Wensel, Re, (1976) 5 A.R. 379 (CA)

JudgeMcDermid, Sinclair and Clement, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateNovember 19, 1976
Citations(1976), 5 A.R. 379 (CA)

Wensel, Re (1976), 5 A.R. 379 (CA)

MLB headnote and full text

Re Wensel

Indexed As: Wensel, Re

Alberta Supreme Court

Appellate Division

McDermid, Sinclair and Clement, JJ.A.

November 19, 1976.

Summary:

This case arose out of an application for the partition of a lot of land of 160 acres into eight parcels of 20 acres each. A consent order partitioning the land was signed by a judge of the Alberta Supreme Court. Subsequently, the municipality in which the land was located learned of the partition and made a motion to the same judge to be added as a party to the proceedings, because no subdivision approval of the partition had been obtained under the Planning Act, R.S.A. 1970, c. 276. The judge held that he had no jurisdiction over the motion, because he was functus officio after granting the judgment for partition. The municipality appealed.

The Alberta Court of Appeal dismissed the appeal, but held that the Planning Act was applicable to applications for the partitioning of land and that the partition of land required approval under applicable subdivision regulations - see paragraphs 11 to 13.

The Court of Appeal held that the proper procedure was for the municipality to bring an action for the setting aside of the order for partition with the present holders of the lands as defendants - see paragraphs 16 to 17.

Land Regulation - Topic 2703

Land use control - Subdivision control - What constitutes a subdivision - Planning Act, R.S.A. 1970, c. 276, s. 2(s) - Order for partition of land - The Alberta Court of Appeal held that a judge's order partitioning a lot of land was an "instrument" dividing the land and constituted a subdivision - See paragraph 14.

Land Regulation - Topic 2708

Land use control - Subdivision control - Subdivision approval - When required - The Alberta Court of Appeal held that the Planning Act, R.S.A. 1970, c. 276, was applicable to applications for the partition of land and that the partition of land required approval under applicable subdivision regulations - See paragraphs 11 to 13.

Practice - Topic 5465

Judgments and orders - Finality of judgment or order - When judge functus officio - A judge granted an order by consent partitioning land into several lots - Subsequently, the municipality in which the land was located made a motion to be added as a party to the proceedings - The motion was made to the judge who granted the partition order - The Alberta Court of Appeal upheld the decision of the judge that he was functus officio after giving the judgment for partition and had no jurisdiction over the motion - See paragraphs 6 to 7, 17.

Practice - Topic 5525

Judgments and orders - Consent orders - General principles - The Alberta Court of Appeal stated that a judge should never rubber stamp any judgment without being satisfied that it is proper and no counsel should ask a judge to act otherwise - See paragraph 15.

Practice - Topic 6186

Judgments and orders - Setting aside judgments - Procedure - A judge signed a consent order for the partition of land - Subsequently, the municipality in which the land was located made a motion to the same judge to be added as a party to the proceedings - The Alberta Court of Appeal held that the proper procedure was for the municipality to bring an action for the setting aside for the order for partition with the present owners of the lands as defendants - See paragraphs 16 to 17.

Statutes - Topic 6143

Operation - Effect on earlier statutes - Amendments - Inference from amendment as to state of previous law - Interpretation Act, R.S.A. 1970, c. 189, s. 25(2) - After argument in a case on the issue of whether subdivision approval under the Planning Act was required in an action for the partition of land, the Planning Act was amended to provide that subdivision approval was required - It was argued that the amendment indicated that the Act previously did not require subdivision approval - The Alberta Court of Appeal held that under s. 25(2) of the Interpretation Act an amendment could raise no inference as to the meaning of the statute prior to the amendment and that the Planning Act previously required subdivision approval - See paragraphs 19 to 22.

Cases Noticed:

Re Capital Grocers Limited and Registrar of Land Titles (1952-53), 7 W.W.R.(N.S.) 315, refd to. [para. 13].

Jodrell v. Jodrell, L.R. 7 Eq. 461, dist. [para. 14].

Re Affairs of Elstein, [1945] 1 All E.R. 272, folld. [para. 17].

