PROPERTY CAN, 2016-2017: EMILY SMEATONTABLE OF CONTENTSThe Legal Meaning of Property...................................................................................6

Property as a Relationship; Property as a Bundle of Rights.....................................6Victoria Park v Taylor...........................................................................................7

The Right to Exclude..................................................................................................8Harrison v Carswell.................................................................................................8Committee for the Commonwealth of Canada v Canada........................................8Batty v Toronto.......................................................................................................8

Property & the Constitution: Federal, Provincial, Aboriginal.......................................9Poverty & Homelessness............................................................................................9

Abbotsford (City) v SHantz......................................................................................9Victoria (City) v Adams............................................................................................9Guest Speaker: Dj Larkin.........................................................................................9

Expropriation............................................................................................................10Compensation.......................................................................................................10

BC Expropriation Act..........................................................................................11Devick v BC........................................................................................................11

Guest Speaker: Jeff Frame.....................................................................................11Constructive Expropriation.................................................................................11Manitoba Fisheries.............................................................................................12

Possession................................................................................................................12Title....................................................................................................................... 12

Pierson v Post.....................................................................................................13Finders..................................................................................................................13

Abandonment.....................................................................................................13Armory v Delamirie............................................................................................13Finder v Owner or Occupier of Premises............................................................14Parker v British Airways.....................................................................................14

Attached to the Land..........................................................................................14Control of the premises......................................................................................14Taking Possession/Custody................................................................................15Finder’s Innocence/Wrongfulness.......................................................................15Keron v Cashman...............................................................................................15Popov v Hayashi.................................................................................................15

Bailment................................................................................................................... 16Bailee....................................................................................................................16Reverse Onus........................................................................................................16Bailor.....................................................................................................................17Bailment or License...............................................................................................17Heffron v Imperial Parking.....................................................................................17

Exculpatory Clauses...........................................................................................17Gifts.......................................................................................................................... 18

Testamentary, Inter Vivos, & Mortis Causa...........................................................18Re: Cole.................................................................................................................18Thomas v Times Book Co......................................................................................18Watt v Watt...........................................................................................................19Re Zachariuc.........................................................................................................19Engagement Rings................................................................................................19

Land Law.................................................................................................................. 19Tenures & Estates.................................................................................................20

Aboriginal Title...................................................................................................20Estates...............................................................................................................20Re Walker...........................................................................................................21Re Taylor............................................................................................................21License or Life Estate?.......................................................................................21

Rights Above & Below the Surface........................................................................22Free Miner System.............................................................................................22Claims................................................................................................................ 22Christmann v New Nadina..................................................................................22Didow v Alberta Power.......................................................................................23

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Edwards v Sims..................................................................................................23Future Interests & Conditions................................................................................23

Remainders & Reversions..................................................................................23Conditions & Stipulations...................................................................................24Conditions Subsequent (Defeasible Estate).......................................................24Determinable Estate..........................................................................................24Determinable/Defeasible....................................................................................24Vested & Contingent Interests...........................................................................24Limitations on Power to Create Qualified Estates...............................................25What Happens if a Stipulation is not Valid?........................................................25Restraints on Alienation.....................................................................................25Re Canada Trust.................................................................................................25Cy-Pres Doctrine................................................................................................25Uncertainty........................................................................................................26Sifton v Sifton.....................................................................................................26

Equity & Trusts.........................................................................................................26Origins of Trust......................................................................................................26Statute of Uses......................................................................................................27Modern Trust.........................................................................................................27

Presumption of Resulting Trust..........................................................................27Constructive Trust..............................................................................................27

Fleming v Kwakseestahla......................................................................................28Rule Against Perpetuities.........................................................................................28Joint Ownership........................................................................................................28

Joint Tenancy.........................................................................................................29Creation.............................................................................................................29Four Unities (PITT)..............................................................................................29

Severance & Partition............................................................................................29Pecore v Pecore..................................................................................................29Presumptions.....................................................................................................30Severance: 3 Rules From Williams v Hensman..................................................30Partition & Sale..................................................................................................31

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Aboriginal Law..........................................................................................................31Claiming Sovereignty in New Lands......................................................................31St. Catherine’s Milling...........................................................................................31Calder v British Columbia......................................................................................32Aboriginal Rights...................................................................................................32Justifiable Infringement.........................................................................................32Guerin v The Queen..............................................................................................32Delgamuukw v The Queen....................................................................................32Tsilhqot’in Nation v British Columbia.....................................................................33

Registration of Interests in Land...............................................................................33Nemo Dat Rule......................................................................................................34Torrens System.....................................................................................................34Land Title Act........................................................................................................34CPR v Turta...........................................................................................................34Heller v Registrar..................................................................................................35Fraud Exception....................................................................................................35

BC Land Title Act................................................................................................36Danica Enterprises v Curd..................................................................................37Szabo v Janeil Enterprises..................................................................................37

Charges................................................................................................................. 38Gill v Bucholtz....................................................................................................39

Easements and Public Rights of Way........................................................................40Phipps v Pears.......................................................................................................44Brandt Revocable Trust v United States................................................................45Re Ellenborough Park............................................................................................45Lafontaine v UNiversity of British Columbia..........................................................46

Covenants................................................................................................................46Tulk v Moxhay.......................................................................................................48Aquadel Golf Course v Lindell Beach Holiday Resort.............................................48Re Drummond Wren..............................................................................................49Noble & Wolf v Alley..............................................................................................49Conservation Covenants (s.219)...........................................................................50

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Nature Conservancy of Canada v Waterton Land Trust.....................................50First Nations Land Management Regimes................................................................51

S.91(24) Lands......................................................................................................51Nature of Reserve Lands.......................................................................................51Tsilhqot’in Decision...............................................................................................52Member Interests in Reserve Lands......................................................................52Certificates of Possession......................................................................................52Use of Reserve Lands by Non-Indians...................................................................53Surrenders & Designations....................................................................................54Leasing.................................................................................................................. 54First Nations Land Management Act......................................................................55BC Comprehensive Treaties..................................................................................55Self-Governing First Nations..................................................................................55First Nations Land Registers..................................................................................56

Condominiums..........................................................................................................56Terminating a Condominium.................................................................................57

Voluntary Winding up Without a Liquidator........................................................58Voluntary Winding Up with Liquidator................................................................58Court Ordered Winding Up.................................................................................58

Strata Plan LMS 2768 v Jordison............................................................................58Condominium Plan No 7621302 v Stebbing..........................................................59Mowat v Dudas......................................................................................................59

Family Property........................................................................................................60Murdoch v Murdoch...............................................................................................62Caratun v Caratun.................................................................................................63Pettkus v Becker...................................................................................................63Hussey v Palmer....................................................................................................64

Problematic Property................................................................................................64Saulnier v Royal Bank of Canada...........................................................................65Approaches to Problematic Property.....................................................................66

Body Parts & Human Tissues....................................................................................67JCM v ANA..............................................................................................................67

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Lam v UBC.............................................................................................................68KLW v Genesis Fertility Centre..............................................................................68

Animals..................................................................................................................... 68Wild or Domestic...................................................................................................69Nakhuda v Story Book Farm Primate Sanctuary....................................................69Reece v Edmonton (City).......................................................................................70Henderson v Henderson........................................................................................71

Passing Off............................................................................................................... 71Fenty & Ors v Arcadia Group.................................................................................72

Copyright..................................................................................................................73Infringement..........................................................................................................73

Michelin Case.....................................................................................................75Cinar Corp v Robinson........................................................................................75

Fair Dealing...........................................................................................................75Fair Dealing........................................................................................................76Fair Use..............................................................................................................78CCH v Law Society of Upper Canada..................................................................78Vancouver Aquarium Marine Science Centre v Charbonneau............................79

THE LEGAL MEANING OF PROPERTY The legal meaning of property is a relationship between people in respect

of things.

PROPERTY AS A RELATIONSHIP; PROPERTY AS A BUNDLE OF RIGHTS The relationship is a mixture of rights, liberties, and obligations The nature of the relationship varies by context and the natures of the thing

(the object of property rights) Subjects of legal rights are legal persons

o Not necessarily a human being Objects of legal rights are things

o Can be owned, cannot own (animals included)

What is Property? A Bundle of Rights

To use and enjoy without interference from others To give or sell to someone else (alienation)

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To exclude otherso Arguably the core of property

To make a profit off

A.M. Honore’s Incidents of Ownership

The right to use The right to manage The right to income The right to capital The right to security The right of transmissibility and absence of term The duty to prevent harm Liability to seizure Incident of residuarity

o If you own property and peel off part and transfer to someone else, you still own the residual property

What Kinds of Things are Property?

Land Physical inanimate objects Attributes Functions

VICTORIA PARK V TAYLORFacts:

Company owns racecourse for horses (Australia, 1930s) Build a big fence around the course Neighbour builds platform from his garden to see over the fence and rents it

to a broadcasting company Broadcaster would announce races and run off-site betting from private

property

Issue: Is the platform affecting the use and enjoyment of the plaintiff’s land?

Rule: Nuisance must interfere with the use and enjoyment of the land.

Analysis:

The rights of the people using the land were not affected, only those potentially using the land

The broadcasting does not interfere with the races or the enjoyment of the races, therefore no right has been violated

The business is less profitable due to competitive entertainment, but this is not a violation of rights

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Natural rights of an occupier do not include freedom from the view and inspection of others

THE RIGHT TO EXCLUDE

HARRISON V CARSWELL Argument over right to picket and right to exclude (off property) Appeal allowed, ultimately the owner had enough rights over the sidewalk

outside his business to exclude someone from picketing thereo Even though she had the right to picket, his rights to exclude from his

property took precedence There is a public perception that shopping malls are public places due to their

nature but this is not true Private property vs public property vs state property Majority: Even if a private property owner invites everyone to enter freely

onto their property, they haven’t given up the right to eject anyone they want to eject. The same applies if the person is an employee of a tenant picketing as part of a legal strike. Any change in that rule would be for the legislature to make as the representative of the people – nor for the court.

COMMITTEE FOR THE COMMONWEALTH OF CANADA V CANADA Political leafleting in Dorval airport (government property) Government does not have complete discretion to decide who is

allowed on property, as does a private citizen Some government-owned property is constitutionally open to the public

for expressive activity Idea of “contemporary crossroads”

o Functionally equivalent to public thoroughfares, thus should be on same constitutional footing as streets and parks

BATTY V TORONTO Protesters in Toronto park told to evict Claimed they had rights to freedom of conscience, expression, peaceful

assembly, and association The limitations resulting from the enforcement of the City’s Trespass Notice

did not break those rightso “…reasonable limits prescribed by law as can be demonstrably justified

in a free and democratic society”o Huge focus on the balance between property rights and Charter-

protected interests Protesters can use the park for expressive activity BUT they cannot

“appropriate to their own use – without asking their fellow citizens – a large portion of common public space for an indefinite period”

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o In effect, they can’t turn the park into their exclusive property that others can’t use

PROPERTY & THE CONSTITUTION: FEDERAL, PROVINCIAL, ABORIGINAL Property does not fit exclusively in one area of Constitution or legislation:

o Constitution Act 1867o Charter of Rights and Freedomso Universal Declaration of Human Rights

Aboriginal Rights found in s.25(1) of the Constitution Act 1982o Also, UN Declaration on Rights of Indigenous Peoples

POVERTY & HOMELESSNESS

ABBOTSFORD (CITY) V SHANTZ No such right in the Charter for adequate housing Second homelessness case to go to trial An encampment and an injunction granted to disperse the encampment No longer just a question of “are there enough shelter beds”?

o They need to be accessible to those who need themo Homelessness is not a choice

Where property and rights collideo Can people actually use that property? o Can people actually use that shelter?

VICTORIA (CITY) V ADAMS “A right to a tent” First homeless encampment to go all the way to trial The right to shelter yourself if the shelters run out of accommodation

o A tent, a canvas, a box (bare minimum and not more) Prohibiting people from putting up tents at night in the park was proven to be

unconstitutionalo The right to life

GUEST SPEAKER: DJ LARKIN Housing is a right

o If you don’t have private property, you don’t have exclusive access to a piece of land (you have to be able to pay for it)

Property rights include the right to:o Healo Store belongingso Change the spaceo Have safe boundarieso Be unwatched

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o Exclude people (safety issue)o Remaino Privacyo Controlo Use and enjoymento The right to save your own life

EXPROPRIATION Expropriation is when the government takes your stuff

o Can be land or other property (personal) 2 kinds:

o Actual (literal) expropriation A transfer of ownership E.g., The BC government acquires title to a strip of land to build

a road on ito De facto expropriation (regulatory taking)

When the government action has the effect of taking away the value of the property

E.g., CP Railway in Vancouver. City created by-laws and restricting what the railway could do in order to try and acquire the land for cheaper.

As long as there’s something left you can do with the land, the government hasn’t actually taken your land

A lot tougher to argue in Canada than US

COMPENSATION Presumption against expropriation without compensation “The recognized rule for the construction of statutes is that, unless the words

of the statute clearly so demand, unless the words of the statute clearly so demand, a statute is not be construed so as to take away the property of a subject without compensation.” Attorney-General v De Keyser’s Royal Hotel Ltd

Government pays the owner the amount it estimates is due as compensation (with appraisal report)

Owner has one year to apply to the court to change the amount of compensation

Compensation is based on the market value of the lando The amount that would have been paid for the land if it had been sold

at the date of expropriation in the open market by a willing seller to a willing buyer

o Doesn’t take into account changes in value that are caused by the expropriation itself – the “shadow” thrown over the land by the prospect of taking

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All reasonable pecuniary (money) losses directly attributable to expropriation are compensated

Non-pecuniary losses not compensated (emotional harm)

BC EXPROPRIATION ACT Market value of land is compensation value (s.31) The amount that would have been paid for the land if it had been sold at the

date of expropriation in the open market by a willing seller to a willing buyer (s.32)

If land is taken, reasonable costs, expenses and financial losses that are directly attributable to the disturbance caused to the owner by the expropriation/reasonable costs of relocating (s.34)

If part of land is taken, reduction in market value of the remaining land, plus reasonable personal and business losses, to the extent directly attributable to the taking (s.40)

DEVICK V BC Government determined compensation at $263 515 Appraiser hired by the owner determined overall loss of $537 700 Main difference: Some parcels of land were suitable for commercial/residential/industrial

development (near the highway, easy access); the owner's appraiser estimated value at about 3X the Ministry's appraiser

Compensation Board sided with the Ministry because the land wasn't zoned to permit commercial development

However, there was evidence it would have been had the Ministry not intended to expand the highway

A "shadow" was thrown over the land because of the Ministry's intention, known since about 1970, that there should be no rezoning (because the land would then be more expensive to acquire/expropriate)

Court concludes the value of the land is somewhere in between the ministry's and the owner's estimates

De facto Expropriation:o Regulation removes all reasonable private uses of the property (removal of virtually all

incidents of ownership) ANDo The government acquires a beneficial interest in the property

GUEST SPEAKER: JEFF FRAME You have no guaranteed right to compensation Underlying theme: Courts appear willing to make the public carry the cost of

public projects rather than individuals, but individuals will carry the burden of planning decision which may or may not be related to a public project

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CONSTRUCTIVE EXPROPRIATION When there has been a formal expropriation, the entitlement to compensation is seldom, if ever

the issue. The question is merely one of quantum. A physical entry akin to a trespass

o Department of Defenseo Minister of Highways entry

A cancellation of a permito Reallocation of forestry rights

A refusal or cancelation of a permito Mineral titles within a park

The nationalization of an industryo Manitoba Fisheries

The changing of natural boundaries through the construction and operation of damso Bryan's Transfer v. Trail

MANITOBA FISHERIES The Federal Government created a monopoly over the export of freshwater fish which put

Manitoba Fisheries out of business The government argues that although Manitoba Fisheries lost all of its goodwill, the government

had not acquired that goodwill and therefore, did not need to compensate for it That makes sense. Our country is replete with regulations which sometimes hurt and sometimes

kill certain businesses. Governments are constantly undertaking projects that have significant impacts on businesses. The rerouting of a highway is a prime example. Zoning is another. Governments don't and in all fairness, can't balance out all the benefits and burdens created by government decisions and actions

The legislation in question provided for compensation but only spoke of assets that had become redundant

The SCC determined that goodwill was a form of property and that the monopoly created by the legislation had in fact "acquired" that goodwill. Therefore, the government had to pay compensation that reflected the value of the goodwill.

