Aquadel Golf Course Ltd. v. Lindell Beach Holiday Resort Ltd. et al., (2009) 265 B.C.A.C. 98 (CA)

• Judge: Finch, C.J.B.C., Lowry and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 24, 2008
• Jurisdiction: British Columbia
• Citations: (2009), 265 B.C.A.C. 98 (CA);2009 BCCA 5

Aquadel Golf Course v. Lindell Beach (2009), 265 B.C.A.C. 98 (CA);

    446 W.A.C. 98

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JA.049

Aquadel Golf Course Limited also known as Aquadel Golf Course Ltd. (appellant/petitioner) v. Lindell Beach Holiday Resort Ltd. and MHC TT (Canada) Holdings Inc. (respondents/respondents)

(CA035953; 2009 BCCA 5)

Indexed As: Aquadel Golf Course Ltd. v. Lindell Beach Holiday Resort Ltd. et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Lowry and D. Smith, JJ.A.

January 13, 2009.

Summary:

Aquadel Golf Course Limited petitioned to cancel the registration of a written agreement which was charged against its property as a restrictive covenant. Aquadel's right to cancellation depended upon it showing that the agreement was not and did not contain a restrictive covenant. Alternatively, if the agreement contained a restrictive covenant, Aquadel asserted that it was entitled to have the covenant discharged under s. 35(2) of the Property Law Act.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. A96, dismissed the petition, holding that one paragraph of the agreement created a restrictive covenant and Aquadel was not entitled to its cancellation. Aquadel appealed.

The British Columbia Court of Appeal allowed the appeal, holding that the covenant was positive in substance and could not be enforced against the covenantor's successors in title. Accordingly, Aquadel was entitled to an order cancelling the agreement as a charge on the property.

Contracts - Topic 7407

Interpretation - General principles - Whole contract to be considered - Aquadel Golf Course petitioned to cancel an agreement which was charged against its property as a restrictive covenant - The trial judge read the agreement as containing three separate and severable covenants: (1) not to use the land for any purpose other than as a golf course; (2) to maintain the course; and (3) to give certain persons a preferential rate for use of the course - The trial judge concluded that although the second and third covenants imposed positive obligations, the first part was severable and was negative in substance - The British Columbia Court of Appeal allowed an appeal - Although the first part used negative language, the covenant contained therein was positive in substance - The respondent submitted that the covenant was not positive because there was a choice to use the property either as a golf course, or not at all - There was nothing in the language of the agreement, nor in the surrounding circumstances, to suggest that no use was intended - The only sensible interpretation was that the parties intended the lands to be used as a golf course, and only as a golf course - Moreover, it was an error to read the first part in isolation - The agreement had to read as a whole - The language was far from the clear and unambiguous language necessary to show an intention to create an interest in land in favour of the covenantee - As the covenant was not negative in substance, it could not be enforced against the covenantor's successors in title - Aquadel was entitled to an order cancelling the charge - See paragraphs 15 to 22.

Real Property - Topic 132

General principles - Covenants that run with land - What constitute - [See Contracts - Topic 7407 ].

Sale of Land - Topic 4504

Restrictive or positive covenants - General principles - Covenant which binds or runs with the land - What constitutes - [See Contracts - Topic 7407 ].

Sale of Land - Topic 4688

Restrictive or positive covenants - Positive covenants - Effect on subsequent purchasers - [See Contracts - Topic 7407 ].

Cases Noticed:

Nylar Foods v. Roman Catholic Episcopal Corp. of Prince Rupert (1988), 48 D.L.R.(4th) 175 (B.C.C.A.), refd to. [para. 11].

Group Eight Investments Ltd. v. Taddei et al. (2005), 217 B.C.A.C. 184; 358 W.A.C. 184; 47 B.C.L.R.(4th) 278; 2005 BCCA 489, refd to. [para. 12].

Scanlon v. Castlepoint Development Corp. et al. (1992), 59 O.A.C. 191; 99 D.L.R.(4th) 153 (C.A.), refd to. [para. 13].

Gilchrist v. Western Star Trucks Inc. et al. (2000), 133 B.C.A.C. 144; 217 W.A.C. 144; 73 B.C.L.R.(3d) 102 (C.A.), refd to. [para. 14].

Counsel:

D.P. Church, for the appellant;

M.G. Bolda, for the respondent, Lindell Beach Holiday Resort Ltd.;

R.V. Wickett and E. Jawl, for the respondent, MHC TT Holdings.

This appeal was heard at Vancouver, B.C., on November 24, 2008, by Finch, C.J.B.C., Lowry and D. Smith, JJ.A., of the British Columbia Court of Appeal. On January 13, 2009, Finch, C.J.B.C., delivered the following reasons for judgment for the court.