Free Estate v. Jones et al., (2004) 364 A.R. 377 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 07, 2004
• Citations: (2004), 364 A.R. 377 (QB);2004 ABQB 371

Free Estate v. Jones (2004), 364 A.R. 377 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JN.093

Estate of Bruce Claude Free (applicant/respondent by cross-application) v. Helena Jones, Daniel Sullivan and Aliesha Jones (respondents/applicant by cross-application)

(0303 19719; 0303 10461; 2004 ABQB 371)

Indexed As: Free Estate v. Jones et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

May 10, 2004.

Summary:

Helena Jones was permitted by her uncle (Free) to live on a three acre yard within a quarter section of his land. She lived there with her daughter and her common law husband (Jones Group) in a mobile home. Free died. Jones registered a caveat on the property claiming a constructive trust. The Jones Group sued Free's estate, claiming ownership of the property. The Free Estate defended the suit and counterclaimed. The Free Estate also filed an Originating Notice of Motion, requesting a declaration that the Jones Group's occupation was a tenancy at will and that the tenancy at will terminated upon Free's death and an order that the Jones Group immediately deliver up possession of the land. The Jones Group's request that the Originating Notice be joined to the existing proceedings was allowed but the application for immediate possession proceeded.

The Alberta Court of Queen's Bench allowed the application and ordered the Jones Group to give up possession of the property.

Injunctions - Topic 1663

Interlocutory or interim injunctions - Undertaking as to damages - When undertaking required - Helena Jones was permitted by her uncle (Free) to live on a three acre yard within a quarter section of his land - She lived there with her daughter and her common law husband (Jones Group) in a mobile home - Free died - Jones Group sued Free's estate, claiming ownership of the property based on a constructive trust (services provided to Free) - The estate filed an Originating Notice of Motion, requesting, inter alia, that the Jones Group immediately deliver up possession of the land - The Alberta Court of Queen's Bench allowed the application - The Jones Group only had a claim to land - The estate had title - To obtain the relief that they sought before judgment, the Jones Group had to satisfy the requirements for an interlocutory injunction - They failed to provide an undertaking as to damages or to demonstrate irreparable injury if they were not allowed to remain on the land - The alleged services performed for Free, personal or professional, could be paid for in money rather than in land - See paragraphs 26 to 32.

Injunctions - Topic 1743

Interlocutory or interim injunctions - Sufficiency of damages in lieu of injunction - What constitutes adequacy or sufficiency of damages - [See Injunctions - Topic 1663 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See Injunctions - Topic 1663 ].

Cases Noticed:

Alberta v. Alberta Union of Provincial Employees (1984), 53 A.R. 277 (C.A.), refd to. [para. 10].

St. Pierre v. South American Stores Ltd., [1935] All E.R. 408 (C.A.), refd to. [para. 10].

Empire-Universal Films Ltd. et al. v. Rank et al., [1947] O.R. 775 (H.C.), refd to. [para. 10].

Bank of America National Trust & Banking Association v. Poyet, [1955] 1 D.L.R. 680 (B.C.S.C.), refd to. [para. 10].

Aquino et al. v. First Choice Capital Fund Ltd. et al. (1999), 179 Sask.R. 221 (Q.B.), refd to. [para. 10].

First Choice Capital Fund Ltd. v. First Canadian Capital Corp. - see Aquino et al. v. First Choice Capital Fund Ltd. et al.

Pockar Bros. Masonry Ltd. et al. v. Hilberta Construction Co. et al. (1978), 9 A.R. 554; 6 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 11].

155569 Canada Ltd. v. 248524 Alberta Ltd. (1988), 93 A.R. 241 (Q.B.), refd to. [para. 11].

Lake Manitoba Estates Ltd. and Dumont v. Communities Economic Development Fund (1980), 2 Man.R.(2d) 295 (C.A.), refd to. [para. 11].

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91; 83 D.L.R.(3d) 289; [1978] 2 W.W.R. 101; 1 E.T.R. 307; 1 R.F.L.(2d) 1, refd to. [para. 11].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 117 D.L.R.(3d) 257; 8 E.T.R. 143, refd to. [para. 11].

Conmac Western Industries v. Robinson et al. (1993), 139 A.R. 321; 9 Alta. L.R.(3d) 232 (Q.B.), refd to. [para. 11].

Hink v. Lhenen et al. (1975), 52 D.L.R.(3d) 301 (Alta. C.A.), refd to. [para. 11].

Deglman v. Guaranty Trust Co., [1954] S.C.R. 725, refd to. [para. 11].

Deglman v. Brunet Estate - see Deglman v. Guaranty Trust Co.

Steadman v. Steadman, [1974] 2 All E.R. 997 (H.L.), refd to. [para. 11].

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, refd to. [para. 11].

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379; 136 D.L.R.(4th) 1; 3 R.P.R.(3d) 1, refd to. [para. 12].

Authors and Works Noticed:

Di Castri, Victor, The Law of Vendor and Purchaser (2nd Ed. 1976), p. 85 [para. 10].

Williams, Canadian Law of Landlord and Tenant (4th Ed. 1973), pp. 123, 557 [para. 10].

Counsel:

Andrew L. Zebak, for the Estate of Bruce Free;

Linda M. Paton, for H. Jones, D. Sullivan and A. Jones.

This application was heard on April 7, 2004, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on May 10, 2004.