Essentially, the government nationalized the freshwater fish export industry. When you say it that way, then It seem beyond debate that compensation would be paid.

Moral of the story, if the government wants to regulate an industry, it can do so with virtual impunity without concern

POSSESSION Physical possession is the basis of acquiring ownership of unowned

personal property How do you get property?

o Buy it (contract)o Receive it (gift)

Inheritance is a form of gifto No one owns it and you are the first to acquire ownership (first

possession) First possession is the root of title

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TITLE Title: Word for the bundle of rights held by a property owner (ownership) Possession: The physical fact of control or occupancy Animus possidendi: The intention to possess (don’t recommend using

Latin) Animus reliquendi: The intention to abandon the thing, indifference to its

fate Factum possidendi: Physical possession/control

PIERSON V POST Man chasing a fox in the wild, chases it for hours Different man hops out of the woods and kills it, claims it’s his Different type of possession because it’s an animal

o Must deprive it of its natural liberty (kill or mortally wound it) Should look to the community (hunters) to figure out what the general rule is Crown is essentially taking ALL property control of wild life until hunted or

some other specific circumstanceo Has an appropriate hunting license, kills, or mortally wounds the

animal etc.o Essentially a device to regulate animals as property

FINDERS

ABANDONMENT Mental element: intention to abandon the thing, indifference to its fate

(animus reliquendi) Physical element: acts of divestment No abandonment of real property unless both elements are present and

clearo Difficult to proveo High test (very clear and equivocal)

Property is only lost if the owner unintentionally parted with possession and doesn’t know where it is

Property is mislaid if the owner left it lying around somewhere, and may not know exactly where it is, but can be expected to come back for it

o A person who takes a mislaid chattel into their possession is a dishonest finder, who has a frail claim

ARMORY V DELAMIRIE A finder does not acquire “absolute” property or ownership, but

does acquire a right against all but the rightful ownero Mostly right, but incomplete

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o Really shorthand for “against all, except anyone who has a better claim”

Ratio: Finder’s claim is stronger than the claim of someone who takes possession after him (but weaker than the true owner’s claim)

o Earlier in time is stronger in righto But not the only rule; different rules for different circumstances

FINDER V OWNER OR OCCUPIER OF PREMISES Is the object fixed or attached to the land? Does the owner/occupier manifest an intention to control the premises

and the things on or in the premises?o Alternative ways the occupier of the land can have a better claim

Is the person claiming as a finder an “innocent” or “true” finder vs a person with dishonest intent or is trespassing?

Are there signs indicating the type of property? Fences?

PARKER V BRITISH AIRWAYS Basically, the CAN for finder’s law

RIGHTS AND OBLIGATIONS OF FINDER1 Finder acquires rights if (a) the chattel is abandoned or lost and (b) he takes

it into his care and control2 Finder has very limited rights if he takes with dishonest intent or in the

course of trespassing3 Finder acquires a right to keep the chattel, good against all but the true

owner or someone who can claim through the true owner or someone who can assert a prior right

4 An employee or agent who finds in the course of employment or agency does so on behalf of the employer or principal

5 Finder has obligation to take reasonable steps to find the owner and care for the chattel

RIGHTS AND LIABILITIES OF OCCUPIER1 Occupier of land/building has rights superior to those of finder over chattels

attached to the land/building - whether or not aware of them2 Occupier of building has superior rights over chattel on or in the building, if

has manifested intention to control the building and things on or in it3 Occupier must take reasonable measures to ensure lost chattels are found

and to find the owner - manifestation may be express or implied by the circumstances

4 Occupier of ship, car etc. treated like occupier of building

ATTACHED TO THE LAND Elwes v Brigg Gas Co

o Tenant finds a prehistoric boat six feet below surface of the land

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o Landowner wins In modern times, statute usually regulates archaeological

heritage items South Staffordshire Water Co v Sharman

o Two gold rings embedded in mud at the bottom of the pondo Occupier wins

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CONTROL OF THE PREMISES Bridges v Hawkesworth

o Bank notes accidentally dropped on the floor in “public part” of a shopo Finder winso Unknown presence of the notes on the shopkeeper’s premises not

enough to ground shopkeeper’s claim Hannah v Peel

o House is requisitioned by the Crown (as army barracks) during the waro Owner is not in occupation, has never visitedo Soldier finds valuable brooch lying on top of window frameo Finder wins

TAKING POSSESSION/CUSTODY Grafstein v Holme and Freedman

o Two workmen doing construction work in a shop find a locked metal box

o Hand it over to shop owner (employer)o Later, against direction, saw off the lock and find $38 000 in bank

noteso Owner of premises wins because he had assumed control of the box

Rebuttable presumption: If you have possession/control/custody over a thing, you also possess what’s inside that thing (money in the box)

FINDER’S INNOCENCE/WRONGFULNESS Bird v Town of Fort Frances

o 12-year-old boy playing on private propertyo Found a can hidden under the building, turned out to contain about

$1500o Took it home and mother hid it under a cushiono Police take the moneyo Boy still wins (innocent, acted lawfully/cooperatively with police)

Baird v British Columbiao Money and travelers’ cheques lawfully seized from plaintiff by policeo He admitted to obtaining them illegally (but was not charged with a

crime)o Police are finders

KERON V CASHMAN When is something "found" - when is possession taken? One boy finds a stocking and then plays with it with his three friends It breaks open and turns out to be full of money

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Finding of the money does not happen until the point where the stocking breaks open

All four boys are finders (equally)o Another example of a thing inside a thing - but turns out differently

from Grafstein

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POPOV V HAYASHI Baseball sails into the stadium, not owned by anyone, like a fox running on

the beach It lands in the upper portion of Alex Popov's glove There is a melee or fracas type situation No one can be quite sure what happens At the end, Patrick Hayashi comes out with the ball Boils down to a question of what acts are sufficient to constitute possession

of this item?o Heavily depends on context

BAILMENT Legal definition: Bailor delivers a chattel into the possession of bailee

o E.g., coat check, leasing a car Is both a relationship and a cause of action Aspects of tort, contract, and property law

o Tort: Duty to take reasonable care of bailed propertyo Contract: Implied or express contract between bailor and baileeo Property: One person has possession of a thing that belongs to another

(title) A kind of trust

Elements:o Personal propertyo Transfer of possessiono For a particular purposeo Temporary

BAILEE Obligations:

o Give the thing back at the end of the bailment (when the term is up/purpose of bailment is complete)

o Take care of the goods as a reasonable person would take of their own goods

Standard of care (old):o Bailment for sole benefit of bailor: bailee has low duty of care, liable for

gross negligenceo Bailment for sole benefit of bailee: bailee has duty of great diligence,

liable for slight negligenceo Bailment for mutual benefit: duty of ordinary diligence

Standard of care (modern):o General standard of negligence applieso All factors, including who benefits, taken into account

REVERSE ONUS

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If there is a bailment, bailee may have the burden of disproving negligence

o Only if damage occurs in the course of the bailment (while bailee was in possession)

o Rationale: Bailee is in a position to know what happenedo This is not the same as absolute liability for any damage that occurs

during the bailmento If the bailee can show they took reasonable care, no liability

BAILOR Obligations:

o Responsibility for goods being reasonably fit and suitable for purpose To take reasonable care that goods are safe and suitable Protect against defects that skill and care can discern and

remedyo In gratuitous bailment (for benefit of the bailee), failure to warn of

known defects

BAILMENT OR LICENSE A license is permission to do something that otherwise would be

wrongful/trespass Bailment involves transfer of possession (control) of the chattel Bailee presumptively has more extensive obligations than licensor Was there a transfer of possession/control? Context dependent Factors:

o Degree of supervision (is there an attendant)o Who has keyso Feeso Nature of past dealingso Nature of premiseso Value of goods

HEFFRON V IMPERIAL PARKING Parking lot supervised by an attendant until midnight Plaintiff leaves his keys in the car (per defendants’ request) Normal practice at midnight is to take the keys and drop them off at office of

parking garage across the street (operated by same company), supervised till 2 am, and leave a note in the car

Plaintiff receives a parking ticket with a serial number indicating he needs to give up that specific ticket to get the car back

EXCULPATORY CLAUSES

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Notice: Must be clear and direct enough that a reasonable person in bailor’s position would be aware of limited liability

Strict construction against the person invoking the exculpatory clause (the bailee)

o Contra proferentem ruleo Any ambiguity will be resolved in favour of the bailoro “Against the proferror” (the person who wrote it)o NOT contra preferentem (spelling mistake; means nothing)

Fundamental breach:o In principle, possible to contract out of all duties of baileeo Total exclusion of liability will be upheld only if not unconscionable,

unfair, or unreasonableo If bailee’s action negates the entire contract, then the exculpatory

clause is gone too Total exclusion of liability will be upheld only if not unconscionable,

unfair, or unreasonable These are all devices for the court to avoid a blatantly unfair result

GIFTS Common law is suspicion of gifts (capitalist and economically rational society

– gifts aren’t) Law is not going to take your things away from you

TESTAMENTARY, INTER VIVOS, & MORTIS CAUSA

Testamentary: Gifts that take place when someone dies according to their will

Inter vivos: Gifts that happen between living peopleo Most commono Make title pass from one party to another

Must be intention and transfer of possessiono If you formally hand over a “deed of gift”, you aren’t required to hand

over the possession Is a contract under seal (no need for consideration for it to be

enforceable) o Donative intent: must be clear and unequivocalo Acceptance by donee is presumedo Delivery: transfer of physical possessiono Once the gift is complete, ownership transfers to the donee and that is

final – too late for the donor to change their mind Donationes mortis causa (DMC): Deathbed gift

o Gifts that happen while someone is contemplating deatho A “get out” from the rules of willso Still has requirementso Gift contingent on death

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o Takes place while the person is alive, but takes place after deatho Is revocable anytime while aliveo In Canada, no DMC for real property (house etc.)

Personal property only

RE: COLE Husband said, "it's all yours" in giving furniture to his wife Insurance remained in his name and they eventually went bankrupt Issue: Was there transfer of possession to the wife for the furniture? Delivery requirement applied strictly

o Delivery did not occur here, there was no change of possession No relinquishment of possession by the husband (even

metaphorically) Acts are "equivocal" Equity will not assist an imperfect gift

THOMAS V TIMES BOOK CO Thomas was a poet who wrote a play, made copies, and lost the original

manuscript Thomas called his publisher trying to find it and said, "if you find it it's yours" Publisher did find it and kept it and sold it The wife after Thomas' death years later tried to reclaim it Judge ruled on the evidence that the publisher was correct - the manuscript

was a gift This is not a DMC, even though Thomas died; the gift was completed when he

was alive Intent:

o "He said if I could find it I could keep it. He told me the names of half a dozen pubs, and said that if he had not left it there he might have left it in a taxi…"

o Context: Dylan Thomas's character - "generous, impulsive, and capable of spontaneous gestures:

Delivery: Thomas gave Cleverdon the information he needed to find the manuscript - and Cleverdon did, in fact, find it and was in physical possession

WATT V WATT Transfer of equitable title

RE ZACHARIUC Contemplation of death:

o Z was old, unwell, and referred to the possibility of dying; his actions indicate he didn't intend C to have the money unless he (Z) died

Intention:o "I give what I have to you; you are my only friend"

Delivery:o "He explained in detail that the money was located in the crawl space

under the house…. He then gave Mr. Chevrier his house key"

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o "They both stated that if it had not been for Mr. Chevrier they would not have found the money"

ENGAGEMENT RINGS BC currently follows Zimmerman v Lazare

o Ring was given as evidence of the mutual contract to marryo Contract terminated = parties should be restored to their pre-contract

positions More than one way to distinguish between engagement rings

LAND LAW Comes from feudal structure According to doctrine of tenure, all the land belongs to the King (Crown) Less ownership and more of leases and a system of relationship

o People didn’t really sell land, it stayed within families Escheat: The sort of bouncing back of land to the Crown

o If you did something the King didn’t likeo Modernly, only if you run out of heirs

TENURES & ESTATES Allodial vs Tenurial:

o Allodial: Individual is “owner”; outright ownershipo Tenurial: Individual holds land of some superior

Land ownership in Canada is tenurial All landholders are “tenants” – theoretically hold grants from the Crown

ABORIGINAL TITLE This is the exception NOT tenurial – sui generis

ESTATES 2 kinds:

o Freeholdo Leasehold

Holding a lease “Renters”

2 kinds of Freehold Estate:o Fee simple

Plain property ownership What we normally think of

o Life estate An estate measured by life

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Typically, the life of the person who owns the estate, but not necessarily

o Used to be one more kind of estate (fee tail) Estate that could only descend to certain relatives (direct lineal

descendants) Kept land concentrated in hands of families, made it harder to

break up large landholdings

FEE SIMPLE Closest approximation to absolute ownership Largest estate known to the law Potentially no time limit, but ends if the estate holder dies without heirs Can transfer rights if you wish

o Willso Buy and sell

Common Law:o “To A, and his heirs”o “To A, her heirs and assignees”

LIFE ESTATE Duration of estate is measured by life of person holding the estate (or

someone else) Not merely a right of occupancy, it’s full ownership for a limited time “To A for life (so long as she lives, etc.)”

o A is the life tenanto Life estate pur sa vie

“A holds for the life of B (or so long as B lives, etc.)”o B is the measuring life (cestui que vie)o Life estate pur autre vie

SPECIFICATION What if it’s not specified?

o Old Common Law presumption: It was a life estate unless a clear intention to grant fee simple was manifested

If a conveyance, it wasn’t even enough to say, “fee simple”, had to use “and his heirs” etc.

o Modern rule: The presumption is that the greatest estate or interest in land that the transferor has the power to transfer, is transferred

RE WALKER "When a testator gives property to one, intending him to have all the rights

incident to ownership, and adds to this a gift over of that which remains…at

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the death of that person, he is endeavoring to do that which is impossible. The intention is plain but it cannot be given effect to"

Only two options: the gift to the wife prevails and gift over fails as repugnant, or the give to the wife is only a life estate, and the gift over prevails

"There is no middle course"

RE TAYLOR "I Give, Devise, and Bequeath all my real and personal estate of which I may

dies possessed to my wife…to have and used during her lifetime. Any Estate of which she may be possessed at the time of her death is to be divided equally between my daughters"

o Because he says, "during her lifetime" he has created a life estateo But since he has included the right to use up the capital (not in default

life estate) "The language evinces an intention on the part of the testator to give his wife

a life interest couple with a power to encroach on capital for her own proper maintenance"

LICENSE OR LIFE ESTATE? Re Waters A license is just permission to occupy/use, which ends when the grantee

stops occupying A life estate is an interest in real property that lasts until the end of the

measuring life "I give the use of 48 Walker Avenue…to Mrs. Ellen Jones for as long as she

lives, or until she re-marries, or gives to my executors and trustees a written notice that she no longer needs and desires the use of the property…[when] it shall become part of the residue of my estate"

Re Powell Verna "shall have the right to the occupation, possession and use of my

house…. for as long as she remains in possession of the said premises…"RIGHTS ABOVE & BELOW THE SURFACE

