Darnley v. Tennant, (2006) 408 A.R. 261 (QB)

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 29, 2006
• Citations: (2006), 408 A.R. 261 (QB);2006 ABQB 575

Darnley v. Tennant (2006), 408 A.R. 261 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AU.044

In The Matter Of the Land Titles Act Being Chapter L-4 of the Revised Statutes of Alberta, 2000, as amended

And In The Matter Of that Certain Real Property Situated in the Municipal District of Rocky View in the Province of Alberta, briefly legally described as Plan 0214041, Block 3, Lot 21

Regina Darnley (applicant) v. Brad Tennant (respondent)

(0601 02949; 2006 ABQB 575)

Indexed As: Darnley v. Tennant

Alberta Court of Queen's Bench

Judicial District of Calgary

Slatter, J.

July 26, 2006.

Summary:

The respondent registered a caveat against the applicant's land, which purported to protect the respondent's right under a Letter of Intent to purchase a portion of the land at some time in the future. The applicant applied to discharge the caveat.

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

Estoppel - Topic 1389

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - Lack of prejudice or detrimental reliance by person raising estoppel - [See Real Property - Topic 7928 ].

Real Property - Topic 7925

Title - Registration of instruments, etc. - Caveats or cautions - Interests which may be protected - The applicant and her husband owned a triangular shaped parcel of land about 20 acres in size - They subdivided the land and created a 4.4 acre parcel out of the point of the triangle - In order to provide road access to the 15 acre parcel at the base of the triangle, a long narrow piece of land, which ran from the base of the triangle along the side of the 4.4 acre parcel to the access point at the top of the triangle, was included in the 15 acre parcel - It was referred to as the "panhandle" - The applicant and her husband agreed to sell the 4.4 acre parcel to the respondent - The parties also entered into a "Letter of Intent" which provided that, in the event that the "panhandle" was no longer required for road access for the 15 acre parcel, and upon approval of the municipality, the panhandle would be sold to the respondent for $1 - The respondent subsequently filed a caveat against the 15 acre parcel, claiming an interest under the Letter of Intent - The Alberta Court of Queen's Bench held that the Letter of Intent created a valid conditional contract for the sale of the panhandle, and it accordingly created an interest in land - While the Letter of Intent did not contain any legal description of the panhandle, the configuration of the panhandle made it amply clear what piece of land was being sold - See paragraphs 13 to 19.

Real Property - Topic 7928

Title - Registration of instruments, etc. - Caveats or cautions - Setting aside - General - The applicant applied to discharge a caveat registered against her land by the respondent - The respondent noted that the applicant had twice recognized the existence of the caveat by asking for postponements of the caveat to enable refinancing of the property - The respondent argued that that "acknowledgement" of the caveat prevented the applicant from now challenging its registration - The Alberta Court of Queen's Bench rejected the argument - The court stated that "the Land Titles Act does not admit of any exceptions to the inviolability of the title based on estoppel. As noted, the only exception is fraud. An owner is entitled to ask for postponements of instruments without thereby being forced to admit their validity. Further, there is no detrimental reliance on this record to support an estoppel" - See paragraph 36.

Real Property - Topic 7929

Title - Registration of instruments, etc. - Caveats or cautions - Setting aside - Grounds - [See Real Property - Topic 7932 ].

Real Property - Topic 7932

Title - Registration of instruments, etc. - Caveats or cautions - Form and content - The applicant applied to discharge a caveat registered against her land by the respondent - The applicant pointed to three technical defects in the caveat - The Alberta Court of Queen's Bench stated that "Except in the case of fraud, the court will not look behind any titles or registrations. Sections 54 and 210 of the [Land Titles] Act confirm this principle, by providing that registrations made on the title are valid, notwithstanding any deficiencies that might later be discovered in the underlying instruments or caveats. The caveat tendered by the respondent was in fact registered, and he and all others dealing with the land are entitled to assume that it was a valid registration once it was accepted by the Registrar. The technical deficiencies do not invalidate the caveat" - See paragraphs 8 to 12.

Real Property - Topic 8003.1

Title - Registration of instruments, etc. - Land titles system - Interest defined - [See Real Property - Topic 7925 ].

Real Property - Topic 8006

Title - Registration of instruments, etc. - Land titles system - Effect of notice of unregistered encumbrances - [See Real Property - Topic 8010 ].

