acquire in a conveyance to A and his
heirs”
o not acquire present interest
 heir(s) not acquire anything until A’s death
 even if A executed a will designating an heir – heir not acquire an
interest until A’s death
 because as holder of fee simple estate – A may convey entire interst to third
party at any time – if does will be nothing for heir to take
o “and his heirs” describe the nature of the estate acquired by A – not convey any estate
to the heirs
 demonstrated in D’Arundel’s Case (1225)
o facts- Henry I granted land to “Roger and his heirs” in knight service- Roger conveys
land to William of Arundel – Roger dies- Roger’s oldest son and heir Radulf sues to
recover the land (claim Rodger had n right to convey his interest [as heir])
o found that “and his heirs” conveyed no interest to Radulf
 were words of limitation defining the size of the estate conveyed to Roger (ie
potentially perpetual)
 were not words of purchase indicating to whom an estate was granted
Words of Limitation and Purchase:
Life Estate:
 typically created by words “to A for life”
o confers a life estate on A
o A = life tenant
 Duration = for A’s lifetime (pur sa vie)
o A is known as the measuring life
 Transferable
o Life tenant may transfer his interest or rent out land
o Life tenant not required to life on the land
 Can be granted for another person’s life (pur autre vie)
o Created if
 If A transfers interest to B
 Can be created by original instrument
 “to A and B for the life of A”
o B holds for life of A (the measuring life, cestui que vie)
o If B predeceases A –
 at common law rules of first occupancy governed
 by modern wills legislation – B’s interest passes to his heir – anomalous result
of being an inheritable life estate
Life Estates and Future Interests:
 both life estate or reversion are present estates
 X grants “To A for life”
o X = retains reversion (X = reversioner)
 fee simple estate reverts to X on A’s death
 X grants “To A for life, then to B and his heirs”
o B = remainderperson
 Has no right of possession until A dies
 Acquires a present interest at the time of the grant which B may sell or devise
 If B dies before A- B’s interest passes to his heirs
o X retains nothing (substitution- method of transferring interest in land)
Significance of being granted Life Estate or Absolute Interest:
 All about who gets the money
o Goes to different people depending on if determine its a life estate for fee simple
o If take absolute interest – any property acquired under the will forms part of the heirs
estate for distribution according the terms of the heir’s will
o If take life interest – the interest passes to the beneficiaries of the initial grantor (ex.
Dead husband in Re Walker in accordance with the “gift over” under his will”
Re Walker:
 Question of what’s intended by language “I give my wife all my property, if anything
remains on her death I give that to...”
o To give wife full ownership, but also give others anything remaining upon her death
 Attempt to do the impossible
 Give yet withhold
 Grant absolute estate yet resume ownership in certain events
 Courts always leery of this language (for many reasons – including what could
happen in the future)
 Resolve inconsistent intentions:
o Ascertain husband’s dominant intention, reject subordinate intention as repugnant
o No middle course
 Either wife’s gift is absolute and gift over fails, or wife gets life estate and gift
over prevails
 RULE (basic principle in interpreting a will)- give effect to as much of
Testator’s intention as possible by ascertaining dominant intention and giving
effect to it while rejecting subordinate intention
o Result- absolute gift to the wife, gift over is void
 No reasoning given for why this was the dominant intention
Re Taylor
 Court says intention was to give life estate
o Know this by looking at language of will
 Language mentioning lifetime (unlike Re Walker)
 Court say not have conflicting intentions like Re Walker
o Taylor said wanted wife to have during her lifetime
EQUITABLE INTERESTS
Origins of Equitable interests:

2 separate rule systems developed side by side in England


o Law
o Equity
Common law courts administered emerging system of common law as modified by statute
o Problems with law courts:
 Rigidity and inflexibility of common law
 Reason for rigidity: law couldn’t invite new forms of action, by mid
13th century forms of writ were closed
 Actions had to be based on writ (form of action that would describe
rights at stake)
 Very formalistically applies (even if everyone recognize the law was on one
person’s side- person who had the common law on their side won)
 Refused to allow disposal of land by will
 Continued to enforce feudal incidents after they degenerated into a form of
financial extortion
Landowners try to get around feudal burdens and common law rules
o At time of Crusades- common for knight to make arrangements of his land to try to
get around these
 Before leaving- conveys land to trusted friend, brother, uncle
 Conveys title to the land to the friend with explicit written instructions to hold
the land for knights own use until he dies- if he dies in Crusade while ex. Son
still a minor, pass to son upon death
 Advantages
o Avoid ban on devises
 Get around prohibition of disposing of land by will
o Deprived lord of lucrative incident of tenure- wardship
 During incident of warship – lord would usually have
land for own profit while son was a minor and be able
to select a wife for him
o Conveyance of land for use of religious institution
 Pre-dates use of Crusaders
 Fransciscan order –take vow of poverty, couldn’t own land as a friar – but
could enjoy land owned by someone else
 Common for noblemen to enter religious order – not want to abandon lifestyle
completely
 Before joining order – young nobleman would convey land to a friend in fee
simple (forever) to hold it for the exclusive use and benefit of the religious
order forever
 Got around 2 problems
 Because religious orders were not natural humans – if they held land a
lot of the incidents of tenure would not arise

Not violate vow of poverty
The Conveyance to Uses:


Landowner conveys land to trusted person to hold for the use of person designated by grantor
o Foffee to uses= person to whom land conveyed
o Cestui que use =person who gets benefit, person for whose use the land is held
Advantages
o Key advantage – avoid feudal incidents
 Person who gets beneficial use is not subject to any of the usual feudal
incidents
 Done by separation of seisin from beneficial ownership
o seisin
 Person who is siesed of the land = responsible for
feudal incidents and services
 For our purposes person holding legal title to the land –
registered and recognized as power = person who’s
seised of the land
o Foeffee to uses bore feudal burdens, cestui que use enjoyed
advantages of ownership without burdens (not seised of the
land)
o Allowed one to designate by will who would come into ownership of your land
(avoid common law in this area)
o Benefit to foeffee
 Key benefit = salvation
 Take on for the benefit of their souls
 What we would recognize today as family trusts
Enforcing the Use:




Common law courts not enforce these arrangements
o Not recognise the legal ownership of land and the beneficial ownership of land
o Said only party to whom they can grant remedy = person seised of the land
Originally turn to the King
o Had residual legal capacity to make decisions based on his conscience or morality
o Essentially would petition for Crown’s mercy
Eventually were enough of these pleas that the King delegated authority to Lord High
Chancellor (originally a clergyman)
Eventually a Court of Chancery emerged to administer principles of what became equity
o Decided dispute on basis of conscience
 Relieved against rigidity of common law
o Consistent principles emerged in 16th century – but application was discretionary
(“equity varies with the length of the Chancellor’s foot”
o Never an entitlement to equitable remedy – always at discretion of the court
Development of Chancery:




Equity supposed to supplement – not supplant common law BUT in case of conflict it was
resolved that equity will prevail (still is today)
Common law and equity developed to conflict with each other
Were difference in remedies and procedures of the 2 courts
In England – Judicature Acts of the 1870s fused equity and common law
o Really just procedural
o Means superior courts in common law jurisdictions simultaneously deal with legal
and equitable issues
o Still remain separate bodies of law (not affect substance)
Equity and the Use:

What basis Chancellor step in:
o “binding the conscience” – beneficial interests are enforceable against all who cannot
in conscience disregard them
 Chancellor would compel feoffees to sues to exercise legal rights consistent
with terms of use
 Also applies to third parties
 Ex. Donees (heirs, devises – heir to feoffee to uses should be bound by
same restrictions, are essentially donnees (get land as a gift) – anyone
who gets land as a gift are bound by the same restrictions), purchasers
who knew or ought to have known of the beneficial interest
o Would say arrangements binding on anyone who can’t in good conscience disregard
them
o Applies doctrine of estates by analogy – beneficiaries held equitable fee simple or life
estate
o Result – use became the most important feature of land law, persisted long after
disappearance of feudal incidents
Use Mechanics:

X (original owner/ grantor) grants to F (feoffee to uses) and his heirs, to the use of X for life
(grant to F but hold for X benefit during his lifetime), then to the use of persons designated in
X’s will
o Estates
o F granted legal fee simple estate


o X holds equitable life estate (only recognized by equity courts not common law
courts – but given full effect
 Future interest in his life time
o Designates equitable interest as specified in the will
Allowed landowners to:
o Avoid rule about not being able to designate by will
o Bypass rule of primogeniture (had to leave to oldest son)
Can set up so foeffee to uses not have to pay (when die lord entitled to a year’s use of land to
pay inheritance, when one co-owner die – other co-owner gets it all after they die)
o Allowed landowners to avoid payment of relief
 Take title automatically by right of survivorship
 No relief due when one joint tenant dies because the other takes automatically
by right of survivorship (not inheritance)
 No relief due when last surviving foeffee dies – provided 1st conveys the land
to new joint foeffees
 Get around payment of death taxes completely
o X to F1 and F2 and their heirs as joint tenants, to the use of X and his heirs
 Tender to hold for X benefit in fee simple
 When X dies – no relief owned because X is not seised of the land- only F1
and F2 are
Statute of Uses:



Henry VIII’s revenge – forced Statute of Uses on Unwilling Parliament in 1535 to get feudal
remedies back
o Where a person is seised of land for benefit of another person or corporation, the
person who has the beneficial interest is deemed to hold BOTH legal interest and
beneficial interest
 Hold same estate as they had in the use
X to F and his heirs to the use of A and his heirs
o Before statute
 F held legal fee simple
 A held equitable fee simple
o After statute
 Executes the use
 Like words “F and his heirs to the use of” are gone
 A holds legal fee simple
 F holds nothing
X to F and his heirs for the use of A for life, remainder to B and her heirs
o Before statute

