Bergman v. Bergman, 2002 ABQB 493

• Judge: Phillips, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 16, 2002
• Citations: 2002 ABQB 493;(2002), 318 A.R. 5 (QB)

Bergman v. Bergman (2002), 318 A.R. 5 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JN.050

Kathleen Bergman, Faith Bergman, Bonita Bergman and Merleen Hodgson (plaintiffs) v. John H. Bergman and Mark Bergman as Executor for the Estate of John H. Bergman (defendants)

Mark Bergman, Executor of the Estate of John H. Bergman (plaintiff by counterclaim/defendant) v. Kathleen Bergman, Faith Bergman, Bonita Bergman and Merleen Hodgson (defendants by counterclaim/plaintiffs)

(No. 9901-08541; 2002 ABQB 493)

Indexed As: Bergman v. Bergman

Alberta Court of Queen's Bench

Judicial District of Calgary

Phillips, J.

May 16, 2002.

Summary:

Meredith, John and Earl Bergman were the registered owners of the mines and mineral title in a section of land. Meredith died. His will appointed John as executor. The will also left some specific bequests and named the plaintiffs as residuary beneficiaries. John and Earl, in their own capacities, and John, as Meredith's executor, transferred the mines and mineral title to John. The plaintiffs sued, claiming a one third interest in that title. The plaintiffs sought summary judgment. John died.

The Alberta Court of Queen's Bench, in a decision unreported in this series, appointed an administrator of Meredith's estate to deal with the one third interest claimed by the plaintiffs. The court directed that title to the claimed properties be registered in the administrator's name. The parties' pleadings were amended. The defendant, executor of John's estate, counterclaimed, claiming beneficial ownership in the one third interest. The plaintiffs continued a lis pendens. The defendant also claimed damages for interference with his title.

The Alberta Court of Queen's Bench dismissed the action and the counterclaim. The court declared that John was the beneficial owner of the whole of the mines and minerals title in the subject section of land. The court added that even if the plaintiffs' actions had resulted in an unjust interference with the defendant's mineral title, the damages suffered, if any, were not related to the plaintiffs' actions.

Actions - Topic 5023

Lis pendens - Certificate of lis pendens - When available - [See Real Property - Topic 7859 ].

Contracts - Topic 7952

Statute of frauds - General - When applicable - [See Trusts - Topic 2141 ].

Contracts - Topic 8008

Statute of frauds - Part performance - When available - [See Trusts - Topic 2141 ].

Contracts - Topic 8163

Statute of frauds - Contracts within statute - Agreement not to be performed within a year - Requirement of writing - [See Trusts - Topic 2141 ].

Injunctions - Topic 1602

Interlocutory or interim injunctions - General principles - What constitutes an interlocutory or interim injunction - [See Real Property - Topic 7859 ].

Injunctions - Topic 1844

Interlocutory or interim injunctions - Failure at trial to justify issue of interim injunction - Liability of plaintiff for damages resulting from injunction - [See Real Property - Topic 7859 ].

Real Property - Topic 7802

Title, registration of instruments, etc. - General principles - Effect of registration -[See Trusts - Topic 2141 ].

Real Property - Topic 7808

Title, registration of instruments, etc. - General principles - Volunteers - [See Trusts - Topic 2141 ].

Real Property - Topic 7816

Title, registration of instruments, etc. - General principles - Consent of owners (incl. equitable owners) - [See Trusts - Topic 2141 ].

Real Property - Topic 7859

Title, registration of instruments, etc. - Lis pendens or certificate of pending litigation - Damages for wrongful filing - In 1950, a family agreement between parents and their five children provided for a division of the lands that the parents had farmed - The brothers Meredith, John and Earl Bergman became the registered owners of the mines and minerals title in a certain section of land - This was done to set up a gross royalty trust designed to distribute a 1% payout to each sibling (there were five) as per their father's wishes - After Meredith died, John and Earl, in their own name, and John, as executor of Meredith's estate, conveyed the mines and mineral title to John - Beneficiaries under Meredith's will received no notice of this conveyance - They claimed a one third interest in the title - John died - A motions judge appointed an administrator for the subject property and directed that title be registered in his name pending resolution of the title dispute - The plaintiffs continued a lis pendens - The defendant executor of John's estate counterclaimed, inter alia, for damages for interference with his title - The Alberta Court of Queen's Bench dismissed the action - The court also dismissed the counterclaim where: (1) the motions judge's order did not constitute an interim injunction whose failure at trial allowed the defendant to claim damages; (2) the plaintiffs were entitled to bring their action; and (3) their filing of a lis pendens was reasonable and justified in the circumstances - See paragraphs 79 to 84.

Trusts - Topic 1901

Resulting trusts - General principles - General (incl. when available) - [See Trusts - Topic 2141 ].