Real Property - Topic 8007

Title - Registration of instruments, etc. - Land titles system - Acknowledgement - [See Real Property - Topic 7928 ].

Real Property - Topic 8009

Title - Registration of instruments, etc. - Land titles system - Volunteers - Section 203 of the Land Titles Act confirmed the principle that title could only be defeated by fraud - The Alberta Court of Queen's Bench stated that it was not an exception to s. 203 that the new owner did not give value - The section did not say that a new owner had to be a purchaser for value - The court stated that "the section does not say that a volunteer cannot rely on the Act, and indeed implies that he can as long as there is no fraud in his root title" - See paragraphs 23 to 29.

Real Property - Topic 8010

Title - Registration of instruments, etc. - Land titles system - Fraud (incl. what constitutes) - The applicant and her husband owned a triangular shaped parcel of land about 20 acres in size - They subdivided the land and created a 4.4 acre parcel out of the point of the triangle - In order to provide road access to the 15 acre parcel at the base of the triangle, a long narrow piece of land, which ran from the base of the triangle along the side of the 4.4 acre parcel to the access point at the top of the triangle, was included in the 15 acre parcel - It was referred to as the "panhandle" - On November 15, 2002, the applicant and her husband agreed to sell the 4.4 acre parcel to the respondent - On the same date, the parties entered into a "Letter of Intent" which provided that, in the event that the "panhandle" was no longer required for road access for the 15 acre parcel, and upon approval of the municipality, the panhandle would be sold to the respondent for $1 - On November 29, 2002, the residual 15 acre parcel was transferred solely into the name of the applicant - The respondent subsequently filed a caveat on the applicant's land, claiming an interest under the Letter of Intent - The applicant applied to discharge the caveat - At issue was whether the applicant took her title to the 15 acre parcel on November 29, 2002, free and clear from the respondent's then unregistered interest - Section 203 of the Land Titles Act confirmed the principle that title could only be defeated by fraud - The Alberta Court of Queen's Bench held that the applicant's conduct amounted to something more than mere notice of the respondent's unregistered interest and that her conduct could amount to fraud within the meaning of the Act - The court concluded that the applicant, being one of the covenantors who actually created the respondent's interest in land, was not entitled to rely on s. 203 to defeat that interest - See paragraphs 20 to 34.

Real Property - Topic 8064

Title - Registration of instruments, etc. - Notice of a prior instrument - General - Actual knowledge of prior instrument - [See Real Property - Topic 8010 ].

Real Property - Topic 8065

Title - Registration of instruments, etc. - Notice of a prior instrument - General - Effect of knowledge of prior unregistered instrument - [See Real Property - Topic 8010 ].

Sale of Land - Topic 805

The contract - Agreement for sale - What constitutes - [See Real Property - Topic 7925 ].

Cases Noticed:

Krarutt Estate v. Paine et al. (1979), 18 A.R. 487 (T.D.), refd to. [para. 10].

Strand Securities Ltd. v. Carswell, [1965] 1 Ch. 958 (C.A.), refd to. [para. 11].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 11].

Calvan Consolidated Oil & Gas Co. v. Manning, [1959] S.C.R. 253; 17 D.L.R.(2d) 1, refd to. [para. 14].

Mason Homes Ltd. v. Oshawa Group Ltd., [2003] O.T.C. 858; 27 C.L.R.(3d) 24; 12 R.P.R.(4th) 201 (Sup. Ct.), refd to. [para. 14].

Alta-West Group Investments Ltd. v. Femco Financial Corp. and Femco Ventures Ltd. (1984), 57 A.R. 33; 34 Alta. L.R.(2d) 5 (Q.B.), refd to. [para. 14].

Langley Lo-Cost Builders Ltd. v. 474835 B.C. Ltd. et al., [2000] 7 W.W.R. 46; 140 B.C.A.C. 182; 229 W.A.C. 182; 76 B.C.L.R.(3d) 278; 5 B.L.R.(3d) 31; 34 R.P.R.(3d) 56; 2000 BCCA 365, refd to. [para. 14].

Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 53 O.A.C. 314; 79 D.L.R.(4th) 97 (C.A.), refd to. [para. 14].

Colosimo et al. v. Geraci, [2005] B.C.T.C. 1147; 9 B.L.R.(4th) 50; 2005 BCSC 1147, refd to. [para. 14].