 F held legal fee simple
 A held equitable life estate
 B held equitable fee simple remainder
o After statute
 A holds legal life estate (same before and after)
 B holds legal fee simple remainder
 F holds nothing
 As if say to A as life estate, B in fee simple
X to F and his heirs to the use of A for life
o Before statute
 F hold legal fee simple estate
 A hold equitable life estate
 Held for use of A for life
 If A dies – then hold for benefit of X
 Equitable fee simple reversion
 Because all X alienated was benefit for A’s life time 0 must have
intended to get it back after
o After statute
 A holds legal life estate
 X holds legal fee simple reversion (legal fee simple reverts to X when A dies)
 F holds nothing
 Statute executed explicit uses created in the document and implicit,
resulting uses
Limitations of Statute of Uses:


Because statute worded very specifically – had limitations
Statute not apply:
1. when foeffee to uses has active duties to perform
 statute only apply to bare uses
 statute only apply if was a bare conveyance to uses - only thing the foeffee to
uses had was legal title
 if was active duties to perform – ex. Collecting rents and profits, not execute
the use
 ex. X to F and his heirs to the use that F should collect rents and profits and
pay them to A and her heirs
2. when foeffee to uses holds a leasehold estate
 because only applies where seised land for use of another
 not count for leasehold
 ex. X to F for 999 years to the use of A and his heirs
o 999 year lease held for the benefit of A and whoever inherits
from A
 NOTE- other way not avoid the statute X to F and his heirs to use of A
for 999 years
o Statute executes “F and his heirs to the use of “
3. where foeffee holds the land for his own use
 to F and his heirs for the use of F and his heirs
 F holds legal fee simple in this situation by virtue of common law, not Statute
4. to a use upon a use
 X to F and his heirs to the use of A and her heirs to the use of B and her heirs
 Before statute
o F held legal fee simple
o A held equitable fee simple
o B held nothing
 After statute
o A held legal fee simple
o F held nothing
o B held nothing
 By 1660 or so Crown no longer had revenue interest in these things
 remaining incidents and services had effectively been abolished
 Tenures Abolition Act – 1660
 Chancery changed its mind
 Began to enforce B’s interest so that
o F held nothing
o A held fee simple
o B held equitable fee simple
 Obviously attempt to get around Statute of Uses
o Took 100 years
o Equitable interests could then be created as freely as before
1535
 Not work for a use after a use
 Use after a use is different than use upon a use
 Situation where give equitable life estate to one person and then a
remainder to another person
o Comes after in time (life estate, then remainder)
 Where have a use after a use – Statute of Uses applies
 Ex. X to A and her heirs to use of B for life then to C and his heirs
o Statute executes the use
o Deletes words “A and her heirs to the use of and “use of”
Emergence of Modern Trust:




Language of use replaced with word trust
o “use” was reserved for interests meant to be executed
 Ex. X to F and his heirs to the use of A and his heirs in trust for B and her
heirs
 Statute executes “F and his heirs to the use of”
 Leaves X to A and his heirs in trust for B and her heirs
Terminology compressed over time
o X to A and his heirs to the use of A and his heirs in trust for B and her heirs
 Became: X unto and to the use of A and his heirs in trust for B and her heirs
 Became: X to the use of A in trust for B
Devises legalized by Statute of Wills (1540)
o Before then landowners couldn’t devise land
 Conveyance to uses = best way to designate an heir
 Statute of Uses limited this promoting widespread landowner anger
o Allowed landowners to devise land at their free will and pleasure
Statute of Uses eventually repealed in places
o ex. Repealed in UK in 1925
o still in force in Ontario and most other Canadian common law provinces
Equity as Protector of Women:
General Rationale:


sense because equity was administered by court of Chancery as form of justice – was sense it
was a forum for fairness to be passed along
some evidence in case of women that this didn’t happen
o not as much benefit as the common law
Doctrine of Coverture:





at common law, wife’s legal identity merged in her husband’s
meant everything woman had became husbands
women
o could not
 own property
 sue or be sued
o had no rights over children
o not entitled to own earnings
applied even where parties long separated
effect demonstrated by movie The Piano

largely abolished through work of suffrage movements and women’s rights movements
Equity’s Darling:






M. Conway article Equity’s Darling
women could have trust set up for them – so could retain equitable interest in that title
o women’s property could be conveyed to trustees before marriage, for her sole and
separate use
in real world – these equitable remedies were primarily available to wealthy women
o middle class or other women who could not have benefited weren’t able to access it
trust were commonly used to deprive women of their common law inheritance rights
o common law was not hostile to women in terms of inheritance
o Conway uses as example that equity in some instances was used to defeat and destroy
women’s common law rights in order to protection succession in the male line
o strict settlements
 engrained primogeniture
 also held younger sons and daughters were entitled to something
 eldest son have responsibility for more vulnerable people in his family
 strict settlement ended up being replaced by jointure
 people had to negotiate in advance for protections they would receive
when death ensued
 Conway argue that this moved things into contractual relationship that
was not beneficial to vast majority of women
Trusts were often used to deprive widows of common law dower (1/3 income of husband’s
real property)
Equity did little to help divorced or separated women
Types of Trusts in Canada today:
1. Express trusts
o Created expressly where a settler transfers property to a trustee to hold for someone’s
benefit
 Sets out who parties and beneficiaries are
o Must be drafted in light of Statute of Uses
o Sets out
 Who trustee is
 What property is
 Who beneficiaries are
o Purposes:
 Minimize tax liability
 Provide for loved ones, minors, or incapacitated


Prevent squandering of assets
Pursue charitable objects
2. Resulting trusts
o Trusts arise by operation of law in favour of an owner who transfers title but retains a
beneficial interest, such as where
 An express trust fails to dispose of all beneficial rights
 X grants to Trust Co in trust for B for life
 X devises to all of her grandchildren who reach 18
 An owner confers title gratuitously on another (an apparent gift)
 Owner usually presumed to retain beneficial rights
o Not as complete as express trust
 Resulting trust springs back to grantor or their estate if they have died
o Generally a matter of ascertaining true intentions
3. Constructive trusts
o Trust that is imposed by equity
o Unlike express or resulting trusts – is in almost all situations there’s nothing written
down to tell who the holder of the interest is and who the beneficiary is
o Courts step in to decide through principles of equity that there is such a trust and there
is such a beneficiary
 Court imposes sense of trust being there – nothing from grantor sets that out
o 2 types
1. Institutional constructive trusts
 Arise automatically in certain relationships when specific conduct
occurs
o Eg. trustee meddles with trust property or end or and purchaser
conclude a valid contract for sale of land
2. Remedial constructive trusts
 New (emerge in last 30 years) and evolving tool imposed by courts to
remedy unjust enrichment mainly in family law disputes (ex. Where
spouse without title contributes substantially to property’s value)
 Where some sort of unjust enrichment has occurred
 Court step in – says because some unjust enrichment occurred – is
entitled to some sort of remedy that would compensate them for unjust
enrichment
 Arise only on date of judgment as a remedy awarded by the court to do
justice in the particular case
 Needed because the title or the property (whatever type of property) is
being held by another party


Imposing notion that person who held title did so not only on their
behalf but on the behalf of the party who suffered some injustice
Case involving remedial contrastive trust – Peter v. Beblow
(SCC)(1993)
o Threshold test for determining if there is a constructive trust –
had there been unjust enrichment
 Unjust enrichment = form the basis of a constructive
trust
 Take into account the entirety of family enterprise to
determine if was unjust enrichment (not just the house)
 Look at
1. Enrichment of one party
2. Corresponding deprivation of another party
3. Absence of juristic reason for the enrichment
o More subjective
o Any argument that unjust enrichment is
ok?
o Peter not establish test for this part –
comes from Garland v. Consumers’
Gas Co. (2004)(SCC)
1. Whether or not is some kind of
established category that exists to
deny recovery (categories are
fixed- include contract [if parties
decided this is how would
conduct affairs, something
written down to say that], a
disposition of law, a donative
intent, and other valid common
law, equitable or statutory
obligations)
2. If no prima facie case laid out –
onus on other party to
demonstrate was some reason
why parties conducted their
affairs in the way they did
o Remedy – 2 part test to establish whether constructive trust
should follow
1. Monetary damages would be inadequate
2. Direct link between aggrieved parties contribution and
the property over which the constructive trust is
claimed
Peter v. Beblow
 Facts
o Common law couple with huge imbalance in relationship
o Common law wife did bulk of work in home, provide child care, did everything to
sustain the family
o When separated common law wife claimed constructive trust over marital home
 Reasoning
o Before determine constructive trust over marital home – look at if had been unjust
enrichment
 Look at
 Enrichment of one party
o Here the husband
o Enriched in that he didn’t have to pay for people to take care of
children, home
 Corresponding deprivation of another party
o Here the wife
o Wife took care of home and children without compensation
 Absence of juristic reason for the enrichment
o Not establish test for this part in this case (see above)
o Looked at main arguments asserted by common law husband –
mainly involved that there was some sort of obligation when
enter into familial relationship, courts shouldn’t meddle with
this
o Court in harsh language reject that argument on basis of reason
and authority (was case law that said when one spouse take on
bulk of care of house and children were doing so for
furtherance of entire family enterprise)
o Not inappropriate to look at what kind of compensation would
be owed if wasn’t a spouse taking on these services - nothing
against public policy to take on that inquiry
 Therefore was unjust enrichment
o Remedy
 Not necessarily a constructive trust (not the only remedy that you can have
when have unjust enrichment – could also have some payment of
compensation)
 Test