All land titles start with a grant from the Crown Typically, Crown reserved mineral rights – granted bundle of rights minus

those sticks Most private landowners in BC do not own the minerals under their lands

o Mostly in BC you do not have mineral rights Mineral rights are not much use if you can’t access them – interference with

surface owner How much disturbance is allowed? Depends on privately created rights (in

the grant) and/or public policy as expressed in statutory laws Whoever owns the land (surface) owns all the way up to the heavens and

down to the centre Surface owner also owns airspace as is reasonably necessary for use and

enjoyment of the land and the structures on ito Above this limit, the air is common property (or non-property)

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o Functional line/limit

FREE MINER SYSTEM Applies to minerals and placer minerals as defined in the Mineral Tenure act -

not petroleum and natural gas Anyone who registers as a free miner can acquire a claim to minerals owned

by the Crown (surface may be privately owned) A free miner certificate costs $25 for an individual or $500 for a corporation

for a 12-month term

CLAIMS A free miner can acquire a claim by "staking" out the area and recording a

claim The claim is issued as a matter of course Becomes a "recorded holder" Applications now made electronically at Mineral Titles Online by clicking on

the parcel claimed Claims expire after a year unless renewed - must do exploration development

work to a minimum value, or pay a fee

CHRISTMANN V NEW NADINA New Nadina wants to drill and explore in the area under Mission Outpost

Ranch, owned by Christmann New Nadina believes they have found copper-molybdenum-gold porphyry New Nadina is recorded holder of the mineral claim Christmann doesn't like the disturbance Can he stop the work? A free miner may enter land to explore - but no "land under cultivation"

(s.11(d)) A recorded holder may use, enter, and occupy the surface for exploration,

mining activities, activities related to the business of mining (s.14)o "Subject to this Act"o With a permit specifying conditions (under s.10 of Mines Act)o May be required to compensate surface owner for disturbance (s.19)

Christmann argues:o His land is "under cultivation"o The right of a recorded holder to enter under s. 14 excludes "land

under cultivation" because of the words "subject to this Act" - that imports the restrictions on a free miner in s.11

Holding:o "Land under cultivation" in s.11 means land in "a present and active

state of cultivation" Narrow interpretation - favours the subsurface rights holder

o And anyway, the exception does not apply to recorded holder's rights under s.14

In theory can enter land even if under cultivation (or occupied by a building, etc.) - but will be subject to conditions in permit, compensation under s.19

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DIDOW V ALBERTA POWER Power-line on municipal road that was on the border of appellant's property

o Cross-arms went over the border into the property and thus is trespassing (in the airspace)

Permanent intrusion into airspace that interferes with actual or potential use or enjoyment = trespass

o The cross-arms of the power poles extending into plaintiff's airspace = trespass

Transient invasion into airspace at a height not likely to interfere with actual or potential use (e.g., airplanes flying over) = no cause of action (the air is owned by everyone/no one)

Transient, but at a height where it does interfere with actual or potential use (e.g., cranes) = nuisance

o Why not trespass? If the plaintiff owns the airspace…o What difference does it make? Nuisance is only unreasonable

interference with use and enjoyment of land - trespass is any intrusion Trespass is trespass even if it doesn't affect you at all There has to be a human that you can hold responsible for the trespass (not

an animal or rain etc. - duh)

EDWARDS V SIMS Great Onyx Cave

o Kentucky Entrance of the cave on Edwards' land and discovered by him Wants to explore and survey the rest of the cave Lee says the cave is underneath his property and thus belongs to him

(nobody can go in there/survey)FUTURE INTERESTS & CONDITIONS

Any particular slice of entitlement in the land could be viewed as having a present existence, notwithstanding that its owner was not entitled to possession of the land until some future date…[they are] present estates coexisting at the same time, albeit that the actual enjoyment of some was postponed

Courts are reluctant to say that things go against public policy

REMAINDERS & REVERSIONS O grants to A for life

o Reversion to O To A for life, remainder to B

o B is remainderperson To A for life, thereafter to her children in equal shares

o Remainder to A's children

CONDITIONS & STIPULATIONS Conditions subsequent or conditions of forfeiture: something that will cause

the estate to be forfeited if it happens

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o Determinable estates are a special case - technically not a condition but the definition of when the estate ends

Conditions precedent or conditions of eligibility: something that has to happen before a grantee becomes entitled to an estate

CONDITIONS SUBSEQUENT (DEFEASIBLE ESTATE) To Lady Gaga in fee simple, provided that she never wears a meat dress

again Like a cloud that can descend and bring the estate to an end Words: provided that, on condition that, but if, if it happen that, if, but if it

happen Retained interest: Right of re-entry

DETERMINABLE ESTATE To Mr. Burns, so long as the land is used as a nuclear power plant Like a fence post marking the end of the estate Words: while, during, as long as, until, so long as Retained interest: Possibility of reverter

DETERMINABLE/DEFEASIBLE "It is difficult to define the difference between a determinable fee and a fee

simple defeasible by condition subsequent…"o Tilbury West Public School Board, CB p 272

Mostly the difference between determinable and defeasible doesn't have important consequences

Both are permissible kinds of stipulation Where it really makes a difference is when a condition or stipulation is

invalid for some reason

VESTED & CONTINGENT INTERESTS Vested:

o No condition or limitation stands in the way of enjoyment Contingent:

o Something has to happen - something which is not inevitable, which may or may not happen - in order for the grantee to enjoy the estate

BUT if the grantee has to wait for possession - but there is no uncertainty about being entitled - the estate is vested

This is called vested in interest (but not vested in possession) If this is in a will and the testator is still alive, it's nothing

o There are no labels/anything until the testator dies

LIMITATIONS ON POWER TO CREATE QUALIFIED ESTATES Most conditions (or stipulations) are allowed Exceptions:

o Substantial restraints on alienationo Against public policyo Too uncertain

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o Too remote in time (the Rule Against Perpetuities) Can have some alienation, but not all

o Cannot be too limited/substantialo Still must be some limits to what you can do with your property

WHAT HAPPENS IF A STIPULATION IS NOT VALID? Defeasible: The condition fails and the gift stands without the condition

o This is because the condition is seen as external to the gift Determinable: The entire gift fails - even if the grantee complied with the

stipulationo Because it marks the natural end of the estate, and cannot change

that without changing the nature of what was granted Condition Precedent:

o If real property, invalidity destroys the gifto If personal property - it depends

RESTRAINTS ON ALIENATION Older cases permitted significant restraints

o E.g., no power to alienate except to 4 sisters and their children… Blackburn v McCallum

o Cannot create a fee simple with a general restraint (even for a limited time, here 25 years)

o It is an estate unknown to the law

RE CANADA TRUST Scholarship trust established in 1923 To be eligible, must be "British Subject of the White Race and of the Christian

Religion…"o Priority to sons and daughters of clergymen, school teachers, etc.

Ontario Human Rights Commission files complaint against the trustee (Canada Trust)

Canada Trust applies to court for guidance "The settlor's freedom to dispose of his property…must give way to current

principles of public policy under which all races and religions are to be treated on a footing of equality…"

CY-PRES DOCTRINE For charitable trusts Kind of "let's get as close as we can" If original intention of settlor or testator becomes impossible, impracticable,

or illegal to perform, the court can amend the terms of the trust to reflect as closely as possible the original intention, but prevent the trust from failing

o Fixes the problem to create a real trust, but keeps the intention as close as possible

UNCERTAINTY A condition may be void for uncertainty

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Test for condition subsequent: It must be possible to see from the beginning, precisely and distinctly what events would cause the estate to fall

Test for condition precedent: must be capable of being given some plausible meaning

o Courts are pretty generous with this In favour of gifts vesting

SIFTON V SIFTON "The payments to my said daughter shall be made only so long as she shall

continue to reside in Canada" How much time can she spend traveling and studying abroad without

violating this condition?o If you need to go to a court to find out what you need to do, then it's

too uncertain "In substance, no doubt, there is not much difference between a trust to pay

until the happening of a certain event, and a trust to pay that is abrogated on the happening of that event. But the legal effect in the two cases of the event being described with insufficient certainty are widely different…"

o CB 302 Not a charitable trust - cypres rule does not apply here

EQUITY & TRUSTS Legal ownership: CONTROL, responsibility for management, paper title,

technical ownershipo Formal owner or legal paper ownero Legal authority to control what happens to the property, but are doing

it for the benefit of the trust ownero Trustee

Equitable ownership: BENEFICIAL ownership, entitlement to the benefits and enjoyments of ownership

ORIGINS OF TRUST Giving legal ownership to one person (or group of people) while another is

entitled to all the benefits of owning could be a useful deviceo E.g., avoid claims of creditors

A owes money to B B wants to seize A's property to satisfy the debt A transfers the property to C "to the use of A"; C is the legal owner,

and B can't touch the property to satisfy a debt owed by Ao E.g., avoid taxes (in feudal system, often triggered by life events)

A wants property to pass to his son B without feudal tax triggered by death

A transfers to a group of his friends as joint tenants, "to the use of A and his heirs"

A dies and the "use" goes to B - but the legal owner has not died so no tax

"A, to the use of B"

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o A: Legal Ownership "Feoffee to uses" Now would be called trustee The official owner

o B: Use or Beneficial/Equitable Ownership Actual enjoyment of the property "Cestui que use" Now would be called beneficiary The 'real' owner

STATUTE OF USES To A and his heirs, to the use of B and his heirs

o Legal title passes to A for one momento Then collapsed with equitable title (executed)o B holds both legal and equitable fee simpleo A drops out of the picture (A gets nothing)

Does not apply:o If the trustee/feoffee to uses has some duties to perform, or is a

corporation, or if the interest is a leasehold estateo Or by using the form of words: "unto and to the use of A, to the use of

(or in trust for) B"o Or (now) to testamentary dispositionso Short version: mostly, effectively, no longer operative

MODERN TRUST Trustee

o Legal ownershipo Manages, administerso Fiduciary duty to beneficiary

Beneficiaryo Equitable ownershipo Entitled to benefits of ownership - income, use

Examples: Trust fund for an underage person, lawyer's client trust account, pension fund, mutual fund, charitable trust

PRESUMPTION OF RESULTING TRUST If A transfers property to B for no consideration, a presumption arises that

B holds for the benefit of Ao Resulting trust, where B is legal owner and A is beneficial owner

Presumption can be rebutted by proving that the transfer was a gifto Remember that a gift requires manifest donative intent

Legal owner is deemed to hold property for benefit of someone else o But no intention to transfer ownership as a gift - the intention amounts

to a trust Substance

CONSTRUCTIVE TRUST Benefit

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Corresponding detriment Absence of juristic reason Nexus (causal connection) to the property (for remedy of constructive trust)

FLEMING V KWAKSEESTAHLA F owns a 120-acre property near Campbell River He becomes involved in Gustafsen Lake standoff and close to local First

Nations community F and K develop close relationship They start to discuss using the land as a treatment centre for Aboriginal

youth Discussions around transferring to K and his father Q in a trust agreement,

preserving right of F and his family to live there In the end, the transfer is a simple conveyance to K and Q Consideration is one 1958 silver dollar and "high esteem and respect" Transfer was for no consideration (finding of fact) Therefore, a presumption arises of resulting trust

o Trust that the equitable owner is someone other than the real ownero The law does not presume gifts, if you put title in somebody else's

name, you are not presumed to have conveyed the beneficial ownership

Beneficial interest remains to you unless stated otherwise How can the presumption be rebutted?

o Would have to prove that it was a gift - intention, acceptance, transference

Is it rebutted in this case?o No

Alternative finding: unjust enrichmento Almost like another version of the same thingo When one person is enriched, another suffers a deprivation

There is no reason for this Enrichment of K Corresponding deprivation of F No juristic reason Constructive trust Result: K holds his interest in the property on trust for F Ordered to transfer ownership to F

RULE AGAINST PERPETUITIES An interest is not good unless it must best, if at all, no later 21 years after the

death of a life in being at the time the interest was created This means that conditions that last indefinitely/future interest that may kick

in a long time in the future are void ab initio (except for determinable estates - this is because the possibility of reverter is deemed to be vested from the start)

In BC: statue creates an 80-year time limito Rule still existso Unlikely to affect you in practice, but good to know that it's there

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JOINT OWNERSHIP 2 kinds of concurrent ownership:

o Tenancy in commono Joint tenancy

JOINT TENANCY Right of survivorship In joint tenancy, each joint tenant has an undivided interest in the

whole of the property On the death of one joint tenant, her interest is extinguished and the other

joint tenant automatically owns the whole (always did)

CREATIONPersonal Property

Old common law presumption: joint tenancyo Tends to keep conglomerations together - doesn't split them up

Equity: reluctantly followed the law, but looked for evidence of tenancy in common o E.g., equity presumes tenancy in common if unequal contribution to

purchase price Modern law: officially presumes joint tenancy, but any words indicating

separate interests mean tenancy in common (in other words, it is an extremely weak presumption, and tenancy in common in more likely)

Land Statutory presumption for land: tenancy in common unless a contrary

intention appears "The Court undoubtedly leans towards a tenancy in common and will prefer it

where there is a doubt"o McEwen v Ewers and Ferguson

Example "Lot 18 is to become the property of my daughters Bertha V McEwen and Janet

I McEwen jointly and should they decide to sell the said property each of them is to have an equal share of the proceeds of the said sale"o Tenancy in commono Basically, has to state joint tenancy

FOUR UNITIES (PITT) Unity of possession

o Equally entitled to possess the whole Unity of interest

o The interests are identical in nature, extent, and duration Unity of title

o Must be created by the same instrument Unity of time

o Must begin at the same time Tenancy in common: only one (unity of possession)

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SEVERANCE & PARTITION

PECORE V PECORE P's father helps out P and her husband M financially P - closest to her dad, not financially independent (but an adult) P's siblings - financially secure P's father transfers assets to himself and P jointly with right of survivorship Tells financial institutions he is sole owner He gives instructions, pays taxes etc. P can withdraw but only with her permission When P's father places these assets in his and P's names as joint owners, was

his intentiono That she should hold as joint owner for his benefit, on trust for him?