Cassidy v. Canada Publishing Corp. (1989), 41 B.L.R. 223 (B.C.S.C.), refd to. [para. 14].

Calian Technology Ltd. v. Frederickson et al. (2005), 197 O.A.C. 175; 4 B.L.R.(4th) 75 (C.A.), refd to. [para. 14].

Modderman v. Ondaatje Corp. (1998), 70 O.T.C. 321 (Gen. Div.), refd to. [para. 14].

Leitch (Angus) & Associates Ltd. and Leitch v. Legrand Industries Ltd. (1983), 65 A.R. 232; 31 Alta. L.R.(2d) 158, refd to. [para. 14].

MacIver v. American Motors (Canada) Ltd., [1976] 5 W.W.R. 217; 70 D.L.R.(3d) 473 (Man. C.A.), refd to. [para. 14].

Rehability Occupational Therapy (Toronto) Inc. v. Rehability Occupational Therapy Inc., [2005] O.T.C. Uned. 940; 12 B.L.R.(4th) 143 (Sup. Ct.), refd to. [para. 14].

Otan Developments Ltd. v. Kuropatwa (1978), 12 A.R. 15; 7 Alta. L.R.(2d) 274 (C.A.), refd to. [para. 17].

Hipple v. Power Farms Ltd. (1991), 117 A.R. 150; 2 W.A.C. 150; 81 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 17].

Dynamic Transport Ltd. v. O.K. Detailing Ltd., [1978] 2 S.C.R. 1072; 20 N.R. 500; 9 A.R. 308, refd to. [para. 18].

Boulter-Waugh & Co. v. Phillips - see Boulter-Waugh & Co. v. Union Bank of Canada.

Boulter-Waugh & Co. v. Union Bank of Canada, [1919] 1 W.W.R. 1046; 58 S.C.R. 385; 46 D.L.R. 41, refd to. [para. 21].

Fels v. Knowles (1907), 26 N.Z.R. 604, refd to. [para. 21].

White Resource Management Ltd. v. Durish (1990), 113 A.R. 1; 77 Alta. L.R.(2d) 131 (Q.B.), affd. (1992), 131 A.R. 273; 25 W.A.C. 273; 5 Alta. L.R.(3d) 372 (C.A.), revd. [1995] 1 S.C.R. 633; 178 N.R. 321; 165 A.R. 20; 89 W.A.C. 20, refd to. [para. 21].

Kaup v. Imperial Oil Ltd., [1962] S.C.R. 170, dist. [para. 25].

Lanstrom Developments Ltd. v. Passburg Petroleums Ltd. (1984), 53 A.R. 96; 30 Alta. L.R.(2d) 379 (C.A.), refd to. [para. 26].

Matkowski v. Matkowski Estate and Matkowski (1983), 27 Sask.R. 1 (Q.B.), refd to. [para. 27].

McFarland v. Hauser et al. (1977), 3 A.R. 449; 2 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 28].

Imperial Bank v. Esakin, [1924] 2 W.W.R. 33 (Sask. C.A.), refd to. [para. 29].

Friesen v. Bomok, [1979] 3 W.W.R. 132; 95 D.L.R.(3d) 446 (Sask. Q.B.), refd to. [para. 29].

Holt Renfrew & Co. v. Singer (Henry) Ltd., Pekarsky and Thompson & Dynes Ltd. (1982), 37 A.R. 90; 20 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 30].

Loke Yew v. Port Swettenham Rubber Co., [1913] A.C. 491 (P.C.), refd to. [para. 32].

Independent Lumber Co. v. Gardiner (1910), 13 W.L.R. 548 (Sask. C.A.), refd to. [para. 32].

Statutes Noticed:

Land Titles Act, R.S.A. 2000, c. L-4, sect. 54 [para. 12]; sect. 203(1) [para. 22]; sect. 210(1) [para. 12].

Authors and Works Noticed:

Alberta, Law Reform Institute, Section 195 of the Land Titles Act, Report No. 63 (1993), generally [para. 21].

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 547 to 550 [para. 11].

Counsel:

J. Woodruff (Student-at-Law), for the applicant;

J.P. Sheplawy, for the respondent.

This application was heard on June 29, 2006, before Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on July 26, 2006.