Determined monetary damages would be inadequate in this case
o Because special contribution made to property
 Seems circular – applying pre-condition 2 to
precondition 1
o How much contribution required
 “sufficiently substantial and direct as to entitle her to a
portion of the profits” form sale of the property
(Pettkus v. Becker)
 A bit incomplete in terms of analysis because not lay
out exactly what meant
 Court analyzed the value of her contribution and
difference between value received v. value survived
 Value received = value of services performed,
determine strict amount- equity come in by
compensating her directly and fully for amount
she lost
o Court reject that
 Say appropriate way to value contribution =
value survived (amount property increased)
 Court needed way to affirm value survived test
to justify difference between value received and
value survived
Held plaintiff got title to the entire house
FUTURE INTERESTS
Future Interests:



An interest in property in which the right to possession or enjoyment is postponed to a future
time
o Even though no right to possession is presently existing interest in total ownership of
the property
o Allows present owner to determine when and on what conditions future owners may
enjoy possession of land
Limits to proprietary freedom of current and future owners
A future interest is a present right (Stuartburn v. Kiansky (Man QB)(2001))
Stuartburn v. Kiansky:

Facts
o In Manitoba – elected official must be an “owner of land” in the municipality


o A town Reeve sells his home and moves out of the municipality but holds a
remainder interest in land in the municipality that will take effect when his
grandmother dies
Issue – does Kiansky’s remainder interest qualify him as meeting the requirement of being a
property owner?
Hold –
o Remainder is existing, was a vested estate
 one piece that was not part of the character of his interest = possession
 Not have a possessory interests in the land, but had a future interest in
the land
 Owner of land even though not have right to possession
Forrestall:






Mulroney appointed new senator
For senator to be appointed needed to be “seised of land” worth $4000
Forrestall had a remainder interest in land
Issue – was Forrestall seised of land and entitled to his Senate sear
Hold – no he was not seised of land, not entitled to Senate seat
o Definition of seisin
 Range of definitions
 Came down to idea of possession
 Seisin being possession of interest in land
 Seisin rests only in owner entitled to immediate possession
o Therefore siesed of land because not have possession
Distinguishable from Stuartburn
o Court asking different questions
 In Stuartburn – ask if Kiansky was an owner
 Here ask if Forrestall as seised of the land
Vested and Contingent interests:

All interests in land are either
1. Vested
 Either
1. Vested in possession
o Holder is entitled to immediate possession
o Ex. Mrs. Kiansky’s interest in Stuartburn was vested in
possession
2. Vested in interest
o Test to be vested in interest
1. Holder must be alive (in existence – as opposed to
not in existence yet)
 Ex. To A for life, remainder to A’s firstborn
child (A has no children)
o A has a life estate vested in interest
o Remainder = contingent
2. Holder’s identity is ascertained
 Ex. To A for life, remainder to A’s widow
o A = life estate
o Not know who widow is – got to say
name
 Ex. To A for life, remainder to A’s children,
who survive her
o Contingent on determining who
surviving children are
3. No condition precedent to the interest taking effect
 Ex. To A for life, remainder to B in fee simple
when he turns 21
 Ex. To my niece when she shall attain the age of
25
o Ex. Mr. Kiansky’s interest in Stuartburn was vested in interest

Examples
 X to A for life, then to B and his heirs (A still living)
o A = holds life estate, vested in possession
 A = present right to possess the land
o B = holds fee simple remainder, vested in interest
 B has no right of possession until A dies, but B has a
present right to future enjoyment (possession) which
he may covey or devise
 X to A for life (A still living)
o A = life estate, vested in possession
o X = fee simple reversion, vested in interest
 X may convey or devise the reversion
 When A dies X’s interest will be vested in possession
(could be held by X or X’s estate)
 Test for vested in interest
2. Contingent
 Any interest that is not vested
Condition Precedent:




Is when the interest is subject to the prior occurrence of an event that may or may not happen
Examples:
 X to A for life, remainder to B in fee simple when and not before B turns 25 (B is 5)
 Condition of turning 25 renders B’s remainder contingent
 Would vest when B turned 25
 If A is still alive at that time – would vest in interest
 If A was not alive at that time – would best in possession
 A’s death is not a condition precedent because it is inevitable
An interest if prima facie vested if postponement is simply to allow for a prior life estate
(Bowne v. Moody)
BUT an interest is prima facie contingent if the reason for postponement is personal to the
done –ex. To marry, become a citizen or lawyer, or attain a specified age (Re Francis)
Condition Subsequent:




Interest may be subject to a condition subsequent
Exists when a vested interest is to terminate upon the later happening of an event which may
never happen
 Ex. Give something to Laura on the condition she not become a lawyer
Interest remains vested until the happening of the divesting event
 Interest is subject to divestment
Example:
 X to A and her heirs on condition that she not remarry but if she remarries, it will
revert to X
 A = fee simple interest, vested in possession subject to divestment if she
remarries
 X= a contingent right to recover the fee simple (right of entry) that will vest in
interest and possession if and when A remarries
McKeen Estate v. McKeen Estate (1993) (NBQB)



Facts
o Individual left estate for wife
o Directed trustees to divide the residue equally among two sisters “if they are both
alive at the time of the death of the survivor of me and my widow, if only 1 alivedirect Trustees to deliver residue to estate of surviving sister, the same be hers
absolutely”
o Neither sister survives
Issue – is gift to sisters contingent on them surviving? If no- what happens to property?
General principles in interpreting wills:


o Prime directive (prime intention to interpreting wills) = give effect to testator’s
intention
o Presumption against intestacy
 In cases of doubt- courts presume testator did not intend to die wholly or
partially intestate
o Construction in favour of vesting
 Courts favour holding a gift vested rather than contingent, where the will
permits such an interpretation
Court asks itself what the testator’s intention was
o Intended to have property used by wife after death, then meant to convey remainder
to sisters
 Testator not contemplate intestacy
o Vesting construction rule did apply in this case
o Widow = life interest
o Sisters = fee simple vested interest while wife alive, then vested in possession subject
to divestment if one sister died
o Surviving sisters had a fee simple interest that was subject to divestment if one of the
sisters pre-deceased the other, since divesting situation had never occurred –
condition subsequent only 1 sister get if other died, falls away if none die
o Divestment not come up unless wife dies between the 2 sisters
 Condition subsequent no longer applies
Hold – residue of estate of McKeen vested in both sisters equally at date of his death – they
or their estates have not been divested of their interest and their estates are equally vested and
entitled
Defeasible Vested Interests:

2 categories of vested states subject to divestment in certain conditions
1. Estates subject to condition subsequent
 Holder’s estate is vested until the divesting event
 Other person holds a contingent right of entry
 Ex. Sisters’ interest in McKeen
 Words that cue condition subsequent
 But if
 On condition that
2. Determinable estates
 Holder’s estate is vested until the divesting event
 Grantor retains a possibility of reverter, which is considered vested
 Usually cued by words like
 So long as
 Until

 During
 Etc
Main difference between the situations = way treated in terms of other rules affecting future
interests
o Ex. Common law remainder rules, etc.
ABORIGINAL PROPERTY RIGHTS
Aboriginal History:
General:


Aboriginal peoples inhabited much of modern Canada- set up whole systems of laws, norms,
fully fleshed out societies that had relationships to one another and their land.
Aboriginal sense of land ownership not the same as British/ European sense of land
ownership, people don’t become owners in the same way, different bundle of rights in
aboriginal sense than in European
o Raise question of how aboriginal sense of their relationship with the land translate to
modern system of property
Hudson’s Bay




established in UK, existed in North America
Their charter granted them a monopoly over the Indian trade
Became defacto government over portion of Canada where it had charter to govern
Had relationships with many aboriginal groups –allies, economic ties
British Proclamations:


Britain issued series of proclamations
Royal Proclamation of 1763
o Primary basis for understanding legal basis of aboriginal title and basis of treaty
process
o Differentiate how Canada deals with aboriginal peoples (in comparison to USA,
Australia)
o Said aboriginal people should not be disturbed in their use or enjoyment of the land
o Said only Crown could acquire land from aboriginal people
o Set the stage for the negotiation of a series of legally binding agreements with
aboriginal people over what land they would have and what terms of the land they
would have
Treaty Process:





Treaty= written agreement or contract made between two or more nations or sovereigns
o Legal status of treaties between governments = largely the same between aboriginal
nations and the Crown
o Constitutionally recognized agreements
o Treaty would comprise entire set of rights the aboriginals had to the land
 Any underlying title aboriginals had to land was gone when they signed treaty
(aboriginal title extinguished by the treaty)
Started to be signed in late 1700s – done for many purposes
Why government enter into treaties
o In context of very different population dynamics (aboriginal v. White) than now –
was in best interests of the British to work with aboriginals
o Government saw treaties as providing certainty and freeing up land that could later be
settled by other people (clarify that land not settled by treaty could be free for others
to settle)
Process stopped in northern BC (with some small exceptions)
o Because of that is a lot of uncertainty of what title aboriginals hold there (because no
treaties)
For Aboriginal peoples – treaties not just define the land but define their relationship with the
government
Aboriginals and Constitution Act 1982


Mentioned in the Charter
o S. 25 – Charter cannot be interpreted as negating aboriginal treaties and their
corresponding rights and freedoms
S. 35 recognizes and affirms the legal validity of aboriginal treaties
Indian Act: (1876)




Statutory set of rules in place in Canada for approx 150 years
Enacted under authority of Constitution Act, 1867
o Gives federal government exclusive authority to legislate for “Indians and land
reserved for Indians”
Administered by minister of Indian affairs and northern development
Functions:
o Defines who is an Indian
o Contains legal rights and legal disabilities of registered Indains
o Describe ways in which aboriginal bands can use their reserve lands
o Defines reserve


