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Thursday, March 16, 2017 @ 8:00 PM

Planning and development - Unjust enrichment

Appeal by WMJO Limited (WMJO) from a decision declaring that it was obligated to contribute on a pro rata basis to the expenses incurred by Middlesex Condominium Corporation 229 (MCC 229) to maintain and operate a sanitary sewer pumping system. MCC 229 was built on the same parcel of land as three condominium projects owned by WMJO. The land on which all four condominium projects were built was lower than the adjacent city street Hamilton Road. The City of London (City) required the sewage from the condominiums be pumped uphill to the city sewer than ran under Hamilton Road. In 1989, Trenion Developments Corp (Trenion) was the owner of the parcel of land, and entered into a development agreement with the City (the “development agreement”) requiring Trenion to construct and maintain at its sole expense a sanitary sewer pumping system. Trenion constructed the required system. Trenion conveyed the land to Award Development Ontario (Award). Award transferred the part of the land on which MCC 229 would be built and on which the sanitary sewer pumping station was located to a related company, Double G Contractors Limited (Double G). Double G and Award entered into a joint use agreement, registered on title, providing for the sharing of the sanitary sewer pumping station, and stipulated that the costs of the system would be shared pro rata among the properties built on the land. The joint use agreement contained a provision that it would be binding on successors on title. Double G developed its property and registered the declaration creating MCC 229. The sanitary sewer pumping station was included as part of the common elements of MCC 229. The balance of the parcel of land came into possession of WMJO, which build three condominiums. Each project connected to the existing sewer pumping station. For more than 10 years, WMJO contributed its proportionate share for the costs of the sanitary sewer pumping station in line with the joint use agreement. WMJO stopped making payments after 2006, and took the position that it had no obligation to do so. The trial judge found WMJO liable based on the principles of unjust enrichment. ... [read more]

Thursday, March 16, 2017 @ 8:00 PM

Real Property Law - Interests in land - Easements - Particular easements - Positive easements - Rights of way - Scope of easements - Manner of past use

Appeal by Wolff from a declaration that the equitable easement he had to access his property did not include the right to install a power line to his property. Wolff’s property, surrounded by the Pacific Rim National Park, was not immediately adjacent to a paved road. The only access to the property was by way of a narrow gravel path along the east boundary, running across 100 metres of the Park. Wolff acquired the property in 2006 from an owner who had a conditional authorization from Parks Canada to access the Property by motor vehicle via the laneway. Wolff continued to use the access. The property had never had electricity. In March 2007, Wolff requested from Parks Canada an easement giving him the right to install an electric line to the property. The request was refused on the basis that utility corridors across national park reserve lands were not permitted. In 2014, Wolff approached three of his adjacent neighbours for such an easement, without offering them any payment, and they all refused. He then commenced the present proceeding, seeking a declaration of an easement of necessity or an equitable easement, and a declaration that he was entitled to use the easement for any lawful purpose necessary to his enjoyment of the property, including the right to install a hydro line. The Crown did not dispute that Wolff had the lawful right to access his property. The judge found that the conduct of the prior owners and Parks Canada gave rise to a specific right to access the property via the laneway. He found no history associated with the property in connection with a power line that fit within the test for proprietary estoppel, and that there was no evidence of any reliance such that it would be unconscionable to refuse Wolff the right to install a power line in the laneway. He considered and rejected Wolff’s submission that the declaration of an ancillary right to install an underground power line was justified. ... [read more]

