Robertson v. King Estate, (1999) 243 A.R. 201 (QB)

• Judge: McBain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 05, 1999
• Citations: (1999), 243 A.R. 201 (QB)

Robertson v. King Estate (1999), 243 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MR.075

Tysanna Robertson (plaintiff) v. Orrin Hart, Executor for Maurice Rupert King (defendant)

(Action No. 9701-16778)

Indexed As: Robertson v. King Estate

Alberta Court of Queen's Bench

Judicial District of Calgary

McBain, J.

March 5, 1999.

Summary:

In 1986, the plaintiff fell on hard times and needed a place to stay. King allowed her to move into a cabin on the home quarter of the ranch which he ran with his brother. The plaintiff continued to occupy the cabin. King's brother died in 1995 and King died in 1996. King's will never mentioned the plaintiff. The home quarter was sold and the plaintiff was given notice to vacate the premises before November 28, 1997. The plaintiff sought a declaration that she was entitled to exclusive use of the home quarter for the rest of her life or, alternatively, that she was the beneficial owner of the land based on adverse possession. In the further alternative, she sought a judgment for the value of the home quarter.

The Alberta Court of Queen's Bench dismissed the action and ordered that the plaintiff would have until May 30, 1999, to vacate the cabin.

Contracts - Topic 7952

Statute of Frauds - When applicable - [See Real Property - Topic 1403 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Real Property - Topic 1403 ].

Evidence - Topic 1631

Hearsay rule - Exceptions and exclusions - Statements of deceased persons - State­ments of present intention - [See Real Property - Topic 1403 ].

Real Property - Topic 1403

Life estates - What constitutes a life in­terest - In 1986, the plaintiff needed a place to stay and King allowed her to move into a cabin on the home quarter of the ranch which he operated with his brother - The plaintiff continued to occupy the cabin - King's brother died in 1995 and King died in 1996 - His will never mentioned the plaintiff - The plaintiff sought a declaration that she was entitled to exclusive use of the home quarter for the rest of her life - She relied on repre­sentations allegedly made by King offering to transfer the property to her and telling her that she would never have to leave - The Alberta Court of Queen's Bench ad­mitted the statements allegedly made by King under the traditional exception to the hearsay rule (state of mind of testator) and under the "principled approach" promul­gated by the Supreme Court of Canada - However, the court held that even if the evidence was accepted, the plaintiff's claim to a life interest failed as it was not in writing (Statute of Frauds) - See para­graphs 45 to 55.

Real Property - Topic 5646

Title - Extinguishment - Prescription and adverse possession - Possession - Possessory title - Establishment of - In 1986, the plaintiff needed a place to stay and King allowed her to move into a cabin on the home quarter of the ranch which he operated with his brother - The plaintiff continued to occupy the cabin - King's brother died in 1995 and King died in 1996 - His will never mentioned the plain­tiff - The plaintiff sought a declaration that she was the beneficial owner of the home quarter based on adverse possession - The Alberta Court of Queen's Bench held that the plaintiff occupied the cabin pursuant to a licence to occupy granted by King which defeated her claim to the property based on adverse possession by eliminating the necessary quality of possession - See para­graphs 26 to 43.

Real Property - Topic 7237

Easements, licences and prescriptive rights - Licences - What constitutes - [See Real Property - Topic 5646 ].

Cases Noticed:

Lutz v. Kawa (1980), 23 A.R. 9; 15 R.P.R. 40; 112 D.L.R.(3d) 271 (C.A.), refd to. [para. 28].

Tarcon and Tarcon v. Kerr (1981), 36 A.R. 282 (Q.B.), refd to. [para. 29].

Dobek v. Jennings, [1928] 1 W.W.R. 348 (Alta. C.A.), refd to. [para. 30].

Brogden v. Brogden (1920), 53 D.L.R. 362 (Alta. C.A.), refd to. [para. 30].

Zekonja v. Donald (1983), 50 A.R. 379 (Q.B.), refd to. [para. 30].

Ocean Harvesters Ltd. v. Quinlan Brothers Ltd., [1975] 1 S.C.R. 684; 1 N.R. 527; 5 Nfld. & P.E.I.R. 541, refd to. [para. 32].

Cobb et al. v. Lane, [1952] 1 All E.R. 1199 (C.A.), refd to. [para. 37].

Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex and BP Ltd., [1974] 3 All E.R. 575 (C.A.), refd to. [para. 38].

Booker v. Palmer, [1942] 2 All E.R. 674 (C.A.), refd to. [para. 42].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 49].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 51].

Lynch Estate v. Lynch Estate (1993), 138 A.R. 41 (Q.B.), refd to. [para. 51].

Underhill v. Schafrann (1992), 131 N.B.R.(2d) 1; 333 A.P.R. 1 (T.D.), refd to. [para. 53].

Kevel Holdings Ltd. v. 408230 Alberta Ltd. (1994), 148 A.R. 286; 37 R.P.R.(2d) 151 (Q.B.), refd to. [para. 54].

Authors and Works Noticed:

Anger and Honsberger, The Canadian Law of Real Property (2nd Ed. 1985), p. 235 [para. 53].

Halsbury's Laws of England (4th Ed. 1976), p. 16, para. 8 [para. 41].

Petersson, Sandra, Something for Nothing: The Law of Adverse Possession in Alberta (1992), 30 Alta. L. Rev. 1293, generally [para. 30].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 160 [para. 48]; 251 [para. 50].

Counsel:

R.C. Forsyth-Nicholson, for the plaintiff;

M.J. Swanson, for the defendant.

This action was heard before McBain, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 5, 1999.