A tract of land the legal title of which is vested in Her Majesty set apart by
Her Majesty for the use of the band
 Sounds like a trust
o Her Majesty has the land but holds it for use and benefits of the
specific body of aboriginal peoples
Question of what this means
 What are rights/ interests of people on reserve
 Where does Majesty’s interests start and end, where do band interests
start and end
Aboriginal Title on Reserve


An Indian does not have a fee simple interest on reserve
o Interest falls short of fee simple interest
 Where dividing line is – not completely established
o Title far from fixed
Nature of reserve title
o Her Majesty holds title to reserve (per s. 18 of Indian Act)
o Qualifications of reserve title
1. Her Majesty exclusively holds the title
 Not a title province can hold
o Therefore are limitations to the extent to which provincial law
can apply to a band
2. Reserve title = for use and benefit of a band
 “use and benefit” = for the entirety of the band, has to be for band’s
advantage
 Come up in cases where question what government can do without
bands permission, what obligations has to the band
o Fiduciary duty
 Because Crown hold title for the band – have obligation
to do with the title things that are advantageous to the
band
 To do otherwise = breach fiduciary duty
o Developed in case law over time (ex.
Guerin v. The Queen)
o Used to just take reserve land without
any obligations to the band
3. Her Majesty holds the land in common for the band
 Extremely unusual
o Ownership usually seen as individual thing

o Common use in land = very different than norms that have
been set out for property interests
o Communal right
 Not individual right like have an individual right in a
common park
 Band Council usually lays out the common right
EXCEPTION- Certificates for Possession:
o Exception written into the Indian Act that provides for
individual ownership by individual band members for land on
reserve
o Band can grant attract of land to a member for that members
use
o Another interesting issue when applied to the range of rights,
the nature of the title
o Definitely not a fee simple interest (because band not even hold
a fee simple interest in reserve)
o Also greater than a permit
o Where fall in span of rights = unclear
Implications of the Indian Act:

7 most obvious examples of how the crafting of the Indian Act can lead to difficulties in
bands administering their land
o Loss of bargaining power
 Working through Indian Act introduces huge system of transaction costs
o Third parties see transactions with First Nations as being quite risky
 Refers to lack of provincial legislation applying on reserve
 So laws that apply to things like banking, land title act –would not apply on
reserve, therefore if there was a bank that was willing to give a loan to first
nation to develop land would be far less likely to do so because would not be
guarantee could get satisfactory security to do so
1. Certificate of possession (s. 20)
o Ways in which certificates are conveyed to individuals are not consistent
 Sometimes council members give to their family members, things like that
o Ways in which certificates in possession are laid out = lead to a lot of issues in band
trying to administer their land
o Can be impediment to development taking place
o Canadian government very hesitant to step in until the band decides what they want to
do
 Good development in law but can make things difficult
2. Transactions generally (s. 28(1))
3.
4.
5.
6.
7.
o Section sets out that any deed, lease, contract by which a band or a member of a band
purports to allow a non-member of the band to occupy a reserve = void UNLESS
minister agrees
 Complicated process to try to get Minister to agree
o Another section lays out times that things are allowed for – ex. A permit is renewable
every year
o Practice of bucksheet leases has developed
 Lease between 2 parties that says in it is void under Indian Act but sets out
conditions
 Now are municipalities and companies around that are interested in
contracting with aboriginals
o Indian Act states that aboriginal land can only be surrendered to the Crown
 any lease that is going to be entered into has to be on surrendered land
 long process
Permits (s.28(2))
Surrender (s.38)
Leases (s. 37(2))
Interpretation of wills (s. 45)
Rules of intestacy (s. 48)
o Any wills or process on people dying has to go through the government
o If resident on reserve- Indian Act governs what happens in the property
o Not kept up with provincial changes in wills and estates
 So how Indian disposes of property when die is quite different than under
provincial laws
First Nations Commercial and Industrial Development Act:



Because of complications for Indians doing business with third parties and lobbying of
economically successful bands – federal government has introduced new laws that change
how reserves can be used economically
First Nations Commercial and Industrial Development Act = One of the most importance
laws
2 examples:
o Park Royal Mall
 In West Vancouver
 Southern side of mall on reserve
 Development very different on northern and southern side
 Northern side – much more clear
o Contracts drawn up etc.
 Southern side – had be to specific acts approved by federal
government for the development to take place
o Took years to finish
 Lead to development of this Act
o Set of strata buildings being proposed
 Will be very different than how the south side of Park Royal Mall was built
 Now because of legislation- is much more clear
 Law established, approved by federal government that says use e. Land Title
Act from BC, whatever provincial law going to use – say how that tract of
reserve land be recognized
 Unique set of laws that allow a development on reserve to take place
De Soto

Equated Indian Act as not letting bands use the land fully because of structures that are in
place
o Like what his research talks about people not having title to property and how that
stunts their economic capabilities
Potlatch:







Festival/ ceremony practiced largely in northwest coast
System equated to government in some ways
o Also very related to the way property is treated
Extreme Giving – by Rick Salutin illustrates that it’s hard to pin down definition of
potlatch
o depends on things like why the potlatch is taking place
generally involves a feast, some ceremony
o also involves host giving away things to people without expectation of reciprocity
crimianlized in 1885 under the Indian Act
o “Every Indian or other person who engages in or assists in celebrating the Indian
festival known as the "Potlatch" … is guilty of a misdemeanor, and shall be liable to
imprisonment for a term not more than six nor less than two months in a jail or other
place of confinement; and, any Indian or other person who encourages, either directly
or indirectly an Indian or Indians to get up such a festival or dance, or to celebrate the
same, or who shall assist in the celebration of same is guilty of a like offence, and
shall be liable to the same punishment.” (Indian Act, 1885)
some wonder why this practice was met with so much scorn
o way in which property, possessions were treated was in great opposition to how
British felt about individual property rights, therefore needed to be criminalized as a
way of stopping the occurrence
scholar who’s written a lot on potlatch says white society’s problem with the practice lay in
the distributive aspects of the practice
o accumulation was seen as a practice in the public good, giving things away was not

practice not go away even though criminalized
Guest Lecture Professor Kent McNeil – Aboriginal Title:
Aboriginal Title:


leading case = Delgamuukw v. British Columbia (1997)
o details what aboriginal title is, what it’s unique aspects are
Aboriginal title claims made in relation to traditional territories (not reserves)
Preamble to Delgamuukw:
 stopped negotiating treaties in 1920s
o because when BC joined Confederation – BC government would not recognize
aboriginal title, so would not sign treaties
 1927 Amendment to Indian Act -made illegal for anyone to pay money to lawyers to pursue
any Indian land claims
o Repealed in 1951
 First important land claim that went to court – Caulder (1973)
o Significance: affirmation of existence of aboriginal title
 SCC for first time say is such a thing as aboriginal title to land, is legally
enforceable
o Court split 3-3 on if aboriginal title had been extinguished
 BC remained unresolved issue – where Delgamuukw comes in
o Early 1990s BC start modern day treat process (BC Treaty Commission established in
early 1990s)
 Actual treaty negotiations are under federal jurisdiction – but need provinces
involved because always debate about who’s land is whose
o Reason why so much aboriginal land claims activity happens in BC
 Also see some in Maritimes- (ex. Marshall and Bernard)
Delgamuukw v. BC:
 Facts
o Commenced in BC in 1980s before BC start to enter into negotiations
o Trial judgement before BC Treaty Commission set up
o 2 tribes claim
 Entitled to aboriginal land rights
 Self government over traditional territories
 Trial judgement very negative
 Claim went to SCC
o Overturn trial judge decision


Said made mistake in relation to evidence
 Had not admitted and not given sufficient weight to the oral histories
of the nations
 Say oral traditions and histories have to be admitted by trial courts, be
given same weight as written histories even though they might look
like hearsay because passed down from generation to generation
o Not decide case one way or other – sent case back to trial
 Original trial very expensive
SCC lay down principles for aboriginal title that trial judges have to apply
1. Nature and content of aboriginal title
 Is a property right (stands on same footing as other property rights)
 Type of property right = right to exclusive use and occupation of the land
that it covers
 Not limited to traditional uses of the land
 BC government had argued that
 Aboriginal title = an interest that includes
o Surface rights
o Sub surface rights
o Forests
o Minerals
o Oil and gas
 In that sense resembles a fee simple interest (complete interest,
ongoing interest)
 court said is not a fee simple interest
 is sui generis (special, unique)
2. Ways aboriginal title is unique
 Source
 Most property rights originate from Crown grant
 Aboriginal title originate form fact that aboriginal people were in
exclusive occupation of land prior to Crown assertion of sovereignty
o Pre- sovereignty, exclusive occupation source
 Communal
 Property rights generally under common law = individualistic
o Held by individual natural persons or corporations
 Can have several people own land at same time – different interests
(life interests, leasehold, fee simple) can also have joint tenants or
tenants in common- those people still have property rights as
individuals
 To own property have to have legal personality
o At common law – only individual persons and corporations
have this
 Nations own land as nations (have communal or collective rights)
 Courts only said it was communal and that community has decision
making authority in relation to that interest
o In Campbell decision- decision making authority over common
interest = governmental in interest, therefore is a right of selfgovernment in relation to their lands (derived from fact is
communal interest over which they have communal authority)
 Inalienability
 Aboriginal title can only be acquired by the Crown, is inalienable to
private corporations and individuals
 Delgamuukw say this is part of aboriginal title (not just by the Royal
Proclamation)
 Is part of aboriginal title because:
o Meant to protect aboriginal people form unscrupulous settlers
who may try to trick them for their land
o Settlers can only get their title from the Crown (from Crown
grants) so couldn’t get form aboriginal title holders
o McNeil asserts third reason – because aboriginal title is
communal and has decision making authority is government
(as held in Campbell)- because is governmental, can’t be
acquired by non-governmental agencies like corporations or
individuals
 Governmental nature means can only be surrendered to
Crown
 Inherent limits
 SCC say even though aboriginal title is not limited to traditional uses
of the land – it’s in fact limited in a way by the traditional uses
o Aboriginal title holders cannot use the lands in ways that would
make traditional uses impossible
o Ex. Court gave is if used the land as hunting ground, they can’t
strip mine it because it would no longer be of use as a hunting
round)
 Intention = preserve land for future generations
o McNeil view as paternalistic and potentially limiting the useful
economic use by First Nations
3. Proof of aboriginal title
 Oral histories
 Are admissible
 Have to be given same weight as written histories
 Onus of proof = on the aboriginal peoples themselves
 Initial onus of proving their title
 Prove aboriginal title by demonstrating by evidence that they were in
exclusive occupation of the land at the time of assertion of Crown
sovereignty
 Sovereignty
o Date for sovereignty that Crown accepted in this case = 1846
o Because in 1846- British government and US signed a treaty
which set the boundary between now Washington and BC
along 49th parallel
o Not clear how that treaty came to power (only Europeans in
northern BC were Hudson’s Bay traders)
o McNeil view idea of Crown acquisition of sovereignty = very
problematic
 Exclusive
o Acknowledged could be such a thing as joint aboriginal title
 2 or more aboriginal nations could be in exclusive
occupation jointly
o No case law on this since
o Importance because are many overlapping claims
o Proof of exclusive occupation:
 If aboriginal group was in possession after Crown
sovereignty – can rely on that possession but have to be
able to trace back somehow to before assertion of
sovereignty
 Can be proven with physical occupation or use of land
AND through aboriginal law
 Significance: wasn’t clear before if aboriginal
title was based on aboriginal title to the land or
aboriginal law
o If was based on occupation- would be
based on some kind of common law
interest based on time of sovereignty
o If based on aboriginal law – would
depend on specific group
 SCC combine the 2 – is based on possession,
but can use aboriginal law to prove occupation
4. Extinguishment of aboriginal title
 Can be extinguished through