Wednesday, March 15, 2017 @ 9:00 AM

UNIVERSITIES AND COLLEGES - Use of property

Appeal by the Students’ Association of Saskatchewan Polytechnic Regina from a decision granting a writ of possession in favour of Saskatchewan Polytechnic. In 2010, the school entered a master agreement with the student associations, including the appellant, at several of its locations. In 2012, a campus partnership agreement contemplated by the master agreement addressed matters specific to the appellant. Similar agreements were reached on other campuses. The campus agreement provided for allocation of space for the appellant's use in a school building, with the relationship being that of landlord and tenant, governed by the Landlord and Tenant Act. In 2015, the school issued a letter to the appellant and other associations advising of a need to negotiate new agreements to govern their relationship. The appellant regarded the letter as an invitation to negotiate revisions to the master agreement, whereas the school regarded the letter as termination of all existing agreements. The parties were unable to negotiate a revised agreement. The appellant refused to accept a short-term service agreement proposed by the school. The school made a formal demand for possession of the appellant's premises. The appellant refused. The school obtained a writ of possession pursuant to s. 50(1) of the Landlord and Tenant Act. The appellant appealed. ... [read more]

Monday, March 13, 2017 @ 8:58 AM

JUDICIAL REVIEW AND STATUTORY APPEAL - Practice and procedure - Discovery and disclosure - Production and inspection of documents

Submissions on necessity of documentary disclosure in support of applicant's affidavit associated with judicial review application. The applicant sought judicial review of a decision by the Public Service Labour Relations and Employment Board and submitted a request for documentary disclosure. The Board objected to disclosure of certain documents pursuant to Rule 318 on the basis the documents were protected by legal professional privilege. Another judge of the Federal Court of Appeal issued a direction for submissions on the necessity of disclosure. The Board maintained that the documents were privileged as having originated from its legal services branch and therefore protected from disclosure. The applicant submitted the Board provided no evidence supporting its assertion of privilege. ... [read more]

Friday, March 10, 2017 @ 12:48 PM

Cassels Brock welcomes new partners Buttery and Williams

Cassels Brock announced the continued expansion of its client service offerings in restructuring and insolvency law with the addition of Mary Buttery and Lance Williams as partners in the firm’s Vancouver office. ... [read more]

Friday, March 10, 2017 @ 8:51 AM

Drawing the fine line between zealous advocacy and incivility

Like American politics, the legal profession has suffered a decline in civility. ... [read more]

Thursday, March 09, 2017 @ 7:00 PM

Real Property Law - Sale of land - Quality defects - Latent

Appeal by the plaintiff from a decision dismissing the action as statute-barred. The appellant commenced the present action for damages for soil contamination by hydrocarbons in April 2014 that allegedly migrated from the adjacent property that had been used as a gas station until 2004. The appellant had purchased the property in 2012 as part of a transaction involving the acquisition of 22 commercial properties. The purchase was subject to various conditions, including that the purchaser was satisfied as to the environmental condition of the properties. Phase I of an environmental site assessment in March 2012 identified potential contamination of the property by the historic gas station at the adjacent property and from an active dry cleaner located nearby. On March 8, 2012 the appellant waived all conditions for the purchase transaction, including environmental conditions. In its statement of claim, the appellant asserted that it was not aware of soil and groundwater contamination at its property until September 2012. The motions judge concluded that the appellant had become aware of sufficient material facts to form the basis of the action by March 9, 2012. In the alternative, she held that the appellant had more than a sufficient basis for an action by March 30, 2012 when soil and groundwater sampling laboratory results were made available to the appellant and showed exceedences of regulatory criteria. The motion judge also stated that, even if the appellant did not know about the drilling results until May 2012, when it received a draft Phase II environmental site assessment report that appended the results, the appellant ought to have known of its claim against the respondents, and did not exercise due diligence. ... [read more]

Thursday, March 09, 2017 @ 7:00 PM

Landlord & Tenant Law - Landlord and tenant relationship - Validity of lease - Lease of unsubdivided portion of land

