Olney Estate v. Great-West Life Assurance Co. et al., 2011 SKQB 186

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 09, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 186;(2011), 374 Sask.R. 62 (QB)

Olney Estate v. Great-West Life (2011), 374 Sask.R. 62 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.057

Ronald Kenneth Olney, Executor of the Estate of Kenneth George Benson Olney (applicant) v. Great-West Life Assurance Company and the Registrar of Land Titles (respondents)

The Great-West Life Assurance Company (applicant/respondent) v. Ronald Kenneth Olney, Executor of the Estate of Kenneth George Benson Olney, and the Registrar of Land Titles (respondents)

(2009 Q.B.G. No. 25; 2011 SKQB 186)

Indexed As: Olney Estate v. Great-West Life Assurance Co. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Wilson, J.

May 9, 2011.

Summary:

The Great-West Life Assurance Company (Great-West) applied for a declaration that it was the proper owner of certain mines and minerals associated with land in Estevan, Saskatchewan. Great-West alleged that the mines and minerals had been transferred in error to the now deceased Kenneth Olney. Great-West sought an order requiring the Registrar of the Land Titles Registry (Registrar) to correct the alleged error by cancelling the existing titles and issuing new titles identifying Great-West as the owner of the mines and minerals. Ronald Olney, the executor of Kenneth Olney's estate, claimed that the mines and minerals were, and continued to be, legally owned by his father, the now deceased Kenneth Olney. Ronald Olney sought an order directing the Registrar to discharge a caveat filed against title by the Land Titles Office on July 25, 1973. The Registrar took no position on the matter, and awaited the court's direction.

The Saskatchewan Court of Queen's Bench granted a declaration that Great-West was the owner of the minerals estate in question and that title to the mines and minerals should be registered to Great-West. The court made a number of related orders.

Equity - Topic 2061

Equitable defences - Laches - General - Great-West applied for a declaration that it was the proper owner of certain mines and minerals associated with certain land - Great-West alleged that in 1947 the mines and minerals had been transferred in error to Kenneth Olney - Great-West sought an order requiring the Registrar of the Land Titles Registry to correct the error by cancelling the existing titles and issuing new titles identifying Great-West as the owner of the mines and minerals - Ronald Olney, the executor of Kenneth Olney's estate, claimed that the mines and minerals were, and continued to be, legally owned by his father (deceased since 1999) - Ronald Olney sought an order directing the Registrar to discharge a caveat filed against title by the Registrar of the Land Titles Office (Registrar) on July 25, 1973 - The Saskatchewan Court of Queen's Bench held that, as set out on the transfer document, minerals had been reserved, but the reservation had not been noted on the subsequent certificate of title - The court rejected Ronald Olney's argument that the doctrine of laches applied and should be used to bar Great-West's claim - Ronald Olney said that Great-West had delayed bringing the action for 61 years - He argued that Kenneth Olney, now deceased, must have believed he was entitled to the minerals as he must have (although there was no evidence he did so) paid mineral taxes on the land over the years - He further argued that the onus was on Great-West to show why they failed to take any steps at an earlier date to recover the minerals - Great-West argued that as early as 1973, Kenneth Olney was made aware of the error on title regarding the minerals - However, he took no steps to remove the Registrar's caveat - Although he transferred the minerals to Donald and Carol Olney in 1986, title to them was transferred subject to the Registrar's caveat - The land, with minerals, was subsequently transferred back by Donald and Carol Olney to Kenneth Olney, again subject to the Registrar's caveat - There was no evidence that Great-West received notification of the Registrar's registration of the caveat in 1973 - If it had, the doctrine of laches might apply - Great-West had pursued the matter diligently after becoming aware of the problem in 2008 - The mere passage of time was insufficient to trigger laches - Great-West had not acquiesced in Olney's retention of the mineral rights and there was no evidence that Olney altered his position regarding the mineral rights in reasonable reliance on Great-West's failure to bring a proceeding - See paragraphs 37 to 40.

Limitation of Actions - Topic 520

Equitable limitation periods - Laches - General - [See Equity - Topic 2061 ].

Limitation of Actions - Topic 550

Equitable limitation periods - Laches - What constitutes laches - Claim against estate - [See Equity - Topic 2061 ].

Limitation of Actions - Topic 1907

Actions - General - Declaratory relief - [See Limitation of Actions - Topic 4002 and Real Property - Topic 7815 ].

Limitation of Actions - Topic 4002

Recovery of land - General principles - What constitutes recovery of land - Great-West applied for a declaration that it was the proper owner of certain mines and minerals associated with certain land - Great-West alleged that in 1947 the mines and minerals had been transferred in error to Kenneth Olney - Great-West sought an order requiring the Registrar of the Land Titles Registry to correct the error by cancelling the existing titles and issuing new titles identifying Great-West as the owner of the mines and minerals - Ronald Olney, the executor of Kenneth Olney's estate, claimed that the mines and minerals were, and continued to be, legally owned by his father (deceased since 1999) - Ronald Olney sought an order directing the Registrar to discharge a caveat filed against title by the Registrar of the Land Titles Office on July 25, 1973 - The Saskatchewan Court of Queen's Bench rejected Ronald Olney's argument that Great-West's motion and the relief requested was barred by s. 18 of the Limitations of Actions Act, S.S. 1978, c. L-15 - This was not a proceeding to recover land - Therefore, s. 18 did not operate to bar the claim - See paragraphs 26 to 36.