(i.e., he transferred legal but not beneficial ownership) - oro To give the beneficial interest to her too

Presumption of advancement:o Old rule: a transfer of property from father to child (any child, including

an adult child) is presumed to be a gifto Changed in Pecore

The presumption of advancement applies to transfers from parents (mothers and fathers) to minor children only

Joint ownershipo Upholds the trial judge's determination that the father gifted the assets to

P Clearly wanted to provide for her Presumption of advancement doesn't apply, but presumption of

resulting trust is rebuttedo Language about gifting the right of survivorship is confusing

Right of survivorship is inherent in ownership as joint tenants If he made P his co-owner is joint tenancy of the beneficial interest,

the right of survivorship existed from that moment

PRESUMPTIONS Is there a transfer of property for no consideration?

o Yes Was it from parent (M or F) to minor child?

o Yes - Presumption of advancement (it's a gift)o No - Presumption of resulting trust

SEVERANCE: 3 RULES FROM WILLIAMS V HENSMAN Joint tenancy can be severed:

o By unilateral acto By mutual agreemento By any course of dealing sufficient to intimate that the interests of all

were mutually treated as constituting a tenancy in common

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UNILATERAL There is no need to get the consent of the other joint tenant, or even

let them know Any action that destroys one of the unities during the lifetime of the joint

tenancyo Conveyance to a third partyo "Encumbrance" or charge -depends…

Property Law Act s.18(3): A transfer by a joint tenant to himself or herself of his or her interest in land, whether in fee simple or by a charge, has and is deemed always to have had the same effect of severing the joint tenancy as a transfer to a stranger

o Not making a will leaving the joint tenant's interest to someone

COURSE OF DEALING "By any course of dealing sufficient to intimate that the interest of all were

mutually treated as constituting a tenancy in common" It is not enough to rely on an intention declared behind the back of the

other joint tenant(s) Can arise in context of negotiations between separating spouses (may also

constitute "agreement")

MURDER Legal estate passes to the survivor by right of survivorship HOWEVER, constructive trust of one-half interest for victim’s estate

o Schobelt v Barber

PARTITION & SALE Ending the concurrent ownership of land Partition means subdividing land into separate parcels Court may order sale and division of proceeds instead, if more beneficial for

the parties affected (Partition of Property Act s.7)o Must order sale if owners of 1/2 or more request it (unless it sees good

reason to the contrary) (s.6) Court may exercise discretion to not order partition or sale

ABORIGINAL LAW Ongoing, changing area of law

CLAIMING SOVEREIGNTY IN NEW LANDS Terra nullius

o Land that belongs to no oneo Does not apply in Canada

Res nulliuso The thing that doesn’t belong to anyone

Royal Proclamation, 1763

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o Clear statement that completely disregards terra nulliuso Recognizes pre-existing interests of the Indians

ST. CATHERINE’S MILLING What is the nature of the interest of Aboriginals in land? Privy Council recognizes that these interests exist, but describe them as

something much more narrow than title of property Aboriginal interest in land are merely personal and usufructary rights Dependent on the good will of the sovereign The Crown has underlying title to the land NOT AN ACCURATE STATEMENT OF THE LAW ANYMORE Sort of seen as Chapter 1 (19th century view)

CALDER V BRITISH COLUMBIA Chapter 2: Recognition of Aboriginal title Seven judges unanimously determine that Aboriginal title existed

independently of the Royal Proclamation "The fact is that when the settlers came, the Indians were there,

organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a 'personal and usufructary right'"

Doesn't really go further than stating that it existsABORIGINAL RIGHTS

S.35 of the Constitution Rights other than title

o Include site-specific rights to engage in particular activities Title: A right to the land itself

JUSTIFIABLE INFRINGEMENT Compelling and substantial objective Consonant with honour of the Crown:

o Duty to consulto As little infringement as possibleo Compensation required

NO extinguishment (Van der Peet, Bernard)

GUERIN V THE QUEEN Interest in land that is sui generis

o Not alienable except to the Crowno Government is under distinct fiduciary obligation owed by the

Crown Honour of the Crown

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DELGAMUUKW V THE QUEEN Landmark case Recognition of Aboriginal Title (vs creation - it already existed)

o Creates the legal framework/skeleton What is Aboriginal title?

o Neither equivalent of fee simple, nor a mere right to engage in activities on land

o Sui generis: a right of its own kindo A right to exclusive use and occupation of land

3 Things for Aboriginal Title (for a claim)o Occupationo Continuity

Must show some evidence of continuity between you living there now AND being there at time of Sovereignty

o Exclusivity What is the content of the right?

o Not the same as fee simpleTSILHQOT’IN NATION V BRITISH COLUMBIA

BC granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory

Band objected and sought a declaration prohibiting commercial logging Original land claim was amended to include a claim for Aboriginal title to the

land on behalf of the Tsilhqot’in Rule: Specific site occupation is not required for the purpose of

occupation in Aboriginal title Occupation was established for the purpose of proving title by showing

regular and exclusive use of sites or territory within the claim area, as well as to a small area outside the original area

To ground Aboriginal title, occupation must be sufficient, continuous, and exclusive

To determine what constitutes sufficient occupation, you must look to Aboriginal culture and practices, and compare them in a culturally sensitive way with what is required at common law to establish title

Occupation is not confined to specific sites of settlement, but extends to tracts of land that were regularly used for hunting, fishing, or otherwise exploiting resources and over which the group exercised effective control pre-sovereignty

Conclusion: Tsilhqot’in had sufficient occupation of the land, appeal allowedo Declaration of Aboriginal title over the area should be grantedo Declaration that British Columbia breached its duty to consult owed to

the Tsilhqot’in Nation should be granted

REGISTRATION OF INTERESTS IN LAND

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How should the law resolve a situation where two different, innocent parties claim that they have title to the same land (or conflicting rights with respect to the same land)?

o More than one solution Land Title Act (BC) Torrens System

The system states that only a person registered as owner has the right to transfer or otherwise deal with their legal title to land

o Previously, first in time, first in righto Balance between:

Settled interests (static security) <- ---------- -> Transactions (dynamic security)

Static security: protection of existing interests in land Dynamic security: protection of transactions in land

NEMO DAT RULE Nemo dat quot non habet: No one can give (or convey) what he does not

have (or own) “A transferor cannot confer on a transferee a title that is greater than that

held by the transferor”

TORRENS SYSTEM Only a person registered as owner has the right to transfer or otherwise

deal with their legal title to land Works on 3 principles:

1. The land titles register accurately and completely reflects the current ownership and interests about a person’s land

2. Because the land titles register contains all the information about the person’s land, it means that ownership and other interests do not have to be proved by long complicated documents, such as title deeds

3. Government guarantee provides for compensation to a person who suffers loss of land or a registered interest

LAND TITLE ACT Most important s.23

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

o 23(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in

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fee simple to the land described in the indefeasible title, subject to the following …

S.18 protects the registrar and its employees from liability (mistakes etc.)

CPR V TURTA CPR conveys to P, reserving coal and petroleum Registrar makes a mistake, title only says reserving coal (not petroleum) P conveys half to S and the other half to Turta Certificates say coal is reserved to CPR (not petroleum) S transfers his half to Turta Turta obtains certificate for consolidated parcel reserving coal (not

petroleum) Land Titles Office corrects certificates to add reservation of petroleum Turta conveys halves to 2 family members, reservation of coal and petroleum

(reflecting the correction) Issue: Who owns the rights to the petroleum? Court holds that Turta acquired indefeasible title to the land and

petroleum when his certificate (without reservation of petroleum) was registered

The Land Titles Act creates certainty in title to land as it appears in the land titles office

Rand J: “The general and primary conception underlying the statute, as it is of all legislation establishing what is known as the Torrens system of land titles, is that the existing certificate, bearing the name of a real person, is conclusive evidence of his title in his favour of any person dealing with him in good faith and for valuable consideration”

HELLER V REGISTRAR H is having surgery and thinks he might not make it Executes a deed conveying the property to Mrs. H and keeps it in his private

papers; his intention is that it should be delivered to her if he dies Somehow Mrs. H gets hold of the document Mrs. H takes it to the Land Registry Office and gets a certificate of title to the

property Registrar marks H’s certificate cancelled H has a duplicate certificate in his possession (registrar is unaware of this) H applies to the registrar to have Mrs. H’s title cancelled and his title

uncancelled Registrar says they can’t Issue: Who is the registered owner of the property? Court holds that the registrar has limited, discretionary powers to correct

errors There was nothing in the documents to indicate that the rights were not

conferred for value The registrar is not a court

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Mrs. H remains owner

FRAUD EXCEPTIONFraud and Notice

Balancing competing goals of securing title for existing interests and facilitating transfer

Don’t want a rogue (or a mistake) to deprive you of your interest in your land through no fault of your own, but also want to be able to rely on the transaction when you buy land

Notice is a mechanism for balancing the 2 principles You take land subject to previously existing interests if you know about

them, and not if you don’t knowo Compare the bona fide purchaser for value without notice

Existing interest and security of transactions are a spectrumo Can’t 100% protect your interest in both, there is a tensiono Must be a balance (this can come through notice)

Equitable fraud means trying to defeat a prior interest of which one has notice, which can be:

o Express (actual) noticeo Implied (constructive – you should have known, or a reasonable person

would have known) noticeo Imputed (you are charged with the knowledge or someone else, your

agent) notice

BC LAND TITLE ACT BC’s Torrens system must also find a balance between the competing goals Generally, leans more in favour of security of transactions

Fraud Exception

S.23(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

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

You can only avail yourself to the fraud exception against an owner who has participated in fraud

Abolition of Notice

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S.29(2) Except in the case of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner

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

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

o (c) an interest, the registration of which is pending,o (d) a lease or agreement for lease for a period not exceeding 3 years if

there is actual occupation under the lease or agreement, oro (e) the title of a person against which the indefeasible title is void

under s.23(4) BC Law is unresolved on notice and fraud

o Choice between the strict end of abolition of notice Just notice does not amount to fraud, but knowing can be fraud

(sometimes)o Ambiguity of statuteo No ruling by higher courts to resolve ambiguityo If you have notice of (know about) a prior unregistered interest and

attempt to defeat it, is that fraud? This option would tilt a little more towards settled

interestso Or does fraud mean something more than that – actual dishonesty,

making a false representation that someone else relies on, moral turpitude?

This option tilts a little more towards protecting transactions

o Constructive notice is not fraudo Actual notice may be fraud

Indefeasible Title: Mary Macgregor

S.29 of the Act says that, unless it constitutes fraud, the registered owner or person applying to become the registered owner can ignore unregistered interests of which he or she has notice

The wording of the section is strong. Judges have watered down the strength of the section in applying it to various cases. Some of the cases suggest that any purchaser who takes title with actual notice of a prior interest or claim of interest, and who then uses s.29 to defeat that interest or claim, is automatically fraudulent

The preferable interpretation is that of Mr. Justice Taylor in 1979 decision (Jager the Cleaner Ltd v Li’s Invt Co) He said:

o A consideration of the authorities cited shows clearly that under the BC land registry system a purchaser who takes with knowledge of an unregistered interest may be guilty of fraud if he were thereafter to

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seek protection of the Land Registry Act so as to defeat the claim of the holder of that interest. But I do not accept the proposition that this result must follow in every case so that, in effect, the courts have repealed s.29. The various decisions in which it is stated, even in unqualified terms, that notice of an unregistered interest before closing bars the purchaser from protection of the Act, like all other decisions in the courts, are authorities only in relation to the facts of a particular case. While the language may in some cases be broad, I do not think they can be said to lay down a rule of application. The question in every case must be whether a fraud would in fact be committed if the purchaser were to claim the protection of the Act; fraud, which is never lightly to be inferred, must, I think, be established by the particular facts of the case and cannot be presumed.

DANICA ENTERPRISES V CURD Mr. and Mrs. G list a property for sale M (sole owner of Danica) works for their listing broker, and F is the manager The C’s make an offer, which is accepted The C’s arrange financing from Royal Trust Deed is executed and held in trust by Royal Trust’s lawyers pending

completion of transaction Royal Trust refuses to advance the purchase money because it thinks the C’s

haven’t insured the property as required (misunderstanding) In the meantime, M arranges for his company (Danica) to buy the property By March the C’s move in and make improvements to the house Title is then registered in Danica’s name and C’s informed the transaction

had been cancelled due to failure to complete the purchase Issue: Did Danica acquire the property through fraud? Court holds that M had actual, express knowledge of the C’s prior interest “I have no difficulty whatever finding constructive fraud on the part of

Mogenson” “Since Danica was not a bona fide purchaser for value, the interest it

gained was subject to the existing equities…”

SZABO V JANEIL ENTERPRISES S (owner of Lot A) and D (owner of Lot B) grant each other reciprocal

easements D fails to execute documents for S’s easement and it isn’t registered D sells Lot B to H’s H’s know about S’s existing unregistered easement H’s title to Lot B is not encumbered by S’s easement Issue: Can the H’s be considered to have had notice of the easement, and if

so, is this alone sufficient to deprive them of the protection of s.29 of the Land Titles Act?

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Court held that by transferring title to the H’s without obtaining their agreement to honour D’s obligation, D placed himself in a position where he was no longer capable of fulfilling his obligation to S

The Land Title Act does not contain a provision that unequivocally states that actual notice does not constitute fraud

“There is not enough evidence to warrant the further inference that they acted with the dishonesty required to deprive them of the protection of s.29”

“Notice of an unregistered interest may constitute fraud, but … it must be accompanied by an element of dishonesty in the conduct of the purchaser”

S didn’t get to use the unregistered easement because even though the H’s had constructive notice they weren’t dishonest about it

CHARGES Mortgagor (borrower) Mortgagee (lender)

At Common Law

The mortgage was a transfer of fee simple from the mortgagor to the mortgagee

o Mortgagor might be permitted to retain possession, by contract Mortgagor has a contractual right to redeem, i.e., get fee simple back Failure to pay on time means forfeiture of the right to redeem

Equity of Redemption

Even if a mortgagor misses the time for payment, he has an equitable right to redeem (equity of redemption)

Mortgagor’s retained interest in the property is an equitable interest

Mortgages in BC

A mortgage is a chargeo Land Titles Act definitions section: “charge” includes … an

encumbrance “encumbrance” includes … a mortgage

o A charge is bigger than just a mortgage – it is anything less than fee simple

Rebuttable presumption

Fraud

Void instruments – interest acquire or not acquired (Land Titles Act) S.25.1(1) Subject to this section, a person who purports to acquire land or an

estate or interest in land by registration of a void instrument does not

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acquire any estate or interest in the land on registration of the instrument

(2) Even though an instrument purporting to transfer a fee simple estate is void, a transferee who

o (a) is named in the instrument, and o (b) in good faith and for valuable consideration, purports to acquire the

estate, is deemed to have acquired that estate on registration of that instrument.

Registration Under Land Titles Act

S.26(1) A registered owner of a charge is deemed to be entitled to the estate, interest or claim created or evidenced by the instrument in respect of which the charge is registered, subject to the exceptions, registered charges and endorsements that appear on or are deemed to be incorporated in the register

(2) Registration of a charge does not constitute a determination by the registrar that the instrument in respect of which the charge is registered creates or evidences an estate or interest in the land or that the charge is enforceable

GILL V BUCHOLTZ G is real owner Rogue forges G’s signature, transfers title to GG GG is colluding with rogue

o Now registered ownero Gives mortgage to another person

Mortgagees deal with GG in reliance on the register (innocent) Issue: How do we interpret indefeasibility and the fraud exception under the

Land Titles Act in BC? Decision based on policy framed by legislation The protection of a fee simple interest is stronger than protection of a

charge Holder of registered fee simple title is indefeasibly entitled to fee simple Holder of a registered charge is merely deemed to be entitled to the interest

shown (s.26) – it is a rebuttable presumptiono If you take a mortgage from someone who’s just pretending to be the

registered owner, it’s a nullity (Credit Foncier v Bennett)o Appears to somewhat contradict the Torrens system – mortgagees are

required to check further behind the registrar Ultimately ends up being a battle between insurers Appeal allowed – mortgages cancelled as encumbrances against plaintiff’s

title If the mortgagee deals with the person who is indeed really the person

identified on the register as the title holder – BUT the person does NOT have

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indefeasible title because title was transferred to her due to fraud in which she participated – the same reasoning applies: mortgagee has nothing

o The registered title holder has nothing to give so the mortgagee gets nothing

If GG had sold the property (i.e., fee simple) to a third party and taken the money and absconded it would be different

o An innocent purchaser in the middle would change everything – they would not be the owner in fee simple and G would lose

Charge holders are not protected, but innocent purchasers are protected “The Act preserves the nemo dat rule with respect to charges – even

where the holder has relied on the register and dealt bona fide with a non-fictitious registered owner”

EASEMENTS AND PUBLIC RIGHTS OF WAY Idea of the content – a right to do something that affects another person Right of access

o Can be positive or negative Would be sold with the land A right annexed to land to utilize other land of different ownership in a

particular manner (not involving the taking of any part of the natural produce of that land or any part of its soil) or to prevent the owner of the other land from utilizing his land in a particular manner (Halsbury’s Laws of England)

You do not own the land the easement is on – you just have a right to use it

How Easements are Created

Expresso Grant: A sells a parcel of her land to B. Along with B’s land, she gets

an easement over A’s land (granted by A)o Reservation: A sells a parcel of her land to B. A keeps for herself an

easement over the land that now belongs to B (reserved by A to herself)

Impliedo Necessity

Hurtle v Ernst Land-locked – the only way to get land access is through

someone else’s property Can’t read necessity extremely strictly – land has to be

reasonably usableo Based on common intention (Wong v Beaumont)o Rule in Wheeldon v Burrows: “Quasi-easement” transfers to buyer

Applied in Barton v Raineo Proprietary estoppel

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Where landowner encourages the person claiming the easement the charge his or her position detrimentally, so that it is unjust for landowner to insist on strict legal rights (Erickson v Jones)