voluntary surrender
transfer to the Crown through the treaty process
o as set in place by Royal Proclamation and as done in treaties
o huge problems of interpretation in treaties (what was actually
surrendered)
 used to be able to extinguish through legislation
o Parliament of Canada could have enacted laws extinguishing
aboriginal title before 1982
o In 1982 – aboriginal title became protected by Constitution
 Can no longer be extinguished by legislation
o McNeil not aware of any law made to extinguish aboriginal
title
 Provinces unable post Confederation (and after BC join in 1871) to extinguish
aboriginal title (because under exclusive federal jurisdiction)
 Poses huge problems
 Province grant fee simple interests to private individuals, corporations,
grant other rights (ex. Timber rights to corporations)
o Those grants could not extinguish aboriginal title because
province lacks constitutional authority to do that
o So in areas of BC where aboriginal title exists- grants must be
subject in some way to the aboriginal title
 Huge issues around the validity of interests around title granted by BC
government
5. Infringement of aboriginal title
 SCC said even though aboriginal title post 1982 is constitutionally protected
and even though Parliament can no longer extinguish it and provinces
couldn’t extinguish it post Confederation – both federal and provincial
governments can infringe aboriginal title
 Very broad definition of infringement
o Goes back to Sparrow (fishing rights)
o In Delgamuukw –takes it and applies it to aboriginal title
 McNeil argues is very problematic that provinces can infringe aboriginal title
(given exclusive federal jurisdiction)
 McNeil thinks SCC will have to clarify how this is possible
 Morris- involved treaty right-court basically said that provinces can affect
treaty rights incidentally, but any serious infringement of them would be
invalid because of violation of exclusive federal jurisdiction
6. Self government
 Original claim in Delgamuukw was to aboriginal title and self government
over their traditional territories




SCC say not deal with self government
 Say too complicated (250 pages in Royal Commission – not
adequately argued in this court)
Sent issue back to trial
Campbell (2000)
 BC SC (trial decision) said must be a right to self government over
aboriginal lands because of communal nature of lands and decision
making authority the aboriginals have over those lands
What kind of self government
 Usually when aboriginal peoples assert self government claim –
o A right to govern own lands (lands and resources)
o People within their territory, in particular the members of their
Nation
 Matters like family law, cultural property, intellectual
property, health, education, social services – things that
usually fall within provincial jurisdiction
 Create s sort of third variety of government
R v. Bernard, R v. Marshall: (2005)(SCC)




Claims by Mi’kmaq nation (live in Nova Scotia, parts of New Brunswick, up into Quebec)
Members of nation charged with cutting and being in possession of Crown timber
SCC deal with issue of proof of aboriginal title and issue of exclusive occupation
2 judgements – each say aboriginal title not proven – for different reasons
o Majority judgement (McLachlin)
 Say not shown exclusive occupation
 Focus on physical occupation of the land
 Aboriginal perspective = important, relates to their use of the land, has to be
transformed into a common law interest
 Said little about aboriginal law
 Downplay use of aboriginal law and those aspects of Lamer’s decision
in Delgamuukw that combined in aboriginal law in determining proof
o Concurring judgment (LeBel, Fish)
 Said aboriginal law is very important aspect of the aboriginal perspective, ahs
to be taken into account in determining aboriginal title
 Said McLachlin approach is too much a common law approach
 LeBel and Fish both from Quebec – could have influenced their
opinion
Roger Williams Case: (2007)






Another major aboriginal title decision decided by BC SC (trial decision)
Band in interior BC
Presented extensive evidence like in Delgamuukw, relied on Delgamuukw for what type of
evidence they had to present
Ruled had established aboriginal title over large part of claim area
o Not all area
refused to issue declaration because had sought a declaration for the whole claim area and
they were found to have a claim to only part of it
o seem like cop out
o were extremely reluctant to issue the declaration because wanted the parties to
negotiate
o wrote long judgment detailing why aboriginal title had been found
going up to BC CA, then will go to SCC
Real Estate –Priorities and Registration:
Priorities at Law and Equity:



can have numerous interests held in the same property (ex. Life estate, fee simple)
question of how those interests can conflict – who should bear the burden of loss
o different maxims put forward on how to deal with these issues of fairness and how to
compensate parties who’ve lost
 how rank competing property claims to the same item, often between innocent
parties
o common law and equity developed their own rules
o statutory assistance been provided at provincial level to deal with issues of
registration
 In Ontario in particular – because title theft emerged as big problem in
Ontario – statutory system for registering and ranking property interests,
especially in land
At issue in Chippewas of Sarnia Band v. Canada (A.G.)
Priority basics:


First in time is first in right (with some exceptions)
o Because of principle of nemo dat quod non habet
 Can’t give what you don’t have
o Therefore – fundamentally the earlier interest prevails
Interest that takes priority depends on if competing claims are legal or equitable
Subsequent legal interest
Subsequent equitable interest
Prior legal interest
Prior interest wins
Prior equitable
interest
Later interest wins provided it
satisfies “bona fide purchaser
without notice” test
Prior interest wins, if equities are
equal
Prior interest wins, if equities are
equal
Test = no actual or constructive
[purchase should have made
further inquiries, would have
found out about the title if had
made those inquiries] notice of
prior equitable claim, no fraud or
unclean hands

Laches –equitable doctrine that bars relief after too much time has passed
Chippewas of Sarnia Band v. Canada (A.G.) (2000)(Ont CA)





facts
o Chippewas occupied a lot of south western Ontario pre- contact
o 1839- man report to buy tract of land near Sarnia
 Surrender not happen property (go through the Crown)
 Crown reported to give Cameron fee simple
o No dispute until 1995
 Lands been subdivided and sold in the interim – now approx. 2000 owners
Sought declatory relief recognizing their right to lands, damages for trespass and breach of
fiduciary duty
o Wanted title
o Not want to kick people off
Land interests at play
o Chippewas- claim because title was never properly conveyed – still retain legal
interest in the land
o Crown – intermediary party
o Many different land owners who perceived themselves as having purchased feesimple title to the land
Issue – who should prevail
o Answer by looking at
 Did Chippewas wait too long
 Is aboriginal title equitable or legal?
Classifications of titles:
o Classification of aboriginal title:





Chippewas assert that their interest was legal, and the subsequent interest was
legal, so nemo dat quod non habet principle should be followed
 Court held was sui generis mix of legal and equitable
o Classification of landowners interest
 Court held was legal interest
 Was registered
 Conveyed with papers and put into registries
o Therefore band had equitable interest, later owners had legal interest
Issue of notice
o No evidence present owners could have or should have known the Cameron lands
were unsurrendered lands
o Therefore they were good faith purchasers
o Court says good faith purchasers are important part of real property system
 O’Conner in notes question the reasonableness of the court’s assertion that
subsequent purchasers did everything they were supposed to do
Significance of 150 year delay
o Appropriate for laches to intervene to prevent Chippewas from getting relief they
sought
o Held the reward of equitable relief is discretionary, subject to the usual equitable
interest and defences
o Delay of 150 years bars relief because would be unfair to third parties
o Chippewas waited too long to bring case when didn’t need to
o Delay was either acquiescence or detrimental reliance – either way would be unfair to
grant holding Chippewas sought
Court also look at if priority depends on the character of rights or remedies at issue
o Not be fair for Chippewas to assert they should have equitable remedies if they
weren’t also asserting there were some equitable property interests at stake
o Chippewas also sought legal remedy (order of possession)
Not decide if this constituted an unauthorized extinguishment of aboriginal title
o Not determined in this case
Registration:
Situation before registration systems:

Before advent of registration systems – purchaser
o bore the risk of title defects
o responsible to determine who else had interests in the property
o responsible to determine the vendor was really the owner of the property
o responsible to determine the transfer documents were not forgeries


even if vendor and purchaser acted in good faith , unaware of any problem – someone with
prior claim might emerge and claim better tile
legislature responded to issue of after title is conveyed – possibility that someone else could
come out and asset had claim to same piece of land
Proving title pre- registration systems:
 all documents affecting title to land were normally held by current owner – no official
registry
 current owner (vendor) would prepare an abstract (summary of documents and events
affecting her title)
 purchaser then had a period (usually fixed by contract) to examine the abstract and
underlying documents and make objections and requisitions
 abstract had to show chain of title back to a good root of title – at least 60 years old
o title proof period had no effect on 3rd party rights unless earlier right was equitable
(then purchaser could argue no constructive notice)
Registration system:



began to emerge in 18th century
purpose: to reduce purchaser’s risk
2 main types
1. Deeds registration
 Compendium of all documents that affected title
 Gave purchaser ability to come and inspect the interests held in the land
 No effect on document’s validity
 Fact that registration system existed did not make any claim on the
validity of the documents or the title
 Purchaser still had to search title chain and determine the validity of
the interest
 As with common law rule that applied before – prior (legal) owner
may reclaim property and oust purchaser even if purchaser acted in
good faith, unaware of defect, fraud or forgery
 Main value – make title searching easier
 3 approaches to prorates contained in deed registration (3 types of deed
registration system)
1. Notice
o Registration provide notice to the world, not affect priority
o No statement on priority
2. Race
o First interest to be registered takes priority, even if a holder
knows of a prior unregistered interest
3. Race notice system
o Most common in Canada
o First interest to be registered takes priority if it was acquired
without actual notice of the earlier interest
2. Title registration
 Origins
 Spearheaded by Sir Robert Torrens in South Australia in 1850s
 Quickly spread
 Title is crated, not merely recognized, by registration (takes it a step further
than deeds registration systems)
 3 central principles embedded in title registration (no title registration system
implements all 3 perfectly)
 Curtain
o State certifies seller’s title drawing a curtain on past dealings
o No historic title search required
o Even if vendor’s title is defective – purchaser doesn’t need to
worry – UNLESS she’s guilty of fraud
o Result = purchaser’s title is indefeasible upon registration
 Mirror
o The register is a conclusive statement as to all of the interests
that exist on the property
o Unregistered interests may have no effect, may not bind
subsequent interests
o Snapshot of all current interests
 Net
o Aka insurance
o Since risk of loss shifted from purchaser to original owner –
owners deprived of title by operation of curtain principle or
administrative or are compensated from a fund
 In Canada- almost all have the title registration approach –but differ from
place to place
Ontario system:



Mix of deeds and title registration
2 important Acts that determine how priorities are set
o Registry Act
o Land Titles Act
Ontario gradually shifting to title registration system
o All land in Ontario is gradually being brought under title registration
Title Fraud and different approaches:




At common law
o See table above
o Fraudser always loose out (unclean hands) \
In Ontario – common law position altered by statute
Under deeds registration system
o all of the information would have been delivered to centralized location – but would
not shift burden from purchaser to examine the legality or the nature of the interests at
issue (still have to look through documents and see how title holder was, same as
common law)
Under title Registration
o Transfer to fraudster = always void because done by fraud
 Because of fraud – have no effect
 Therefore Wright never be the proper title holder
o Can become a good route of title to subsequent holders
 If subsequently transferred to another holder who obtained it innocently –
have good route to title
o Question whether they can rely on it immediately once a fraudulent title is registered
or only after an intermediate transaction
 2 theories of indefeasibility
1. Immediate indefeasibility system
o An innocent party acting in good faith (without notice of fraud)
who acquires an interest directly from a fraudster acquires
indefeasible title upon registration
o Innocent purchaser has good title
2. Deferred indefeasibility system
o An innocent party acting in good faith, who acquires an interest
via a forged instrument doesn’t acquire indefeasible title
against the original owner, by registration of its interest enables
it to pass valid title to a third party
o Indefeasibility is “deferred” to a subsequent innocent party
who acquires an interest at least one step removed from the
fraud
Lawrence v. Wright:
 Dealt with indefeasibility and title theft
o Title theft = rare but disturbing phenomenon in Ontario, increasing public attention
about it
 Facts
o Had house stolen from her by identity thieves






o Someone stole house by drawing documents saying they owned the house – then
sought mortgage to pay for the house
o Lawrence left with the mortgage – she had to pay it or default on property
Lawrence claim mortgage company did not have good title to the mortgage placed on the
house
Issue – who has better title : original owner (Lawrence) or innocent purchaser/ mortgagee
(Maple Trust)
Common law
o Lawrence have legal title, bank have legal mortgage – at common law nemo dat rule
would apply
 Subsequent interest voided because it was acquired by fraud
o Fraudster always loose out
o Purchaser’s job to make sure title is good
Deeds registration system
o Burden on purchaser to examine the legality or nature of interests at issue
o Subsequent interest voided
Title registration
o Need to determine if immediate or deferred indefeasibility system exists in Ontario
o Court grapple with 3 sections of Land Titles Act to determine which system
(immediate or deferred) exists in Ontario
 S.78(4)
 “When registered, an instrument shall be deemed to be ...effective
according to its nature and intent and to create, transfer, change or
discharge... the land or ... interest... therein mentioned in the register”
 S. 68(1)
 “Only the registered owner may dispose of an interest in land”
 S. 155
 “Subject to the provisions of this Act... any disposition of land or of a
charge on land that, if unregistered, would be fraudulent and void is,
despite registration, fraudulent and void in like manner”
o Court say either system could be inferred from the wording of the Land Titles Act
o Deferred indefeasibility = preferred for public policy reasons
 Gives innocent home owner one more chance of ascertaining what’s going on
with their title
 Puts onus on bank to do some due diligence to make sure what’s going on is
appropriate
Lawrence succeeded because court said is deferred indefeasibility under Land Titles Act
o Lawrence has better title than the innocent purchaser/ mortgagee
Co- Ownership
Basic principles of Co –Ownership:




Private property rights are almost infinitely divisible among multiple owners (ex. Via
doctrines of tenure and estates, law and equity, leases, bailment)
2 or more persons share concurrent right of possession of same thing
Main forms of co-ownership:
o Joint tenancy
o Tenancy in common
Other forms we not really deal with
o Corporations
o Condos
o Co-ops
o Marital property
o Aboriginal title
o Communal property (ex. Hutterites)
o Commons (es. Pastures, maybe internet)
Scope of what co-ownership contains:

We got to Traditional forms of co-ownership
o Creation of joint tenancy and tenancy in common
o Severance of joint tenancy
o Rights and responsibilities of co-owners
o Termination
Traditional Co- Ownership:
Bottom line
Property exists
in
Right of
survivorship
Joint Tenancy
Each joint tenant “holds everything
and yet holds nothing”
Tenancy in Common
Each tenant in common has distinct,
separate interest
Each party holds an undivided share
of the whole
Both can exist in real or personal property
When one joint tenant dies – their
interest is extinguished and the
surviving joint tenant’s share is
correspondingly enlarged
NO RIGHT OF SURVIVORSHIP
* KEY DISTINGUISHING
FEATURE WITH JOINT
TENANCY
When one tenant in common dies –
their interest does not pass to the
surviving tenants in common but
becomes part of the deceased’s estate
Unities

4 unities
(1)Unity of Possession – each of the
joint tenants is entitled concurrently
with the others of the entire land or
thing
(2)Unity of Interest- each joint tenant
holds exactly the same interest in
terms of extent, nature and duration
(ex. If is a life estate- all joint tenants
hold a life interest, if is fee simple –
all joint tenants hold a fee simple
(3) Unity of Title- each joint tenant
must drive interest from the same
interest or event- they acquire the
interest through the same kind of
instrument (ex. Will)
(4)Unity of Time
Only 1 unity
Unity of Possession- each joint
tenant’s interest is entitled
concurrently with the others of the
entire land or thing
Without the four unities – joint
tenancy FAIL
Forms of co-ownership that no longer exist (co-ownership evolved over time)
o Tenancies by entireties
o Co-parency
Creating Co- Ownership:




At common law was presumption of joint tenancy (presume joint tenancy unless contrary
intention was shown)
Equity tended to prefer tenancies in common, especially where
1. Individuals made unequal contributions to the purchase price
2. Mortgagees
3. Business partners
Presumption of joint tenancy has been partially reversed by statute
PRESUMPTION NOW= parties will take in tenancy in common unless is an intention that is
sufficiently clear to show they should take as joint tenants
o Joint tenancy in land requires clear words indicating appreciation of distinction
 Ex. To A and B as joint tenants with right of survivorship or not as tenancy in
common
 “jointly” or “as joint tenants” – probably no suffice
o Apply to grants and devises


Grants- s. 13 of the Conveyancing and Law of Property Act (presumption will
be tenancy in common unless express words)
 Devises- s. 14 of Estates Administration Act (presumption parties will take as
tenants in common)
o Change in presumption only apply to real property (per s. 13 of the Conveyancing
and Law of Property Act and s. 14 of Estates Administration Act)
 In personal property joint tenancy not need any special words
Parties may hold as joint tenants in law but as tenancy in common in equity
o Eg. A and B purchase a car in unequal shares, with title in names of A and B
 Talking a car - personal property- because of statute that indicates reversal of
the common law presumption not apply
 Because of presumption – would be joint tenants
 Because of unequal purchase price – would be tenancy in common
 If A died – title would be held by B - but B would be holding that tile in trust
for both A’s descendant and B
Rationale for Joint tenancy:

Convenience and efficiency in having a limited number of people on title
o The more you add – the more diluted title is, the more people need to agree
o Historically easier to get payment from one party
o In modern n times- consolidation of title makes title searching easy, enables couples
to provide for surviving partner
Rationale for Tenancy in Common:

Fairness and certainty
o Common law’s presumption of joint tenancy would result in drastic consequence for
the parties because of survivorship
o Tenancy in common protects owners from arbitrariness and unpredictability
o Often reflects actual intentions and contributions
o Why equity favoured this result
Re Bancroft, Eastern Trust Co v. Calder: (1936)(NSSC)


Facts
o Samuel Bancroft’s will gives money, during his widow’s lifetime, in “four equal
shares” – one each to each of his three kids and one “to the children of his deceased
daughter Minnie – Paul and Jean
o Paul died – left 4 kids
Issue – did children of deceased daughter take their interest as joint tenants or tenancy in
common?



