Swenson v. Swenson, (2006) 287 Sask.R. 179 (QB)

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 25, 2006
• Jurisdiction: Saskatchewan
• Citations: (2006), 287 Sask.R. 179 (QB);2006 SKQB 438

Swenson v. Swenson (2006), 287 Sask.R. 179 (QB)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. OC.019

Alvin Swenson (plaintiff) v. Glenn Swenson (defendant)

(2003 Q.B.G. No. 123; 2006 SKQB 438)

Indexed As: Swenson v. Swenson

Saskatchewan Court of Queen's Bench

Judicial Centre of Weyburn

Dawson, J.

September 25, 2006.

Summary:

The plaintiff commenced an action seeking: a declaration that he was entitled to receipt of all surface lease rental payments with respect to certain land, an accounting of all rentals received by the defendant respecting those lands, judgment against the defendant in the amount of rentals received by the defendant from May 8, 2001 to the present, and an order discharging the caveat filed by the defendant against the lands.

The Saskatchewan Court of Queen's Bench allowed the action in part.

Evidence - Topic 6204

Parol evidence rule - General principles - Evidence offered to contradict or explain written agreement - The plaintiff commenced an action seeking, inter alia, a declaration that he was entitled to receipt of all surface lease rental payments with respect to certain lands - The parties presented evidence respecting the actions and communications between the parties and their solicitors - Much of this evidence related to the negotiations back and forth between the parties, their father, and their lawyers after a September 1993 agreement whereby the father sold lands to the parties as joint tenants and prior to a 1996 agreement when the defendant sold his one-half interest in the lands to the plaintiff - The plaintiff argued that this evidence was parol evidence and therefore inadmissible - The Saskatchewan Court of Queen's Bench held that the evidence respecting how the parties conducted themselves was admissible - Further, the 1996 agreement was not written in clear and unambiguous language - The parol evidence was admissible for the purposes of explaining the agreement and ascertaining the intentions of the parties - See paragraphs 16 to 21.

Evidence - Topic 6721

Parol evidence rule - Interpretation of a legal act - Evidence of intention of parties - General - [See Evidence - Topic 6204 ].

Mines and Minerals - Topic 6002

Operation of mines, quarries and wells - General - Surface rights - Ownership of - The plaintiff commenced an action seeking, inter alia, a declaration that he was entitled to receipt of all surface lease rental payments with respect to certain lands - The defendant, the plaintiff's brother, argued, inter alia, that the rental payments under the surface leases were assigned to him outright by the parties' father in August 1993 - The Saskatchewan Court of Queen's Bench held that, based on the authorities and the Land Titles Act, the assignment of rents did not create an interest in land - The assignment was an agreement between the father and the defendant and it ceased to be of any force and effect against the plaintiff when the land was sold by the father in September 1993 to the parties as joint tenants - The plaintiff was not a party to the assignment of rents and he had no formal notice of the assignment - The assignment of rents ceased to be of any force and effect against the plaintiff in September 1993 - See paragraphs 21 to 42.

Mines and Minerals - Topic 6002

Operation of mines, quarries and wells - General - Surface rights - Ownership of - The plaintiff commenced an action seeking, inter alia, a declaration that he was entitled to receipt of all surface lease rental payments with respect to certain lands - The defendant, the plaintiff's brother, sold his one-half interest in the lands to the plaintiff in 1996 - However, the defendant argued that a caveat filed by him at the time of the sale was sufficient to protect his one-half interest in the surface leases - The Saskatchewan Court of Queen's Bench held that the intention of the 1996 sale agreement was to reserve to the defendant his entitlement to the existing surface rights and rentals on the disputed lands - The caveat protecting the defendant's interest was drafted using the words "existing surface rights" - The wording of the caveat was approved by the plaintiff - The plaintiff was party to the sale contract which reserved the defendant's existing interest in the surface leases and surface lease payments on the lands - The reservation of the rents was an interest in land and was caveated by the defendant - The caveat provided sufficient notice of the defendant's reservation of his one-half interest - The plaintiff could not avoid compliance with the terms of the contract he had entered into - See paragraphs 44 to 57.

Mines and Minerals - Topic 6003

Operation of mines, quarries and wells - General - Surface rights - Whether an interest in land - [See both Mines and Minerals - Topic 6002 ].

Mines and Minerals - Topic 6061

Operation of mines, quarries and wells - Leases (surface rights) - General - [See both Mines and Minerals - Topic 6002 ].

Real Property - Topic 7925

Title - Registration of instruments, etc. - Caveats or cautions - Interests which may be protected - [See second Mines and Minerals - Topic 6002 ].

Cases Noticed:

Hawrish v. Bank of Montreal, [1969] S.C.R. 515, refd to. [para. 18].

Bauer v. Bank of Montreal, [1980] 2 S.C.R. 102; 32 N.R. 191, refd to. [para. 18].

L'Agence Monétaire De Qatar v. Himadeh, 1996 CarswellOnt 4980 (C.A.), refd to. [para. 18].

Cliffton Management Corp. v. Paterson (N.M.) and Sons Ltd. et al. (2000), 149 Man.R.(2d) 181; 2000 MBQB 150, refd to. [para. 19].

Farm Credit Corp. v. Kerr, [1997] 2 W.W.R. 62; 148 Sask.R. 245; 134 W.A.C. 245 (C.A.), refd to. [para. 22].

Garland v. Jones, [1993] 7 W.W.R. 102; 111 Sask.R. 134 (Q.B.), refd to. [para. 31].

Kerr v. PanCanadian Petroleum Ltd. (2004), 253 Sask.R. 262; 2004 SKQB 404, refd to. [para. 31].

Canada Trustco Mortgage Co. v. Skoretz, [1983] 4 W.W.R. 618; 45 A.R. 18 (Q.B.), refd to. [para. 34].

Northland Bank v. Van de Geer and Bank of Montreal (1986), 75 A.R. 201; 34 D.L.R.(4th) 156 (C.A.), refd to. [para. 36].

Pegg v. Pegg (1992), 128 A.R. 132; 38 R.F.L.(3d) 179 (Q.B.), refd to. [para. 37].

Webster v. Brown Estate et al. (2004), 356 A.R. 388; 2004 ABQB 321, refd to. [para. 38].

Canadian Crude Separators Inc. v. Mychaluk, [1998] 1 W.W.R. 545; 207 A.R. 81 (Q.B.), leave to appeal refused (1998), 212 A.R. 126; 168 W.A.C. 126; 58 Alta. L.R.(3d) 229; 1998 ABCA 62, refd to. [para. 39].

Ruptash and Lumsden v. Zawick, [1956] S.C.R. 347, refd to. [para. 48].

Powers v. Walter, Walter and Loge, [1981] 5 W.W.R. 169; 9 Sask.R. 89 (C.A.), refd to. [para. 49].

Reeves v. Konschur (1909), 10 W.L.R. 680 (Sask. C.A.), refd to. [para. 53].

Fleck v. Davidson Estate et al., [1996] 1 W.W.R. 686; 138 Sask.R. 121 (Q.B.), affd. [1997] 2 W.W.R. 60; 148 Sask.R. 317; 134 W.A.C. 317 (C.A.), refd to. [paras. 54, 55].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (3rd Ed. 1994), pp. 455, 457 [para. 17].

Counsel:

Daniel P. Kwochka, for the plaintiff;

Robert M. Baumgartner, for the defendant.

This action was heard by Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Weyburn, who delivered the following judgment on September 25, 2006.