Prescription and lost modern granto Abolished under the Torrens systemo “All existing methods of acquiring a right in or over land by

prescription are abolished and, without limiting that abolition, the common-law doctrine of prescription and the doctrine of the lost modern grant are abolished”

Court ordero Property Law Acto S.36(1) For the purposes of this section, “owner” includes a person

with an interest in, or right to possession of lando (2) If, on the survey of land, it is found that a building on it encroaches

on adjoining land, or a fence has been improperly located so as to enclose adjoining land, the Supreme Court may on application

(a) declare that the owner of the land has for the period the court determines and on making the compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed,

(b) vest title to the land encroached on or enclose in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or

(c) order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land

Easement Vocabulary

Dominant tenement: The land that is benefited by the easemento E.g., If I live next door to you, and I have an easement to drive over

part of your driveway to get to my garage, my parcel of land is the dominant tenement

o My parcel is worth more because it has the extra right attached to it Servient tenement: The land that is burdened by the easement

o E.g. above, your parcel of land is the servient tenemento Your parcel is worth less because I can use it this way – my rights

subtract from what would otherwise be your complete bundle of rights as an owner

Easement Attributes

Positive Easement

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o The person entitled to the easement has a positive right to do something on or affecting the servient tenement

Right of way Right to release pollution Right to make noise

Negative Easemento The owner entitled to the easement has the right to stop the owner of

the servient tenement from using his or her land in a certain way Right to receive air, water, or light through a defined channel

(i.e., the dominant tenement can’t block the channel)o Rareo The law is reluctant to recognize new types of negative easement

“There is no such easement known to the law as an easement to be protected from the weather” (Phipps v Pears)

Those kinds of negative rights can be created through contract/covenant If it looks like a negative easement, it probably isn’t (but could be a

restrictive covenant)

Easement Requirements (Common Law)

There must be a dominant tenement and a servient tenement The easement must accommodate the dominant tenement The dominant and servient tenements cannot be in the hands of the same

persono Now abolished by statute in BCo Property Law Act s.18(5): An owner in fee simple or an owner of a

registered lease or sublease may grant to himself or herself an easement, a restrictive covenant, or party wall agreement as defined in s.223.1 of the Land Title Act over land that he or she owns for the benefit of other land that he or she owns in fee simple …

o S.18(7) Common ownership and possession of the dominant and servient tenements does not extinguish an easement

The easement must be capable of forming the subject-matter of a grant

Must Accommodate the Dominant Tenement

Right to use a garden is connected to normal use and enjoyment of the house (as a house) (Ellenborough Park)

Right to let boats out for hire on a canal is not connected to normal use and enjoyment of the land (Hill v Tupper)

o Must accommodate dominant land

Must be Capable of Forming the Subject-Matter of a Grant

Cannot be an indefinite right to move generally around on someone else’s property (jus spatiandi) – has to have definite scope

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Has to have quality of utility or benefit, not mere recreation or amusement

Cannot be the kind of thing the law doesn’t recognize as an easement (protection from the weather) (Phipps v Pears)

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Scope of Easement

The grantee of an easement only has the right to do what is in the scope of the easement

o Exceeding that scope is “excessive user” (trespass) An easement creating a private right of way cannot be turned into a public

right of way that everyone can use (Lafontaine v University of British Columbia)

o Right of way across servient tenements cannot be used as bike path, marathon course, for field trips etc.

Only for passage to and from the dominant tenement Only for owner of dominant tenement and invitees, not the

general public Easement in gross is an easement that is for the benefit of a person,

rather than for the benefit of the land

How Easements Ends

Reaches end of duration Dominant and servient tenement owned and occupied by the same person

(at common law) Agreement Abandonment (Brandt Revocable Trust v United States) Court-ordered cancellation

Termination of Easement by Court Order

Property Law Act o S.35(1) A person interest in land may apply to the Supreme Court for

an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this section comes into force:

(a) an easement; (c) a statutory right of way; (e) a restrictive or other covenant burdening the land or the

owner; (f) a right to take the produce of or part of the soil

o (2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that

(a) because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete,

(b) the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled,

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(c) the persons who are or have been entitled to the benefit of the registered charge or interest have expressly or impliedly agreed to it being modified or cancelled,

(d) modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest, or

(e) the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled

Statutory Rights of Way

Land Title Acto S.218(1) A person may and is deemed always to have been able to

create, by grant or otherwise in favour of (a) the Crown or a Crown corporation or agency, (b) a municipality, a regional district, the South Coast British

Columbia Transportation Authority, a local trust committee under the Islands Trust At or a local improvement district

(c) a water users’ community, a public utility, a pulp or timber, mining, railway or smelting corporation, or a pipeline permit holder as defined in s.1(2) of the Oil and Gas Activities Act, or

(d) any other person designated by the minister on terms and conditions that minister thinks proper, an easement, without a dominant tenement, to be known as a “statutory right of way” for any purpose necessary for the operation and maintenance of the grantee’s undertaking, including a right to flood

o (2) To the extent necessary to give effect to subsection (1), the rule requiring an easement to have a dominant and servient tenement is abrogated

o Just as the Crown can acquire land, they can acquire easements for their purposes

They can create them Either because the Crown already has some access to the

land, or they acquire it through purchase or expropriation

Public Rights of Way

A right of way that belongs to the public Anyone can use a right of way Land over which a public way exists is called a highway

Creation of Public Highway

Statuteo Transportation Act s.42: If public money is spent on a travelled

(private) road, it is deemed to be a highway

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o Land Title Act s.107: If a plan is deposited showing land as a highway, park, or square of a public nature, it is treated as a dedication by the owner to the public

Common Lawo Dedication and acceptanceo The landowner intended to dedicate the road as a public highway, and

the public accepted it as a public highwayo Once it becomes a public highway, it is always a public highway

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PHIPPS V PEARS F owns 2 old houses standing side by side F pulls one down and erected a new house against the old one (touching) F conveyed the new house to HF, but kept the old one Phipps bought new house and F died – conveying old house to the governors

of the hospital Old house was ordered demolished and left exposed the wall of the new

house which was not designed to be in the weather Rain got in and froze during the winter and caused cracks in the walls which

Phipps is seeking a recovery Issue: Is there an easement of protection? Court holds that the wall was merely an advantage, not a right There is no such easement known to the law as an easement to be

protected from the weather

BRANDT REVOCABLE TRUST V UNITED STATES Congress passed Right-of-Way Act of 1875 to provide railway companies

rights of way through public lands One right of way obtained in 1908 crosses land conveyed to B in a 1976 land

patent Patent stated the land was granted subject to the railroad’s rights in the Act,

but it did not specify what would occur if the railroad later relinquished those rights

Years later, a successor railroad abandoned the right of way with federal approval

Government sought a judicial declaration of abandonment and an order quieting title in the US to the abandoned right of way

Petitioners contested the claim, asserting that the right of way was an easement that was extinguished when the railroad abandoned it, so B now has full title without the burden of the easement

Government countered that the Act granted the railroad something more than an easement and the US retained a reversionary interest in the land once the railroad abandoned it

Issue: Does the Act make the right of way an easement or something more and does the abandonment of it return the land to B?

Court held that it was clear from the Act that the railroad had only obtained an easement in its rights of way

An easement disappears when abandoned by its beneficiary, leaving the owner of the underlying land to resume a full and unencumbered interest in the land

The right of way was an easement that was terminated by the railroad’s abandonment, leaving B’s land unburdened

RE ELLENBOROUGH PARK

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Houses surrounded a garden Title to the garden was vested in trustees and each of the owners of the

houses around the garden paid a proportionate cost of maintaining the garden

Owner granted some type of access to lot-owners when subdividing the property

Issue: Was this an easement? Court held that purchasers of plots were granted the right to enjoy the use of

it No apparent difference between this garden and a garden in the ordinary

signification The right to the full enjoyment of Ellenborough Park qualifies as a legal

easement for want of the necessary connection between its enjoyment and the use of the properties comprised in the conveyance

Pushes the limits of what can be an easement

LAFONTAINE V UNIVERSITY OF BRITISH COLUMBIA A bunch of lots were created that had an easement to create access to a road UBC bought a lot of land and students began to use the easement road when

campus opened Easement was expressed to be for the private owners use only and the staff

and students were not to use it The easement flooded (normal) and a student used it anyway even though it

was closed, fell in, and drowned Easement use increased to include a marathon route and field trip use Easement then being used for public use and accommodates a large amount

of traffic even though it was not made for that Issue: Is the land a private right of way or an easement? Court held that the number of pedestrians and cyclists using the easement

has increased The respondent has not taken the reasonable steps to ensure, to the

extent possible, that the easement is not used in the manner prohibited

Very broad definition of easemento No time limito No limit on who

The easement is valid and a lot of people are thus allowed to use it Wording that matters here Easement still exists, UBC was just exceeding its scope

COVENANTSRestrictive Covenants

Restrictive covenants are negative (restricts use in some way)o Still a contract

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A covenant is a promise by you to do or not do something The burden of a covenant does not bind successors in title to the covenantor

in law A covenant can bind a successor in title at equity if:

o The successor takes with noticeo The substance of the covenant is negative (restrictive)o The covenantee retains land benefited by the covenant, i.e.,

there must be a dominant and servient tenement – not in gross Benefited and burdened land have to be described with

precisiono The covenant touches and concerns the lando The covenantor intended to bind successors

Covenants

The benefit of the covenant passes to a successor:o In law: If the covenantee has a legal interest in land, and the covenant

touches and concerns the land; also, the covenantee and the legal assignee must have the same estate in land

o In equity: If the covenant is annexed to the benefited land (expressly or by implication); if it is expressly assigned; if it is part of a development scheme

Covenants that run with the land? Tulk v Moxhay

Restrictive Covenants: Registration Under Land Title Act

Registration of restrictive covenants and easementso 182(1) If a restrictive covenant, an easement, a party wall agreement

as defined in s.223.1, or other incorporeal right is entered into or created for the purpose of being annexed to other land, hereinafter referred to as the dominant tenement, for which an indefeasible title has been registered, the registrar must make an endorsement of the covenant, easement or right and of the instrument creating it, against the indefeasible title of the dominant tenement

o 182(2) A transfer of the land covered by an indefeasible title on which an endorsement under subsection (1) has been made transfers, without express mention, the benefit of the covenant, easement, agreement or right

Registration of chargeso 197(1) On being satisfied from an examination of an application and

any instrument accompanying it that the applicant is entitled to be registered as the owner of a charge, the registrar must register the charge claimed by the applicant by entering it in the register

o 197(2) Despite subsection (1), the registrar may refuse to register the charge claimed if the registrar is of the opinion that

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(a) a good, safeholding and marketable title to it has not been established by the applicant, or

(b) the charge claimed is not an estate or interest in land that is registrable under this Act

Requirements of registrable restrictive covenanto 221(1) The registrar must not register a restrictive covenant unless

(a) the obligation that the covenant purports to create is, in the registrar’s opinion, negative or restrictive,

(b) the land to which the benefit of the covenant is annexed and the land subject to the burden of the covenant are both satisfactorily described in the instrument creating the covenant, and

(c) the title to the land affected is registered under this Acto 221(2) The registration of a restrictive covenant is not a determination

by the registrar of its essential nature or enforceability

Discriminatory Restrictive Covenants (Land Title Act)

Discriminating covenants are voido 221(1) A covenant that, directly or indirectly, restricts the sale,

ownership, occupation or use of land on account of the sex, race, creed, colour, nationality, ancestry or place of origin of a person, however created, whether before or after the coming into force of this section, is void and of no effect

o 221(2) The registrar, on application, may cancel a covenant referred to in subsection (1) that was registered before October 31, 1979

o 221(3) If the registrar has notice that a registered restrictive covenant is void under this section, the registrar may, on the registrar’s own initiative, cancel the covenant

TULK V MOXHAY T held the fee simple of the enclosed gardens and several houses in Leicester

Square In 1808, conveyed the garden to E and his heirs A covenant in the deed held that E and his heirs would maintain in sufficient

and proper repair the garden For payment of reasonable rent, T’s tenants would have keys and privilege of

admission into the garden Later, the gardens were conveyed to M and his heirs, but the conveyance did

not include the covenant in the 1808 deed M admitted he had notice of the covenant M intended to renovate the garden; argued that it was in a neglected and

ruinous condition at the time of his conveyance T got an injunction

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Issue: Can a party be permitted to use the land in a manner inconsistent with the contract entered into by his vendor and with notice of which he purchased?

Court held that if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in that different situation from the party from whom he purchased

Decision extended the enforceability of the burden of covenants in equity, beyond privity of contract and privity of estate

Appeal dismissed Since M had notice, it turned the case It wouldn’t be fair to let M get out of the covenant when he acquired the land

knowing there was a restriction on the development

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AQUADEL GOLF COURSE V LINDELL BEACH HOLIDAY RESORT A appeals the judgment dismissing its petition to cancel as a charge against

its property the written agreement between 2 parties The right to cancellation depended upon it showing that the agreement did

not contain a restrictive covenant R owns a camping resort and golf course Subdivides the land and sells one parcel to Thousand Trails; retains Whitlam

Lands Sale agreement includes a covenant from R about his use of the retained

lando “Restrict to the operation of a golf course”o “Maintain in a proper manner in keeping with its use as a golf course”o Give a preferential rate to guests at the campsite

Covenant is registered on title to the Whitlam Lands and endorsed on titles of Thousand Trails Land

Whitlam Lands acquired by A, controlled by R’s son and daughter-in-law They subdivide and sell some land off Keeping up the golf course on the remaining A land becomes less financially

viable; son wants to redevelop Issue: Is this a positive or negative covenant? Court held that the covenant was positive The covenantors are bound to this because it is registered in title One has to look at the entire agreement as a whole (here it’s positive) Restrictive covenants are construed strictly and must appear in clear

and unambiguous language Covenant not to use land “for any purpose other than a golf course”, keep it

maintained and give a preferential rate to guests is positive in substance (but not in language)

Since it is not negative in substance, it can’t be enforced against R’s successors in title

Registration of a covenant does not make it valid Even though it was registered, the covenant was positive and therefore

invalid

RE DRUMMOND WREN D owned lands and applied to have declared invalid a restrictive covenant

assumed by him when he purchased the lands and which he agreed to extract

Covenant read “land not to be sold to Jews or persons of objectionable nationality”

Issue: Can the covenant be modified? Court held that the covenant is void because it is injurious to the public good

and offensive to public policy

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Attacked also for being an invalid restraint on alienation and invalid for uncertainty

NOBLE & WOLF V ALLEY N bought a cottage in a resort development called Beach O’Pines Covenant in the deed prohibited transfer to “any person of the Jewish,

Hebrew, Semitic, Negro or coloured race or blood” N wants to sell to W Issue: When does a covenant bind the land? Court held that covenants enforceable under the rule of Tulk v Moxhay are

properly conceived as running with the land in equity and constitute an equitable servitude or burden on the servient land

In this case, the covenant does not touch the land but the purchaser Appeal allowed Holding here does not rely on public policy argument

CONSERVATION COVENANTS (S.219) What are conservation covenants?

o A chargeo Restrictive covenants (negative)o They don’t really end, but there is a sort of legal tool kit to get around

them (trusts that revert back to the conservation covenant) Also known as conservation easements or servitudes A special variation on the covenant

o Can be granted in gross, where the covenantee holds no land that is benefitted

o Can be positive or negative (or both)o Can be granted in favour of government entities or persons designated

by the minister (typically, conservation/nature trusts)o Can include promises about use of land, building on land

A special kind of contract A covenant can provide that an “amenity” be “protected, preserved,

conserved, maintained, enhanced, restored or kept in its natural or existing state”

“Amenity” includes “any natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land”

These covenants can be used to protect places of ecological importance and cultural significance

NATURE CONSERVANCY OF CANADA V WATERTON LAND TRUST O bought from NCC a large cattle ranch on which he planned to place wild

bison NCC believed that the area where the property was located was strategically

important for the movement of wildlife

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Before selling, the NCC arranged for a conservation easement to be registered against the titles to the property to ensure that it would not impede future wildlife migration

After buying, O began to replace the old fence with new fencing he believed would be more effective at restraining his bison, yet still permit wildlife onto, off of and to migrate through the property

NCC said this breached the terms of the conservation easement Issue: Was the easement invalid or unenforceable? Court held that the easement is valid and enforceable Donating a conservation easement to a registered charity can be claimed as

a charitable donation for tax purposes The statutory framework creating conservation easements improves on

common law because:o No need to be negativeo No need for dominant tenemento Easement will not lapse through non-enforcement

Difference in law between AB and BCo In BC, they haven’t decided about notice

If you know about it, but you took the property anyway, is it fraud?

