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PROCEEDINGS - Appeals and judicial review - Orders

Thursday, April 30, 2020 @ 9:21 AM  

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Appeal by Andrew from a summary judgment granting a writ of possession in favour of the respondents, Erna, Miroslaw and Audrey. The parties were family members engaged in a dispute over a half section of lakeside property. The family purchased the property at issue in the early 1990s. It was acquired and held with the objective of exploiting its potential value for subdivision. Following the passing of the family patriarch in 2002, the parties held the property as co-owners. Prior thereto, the appellant carried on livestock operations on the property, paid taxes and made associated improvements. In 2007, the appellant granted a mortgage over his interest in the property to secure obligations owed to his former spouse. In 2009, the respondent Erna paid the appellant $17,500 for the appellant’s one-third interest in the property. In 2017, the respondents listed the property for sale and advised the appellant to vacate the property. The appellant failed to comply and registered a lease interest against title. Consequently, the respondents applied for and obtained a writ of possession pursuant to the Landlord and Tenant Act. Andrew appealed.

HELD: Appeal dismissed. The chambers judge did not err in proceeding on a summary basis to find that no lease arrangement existed between the parties. In determining that no lease arrangement existed, the chambers judge did not misapprehend or overlook material evidence. No palpable and overriding error was made in finding that the appellant’s assertion that he was a tenant under a lease was not established, without need for a trial of the issue. Similarly, the chambers judge did not err in granting summary judgment pursuant to s. 50(1) of the Act upon finding no lease between the parties. Even if the chambers judge erred in finding a writ of possession was available where a right of possession was challenged, this was not a basis upon which the appeal could be allowed. To the extent the appellant maintained a right of occupation pursuant to an oral lease, the development purpose for which the property was acquired necessarily required the appellant’s acknowledgment he would vacate upon a notice of sale. The position on appeal that a writ of possession should not have been granted because a lease did not exist was an impermissible approbation and reprobation.

Kuderewko v. Kuderewko, [2020] S.J. No. 71, Saskatchewan Court of Appeal, R. Leurer J.A., March 11, 2020. Digest No. TLD-April272020007