4067712 Manitoba Ltd. et al. v. Lakeland Golf Properties Inc. et al., (2004) 186 Man.R.(2d) 235 (QB)

• Judge: Sinclair, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 13, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 186 Man.R.(2d) 235 (QB);2004 MBQB 157

4067712 Man. v. Lakeland Golf (2004), 186 Man.R.(2d) 235 (QB)

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. JL.030

4067712 Manitoba Ltd., 3422488 Manitoba Ltd. and 2671914 Manitoba Ltd. (plaintiffs) v. Lakeland Golf Properties Inc., Rural Municipality of Gimli and Eastern Interlake Planning District (defendants)

(CI 04-01-37431; 2004 MBQB 157)

Indexed As: 4067712 Manitoba Ltd. et al. v. Lakeland Golf Properties Inc. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Sinclair, J.

July 13, 2004.

Summary:

The plaintiffs sought an interlocutory injunction preventing the defendant Lakeland Golf Properties Inc. from building a clubhouse on a golf course.

The Manitoba Court of Queen's Bench dismissed the application.

Land Regulation - Topic 3028

Land use control - Development agreements - Contents - Building restrictions - A dispute arose respecting the building of a clubhouse on a golf course - Under a 1992 development agreement, a rural municipality allowed a developer to build the golf course after the developer agreed not to build a clubhouse on the course - The plaintiffs argued that under s. 104(1) of the Municipal Board Act, only the Municipal Board could amend a building restriction caveat after notice and a hearing - The Manitoba Court of Queen's Bench stated that, "while the Board may have the power vary a building restriction caveat under that provision, I am satisfied that it is not the only way a development agreement can be amended nor that the Municipal Board is the only authority to do so." - See paragraph 28.

Land Regulation - Topic 3028

Land use control - Development agreements - Contents - Building restrictions - Under a 1992 development agreement, a rural municipality allowed a developer to build a golf course after the developer agreed not to build a clubhouse on the course - The Manitoba Court of Queen's Bench held that this type of agreement did not create a building restriction caveat - See paragraph 29.

Land Regulation - Topic 3028

Land use control - Development agreements - Contents - Building restrictions - Under a 1992 development agreement, a rural municipality (RM) allowed a developer to build a golf course after the developer agreed not to build a clubhouse on the course - In 2003, the RM, after public consultation, passed a resolution agreeing to waive this restriction in the development agreement and allowed a club house to be built on the golf course - The plaintiffs, adjacent property owners who were covered by the agreement, argued that the agreement was for the benefit of all property owners covered by the agreement, and, therefore their consent was required for the amendment of the agreement - The Manitoba Court of Queen's Bench held that the only parties needed to amend the agreement were the RM and the owner of the golf course - So long as they acted properly in doing so, they had the proper authority to amend it - See paragraph 30.

Real Property - Topic 7930

Title, registration of instruments, etc. - Caveats or cautions - Variation or discharge - [See first Land Regulation - Topic 3028 ].

Sale of Land - Topic 4504

Restrictive or positive covenants - General principles - Covenant which binds or runs with the land - What constitutes - Under a 1992 development agreement, a rural municipality (RM) allowed a developer to build a golf course after the developer agreed not to build a clubhouse on the course - In 2003, the RM, after public consultation, passed a resolution agreeing to waive this restriction in the development agreement and allowed a club house to be built on the golf course - The Manitoba Court of Queen's Bench held that the building restriction was not a restrictive covenant that ran with the land - See paragraph 31.

Cases Noticed:

Horizon Custom Builders Ltd. v. Behrens (2001), 160 Man.R.(2d) 296; 262 W.A.C. 296 (C.A.), refd to. [para. 9].

Govan Local School Board v. Last Mountain School Division No. 29 (1991), 93 Sask.R. 229; 4 W.A.C. 229 (C.A.), refd to. [para. 9].

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), refd to. [para. 11].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 38 D.L.R.(4th) 321, refd to. [para. 12].

Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. - see Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.).

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 13].

Potash Corp. of Saskatchewan Mining Ltd. v. Todd et al., [1987] 2 W.W.R. 481; 53 Sask.R. 165 (C.A.), refd to. [para. 15].

Jacques et al. v. Alexander (Local Government District) et al. (1996), 109 Man.R.(2d) 223 (Q.B.), refd to. [para. 29].

Statutes Noticed:

Municipal Board Act, R.S.M. 1987, c. M-240; C.C.S.M., c. M-240, sect. 104(1) [para. 27].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2nd Ed. 1992) (1996 Looseleaf Update - Release No. 4), paras. 2.350, 2.356 [para. 16]; 2.370 [para. 10]; 2.390 [para. 19].

Counsel:

Paul Walsh, Q.C., for the plaintiffs;

Dave Hill, for the defendant, Lakeland Golf;

R.D. McDonald, for the defendants, Rural Municipality of Gimli and Eastern Interlake Planning District.

This application was heard by Sinclair, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on July 13, 2004.