Statute is not clear on notice and we have no leading authorityo In AB, mere knowledge is not enough, there must be something

more Statute and leading authority both say so

In this case, the covenant stays but the language around the fence is changed

Important Takeaways

Conservation easements/covenants need to be clear and precise Lawyers must pay close attention to the documents they prepare for signing,

and to what they register against title It is much easier to get it right at the beginning than to fix it through litigation

FIRST NATIONS LAND MANAGEMENT REGIMES

S.91(24) LANDS S.91(24) of the Constitution: “Indians, and lands reserved for Indians” This is 2 powers:

o A power to make laws in relation to Indians, regardless of where located, and

o A power to make laws in relation to lands reserved for Indians, regardless of who is residing on those lands

As federal lands, reserves are not enclaves:o Provincial laws of general application apply to reserve lands,

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o S.88 Indian Act incorporates provincial law into federal law that applies to Indians unless there is inconsistent federal law

However, provincial laws relating to the use of lands are generally applicable because of Canada’s exclusive jurisdiction in this area

This excluded the entire provincial framework relating to land and property rights, such as

o Land survey, registration, transfer, financing;o Regulatory frameworks including land use planning and development,

resource use, environmental protection and assessment, heritage conservation

Huge body of law on reserve land that has a gap

NATURE OF RESERVE LANDS Indian Act creates the framework for reserve lands and interests in reserve

lands S.2 reserve means “a tract of land, the legal title to which is vested in Her

Majesty, that has been set apart by Her Majesty for the use and benefit of a band…”

S.18 “…reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart…”

Canada determines whether any purpose for which lands in a reserve are to be used is for the use and benefit of the band

Reserves are set apart for the band, not for individual members Reserves are not public lands (trespass, s.30) There are no common-law interest in reserves; however, courts have

interpreted Indian Act rights and the parameters of those rights

TSILHQOT’IN DECISION Could have a big impact on the entire reserve system No improvement in regular day to day life as of yet Impact of this decision on the reserve system, and on the interaction of

federal and provincial jurisdictions on reserve lands? Aboriginal title: A collective right to exclusive occupation and use (a full

beneficial interest); inalienable except to Crown; cannot be used in ways irreconcilable with preserving for future generations

The Province’s underlying title is “what is left” when aboriginal title subtracted from it. The Crown has no beneficial interest in the land

In BC, it is thought that most bands also hold aboriginal title to their reserves, except those bands that were relocated

The decision has potential to impact reserve lands if aboriginal title is proven or agreed on. Where is federal authority to create and legislate in respect of reserve lands? What is interaction of provincial and federal laws (concept of IJI)?

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So far, have seen no direct impact of the decision on reserve lands and how they are governed or administered

MEMBER INTERESTS IN RESERVE LANDS The Indian Act sets out the interests that can be held in reserve lands

o S.20(1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band

S.20(2) Certificates of Possession S.20(4) Certificates of Occupation (up to 2 years) S.48(3) Minister can direct that surviving spouse can occupy the deceased’s

lands Courts have strictly applied requirements in the Indian Act for possession by

Indian and non-Indians Possession, use, tradition does not enable acquisition of rights to reserve

lands Nonetheless, there are traditional holdings, informal rentals etc.

CERTIFICATES OF POSSESSION Courts have declined to classify them under our colonial concepts of

possession Indians can hold possessory rights under certificates of possession

o S.20(2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein

A sui generis right that cannot be classified under traditional property law. Provonost v Minister Indian and Northern Affairs

Transferable to the band or a member with Minister consent (s.24) Gives exclusive possession and rights to holder (and not the Band) Cannot be mortgaged; cannot hold if cease to be a member Very common in some First Nations; not used at all in others Some First Nations have almost no “band” land – all allotted by Certificates of

Possession (e.g., Westbank). Some have no Certificates of Possession (most Manitoba bands)

Implications?

Certificate of possession lands cannot be mortgaged (s.89; not-transferable without Minister consent, can’t be held by non-member)

Means that individuals cannot be used to build wealth Certificates of Possession cannot be granted without Band Council and

Minister consent; cannot be transferred without Minister consent If leased, cannot be mortgaged unless designated

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Certificates of Possession holder can be required to dispose of Certificate of Possession if cease to be a member

Cannot transfer to children or spouse if not a member Certificates of Possession have little market value

USE OF RESERVE LANDS BY NON-INDIANS 3 ways for non-Indian to hold an interest in reserve land: permit, sale, or

lease Because Canada owns the reserve lands, only Canada can dispose of reserve

lands and interests in those lands S.28(1) Subject to subsection (2), any deed, lease, contract, instrument

document or agreement of any kind, whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void

Any agreement by the Band or a member of the Band to allow a third party to occupy the land is void ab initio

Permits can be issued under s.29(2)o The Minister may permit in writing authorize any person for a period

not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve

S.28(2) used for rights such as SRWs, even for perpetual rights Can create difficult situations for utilities because the rights may not be

sufficiently secure Sale of reserve lands under s.37(1)

o Lands in a reserve shall not be sold nor title to them conveyed until they have been absolutely surrendered to Her Majesty pursuant to subsection 38(1) by the band for who use and benefit in common the reserve was set apart

Prevents a sale of reserve lands unless the Band agrees to absolutely surrender the lands. Uncommon, but can be used for land exchanges

SURRENDERS & DESIGNATIONS In the early 1908s, a number of First Nations wanted to eliminate the Indian

Act barriers to leasing landso The requirement to surrender the interesto Surrender meant that land no longer in the reserve

1988 “Kamloops Amendment” to the Indian Act created the concept of designated lands

S.37(2) Except where this Act otherwise provides, lands in a reserve shall not be leased nor an interest in them granted until they have been designated under subsection 38(2) by the band for whose use and benefit in common the reserve was set apart

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S.38(1) A band may absolutely surrender to Her Majesty, conditionally or unconditionally, all of the rights and interests of the band and its members in all or part of a reserve

S.38(2) A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted

LEASING Designation required before lands can be leased under s.53 Designation is time-consuming because of processes and requirements for

majority approval by the electors of the Band, and acceptance by GiC (at least a year)

Designated lands can be mortgaged and s.89(1) (protection from seizure) does not apply

Certificate of Possession lands can be leased by the Minister under s.58(3), without designation

o (3) The Minister may lease for the benefit of any Indian, on application of that Indian for that purpose, the land of which the Indian is lawfully in possession without the land being designated

Generally, INAC requires consent of the Band Council to Certificate of Possession leases over 49 years

Implications?

Leasing reserve lands does not happen at the speed of business On reserve:

o Preliminary negotiations with Band (varies)o Designation process (around 1 year)o Negotiations and sign lease with Canada (around 1+ years)o Registration (10-40 days)

Off reserve:o Negotiations and sign lease with Owner (varies)o Registration (1 day)

FIRST NATIONS LAND MANAGEMENT ACT A sectoral framework for First Nations to take control of their own reserve

lands and resources A transfer of administration, not ownership. S.5 clarifies that lands remained

under s.91(24), and title to the land is not affected Framework Agreement, Scheduling, Land Code, Individual Agreement and

Community approval (2-year process)o The community votes do fail (not guaranteed)

Specified sections of the Indian Act cease to apply once Land Code in force, including ss.18-20, 22-28, 30-35, 37-41, 49, 53-60, 66, 69-71, and 93

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Land Code sets out rules for use and occupancy of land, including for testamentary dispositions and on marital breakdown

Once they are in, the Land Management Act gives the First Nations the power to begin managing their own lands

S.18 gives the First Nation the power to manage its lands, including too Exercise the power, rights, and privileges of an owner in relation to

that land;o Grant interests or right in and licenses in relation to that land; o Manage the natural resources of that land; ando Receive and use all moneys acquired by or on behalf of the First Nation

under its land code Provides broad law-making jurisdiction (s.20) over a number of areas,

includingo Interests and rights in relation to its lands;o Development, conservation, use protection, and possession;o Zoning, subdivision, environmental assessment and protection,

servicing

BC COMPREHENSIVE TREATIES Nisga’a: First modern treaty in BC (5/2000) Tsawwassen Effective date (4/2009); Maa-Nulth (2/2011); T’liamin (4/2016) Treaty model transfers fee simple title to Treaty lands. Cease to be lands

reserved under s.91(24) Decisions about land tenures thereafter made by the Treaty Nation So far, Nisga’a is the only Nation to transfer fee simple titles. Other Treaty

Nations using the leasing model Treaty allows them to use the provincial system

SELF-GOVERNING FIRST NATIONS Variety of self-government structures Westbank, Sechelt, Cree-Naskapi, Yukon First Nations Westbank lands remain reserve lands under s.91(24) and has broad

jurisdiction under SGA and its Constitution respecting land management Sechelt Lands are held in fee simple, but remain s.91(24) lands. Cannot be

alienated Cree-Naskapi have 4 types of lands. No longer reserve lands, but not

alienable. Bands administer certain of the lands; Band corporations own certain lands. Quebec owns certain lands.

Yukon Settlements lands can remain as reserve land or be transferred in fee simple to the First Nation

FIRST NATIONS LAND REGISTERS INAC maintains the ILRS: a number of registers to record documents,

interests and transactions relating to First Nation lands

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Maintained by INAC in Ottawa; documents submitted by regional offices and First Nations

S.21 Reserve Land Register: Certificates of Possession, Certificates of Occupation, and other reserve transactions

S.55 Surrendered and Designated Lands Register: Any transaction affecting absolutely surrendered or designated lands

Some First Nations have power delegated under s.53 and s.60 to manage their lands and can accept registrations. Called “53/60” Bands

o Have s.53-60 power of land management Land Management Act (s.25) provides for the First Nation Land Registers to

be administered in the same manner as the Reserve Land Register The ILRS is a registry for notices and not a Torrens system

o A registry of instruments related to lando No guaranteed titleo Varies from no priority, to some priority ruleso No guarantee that all interests are registeredo Expired interests are not removed

Cree-Naskapi have a CN Land Registry System that is part of the ILRS Westbank lands are registered in the Self-Government RN Land Registry, a

sub-registry of the ILRS Sechelt Lands may be registered in the provincial LTO, but if they are not,

then registration can be done in the ILRS BC Modern Treaty Lands are registered either in Provincial LTO (TFN), or First

Nation could create its own LTS (Nisga’a). These are no longer s.91 lands, and therefore can no longer be registered in the ILRS

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CONDOMINIUMS Fee simple ownership of a unit Joint ownership of common areas as tenants in common Rights and responsibilities as part of a shared living community (strata

corporation governance, by-laws, and rules) Condominium/strata do not need to be vertical, they can be a horizontal plot

(e.g., Chimney family)o Stratas are corporations

Condominiums are a relatively new concept, and they are going to start “aging out”

o Economic value vs value of homeo Lower mainland? Property value has skyrocketed while there were

many of condos built. As they start to age they are decreasing in value

Common Property and Assets

Ownership of property Strata Property Act s.66

o An owner owns the common property and common assets of the strata corporation as a tenant in common in a share equal to the until entitlement of the owner’s strata lot divided by the total until entitlement of all the strata lots

Easements

Implied easements within the condo created by statute Strata is created by registering with the Land Title Office

Strata Corporation

Established from the time the strata plan is deposited in a land title office Has responsibilities

o Has a Board (referred to as council in statute)

Oppression Remedy

Hard to win via oppression remedy S.164 Strata Property Act (preventing or remedying unfair acts)

TERMINATING A CONDOMINIUM 3 ways to end a condominium:

o Voluntary winding up without a liquidatoro Voluntary winding up with a liquidatoro Court-ordered winding up

The strata plan is cancelled (the “legal architecture” disappears)

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The owners become tenants in common of all the real property shown on the plan and any other real or personal property held by the strata corporation

Holdouts

Used to need a unanimous vote, but there is a provision for larger stratas (10+)

If someone holds out, you can sort of go to court and overrule them holding out

Unanimous votes s.52

VOLUNTARY WINDING UP WITHOUT A LIQUIDATOR By 80% vote

o In effect, that means if the strata has 4 lots or fewer (smaller stratas), the vote has to be unanimous

Must be confirmed by court order if the strata has 5 or more strata lots There is a change brought in 2016 – used to require unanimous vote The unanimous vote rule meant any lot owner could veto winding up Is this change good or bad?

o Doug Harris: “We don’t allow owners outside strata property to force their neighbours to sell in order to maximize the value of land. Why permit it within strata property?”

o Representing different choices on the balance of investments vs homes

“As strata buildings in British Columbia age” said Patrick Williams, chair of BCLI’s Strata Property Law (Phase Two) Project Committee, “more and more strata owners will be confronted with the difficult decision of whether to renew or terminate their stratas. On behalf of the committee, I applaud this bill, which acts on the committee’s recommendations and, if enacted, will give strata owners a more realistic framework for considering termination.”

VOLUNTARY WINDING UP WITH LIQUIDATOR Also by 80% vote Must be confirmed by court order Liquidator appointed to organize the disposition of the strata assets Akin to dissolving a corporation with a liquidator (in fact, it is dissolving a

corporation with a liquidator) Appropriate if there are complex disagreements about how to allocate the

property (or if the strata corporation has debts and debtholders haven’t consented to winding up – see s.274(c)(ii)

Involves more expense (paying for the liquidator)

COURT ORDERED WINDING UP

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Any owner, mortgagee or “other person the Supreme Court considers appropriate” may apply

No vote required Court can order if it determines that it is in the best interests of the owners,

registered charge holders or other creditors

STRATA PLAN LMS 2768 V JORDISON Mother and son J were found in contempt of an order from the court directing

them to cease their outrageous behaviour towards their neighbours (swearing, spitting etc.)

Judge invoked the power found in s.173(c) of the Strata Property Act to order the immediate sale of the condo unit registered to J

Issue: Does the court have the power to order the sale of a condominium unit when a prior order directing compliance with the Strata Corporation’s bylaws have been breached?

Court held that if exercised reasonably, s.173(1)(c) can provide a remedy such as forcing an owner to sell

Cannot make fee simple owners (house) sell their property, but stratas are different

S.173(1) On application by the strata corporation, the Supreme Court may do one or more of the following

o (c) Make any other orders it considers necessary to give effect The Court can essentially order the tenants to comply with the strata rules; if

you break this you could go to prison (it’s an injunction) The first time in court the tenants were told to comply, they didn’t The second time they were violating it, the court forced them to sell “A large and liberal interpretation of s.173(1)(c) should empower the court to

provide an effective remedy. The competing private property interest which supports strict interpretation must, in my opinion, yield to the rights and duties of the collective as embodied in the bylaws and enforceable by court order. The old adage ‘a man’s home is his caste’ is subordinated by the exigencies of modern living in a condominium setting”

CONDOMINIUM PLAN NO 7621302 V STEBBING S moved into condo with 2 cats Condo was pet-friendly Board was aware of cats but written consent never granted; went on for 2

years Many pets in building, some had written permission, some did not Board may withdraw consent 3 recorded complaints about pets in the building

o None about S’s in particular Board sent notice not to allow pets that didn’t have previous consent

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An illustration of what happens when councils have rules that conflict with what an owner wants or considers fair to themselves (particular problem to stratas)

S got to keep the cat Court ruled the Board’s treatment of S was unfair

o Was supposed to have written consent for the pet and never did (for2 years)

o S’s cat specifically never received a complainto Can’t act arbitrarily (only targeting people without written consent)

What did the court do in the end?o Ruled against her but said she could keep the cat until she died

Pets are not simply chattels

MOWAT V DUDAS Some owners of a condo wanted to sell, some did not A number of owners who want to sell have no brought a petition under the

Partition of Property Act, 1996 in an attempt to force a sale of the housing complex

Issue: Should the court order the sale of an entire complex, notwithstanding the objection of those owners who oppose such a sale?

