Lewis Estates Communities Inc. v. Tri-Med Developments Ltd., (2004) 358 A.R. 174 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 05, 2004
• Citations: (2004), 358 A.R. 174 (QBM);2004 ABQB 103

Lewis Estates Comm. v. Tri-Med Dev. (2004), 358 A.R. 174 (QBM)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MR.015

Lewis Estates Communities Inc. (applicant) v. Tri-Med Developments Ltd. (respondent)

(0303 22020; 2004 ABQB 103)

Indexed As: Lewis Estates Communities Inc. v. Tri-Med Developments Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wacowich, Master in Chambers

February 12, 2004.

Summary:

A landowner applied for an order discharging a caveat. The landowner also sought registration of the order of discharge notwithstanding that s. 191(1) of the Land Titles Act had not been complied with.

A Master of the Alberta Court of Queen's Bench ordered that the caveat be discharged. The Master refused the request that the order be registered.

Arbitration - Topic 161

Agreement to arbitrate - General (incl. what constitutes) - A landowner applied for an order discharging a caveat - The caveat was filed in respect of an agreement to pay part of the costs of installing oversized storm and sanitary sewer lines - The respondent submitted that the application should be stayed because of arbitration clauses in the agreement - A Master of the Alberta Court of Queen's Bench rejected the submission - The arbitration clauses referred to disputes regarding amounts payable by or to parties under the agreement - The clauses did not vest all authority on all matters which might arise between the parties to an arbitrator - Tort matters would not be referred to an arbitrator nor would an application under the Land Titles Act for the proving of a caveat - See paragraphs 4 and 5.

Real Property - Topic 7930

Title - Registration of instruments, etc. - Caveats or cautions - Variation or discharge - A landowner applied for an order discharging a caveat - The respondent submitted that once the purchaser was aware of the caveat there was a two year limitation period during which it could ask for removal - A Master of the Alberta Court of Queen's Bench rejected the submission - No authority had been provided for it - It was not good law or good policy - Landowners often did not give notice for the removal of a caveat until they wished to deal with the land by way of transfer or otherwise - It was the caveatee's option to determine when it needed to go to the time, trouble and expense of giving notice for removal - See paragraph 25.

Real Property - Topic 7930

Title - Registration of instruments, etc. - Caveats or cautions - Variation or discharge - A landowner applied for an order discharging a caveat - The caveat was filed in respect of an agreement to pay part of the costs of installing oversized storm and sanitary sewer lines - A Master of the Alberta Court of Queen's Bench discharged the caveat because the agreement did not create an interest in land - At most, it contained a positive covenant between the signatories, which, if enforceable, might be pursued by way of a claim for debt or damages.

Real Property - Topic 7935

Title - Registration of instruments - Caveats or cautions - Time for determining validity of claim - [See first Real Property - Topic 7930 ].

Cases Noticed:

Acquest/Alberta Mining Inc. v. Barry Developments Inc. (1999), 241 A.R. 1; Alta. L.R.(3d) 252 (Q.B.), refd to. [para. 18].

Assaly (Thomas C.) Corp. v. Alberta Industrial Developments Ltd. (1982), 41 A.R. 436 (C.A.), refd to. [para. 19].

Church, Re, 1923 CarswellAlta 152 (S.C.C.), refd to. [para. 19].

Royal Bank of Canada v. Donsdale Developments Ltd. et al.; Olson (Stuart) Construction Ltd. v. Donsdale Developments Ltd. et al. (1986), 74 A.R. 161 (Q.B.), refd to. [para. 19].

Spartan Developments Ltd. v. 206559 Developments Ltd. (2003), 5 R.P.R.(4th) 274 (Q.B.), refd to. [para. 21].

Ruptash v. Zawick, [1956] S.C.R. 347, refd to. [para. 21].

Canada Trustco Mortgage Co. v. Skoretz (1983), 45 A.R. 18 (Q.B.), refd to. [para. 22].

Canadian Crude Separators Inc. v. Mychaluk (1997), 207 A.R. 81 (Q.B.), refd to. [para. 22].

Northland Bank v. Van de Geer and Bank of Montreal (1986), 75 A.R. 201 (C.A.), refd to. [para. 22].

Pflueger et al. v. South Alberta Land Registration District et al. (1977), 4 A.R. 279; 2 Alta. L.R.(2d) 398 (T.D.), refd to. [para. 27].

Counsel:

E. Mirth, Q.C. (Reynolds, Mirth, Richards & Farmer LLP), for the applicant;

R.J. Cotter, Q.C. (Fraser Milner Casgrain LLP), for the respondent.

This application was heard in chambers, on February 5, 2004, by Wacowich, Master, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on February 12, 2004.