Limitation of Actions - Topic 9863

Exceptions - Particular exceptions - Declaration about title to property - [See Limitation of Actions - Topic 4002 ].

Mines and Minerals - Topic 801

Ownership of minerals - General principles - General - The Saskatchewan Court of Queen's Bench stated that the payment of mineral taxes did not lead to a determination that an individual was "in possession" of the minerals - See paragraph 34.

Mines and Minerals - Topic 803

Ownership of minerals - General principles - Claims respecting - Limitation period - [See Limitation of Actions - Topic 4002 ].

Practice - Topic 78

Actions - Commencement of - Choice of method of commencement of proceedings - Originating notice - Great-West filed an originating notice of motion seeking a declaration that it was the proper owner of certain mines and minerals associated with certain land - Great-West alleged that in 1947 the mines and minerals had been transferred in error to Kenneth Olney - Great-West sought an order requiring the Registrar of the Land Titles Registry to correct the error by cancelling the existing titles and issuing new titles identifying Great-West as the owner of the mines and minerals - Ronald Olney, the executor of Kenneth Olney's estate, claimed that the mines and minerals were, and continued to be, legally owned by his father (deceased since 1999) - Ronald Olney sought an order directing the Registrar to discharge a caveat filed against title by the Registrar of the Land Titles Office on July 25, 1973 - The Saskatchewan Court of Queen's Bench held that, as set out on the transfer document, minerals had been reserved, but the reservation had not been noted on the subsequent certificate of title - The court rejected Ronald Olney's argument that the court should order that the matter proceed to trial as opposed to determining it on a summary basis - The court had before it the original transfer of land signed by Great-West and Kenneth Olney in 1947 - In addition, it had the certificate of title issued March 6, 1947 - Although in the brief filed by Ronald Olney it was stated that the "documents" proceeding the registration of the certificate of title had long since disappeared, that was not the case - The original transfer had been filed in the matter - There was no dispute on the facts - It was not necessary for the matter to proceed through the costly trial process - See paragraphs 1 to 5 and 41 to 43.

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - General - [See Real Property - Topic 7815 ].

Real Property - Topic 7815

Title - Registration of instruments, etc. - General principles - Vesting order - Great-West applied for a declaration that it was the proper owner of certain mines and minerals associated with certain land - Great-West alleged that in 1947 the mines and minerals had been transferred in error to Kenneth Olney - Great-West, relying on ss. 107 and 109 of the Land Titles Act, 2000 (Act), sought an order requiring the Registrar of the Land Titles Registry to correct the error by cancelling the existing titles and issuing new titles identifying Great-West as the owner of the mines and minerals - Ronald Olney, the executor of Kenneth Olney's estate, claimed that the mines and minerals were, and continued to be, legally owned by his father (deceased since 1999) - Ronald Olney sought an order directing the Registrar to discharge a caveat filed against title by the Registrar of the Land Titles Office on July 25, 1973 - The Saskatchewan Court of Queen's Bench held that, as set out on the transfer document, minerals had been reserved, but the reservation had not been noted on the subsequent certificate of title - The court rejected Ronald Olney's argument that the court lacked jurisdiction to grant the declaratory relief sought by Great-West; that there was no reference in ss. 107 and 109 of the Act specifically authorizing a court to grant declaratory relief and Great-West was actually seeking a vesting order which should not be granted without a full hearing at trial - The court held that it had jurisdiction to grant the declaratory relief requested and the requested relief was, in fact, a request for a declaration as opposed to a vesting order - See paragraphs 17 to 25.

Cases Noticed:

Brennenstuhl v. Trynchy et al., [2002] A.R. Uned. 193 (Q.B.), consd. [para. 20].

Havlik v. Whitehouse et al. (2000), 262 A.R. 88; 79 Alta. L.R.(3d) 369; 34 R.P.R.(3d) 128; 2000 ABQB 242, consd. [para. 20].

Havlik v. Havlik Estate - see Havlik v. Whitehouse et al.

Krautt Estate v. Paine (1980), 25 A.R. 390; 118 D.L.R.(3d) 625 (C.A.), refd to. [para. 20].

Jackson Estate v. Anderson Estate (1993), 113 Sask.R. 264; 52 W.A.C. 264 (C.A.), dist. [para. 27].

Canada Pacific Railway Co. v. Turta, [1954] S.C.R. 427, consd. [para. 29].

Kaup v. Imperial Oil Ltd., [1962] S.C.R. 170, consd. [para. 29].

Liebing v. Land Registration District (1999), 250 A.R. 394; 213 W.A.C. 394; 74 Alta. L.R.(3d) 351; 1999 ABCA 343, refd to. [para. 34].

King Estate v. Buckle Estate - see Liebing v. Land Registration District.

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, consd. [para. 37].

Statutes Noticed:

Land Titles Act, S.S. 2000, c. L-5.1, sect. 107, sect. 109 [para. 18].

Limitation of Actions Act, R.S.S. 1978, c. L-15, sect. 18 [para. 26].

Authors and Works Noticed:

Zamir, Itzhac, The Declaratory Judgment (1st Ed. 1962), pp. 32 [para. 21]; 69, 70 [para. 22].

Counsel:

P. Elash, for the Estate of Kenneth George Benson Olney;

J. Hardy, for Great-West Life Assurance Company.

These motions were heard by Wilson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following fiat on May 9, 2011.