Presumption = common law presumption unless any of the 3 equitable situations existed (not
the case here)
Presumption that what Bancroft left would only be divided if anything in the slightest degree
indicated intention to divide the property
o Indicate by using words like –equal shares, share, share and share alike, jointly and
equally- anything that would indicate rebuttal of presumption of joint tenancy
o In s. 6(b)of will – indication would be split into “four equal shares”
o Clause 6(c)ended with “in equal share per stirpes”
 Per stirpes = descendants get the gift f named person died
 Presumption of descendants of person named in will would benefit if
person died
Hold – deem gift to Minnie’s children = as joint tenants, Paul’s sister now receive all 35%,
Paul’s kids not get anything
Severing a Joint Tenancy:





Sever to destroy the right of survivorship
Joint tenancy is severed if any of the 4 unities are destroyed
Same principles apply to land (real) and personal property
Traditionally was a preference for severance
o Means presumption would be severance if was evidence that’s the way the parties
intended it
o Presumption there because of drastic consequences of right of survivorship
o Questionable whether this should still apply to land since joint tenancy in land must
be created deliberately
3 ways to actively severe a joint tenancy:
1. Unilateral act
 One tenant can sever joint tenancy by a unilateral act that destroys any of the
4 unities
 Ex. Conveyance to 3rd party or even to oneself
 Some jurisdictions have limitations on unilateral severance
 Alberta, Saskatchewan
 Not apply in Ontario joint tenancy = question of balance each
individual has to make
o Severance can be profitable
o Are reasons why want to keep joint tenancy
 Court permit unilateral acts to sever
 Sorensen – issue if joint tenancy been severed, deem the joint tenancy severed
because of her declaration that she held the land in trust for her son
 Introduce strict standards for what severance needs to look like
o Conveyance to third party or even oneself
o Mere encumbrance (lease, mortgage) – not enough to sever
2. Mutual agreement
 Express mutual agreement by all joint tenants severs the joint tenancy
 Sorensen- no decision to sever
 Agreement to divide title and sell vacant lot was not deemed sufficient
to sever
 Leasing matrimonial home to wife not sufficient to sever
o General rule – act relied on must be inconsistent with the
chief characteristic of a joint tenancy – survivorship
 Imposition of a charge
o Depends on nature of charge or mortgage
 Ex. If mortgage conveys title to someone else on death
can influence
o Here not because payment would end at time of one party’s
death
3. Course of dealing
 Set of actions undertaken that demonstrate that one of the joint tenants or
more had intention to sever the joint tenancy
 Joint tenancy can be severed when it can be inferred that the joint tenants
wanted it severed
 Inference will be made on specific facts of the case
 Ex. In Havlik v. Whitehorse (2000)(Alb QB)- court held needed to be
something more
o Uncle and niece owned cottage as joint tenants
o Through lawyers uncle communicates wish to severe the joint
tenancy
o Niece’s lawyer replies “without prejudice” that she is agreeable
to severance
o Parties communicate back and forth several times but never
sign a transfer
o Uncle dies soon after, widow claimed joint tenancy was
severed
o Court alluded to how things are a bit different for married
couples who intend to sever joint tenancy
 Sometimes negotiations are enough to constitute severance –
sometimes not
o
Re Sorensen & Sorensen: (1977)(Alb CA)



Facts
o Divorced couple held title to 3 lots of land
o Signed agreement saying lot with house they lived in would be divided, that it would
be leased to wife for nominal amount, ,husband pay monies per month for care of
their disabled son (that amount was paid and secured as a charge against the home)
o 1974- wife discovered she’s dying, executed a number of documents to try to help
son
 Executed a trust declaring
 She hold her interest in trust for her disabled son
 Executed transfers of the land to her son which she has given to her
solicitor to register upon her death
 She has done the above to sever the joint tenancy
Issue – were any of the wife’s actions enough to sever the joint tenancy?
o Court look at many actions to determine if severed the joint tenancy
 By wife’s declaration that she was severing the JT?
 By her execution of transfers to her son and delivery to her solicitor to hold
until her death?
 By her execution of a will leaving property to daughters as trustees for son?
 By her commencement of an action for partition?
 By her declaration that she held the land as trustee for her son?
Held that the joint tenancy was severed because of her declaration that she held the land in
trust for her son
State Limitations on Private Power
Public Policy
Re Leonard Foundation Trust (Ont CA) (1990)

Facts
o Leonard established charitable foundation (Leonard Foundation) in1916, resettled the
trust in 1923
o Relevant terms
 Preamble sets out who is excluded
 Settler excludes from the management or benefit of the foundation all
who are not Christians of the White race, all who are not of British
Nationality or of British Patronage and all who owe allegiance to any
foreign government




 Say affairs of the empire should be limited to white people
Define class of eligible people
 Eligible =
o British subject of the White race and Christian religion in its
Protestant form who without financial assistance couldn’t
attend one of the outlined universities
 ¼ girls
 Within class of people who meet criteria – preference given to children
of clergymen, school teachers, military, members of engineering
Institute of Canada, members of Mining Institute
Indicates intentions, purposes that the trustees have to use to administer the
trust
 One rationale = white race is superior, world progress depends on
white race (independence, stability of British Empire)
 White race, Christian religion, British empire- critical to world
progress
Issues
o Is the trust contrary to public policy
o If so, can the trust be saved by Cy-pres doctrine
Hold -2 concurring judgments
o Recitals can’t be isolated from the balance of the trust- need to look at them together,
are inextricably interwoven
o Violation of public policy issue: found violates public policy
 Robins
 Public policy must be invoked with caution in the clearest of cases
o Because could just be the values of teh individual judge
influencing
o Because of the division of labour between courts and
legislature (largely the duty of the legislative body to decide
policy issues)
 Nonetheless are cases that require courts to intervene on public policy
reasons
o Sees this as such a case
 Propositions on which the trust stands
 Expressing a form of ethnic, national and
religious supremacism
 To say that a trust premised on these notions of
racism and superiority is against public policy is
obvious

o Not get into an analysis for evidence of modern public policy –
takes it as obvious that this is what contemporary public policy
stands for
Tarnopolsky
 Court will be breaking new ground if rules the trust as void against
public policy
o Refers to Noble v. Wolf (SCC)(1951)
 Was restrictive covenant on the sale of land – never be
sold, rented etc. by any person of the Jewish, Negro,
coloured race or blood
 Upheld a racially restrictive covenant in course of
deciding that there was insufficient evidence to
conclude that racial discrimination was contrary to
public policy
o Also points to English scholarship trust case that they didn’t
say was void
 To demonstrate public policy is against discrimination on the basis of
race, sex, etc. - Looks at
o Human Rights Code
o other Ontario statutes that prohibited discrimination on such
grounds
o anti-discrimination laws in every province and federally
o Charter
o International agreements aimed at eliminating discrimination
against women, coloured people
PRINT SLIDES – COME BACK TO THIS SECTION

D
Bailment:
Bailment basics:


Bailment = delivery of possession of goods from owner to another for a specified purpose
o From Punch-“delivery of personal chattels on trust, usually on contract [not have to
be a contract], express or implied, that the trust be executed and the chattels be
delivered in either their original or an altered form as soon as the time for which they
were bailed has elapsed”
Intersection of tort, contract, trust and property law



2 important questions
o Is this a bailment?
 Only exists where is a transfer of possession (Otto Mobiles)
 Factors indicative of bailment
 Valet v. Self park
o Valet – transfer possession of car, leave keys
o What are the consequences?
 If is a bailment – bailee has duty of care
 Duty to safeguard the object
 Bailee has standard to meet
 If no bailment – plaintiff’s responsible for own loss (ex. In Otto Mobiles –
plaintiffs left trailer at own risk)
Bailment does not require a contract
Bailment involves a trust (engages equitable )
Definitions:


Bailor = owner of goods
Bailee person taking possession
Letourneau v. Otto Mobiles: (Alba QB) (2002)



Facts
o Otto Mobiles repair Letourneau’s camping trailer
o Letourneau’s want further repairs
o Otto Mobiles service manager tells them to leave trailer in adjacent parking lot after
hours, padlocking it and hiding the key inside the water compartment to be picked up
the next morning by Otto Mobiles
 This is Otto Mobiles standard practice for after hours delivery
o Letourneau’s follow the instructions
o Trailer stolen from parking lot over night
Issues?
o Was there a bailment?
o If yes Did Otto Mobiles fail to meet standard of care?
 If yes – did the failure cause the loss of the trailer?
 Did the liability clause present in the original contract between the Letourneau
and Otto Mobiles wave any obligations that Otto Mobiles had?
 Did the plaintiff’s negligence contribute to the loss of the trailer?
Hold
o was a bailment
 Only exists when there is a transfer of possession from bailor to bailee

