Nature Conservancy of Canada v. Waterton Land Trust Ltd. et al., (2014) 613 A.R. 205 (QB)

• Judge: Jeffrey, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 21, 2012
• Citations: (2014), 613 A.R. 205 (QB);2014 ABQB 303

Nature Conservancy v. Waterton Land Trust (2014), 613 A.R. 205 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.097

The Nature Conservancy of Canada/La Societe Canadienne pour la Conservation de la Nature (plaintiff) v. Waterton Land Trust Ltd., Waterton Land Trust, Wild West Buffalo Ranches Ltd., Waterton Land Trust Limited Partnership, Thomas H. Olson, Bruce Lemons, Kenneth Lukowiak and Moose Mountain Buffalo Ranch (defendants) and Waterton Land Trust Ltd., Waterton Land Trust, Wild West Buffalo Ranches Ltd., Waterton Land Trust Limited Partnership, Thomas H. Olson and Moose Mountain Buffalo Ranch (plaintiffs by counterclaim) and The Nature Conservancy of Canada/La Societe Canadienne pour la Conservation de la Nature, Larry Simpson and Alberta Conservation Association (defendants by counterclaim)

(0601 00089; 2014 ABQB 303)

Indexed As: Nature Conservancy of Canada v. Waterton Land Trust Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Jeffrey, J.

May 16, 2014.

Summary:

The Nature Conservancy of Canada (NCC) owned a cattle ranch which they believed was in an area that was strategically important for the movement of wildlife. The NCC arranged for a conservation easement (CE) to be registered against the title to the property to ensure, inter alia, that it would not impede future wildlife migrations. The NCC induced Olson to purchase the property for its fair market value unencumbered by the CE, on the basis that it would provide Olson with a charitable donation receipt in the amount of the diminution in the property's value as a result of the CE. Attached to and forming part of the formal offer to purchase was a CE Amending Agreement which contained negotiated amendments to the CE. Title was registered in Olson's name on August 18, 2004. Olson immediately began replacing the old fencing with new fencing that he believed would be more effective at restraining his bison, yet would still permit wildlife onto, off of and to migrate through the property. The NCC took the position that the new fence breached the CE in that it was too high and impeded migrating wildlife. The NCC did not issue a tax receipt to Olson for a number of years after the gift. The NCC sued to enforce the CE and to require Olson to modify his fences. The parties raised the following issues: "(1). What fencing restriction did the parties agree upon, if any? ... 2. If the parties' written agreement did not match their actual agreement, will the Court rectify their written agreement accordingly? ... 3. Did Olson's New Fence breach the fencing restriction? ... 4. If so, was the CE nevertheless invalid or unenforceable? ... 5. Will the Court rectify the deficient registrations on the titles to the Property? ... 6. If so, does indefeasibility of title apply to successors in title or was it vitiated by any Olson land titles fraud? ... 7. Did the NCC issue the Tax Receipt in a timely manner and, if not, is it liable in damages to Olson? ... 8. Is the NCC liable in damages for withholding Endorsements? ... 9. Did the NCC breach an obligation to interpret and enforce the CE in good faith? ... and 10. Is the NCC liable for punitive damages?".

The Alberta Court of Queen's Bench (1) rectified the CE Amending Agreement to accord with the parties' actual oral agreement, which was as Olson described; (2) found the resulting CE valid and enforceable; (3) concluded that Olson had not committed land titles fraud but had retained de facto control over the property following his conveyance of it to a limited partnership/trust/trustee arrangement; (4) ordered rectification of the registrations on the title to the property and the discharge of a caveat filed by the NCC; (5) concluded that Olson's new fence had not breached the fence height restriction; (6) awarded Olson damages in the amount of $701,813.53, plus interest, for the NCC's failure to issue the tax receipt to him by August 31, 2005; and (7) dismissed all other claims.

Actions - Topic 1588

Cause of action - Contracts - Assignment of cause of action - See paragraphs 579 to 694.

Barristers and Solicitors - Topic 7646

Regulation - Powers of governing bodies - Respecting conduct of members - See paragraphs 315 to 321.

Company Law - Topic 2486

Shareholders - Shares - General - See paragraphs 263 to 272.

Company Law - Topic 4268

Directors - Duties - General principles - Duty to exercise care, diligence and skill - See paragraphs 250 to 252.

Company Law - Topic 6508

Nonprofit corporations (incl. charities) - General - Duties re charitable receipts - See paragraphs 521 to 532.

Contracts - Topic 2070

Terms - Implied terms - For performance or completion - See paragraphs 484 and 485.

Contracts - Topic 3502

Performance or breach - Obligation to perform - Good faith - Exercise of - See paragraphs 497 to 520 and 591 to 598.

Contracts - Topic 7430

Interpretation - Ambiguity - Admissibility of extrinsic evidence - See paragraphs 327 to 330.

Damages - Topic 1042

Mitigation - In contract - What constitutes reasonable remedial measures - See paragraphs 536 to 578.

Damages - Topic 1305

Exemplary or punitive damages - Breach of contract - See paragraphs 599 to 603.

Damages - Topic 5729

Contracts - Breach of contract - Measure of damages - Failure to issue charitable receipt - See paragraphs 541 to 578.

Deeds and Documents - Topic 5057

Rectification - When available - Mistake - Mutual - See paragraphs 334 to 337 and 359 to 362.

Deeds and Documents - Topic 5058

Rectification - When available - Mistake - Unilateral - See paragraphs 348 to 362.

Equity - Topic 5606

Fiduciary or confidential relationships - What constitutes a fiduciary relationship - See paragraphs 521 to 532.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - See paragraphs 549 to 552.

Pollution Control - Topic 8005

Land - Conservation of land - Conservation easements - See paragraphs 327 to 404.

Real Property - Topic 7934

Title, registration of instruments, etc. - Caveats, cautions or miscellaneous interests - When caveat or caution may be filed - See paragraphs 172 and 173.

Real Property - Topic 7935

Title, registration of instruments, etc. - Caveats, cautions or miscellaneous interests - Time for determining validity of claim - See paragraphs 172 and 173.

Real Property - Topic 8014.2

Title, registration of instruments, etc. - Land titles system - Registration - Rectification - See paragraphs 414 to 423.

Real Property - Topic 8024

Title, registration of instruments, etc. - Land titles system - Certificate of title - Reliance on issue of - See paragraphs 443 to 472.

Trusts - Topic 341

Creation of trust - Requirements - General - See paragraphs 263 to 272.

Counsel:

Peter T. Linder Q.C., for the defendants/plaintiffs by counterclaim;

Chris Simard and Brian Reid, for the defendants/plaintiffs by counterclaim;

Stanley Carscallen, Q.C., and Izabela Strumik, for the plaintiff/defendant by counterclaim.

This action was heard between September 17 and December 21, 2012, by Jeffrey, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on May 16, 2014.