Common-law condominium Was not practical to convert to condos at the time (required the consent of

the City) All of the owners were tenants in common owners of a fee simple interest –

each owned a percentage (calculated like unit entitlements) Each owner had exclusive right to occupy a specific unit Owners also shareholders in CGP Management Corp, which had authority to

manage the complex (like a strata corporation) Determinable fee simple subject to possibility of reverter Condition: Owner agrees not to commence proceedings for partition or sale In event of default of that condition, the interest reverts to CGT Management The pro-dissolution owners: the land is worth more as bare land. Sell to

developer, demolish, and realize the profits The anti-dissolution owners: want to continue living in their homes Application to force a sale of the jointly owned land under the Partition of

Property Act Court imports principles from strata law (even though not directly applicable) It was represented to buyers that they would have the same rights as owners

of strata property, including the right not to be forced out of their homes Court exercises its discretion not to order a sale because residents opposing

the sale would suffer hardship Serious hardship is one circumstance that may provide a proper

ground for refusing an order for sale, although it is not the exclusive measure of when that discretion may be exercised

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FAMILY PROPERTY Common law = sexist

o By marriage, the husband and life are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law (French) a femme-covert … and her condition during her marriage is called her coverture (Blackstone, Commentaries)

o All the property was inaccessible to the wife 19th century – reform of martial property law

o Protection of “deserted” womeno Homestead protectiono Married women’s separate property

Treated married couples the same as other property owners: each owned his/her property

Trusts, Resulting or Constructive

“This is more a matter of words than anything else. The two run together…” (Lord Denning)

“It is a liberal process, founded upon large principles of equity to be applied in cases where the legal owner cannot conscientiously keep the property for himself alone” (Lord Denning)

Division of Property: Family Law Act

Equal entitlement and responsibilityo S.81 Subject to an agreement or order that provides otherwise and

except as set out in the Part and Part 6 [Pension Division], (a) spouses are both entitled to family property and responsible

for family debt, regardless of their respective use or contribution, and

(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt

Definition of spouseo S.3(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or (b) has lived with another person in a marriage-like relationship,

and (i) has done so for a continuous period of at least 2 years,

or (ii) except in Part 5 [Property Division] and 6 [Pension

Division], has a child with the other person Family property (s.84)

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o All real and personal property owned, legally or beneficially, by at least one spouse on the date they separate

o Property acquired after separation that is derived from property owned during the relationship

o Increase in value of excluded property during the relationship – from date relationship started or date of acquisition, whichever is later

o Pensions are special Excluded property (s.85)

o Owned by a spouse before the relationship begano Gifts, inheritances, certain insurance payouts, certain interests in

trust…o Spouse asserting that it is excluded property has the burden of

showing that it is Exceptions to equal division

o Court has discretion to make unequal division if it would be significantly unfair to divide equally (s.95)

o By agreement: spouses can agree on how to divide, what to include (ss.92, 93)

A separation agreement or a “pre-nup” Must be written, signed, witnessed Must be full disclosure and informed consent, not taking

advantage of vulnerability, not otherwise voidable at common law

The court has discretion to set aside an agreement as procedurally or operationally unfair

Legal Questions

What is “family property” under s.84?o Has to be “property” (i.e., not dental license/law degree)o It has to be owned by at least one of the spouses on the date of

separation, or traceable back to such property (s.81(1)(b))o Not excluded under s.84 (e.g., acquired by a spouse before the

relationship began)o Includes increase in value of excluded property that accrues during the

relationship (e.g., one spouse bought a house (in her own name) before they got married. Increase in value of the house since marriage is included in family property)

What is “excluded property” under s.85?o Property acquired before the relationship begano Gifts/inheritances to one spouseo Awards of damages to one spouseo Insurance payouts to one spouse

When is an equal division “significantly unfair”?o Factors to consider (s.95):

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Duration of relationship Terms of any agreement between the parties A spouse’s contribution to the career or career potential of a

spouse Whether family debt was incurred in the normal course of the

relationship If debt exceeds value of property, the ability of each spouse to

pay a share Whether a spouse caused decrease or increase in the value of

the property after separation Whether a spouse substantially reduced the value of family

property or turned it into another form, acting in bad faith Tax liability that may be incurred if property has to be sold or

transferred Any other factor that may lead to significant unfairness

MURDOCH V MURDOCH “Oh, just about what the ordinary rancher’s wife does. Most of them can do

anything.” Wife puts in domestic work and then separated after 25 years Claims to get her portion through a trust Case cause shockwaves:

o During 2nd wave feminist movemento Adverse effects of divorce becoming more well knowno Helped lead to the basic structure of Family Law division of property

Notwithstanding the name the property is in, everything is split equally (there are exceptions)

Constructive trust is a remedy, but not the only oneo But has to have a connection to the nexus of the property

Court ruled no common intention that the beneficial interest was not to belong solely to the husband – no resulting trust

o Wife’s labour was not beyond what is ordinarily required of a ranch wife and thus she does not have any special interest in the land

The only way the wife could have interest is if a resulting trust was created when 2 parties both at the time of purchase despite title only being registered in one of their names

Dissent?o Wife’s contributions in labour mean she is beneficially entitled to part

of the propertyo Constructive trust should be imposed (does not depend on

evidence of intention)o The basis of constructive trust is the unjust enrichment which would

result if the person having the property were to retain it

CARATUN V CARATUN

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Mr. C’s primary objective in marrying Mrs. C and fathering their child was to assist him in immigrating to North America to practice dentistry

2 days after attaining that, he rejected Mrs. C as his wife Family assets were next to non-existent, but his future income-earning ability

was substantial Issue: Is the dental license property? Court held that a professional license does not constitute property within the

meaning of s.4 of the FLA Was not property, but ordered a lump sum payment to the wife for spousal

support Dental license is not property within the meaning of the Ontario FLA because:

o Not transferableo Will not produce anything without the personal efforts of the licenseeo Not categorically different form the right to work in general o Valuation would be unfairly speculative (can’t be adjusted later if it

turns out not to generate as much value as expected) Just represents a version of the right to work (all future/speculative)

PETTKUS V BECKER P developed over the years a successful bee-keeping business Owns 2 rural Ontario properties, where the business was conducted, and has

the proceeds of a third property B contributed substantially to the good fortune of the common enterprise Lived tougher from 1955-1974, save for a separation in 1972; they were

never married B commenced the action for entitlement to a one-half interest in the lands

and a share in the bee-keeping business Issue: Was there a constructive trust? Court held that since there was no common intention there was no resulting

trust If one person in a relationship “tantamount to spousal” prejudices herself in

the expectation of receiving an interest in property and the other freely accepts the benefit knowing of the reasonable expectation, it is unjust to retain

Therefore, constructive trust (imposed as remedy for unjust enrichment)

No distinction between marriage and “informal relationships which subsist for a lengthy period”

Concurrence (Ritchie J)o Facts support a resulting trusto Contributions made by one spouse and freely accepted by the other to

acquire and operate a common household give rise to rebuttable presumption of common intention to create resulting trust

o There had been a financial contribution and common intention that the benefit be shared by both parties (resulting trust)

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Concurrence (Martland J)o Imposing trustee obligations in a non-marriage relationship is judicial

legislation and substantially expands the existing law Too discretionary Puts too much power in the hands of the judge

o “By what test is a judge to determine what constituted unjust enrichment? The only test would be his individual perception of what he considers to be unjust”

o Suspicious of the concept of constructive trusto Also would have found a resulting trust

HUSSEY V PALMER P is over 70 and an old age pensioner P sold an old house which was condemned and moved in with her daughter

and son-in-law They built an extra room for her which she paid for After 15 months, they couldn’t live together anymore and she went to live

elsewhere After a year, P wrote to her son-in-law asking for money for the room she paid

to build They did not pay Issue: Was the money for the extension family property? Was this merely a family arrangement, a loan, or a proportionate ownership

trust in the property (resulting or constructive trust)? Court held it is a trust imposed by law whenever justice and good conscience

require it If she had stayed there until she died (implied when they built in) no doubt it

would have undoubtedly belonged beneficially to the son-in-law Appeal allowed

PROBLEMATIC PROPERTY Should this thing be recognized as property?

o Novel claimso Attributes

Does it look like other things we recognize as property? Is there a family resemblance?

o Function What policy goals or social needs does property serve? Would treating this as property serve those purposes?

What is a License?

Permission to do something that otherwise would be illegal A commercial fishing license is more than a mere license: it is a license plus a

proprietary interest in the fish that the license-holder catches

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Traditional view: not propertyo Uncertainty

The minister has discretion to decide not to renew licenses, or to cancel them

o Contingency Realizing value depends on actually catching the fish

Professional licenses (licenses to practice medicine etc.) are held not to constitute property pursuant to Ontario’s Family Law Act

o The value of these licenses was not included in the statutory requirement to share the value of property equally between spouses at marriage breakdown

Modern Rule of Statutory Interpretation

The task is to interpret the words of the statute in a purposeful way having regard to their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament

SAULNIER V ROYAL BANK OF CANADA S had licenses to fish for lobster, herring, swordfish, and mackerel, pursuant

to the Federal Fishery (General) Regulations Required loans and signed a general security agreement with the bank The GSA gave the bank a security interest in “all … present and after

acquired personal property … including intangibles” S filed for bankruptcy and trustee sought to include the licenses as property Issue: Is a license considered property? “A commercial fisher with a ramshackle boat and a license to fish is much

better off financially than a fisher with a great boat tied up at the wharf with no license”

Traditional view is it is not property Does the bank have a security interest in the license?

o “All … present and after acquired personal property including … intangibles” (GSA)

o Bankruptcy and Insolvency Act: “property” means any type of property … and includes … things in action … and every description of property, whether real or personal, legal or equitable, as well as obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, in arising out of or incident to property

The holder of a fishing license acquires a good deal more than merely permission to do that which would otherwise be unlawful

o Right to engage in an exclusive fishery under the conditions imposed by the license and a proprietary right in the wild fish harvested and the earnings for their sale

License had to be transferred

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Appeal dismissed

APPROACHES TO PROBLEMATIC PROPERTY Traditional Property:

o License not property if it lacks indicia of property (Bouckhuyt)o Fishing license “bears some analogy” to a profit a prendre – a property

right Not the same as saying it is a profit a prendre – it is a statutory

creationo It is more (more property-like) than mere permission to do something

that is otherwise illegalo License holder may have a beneficial interest in earnings from the

licenseo “Reasonable analogy to rights traditionally considered at common law

to be proprietary in nature” Regulatory:

o Line of cases holding that whether a license or a quota is intangible property depends on the degree of discretion vested in the issuing authority

o How “transitory and ephemeral” is it?o Not determinative – the test is too vague (no clear criteria)o What matters is whether it was property at the time S entered into the

GSA, when the bank seeks to realize its rights, and when S makes an assignment in bankruptcy under the BIA

Commercial Realities:o Fishing licenses are exchanged for money (a lot of money); they are a

valuable commercial asseto But commercial value does not equal propertyo But the statutes should be interpreted so as to enable them to

accomplish their commercial purposes Preferred:

o The question is whether there is enough of a bundle of rights to amount to property within the meaning of the statutes, purposively construed

o Look at the substance of what was conferred A license to participate in the fishery coupled with a proprietary

interest with the fish caught A bit like profit a prendre (a property interest)

o Statutes intended to include things not considered property at common-law (expanded definition)

o Including the license further the purpose: facilitate financing by borrowers and protection of creditors

British Columbia PPSA:o Intangible property includes licenses

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o “Licence” means a right, whether or not exclusive, that may be transferred by the holder with or without restriction or the consent of the grantor and that entitles the holder to do any of the following:

(a) manufacture, produce, sell, transport, grow, harvest or otherwise deal with personal property;

(b) provide services; (c) acquire personal property; (d) harvest timber, or grow and harvest Christmas trees, under

an agreement referred to in s.12 of the Forest Act

BODY PARTS & HUMAN TISSUES Common-law position: Body parts (things emanating from the body, dead

bodies) are not propertyo Exception: Doodeward v Spence (1908)

Exercise of work or skill changes a body or body part Changed so that it “acquires some attributes differentiating it

from a mere corpse awaiting burial”

Warehouse Receipt Act

S.2(4): legislative restriction on limitation of liability clauses in contract to which the Act applies

A warehouse is not allowed to contract out of the bailee’s duty to exercise the care and diligence of a reasonable owner

A “warehouse” is a person who, for reward, receives goods for storage “Goods” means all property other than things in action, money, and land

JCM V ANA JCM and ANA began a spousal relationship They each gave birth to one child using therapeutic insemination with sperm

provided from a single sperm donor Couple separated after 8 years, entered into a separation agreement for

custody and support The 13 remaining sperm straws from the sperm donor were inadvertently not

divided under the agreement JCM then met another partner whom she wishes to have a child with using

the remaining sperm straws so their child will be biologically related to the children of her relationship with ANA

JCM offered to purchase what she determined was ANA’s half interest in the remaining straws for $250 a straw

Issue: Are sperm straws property? Court held that the sperm straws should be treated as property for the

purpose of dividing them upon the dissolution of the spousal relationship of the parties

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The parties have a right to use the sperm straws for their benefit, and an ownership interest in them

Medical science has advanced to a point where the common law requires some thinking of this issue

No need to balance the right to procreate with the right to avoid procreation The sperm has been treated as property by everyone involved

LAM V UBC Class action brought by men who deposited their sperm with UBC Sperm was kept in a freezer that malfunctioned, damaging, or destroying the

sperm Claim that it offended the Warehouse Receipt Act Issue: Is frozen human sperm considered property for the purposes of the

Warehouse Receipt Act? Concerns bailment and property If you put a sperm sample in storage with a company that provides

temperature-controlled storage for a fee, that’s bailment If the sperm is goods within the meaning of the WRA, the answer is yes

(property is not defined) Each of the donors has ample rights in relation to his own sperm that

invested him with ownership of the specimen sufficient to be defined as property and meet the definition of good under the WRA

For the purposes of the WRA, human sperm is property

KLW V GENESIS FERTILITY CENTRE Petitioner and her husband want to have a child together His sperm is stored at Genesis Under Canadian law (AHRA s.8(1)), the sperm can’t be used to conceive a

child without his written consent He dies without stipulating consent in a will Under the WESA, all his property goes to his spouse (the petitioner) when he

dies Finding of fact: If he had known about the requirement of written consent, he

would have promptly given it Trying to determine if there is enough in the bundle of rights

o Informed by purpose and context of the Acts Issue: Is the stored sperm property? Court says contextually yes, sperm is property here Cannot use these cases to say that sperm is always property Husband could not sell the sperm, but could authorize its reproductive use by

his spouse following his death, or donate it for a third party

ANIMALS Animals are a special kind of property

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o Cannot abuse them

The Person/Property Distinction

Person:o Subjects of rightso Cannot be owned

Property:o Objects of rightso Can be owned, but not own

“Pre-embryos are not, strictly speaking, either ‘persons’ or ‘property’, but occupy an interim category that entitles them to special respect because of their potential for human life” (Davis v Davis)

o Children also fit some sort of interim property They have rights, but not as much as their biological parents

WILD OR DOMESTIC

Wild animals are “wild by nature because of habit, mode of life or natural instinct, are incapable of being completely domesticated, and require the exercise of art, force or skill to keep them in subjection” (Campbell v Hedley)

Domestic animals have been domestic “since time immemorial [and] have been accustomed to the association of man or by his industry have been subjected to his will and have no disposition to escape his dominion” (Campbell v Hedley)

Inherent in the nature of the animal itself

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“The nature of an animal, rather than how it is treated, determines whether it is wild”

o Nature not nurture You can’t turn a wild animal into a domestic animal by having it as a pet

NAKHUDA V STORY BOOK FARM PRIMATE SANCTUARY N had a pet monkey Went shopping and took the monkey; left the monkey in a double locked

crate inside her locked car Monkey escaped and ran away Monkey picked up by Toronto Animal Services When N arrived at the shelter to claim the monkey, TAS would not give him

to her TAS took the monkey to Story Brook Farm Primate Sanctuary and they signed

for adoption N brings this action against SBFPS and the owner to recover the monkey Issue: Who owns the monkey? When the monkey escaped, he became a wild animal (no longer in her

control/possession)o TAS captured him and thus became the owner as a result

“The monkey is a wild animal by virtue of his behaviour and qualities” “The parties agree that the court does not have the jurisdiction to

determine what is in the best interests of the monkey… The monkey is not a child. Callous as it may seem, the monkey is a chattel, that is to say, a piece of property.”