This is not a typical bailment case because
 Didn’t leave trailer on Otto’s property
 Keys not handed to anyone in particular
 No contract signed at time vehicle left
 Look at facts to determine if possession occurred –factors considered
 Common practice
o Evidence other family doing same thing at same itme
 Follow almost exactly to the letter what Otto employee told them to do
o Otto Mobiles had knowledge because employee instructed the
plaintiffs to leave the railer in manner they did
 Inference of possession where the practice that was done or the action
that happened was incidental to some other function
o Left trailer there because plaintiffs were leaving it for
defendants to fix
 Court not seem to focus on location of the trailer
o Mentioned fact trailer was not on Otto’s property
o Not necessary to be on the property – just because not on the
property not mean will bar recovery
 Bailment occurred when the Letourneau’s left the tailor in the lot
 Defendants had argued was when they came to pick up the trailer the
next morning
o Bailee duty
 Bailee has duty of safekeeping
 Court then look at standard of care
 taxonomic pigeon hole approach previously established by case law
o Depends on value bailee gets from the relationship
 Different set of standards if bailee is doing it for reward
or it’s a gratuitous bailment
 Standard for bailment for reward: slight negligence
 Standard for gratuitous bailment: gross negligence
o Applied in Punch
 Bailee for reward must take care a prudent owner
would; liable for loss of goods whether via negligence
or theft
 Court says dichotomy is not necessary
o Canadian jurisprudence all over the place
o So collapse the test - demonstrate emergence of general
reasonableness standard
 Bailee must take some care of goods as would a prudent
owner, acting reasonably in the circumstances



Including
o who was intended to benefit
 notes discuss it’s hard to tell who
will benefit (bailor or bailee)
 ex. Complementary valet parking
– Martin v. Town N’Country
Delicatessen (1963)(Man CA)no consideration for bailee to
have parking beside their
establishment BUT there is a
reason why they have parking –
is getting something from having
the service available
 in Murphy v. Hart (1919)(NS
CA)- found free coat check- were
getting advantage out of it
o how bailment came about
o relationship between the parties and
o value of item of loss
o This could be persuasive in Ontario
 Is not the rule – not been affirmed by SCC
 At present – operating approach in Ontario = Punch
dichotomy
Onus of proof = shifted in bailment cases
 Onus on the bailee to establish that they either
o Met the standard of care (Took reasonable care of the goods)
OR
o That the established failure to take reasonable care of the goods
did not contribute to the loss or damage
 When goods are lost or damaged while in bailee’s
possession – bailee must demonstrate that the loss was
without fault on part of bailee or employees
 Court spent a lot of time discussing role of employees –
said employer was responsible for what employee said
to customs
 In Punch see that conduct of employees is
something that customers can rely on
Conclude trailer was left on adjacent property with their direction – failed to
provide safe location for the trailer and this direction caused the loss of the
trailer
o Contributory negligence issue
 Even though lost on adjacent property – plaintiffs took all precautions that
they could, relied on all the defendant’s instructions
 Even though not inquire as to security arrangements, lighting
o Waiver of liability
 Defendant’s asserted the exclusion of liability clause on the work order for
earlier work covered the situation in this case
 Clause said Otto would not be responsible for damage caused by theft
of vehicle
 Court held not apply
 That work order had to do with previous situation
 Know from case law on waivers of liability that they need to be
strictly construed
o Not strict construction to apply here
Difference between license and bailment:

License does not amount to a bailment
o Simply allow for non-exclusive license to use the land
Parking as Bailment:



Factors to consider
o Paying for parking
o Leaving vehicle/ key with defendant
o Moving car around during the day
Courts look at active supervision and control to determine if is a bailment
Appleton et al v. Ritchie Taxi et al (1942)(CA)
o Defendants became bailees when attendant, as agent of defendants, took charge of the
car at the front gate, since possession of the car was delivered to the defendants for
safe custody
o Indications of bailment
 Active supervision and control of car via surrender of keys, provision of
attendant, serially numbered ticket, jockeying of cars
o Indications of license
 Statement that “charges are for use of parking space only”
Bailee’s liability:



Not limited to negligence
Bailee = strictly liable whenever goods are dealt with in a manner that falls outside the terms
of the bailment
Ex. Bailee’s liability when contents of the bailed article are lost (Minichiello v. Devonshire
Hotel (1967) Ltd. (1978)(BC CA))
o
o
o
o
o
Paid to park (40 cents)
Told valet were valuables in the trunk (turned out to be $16,000 worth of jewels)
Car stolen from lot
Question is bailee liable for the loss of the contents
General principle – bailee is responsible for contents one would reasonably expect
to be in or affixed to the property
 Also responsible for any items to which the bailee has actual or constructed
notice
o Here was established because the valet received notice that there were valuables in
the trunk- that amounted to sufficient knowledge that the bailee was responsible for
jewels in the trunk
Bailees and sub-bailees:
Punch v. Savoy:
 Facts
o Lenore leaves $11,000 ring with Savoy’s Jewellers or repairs
o Savoy sends it to Harry Walker Jewellers in Toronto to do repairs by registered mail
with $100 declared value
o Due to postal strike, Harry Walker sends it back via CN Rapidex courier
 Savoy agrees to this but terms of shipment not discussed
 Harry Walker ships it with $100 declared value, no insurance
 Shipping form limits CN liability to $50 unless extra insurance bought
o Ring disappears
o CN offers no explanation and admits driver may have stolen it
 Bailment logistics:
o Bailor = Punch
o Bailee = Savoys
o Sub-bailee = Walker
o Sub-sub bailee = CN
 issue
o was there a bailment in each of the 3 relationships
o if were bailees – what obligations did they owe Punch or each other
 Punch and Savoy = clearly bailment relationship
 Punch and Walker
o No direct contract between Punch and Walker
o Punch originally unaware that the ring was sent to Walker, but she testified she would
have agreed to send it there
o Was a duty relationship between them
 Walker liability


o Walker as remiss in not talking not Savoy about way in which transport of ring would
be undertaken and whether or not would get insurance
o Court discusses reasonably prudent owner
 Said reasonable and prudent owner in the situation would make sure it was
transported safely, would insure it for its full value
 Because Walker not do this – are liable for any damage (loss of ring) flowing
from the loss
Savoy breach duty
o Court said usually no duty on bailees to insure
o But here the provision of insurance was an essential term of the contract of carriage
because it was a minimum step that a reasonable and prudent owner would take
o Here obtaining insurance is part of standard of care – not do that so breached standard
of care
CN liability to Punch and Savoy
o CN lost the goods, offered no excuse
o Relied on the exclusion of liability
 Question can they rely on exclusion of liability against people who aren’t part
of the contract
 Court says bailment = mix of contract and tort
 Court needs to look at if the party should be liable on the basis of
negligence, especially when the other party (either Savoy or Punch)
did not consent to the terms of the arrangement
 Standard rule = where a sub-bailee is aware of owner who is not party
to contract, he/she owes her a duty of care (If CN knew of existence of
Punch or Savoy- owe them a duty of care even if arrangement is not
with them)
o BUT- If owner consented expressly or impliedly to subbailment on specific conditions, she/he is bound by those
conditions
 If consent to waiver of liability- are bound by it
 Court say was a duty of care owed to both Savoy and Punch
 In contract- was wording that demonstrated there could be other
parties involved – so make just as much sense that there would be both
Savoy and Punch involved
 Court hold CN could not rely on waiver of liability in respect of Punch (not
even aware of this contract, not consent to this practice) or Savoy (because
Savoy never discussed the terms of carriage with Walker- not have any ability
to determine the amount of insurance)
 Court hold Savoy not consent to waived liability

Even though knew ring would be sent back using this service – they
weren’t told by Walker the terms of the carriage or what the insurance
situation would be
o Waiver of liability
 Court said bailee is normally liable for theft by employees unless a clause
explicitly exempts them from such action
 Here liability clause turns on wording “or otherwise”
 Does “or otherwise” extend to situations where employees steel?
 Court say no – “or otherwise” not contemplate employee theft
situations
 CN would have to do something much more overt to have that type of
action covered by a liability section (have to include clause that clearly
excluded employee theft)
o Without it – person signing the contract not know extent to
which they are removing liability from person who’s handling
their property
Excluding liability for fundamental breach




Fundamental breach = non-return of bailed item on request
Heffron (Ont CA)(1974)
o Facts
 Plaintiff parks car in Impark lot
 Let keys with attendant
 Car disappears
 Impark offers no explanation, relies on disclaimer “we are not responsible for
theft or damage of car or content however caused
o A party cannot undertake to do something and purport to exclude liability for failing
to do it
 Business = parking cars, can’t now say exempt liability if something happens
Courts said can exclude liability for yourself – but have to clearly and unambiguously
communicate that that’s what you are doing (Syncrude Canada Ltd v. Hunter Engineering
(1989)(SCC))
o Limitation going to be construed strictly against the party relying on it
o So courts not undertake normal process of looking at what parties meant and trying to
help parties out
o Ex. Ski ticket liability – detail all kinds of scenarios because want to deny all possible
types of activity could be liable for
These types of clauses will be enforced UNLESS they are unconscionable, unfair, or
unreasonable
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o Solway – up until then had been 2 tests- (1- Unconscionability test, 2- unfair or
unreasonable)
 Facts
 Plaintiffs chose movers carefully for security, based on past
experience, apparent professionalism, Atlas Van Lines affiliation
 Movers leave trailer unsupervised on street overnight - goods are
stolen
 Contract limits liability to fraction of value
 Said is little practical difference between what would constitute
unconscionable, unfair, unreasonable
 Moving company breached what they said they would do, were chosen
specifically for their security, would be unfair not to allow plaintiff to recover
Exclusion clauses will apply where there is a fundamental breach if they are
o Clearly and unambiguously set out (Syncrude)
o But will be interpreted strictly against party relying on it (Syncrude)
o Such clauses must not be unconscionable, unfair, unreasonable (Solway)
D
d