Trusts - Topic 2141

Resulting trusts - Intention - General - In 1950, a family agreement between parents and their five children provided for a division of the lands that the parents had farmed - The only documentation respecting that agreement was a letter from one son, John Bergman, to his sisters Deloris and Sybil - The brothers Meredith, John and Earl became the registered owners of the mines and minerals title in a certain section of land - This was done to set up a gross royalty trust designed to distribute a 1% payout to each sibling as per their father's wishes - Over the years, the brothers had a history of "mutual trust" in which property was conveyed back and forth between them according to their changing circumstances - After Meredith died, John and Earl, in their own name, and John, as executor of Meredith's estate, conveyed the mines and mineral title to John - Beneficiaries under Meredith's will received no notice of this conveyance - They claimed a one third interest in the title - The Alberta Court of Queen's Bench held that John was the beneficial owner of the entire title where: (1) registration of title in the subject property was not determinative of the issues since the plaintiffs were volunteers and the state of legal title was likely "a matter of utmost indifference to the brothers"; (2) the Statute of Frauds' requirement of writing, though not satisfied, did not apply since (a) Meredith held title in a resulting trust for John as there was a common intention to that effect, or (b) Meredith held title as constructive trustee for John otherwise Meredith or Earl would be enriched at John's expense without juristic reason, or (c) there were sufficient acts of part performance; and (3) once it was established that John was beneficial owner, the conveyance of Meredith's and Earl's title to John became "at the most a minor irregularity" - See paragraphs 1 to 78.

Trusts - Topic 2308

Constructive trusts - General principles - Circumstances when imposed - [See Trusts - Topic 2141 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See Trusts - Topic 2141 ].

Cases Noticed:

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91; 83 D.L.R.(3d) 289, consd. [para. 25].

Landstrom Developments Ltd. v. Passburg Petroleums Ltd. (1984), 53 A.R. 96 (C.A.), consd. [para. 26].

Loke Yew v. Port Swettenham Rubber Co., [1913] A.C. 491 (P.C.), refd to. [para. 26].

Lake Manitoba Estates Ltd. and Dumont v. Communities Economic Development Fund (1980), 2 Man.R.(2d) 295 (C.A.), refd to. [para. 28].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 117 D.L.R.(3d) 257, consd. [para. 28].

Rochefoucauld v. Boustead, [1897] 1 Ch. 196 (C.A.), consd. [para. 29].

Canada Trust Co. v. Pricewaterhouse Ltd. et al. (2001), 288 A.R. 387 (Q.B.), consd. [para. 30].

Northguard Financial Group v. Wah et al., [1977] 3 W.W.R. 3 (B.C.S.C.), refd to. [para. 30].

Kayford Ltd., Re, [1975] 1 All E.R. 604 (Ch. D.), consd. [para. 30].

Beemer v. Brownridge, [1934] 1 W.W.R. 545 (Sask. C.A.), consd. [para. 52].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241; 146 D.L.R.(4th) 214, consd. [para. 53].

Maddison v. Alderson (1883), 8 App. Cas. 467; 52 L.J.(Q.B.) 737, refd to. [para. 56].

Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69; 206 N.R. 299; 157 N.S.R.(2d) 81; 462 A.P.R. 81; 142 D.L.R.(4th) 230, consd. [para. 56].

Deglman v. Guaranty Trust Co., [1954] S.C.R. 725, consd. [para. 57].

Steadman v. Steadman, [1974] 2 All E.R. 977 (H.L.), refd to. [para. 58].

Harvie v. Gibbons (1980), 109 D.L.R.(3d) 559 (Alta. C.A.), consd. [para. 69].

McKenzie v. Walsh, [1921] 1 W.W.R. 1017 (S.C.C.), refd to. [para. 71].

Austie v. Aksnowicz (1999), 232 A.R. 118; 195 W.A.C. 118 (C.A.), consd. [para. 72].

Caton v. Caton (1867), L.R. 2 H.L. 127; 36 L.J. Ch. 886, refd to. [para. 72].

Rutkowski Estate v. Brandhorst (1997), 206 A.R. 313; 156 W.A.C. 313 (C.A.), refd to. [para. 74].

Balkanbank v. Taher, [1995] 2 All E.R. 904, refd to. [para. 81].

Statutes Noticed:

Statutes of Frauds, 1677, 29 Car. 2, c. 3, sect. 4 [para. 20].

Authors and Works Noticed:

Fry, Specific Performance (9th Ed.), pp. 242, 243 [para. 68].

Dewar, John L., The Development of the Remedial Constructive Trust (1982-84), 6 Est. & Tr. Q. 312, pp. 332, 333 [para. 53].

Sharpe, Robert J., Injunctions and Specific Performance (3rd Ed. 2000), pp. 2-31 to 2-37 [para. 81].

Spry, I.C.F., The Principles of Equitable Remedies (4th Ed. 1990), pp. 472 to 478, 638 to 645 [para. 81].

Waddams, Stephen M., The Law of Contracts (4th Ed. 1999), p. 157 [para. 21].

Counsel:

Melinda D. Kondrat, for the plaintiffs and defendants by counterclaim;

Gary J. Draper, for the defendant and plaintiff by counterclaim.

Phillips, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, heard this action and counterclaim, and delivered the following reasons for judgment on May 16, 2002.