Who owns the monkey depends on whether he is wild (ferae naturae) or domestic (mansuetae naturae)

Ownership of a wild animal is acquired by possession (Pierson v Post) If the animal is out of possession, it goes back to not being owned (res

nullius) Qualified property right If the animal is domestic/tame, ownership continues even if physical

possession is interrupted

REECE V EDMONTON (CITY) The City holds a license under the Wildlife Act to operate a zoo that houses a

lone Asian elephant named Lucy Controversy surrounding Lucy – appellants believe her facilities and situation

at the zoo are detrimental to her health and she should be moved to an elephant sanctuary in a warmer climate where she can enjoy the companionship of other animals

Issued an action declaring the City as in violation of s.2 of the Animal Protection Act

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Issue: Are the appellants entitled to seek a declaration that the respondent City is in breach of the Animal Protection Act?

Court holds that this is an abusive process of judicial powers It is not appropriate to expect the courts to take over the animal husbandry

of the animals at the City zoo through the ability to issue declarations on points of law

Appeal dismissed “The present legal model in Alberta defining the relationship between

humans and animals is an ‘animal welfare’ one. It is based on the concept that humans have a moral and ethical obligation to treat animals humanely. The old common law view that animals are property to be used – and sometimes abused – as human see fit has long ago been tempered by legislative reform and the evolution of the law” (Dissent, Chief Justice of Alberta)

“Another school of thought proposes that the law recognize a new category of property, what has been termed ‘living property’. Under this theory, the law would provide for certain duties to be imposed on owners of animals in the living property category…” (Dissent, Chief Justice of Alberta)

HENDERSON V HENDERSON Parties married Prior to marriage, a cohabitation agreement was signed – preserved separate

property regimes for the parties Only property that was acquired during the marriage and was specifically

designated by the parties as joint property was to be shareable Did not specify about the dogs Issue: Who gets the dogs? Court held that pets are property and cannot be treated as child custody

(enjoys no familial rights) Judge held that it is a waste of scarce judicial resources to “throw this

dispute” over possession of dogs into adjudication “I say without reservation that the prospect of treating pets as children would

be holds no attraction for me … for legal purposes, there can be no doubt: Dogs are property.”

Alaska House Bill No 147

In a judgment in an action for divorce or action declaring a marriage void or at any time, the court may provide … if an animal is owned, for the ownership or joint ownership of the animal, considering the well-being of the animal

PASSING OFFIntellectual Property

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You can’t own ideas Patent: Protects inventions

o Exclusive right, for a limited time, to use the invention (e.g., a process for making something, a machine that does something)

o “No patent shall be granted for any mere scientific principle or abstract theorem”

Trademark and passing off: protects goodwillo Your competitors cannot sell things to customers by making them think

the things come from you (i.e., pirating your goodwill) Copyright: Protects expression (writing, music, images)

o Exclusive right, for a limited time, to reproduce work

Passing Off

Passing off = the tort of unfair compensation Common-law version of trademarks Interference with a property right: goodwill “The true basis of the action is that the passing off injures the right of

property in the plaintiff, that right of property being his right to the goodwill of his business” (Salmond on Torts)

Competition is okay, but misleading customers into thinking that you might be selling something else is unfair competition

o Misled about what you are actually buyingo Knockoff brands are slightly different because people know they aren’t

buying actual Ray Bans but Ray Bons 3 elements of the tort:

1. The existence of goodwill2. Deception of the public due to a misrepresentation, and3. Actual or potential harm to the plaintiff (Ciba – Geigy Canada v Apotex)

FENTY & ORS V ARCADIA GROUP Topshop (fashion retailer) stated selling a t-shirt with a picture of Rihanna on

it The image was a photograph taken by an independent photographer; had a

license from the photographer but no license from Rihanna Rihanna brought an action contending that the sale of the shirt without her

permission infringes her rights Issue: Was this a case of passing off? “How ever much various celebrities may wish there were, there is today in

England no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image”

This is different from BC Law. There is a right of “personality” that restricts use of a person’s name or image (Privacy Act, s.3)

Rihanna has to establish that the elements of passing off are met as distinct from Top Shop just using her image without her permission

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Rihanna must prove 3 things:1. She has goodwill and reputation among relevant members of the

public2. Misrepresentation that deceives members of the public into buying the

product because they think it is authorized by her3. Damage to Rihanna’s goodwill

Merely having her image on the T-shirt is not actionable (in English law); there has to be a misrepresentation deceiving people into thinking she is responsible for it/authorized its creation

“The idea that [the T-shirt] is authorized will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon. Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorization itself. In both cases, they will have been deceived.”

Endorsement means a person tells the relevant public that she approves of a product or service or is happy to be associated

A false representation of endorsement can be passing off (if the elements are satisfied)

If people buy the T-shirt just because they want an image of their favourite pop star, it isn’t passing off

There has to be a misrepresentation about trade origin There must be a false belief engendered in the mind of the buyer that the

celebrity is responsible for the product Conclusion: Top Shop’s sale of the shirt without her approval was an act of

passing off

Appeal Decision

“The law of passing off is not designed to protect a person against fair competition … What it protects is goodwill and it prevents one person passing off his goods or services as those of another”

“First, it must be shown that application of the name or image to the goods has the consequence that they tell a lie. This requirement … will not be satisfied if the name or image denotes nothing about the source of the goods. Second, it must be shown that the lie is material. In many merchandising cases, the lie amounts to no more than a false suggestion that the goods are licensed and … it may have no effect upon the buying decision”

Lord Justice Underhill concurring: “I am bound to say that I regard this case as close to the borderline”

Trial judge’s conclusion that public would think the T-shirt endorsed by Rihanna was based on 2 things

o Past association with Top Shopo Particular feature of the image, distinctiveness

One of these by itself would not be enough

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COPYRIGHT

INFRINGEMENT Copyright protects author’s rights over original expression in artistic

workso Novelso Paintingso Photographso Films o Musico Computer programs etc.

If you’re the copyright owner you’re the only one who can copy it or who can authorize people to copy it

There are lots of things that aren’t subject to copyright and are in the public domain

Copyright expires and goes into public domain (e.g., complete works of Shakespeare)

Has to be some level of human interaction for something to be copyright Copyright exists 50 years from when it is created for corporate owners Copyright only protects expression that the author created

o What’s original Not ideas

Even if they are original (LSUC v CCH) Not facts Not generic stuff (like islands with beaches, luxuriant

vegetation, and bananas) Not material taken from the public domain

An original work is the expression of an idea through an exercise of skill and judgment

Copyright “does not give the author a monopoly over ideas or elements from the public domain, which all are free to draw upon for their own works” (Cinar)

Infringement Analysis

1. Is there a copyrighted work (and is the copyright owned by the claimant)?o Has to be original expression, involve exercise of skill and judgment by

an author2. Is there (substantial) reproduction?

o If there is literal copying (an exact reproduction) the answer is yes3. Is there an applicable defence or exception?4. What about damages?

Copyright Infringement

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The unauthorized reproduction of a substantial part of an original work

Copyright Act s.27: It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do

Copyright Act s.3(1): For the purpose of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever

What is the substantial part?o Decided by quality rather than quantityo Determined in relation to the originality of the senior worko A substantial part of the work is a part of the work that represents a

substantial portion of the author’s skill and judgment expressed therein (Cinar)

o Infringement includes both literal and non-literal copying Copying expression:

o Infringement means copying the author’s expression of an idea – not expressing the same idea in a different way

Different versions of the idea of a Robinson Crusoe type character living on a tropical island or substantially copying the original way the first author expressed the idea

Assessing Substantiality

A qualitative and holistic approach (Cinar) Involves looking not at isolated passages but at the 2 works as a whole Asses the cumulative effect of the copied features to determine whether they

amount to a substantial part of the skill and judgment expressed in the senior work as a whole (Cinar)

MICHELIN CASE CAW members made leaflets caricaturing the Michelin “Bibendum” tire man

as an oppressive capitalist thug Union argued that this was not copyright infringement, and that if the

Copyright Act prohibited it, it was (to the extent) inconsistent with s.2(b) of the Charter

Court ruled that it was an infringement “I hold that the defendants’ right to freedom of expression was not restricted.

The Charter does not confer the right to use private property – the plaintiff’s copyright – in the service of freedom of expression

Very narrow reading of the defence “Copyright is an intangible property right … just because the right is

intangible, it should not be any less worthy of protection as a full property right”

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“A ‘Bibendum’ about to stomp hapless workers into submission does not present the original author’s intent of a favourable corporate image or provide an incentive for compensating artists for the integrity of their vision

The Copyright Act has since been amended (by the Copyright Modernization Act, 2012) to add parody as a category of “fair dealing”

And the Supreme Court of Canada has made strong statements regarding the protection of “user rights” in copyright law

CINAR CORP V ROBINSON R spent years developing an educational children’s tv show Drew his inspiration from Robinson Crusoe and his own life Took initiatives to get the project developed, including giving a copy of his

work to Cinar Project failed to attract investors and stalled Later, saw his own tv show on tv under a different name R filed an action for copyright infringement Issue: Was this copyright infringement? Court ruled there is a need to strike an appropriate balance between giving

protection to the skill and judgment exercised by authors in the expression of their ideas, on the one hand, and leaving idea and elements from the public domain free for all to draw upon, on the other

The cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of R’s skill and judgment expressed in his work as a whole

Judgment for R

FAIR DEALING The “sweat of the brow” or “industriousness” standard:

o Would protect any work that originates from an author and is more than a mere copy

The “creativity” standard:o A work must be creative to be original

The Canadian middle way:o Must be more than a mere copyo Need not be creative in the sense of being novel or uniqueo What is required to attract copyright protection in the expression of an

idea is an exercise of skill and judgmento More than a purely mechanical exerciseo An original work originates from an author and is not copied from

another work, AND is the product of the exercise of more than trivial skill and judgment by the author

Purpose of Canadian Copyright Law

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The purpose of copyright law is to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (CCH v LSUC)

FAIR DEALING Canada: Fair dealing US: Fair use 2004 statute:

o s.29 Fair dealing for the purpose of research or private study does not infringe copyright

o s.29.1 Fair dealing for the purpose of criticism or review does not infringe copyright

o s.29.2 Fair dealing for the purpose of news reporting does not infringe copyright

o Interpreted very broadly - not exceptions, not loopholes but user’s rights; an integral part of copyright

New Statute

S.29 Fair dealing for the purpose of research, private study, education, parody, or satire does not infringe copyright

o For criticism, review and news reporting, the source must be credited (s.29.1 and 29.2)

2-Step Analysis

Defendant must proveo That the dealing fits under one of the purposes in the Act ando That the dealing was fair

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6 Factors

Purpose of the dealingo Has to be an allowable purpose under the statute

Character of the dealingo How many copies, how widely distributed, was it destroyed after it was

used for its intended purpose Amount of the dealing

o If more is taken from the work it is harder to show fairness - BUT it is possible to copy a WHOLE work in a way that is fair dealing

Alternatives to the dealingo E.g., is there a non-copyrighted equivalent that could have been used

instead? Nature of the work

o If it is confidential, reproducing it may not be fairo If it has not been published, reproducing it may further the purpose of

copyright law Effect of the dealing on the work

o Does the reproduction compete with the market of the original work?o Whether the reproduction is for profit/commercial purposes is NOT

DETERMINATIVE IN ITSELF - practicing lawyers (charging fees) used the Great Library service

Not an exclusive or exhaustive list - but they are very broad headings No requirement that it has to be "not for profit"

User-Generated Content

s.29.21(1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual - or, with the individual's authorization, a member of their household - to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

o (a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;

o (b) the source - and, if given in the source, the name of the author, performer, maker or broadcaster - of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

o (c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

o (d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter - or copy of it - or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one

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FAIR USE US Copyright Law:

o … the fair use of a copyrighted work … is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation

to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of

the copyrighted work The fact that a work is unpublished shall not itself bar a finding

of fair use if such finding is made upon consideration of all the above factors

CCH V LAW SOCIETY OF UPPER CANADA LSUC maintains and operates the Great Library at Osgood Hall in Toronto Great Library provides a request-based photocopy service for LSUC members,

the judiciary, and other authorized researchers Under this "custom photocopy service", legal materials are reproduced by

Great Library staff and delivered in person, by mail or by facsimile transmission to requesters

LSUC also maintains self-service photocopiers in the Great Library In 1993, CCH commenced copyright infringement actions against LSUC,

seeking a declaration of subsistence and ownership of copyright in specific works and a declaration that LSUC had infringed copyright when the Great Library reproduced a copy of each of the works (photocopies)

Publishers also sought a permanent injunction prohibiting LSUC from reproducing these works as well as any other works they published

LSUC denied liability and counterclaimed for a declaration that copyright is not infringed when a single copy of a reported decision, case summary, statute, regulation, or a limited selection of text from a treatise is made by the Great Library staff, or one of its patrons on a self-service copier, for the purpose of research

Issue: Is the photocopying of CCH’s works copyright infringement? LSUC does not infringe copyright when a single copy of a reported decision,

case summary, statute, regulation, or limited selection of text from a treatise is made by the Great Library in accordance with its access policy

LSUC does not authorize copyright infringement by maintaining a photocopier in the Great Library and posting a notice warning that it will not be responsible for any copies made in infringement of copyright

Under s.29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright

"Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts

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Framework1. Is there a copyrighted work?

o Original?o Has to be an exercise of skill and judgment that’s more than merely

trivial and more than a purely mechanical exercise2. Is there an infringement?

o Substantial?3. Defence/Exceptions

o Research

VANCOUVER AQUARIUM MARINE SCIENCE CENTRE V CHARBONNEAU C produced a video called “Vancouver Aquarium Uncovered” Video was posted online and since in screenings VAMSC claims the video contains some of their copyrighted works including

from the website, the blog, and YouTube posts Issue: Is the material used by C in the video obtained by breach of contract or

by breach of copyright or both? Test for whether or not an injunction should be granted is often stated as 2-

part from British Columbia (Attorney General) v Wale, or 3-part from RJR MacDonald Inc v Canada (Attorney General)

Wale:o Applicant must satisfy that there is a fair question to be tried as to the

existence of the right which he alleges and breach thereof, actual or reasonably apprehended

o Must establish that the balance of convenience favours the granting of an injunction

Damages not an adequate remedy should plaintiff be successful Judge went for a balance

o Not a full injunction but still pulling the copyrighted contestants until trial

This is a preliminary injunction (not a trial, either could be right) If dealing with a fair dealing question, go through all factors

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