Appeal by the plaintiff from the dismissal of its application to have a lease and caveat declared invalid. In 2007, Ray Grisnich Farms purchased a quarter section of land from the respondents. At the time of the purchase, Grisnich leased back to the respondents the house and buildings located on a 10 acre portion of the land. In effect, the lease granted the respondents an inalienable life interest. The respondents registered a caveat against the land. The appellant acquired the land from Grisnich in 2014 in the course of Grisnich’s insolvency. It was aware of the lease and paid substantially less than market value because of the lease. When the parties were unable to agree on certain matters, the appellant brought an application to have the lease and the caveat declared invalid. It argued that the lease was void because it was in effect a subdivision and the respondents had not obtained the required approval, and the lease lacked sufficient specificity to meet the requirements of s. 95(2) of the Land Titles Act. The chambers judge concluded that the lease was valid and was not a subdivision. He also concluded that the description of the land satisfied the requirements of s. 95(2) because the lease included the house and buildings and approximately 10 acres on which they were situated, which was the farmstead. He further concluded that the specific boundaries of the lease land should be determined at a hearing. The appellant appealed, arguing that the chambers judge erred in finding that the lease was valid and enforceable and did not have the effect of subdividing the land, the description of the premises was sufficient to meet the requirements of s. 95(2) of the Land Titles Act, and that the caveat was valid. ... [read more]

Thursday, March 09, 2017 @ 8:34 AM

SALE OF LAND - Quality defects - Latent

Appeal by the plaintiff from a decision dismissing the action as statute-barred. The appellant commenced the present action for damages for soil contamination by hydrocarbons in April 2014 that allegedly migrated from the adjacent property that had been used as a gas station until 2004. The appellant had purchased the property in 2012 as part of a transaction involving the acquisition of 22 commercial properties. The purchase was subject to various conditions, including that the purchaser was satisfied as to the environmental condition of the properties. Phase I of an environmental site assessment in March 2012 identified potential contamination of the property by the historic gas station at the adjacent property and from an active dry cleaner located nearby. On March 8, 2012 the appellant waived all conditions for the purchase transaction, including environmental conditions. In its statement of claim, the appellant asserted that it was not aware of soil and groundwater contamination at its property until September 2012. The motions judge concluded that the appellant had become aware of sufficient material facts to form the basis of the action by March 9, 2012. In the alternative, she held that the appellant had more than a sufficient basis for an action by March 30, 2012 when soil and groundwater sampling laboratory results were made available to the appellant and showed exceedences of regulatory criteria. The motion judge also stated that, even if the appellant did not know about the drilling results until May 2012, when it received a draft Phase II environmental site assessment report that appended the results, the appellant ought to have known of its claim against the respondents, and did not exercise due diligence. ... [read more]

Wednesday, March 08, 2017 @ 8:32 AM

LANDLORD AND TENANT RELATIONSHIP - Validity of lease - Lease of unsubdivided portion of land

Appeal by the plaintiff from the dismissal of its application to have a lease and caveat declared invalid. In 2007, Ray Grisnich Farms purchased a quarter section of land from the respondents. At the time of the purchase, Grisnich leased back to the respondents the house and buildings located on a 10 acre portion of the land. In effect, the lease granted the respondents an inalienable life interest. The respondents registered a caveat against the land. The appellant acquired the land from Grisnich in 2014 in the course of Grisnich’s insolvency. It was aware of the lease and paid substantially less than market value because of the lease. When the parties were unable to agree on certain matters, the appellant brought an application to have the lease and the caveat declared invalid. It argued that the lease was void because it was in effect a subdivision and the respondents had not obtained the required approval, and the lease lacked sufficient specificity to meet the requirements of s. 95(2) of the Land Titles Act. The chambers judge concluded that the lease was valid and was not a subdivision. He also concluded that the description of the land satisfied the requirements of s. 95(2) because the lease included the house and buildings and approximately 10 acres on which they were situated, which was the farmstead. He further concluded that the specific boundaries of the lease land should be determined at a hearing. The appellant appealed, arguing that the chambers judge erred in finding that the lease was valid and enforceable and did not have the effect of subdividing the land, the description of the premises was sufficient to meet the requirements of s. 95(2) of the Land Titles Act, and that the caveat was valid. ... [read more]