Ainsworth v. Wilding, [1896] 1 Ch. 673, refd to. [para. 17].

Lund v. Walker, [1931] S.C.R. 597, refd to. [para. 17].

Statutes Noticed:

Interpretation Act, R.S.A. 1970, c. 189, sect. 25(2) [para. 21].

Planning Act, R.S.A. 1970, c. 276, sect. 2(s) [para. 14]; sect. 16, sect. 17 [para. 12]; sect. 23(2) [para. 19].

Rules of Court (Alta.), rule 38(3) [para. 26].

Authors and Works Noticed:

Shorter Oxford English Dictionary [para. 14].

Counsel:

R. Kambeitz, for the Municipal District of Foothills No. 31;

M.S. Brett and C.D. MacKay, for Edward G. Wensel et al.

This case was heard before McDERMID, SINCLAIR and CLEMENT, JJ.A., of the Alberta Supreme Court, Appellate Division.

On November 19, 1976, the judgment of the Appellate Division was delivered and the following opinions were filed:

McDERMID, J.A. - See paragraphs 1 to 23;

SINCLAIR, J.A. - See paragraph 24;

CLEMENT, J.A. - See paragraphs 25 to 26.

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17 practice notes
  • Hearn v. Hearn, 2004 ABQB 75
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    • Court of Queen's Bench of Alberta (Canada)
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    ...370; 186 N.R. 201, refd to. [para. 38]. Kinch v. Walcott, [1929] A.C. 482 (P.C.), refd to. [para. 38]. Wensel, Re, [1977] 1 W.W.R. 32; 5 A.R. 379 (C.A.), refd to. [para. Lund v. Walker, [1931] S.C.R. 597, refd to. [para. 38]. Rimer v. Rimer (1980), 26 A.R. 451 (Q.B.), refd to. [para. 38]. C......
  • Moore v McIndoe, 2018 ABQB 235
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    • 28 Marzo 2018
    ...of the subdivision prohibition in the Planning Act, RSA 1970, c 276, included a Court judgment (Wensel v Wensel, 1976 ALTASCAD 179 (CanLII), 5 AR 379, [1977] 1 WWR 32, at paras 13-14 (CanLII version)). Subsequent to argument in Wensel, the Legislature amended the Planning Act to include Cou......
  • Lofthaug et al. v. Canadian Immigration Specialists Ltd. et al., 2011 ABQB 609
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    ...22 B.C.L.R.(2d) 70 (C.A.), refd to. [para. 34]. Wensel, Re, [1976] 2 W.W.R. 267; 65 D.L.R.(3d) 327 (Alta. T.D.), affd. [1977] 1 W.W.R. 32; 5 A.R. 379; 72 D.L.R.(3d) 1 (C.A.), refd to. [para. Chiste et al. v. Northern Electric Co. Ltd., Canadian General Electric Co. Ltd. and Canadian Westing......
  • Sullivan v. Newsome, (1987) 78 A.R. 297 (CA)
    • Canada
    • Court of Appeal (Alberta)
    • 22 Mayo 1987
    ...G. Ford Homes Ltd. v. Draft Masonary (York) Co. Ltd. (1984), 43 O.R.(2d) 401, refd to. [para. 20]. Wensel v. Wensel, [1977] 1 W.W.R. 32; 5 A.R. 379, refd to. [para. Otan Developments Ltd. v. Kuropatwa (1978), 12 A.R. 15; 7 Alta. L.R.(2d) 274 (C.A.), refd to. [para. 24]. Knowlton v. Registra......
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17 cases
  • Hearn v. Hearn, 2004 ABQB 75
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 9 Enero 2004
    ...370; 186 N.R. 201, refd to. [para. 38]. Kinch v. Walcott, [1929] A.C. 482 (P.C.), refd to. [para. 38]. Wensel, Re, [1977] 1 W.W.R. 32; 5 A.R. 379 (C.A.), refd to. [para. Lund v. Walker, [1931] S.C.R. 597, refd to. [para. 38]. Rimer v. Rimer (1980), 26 A.R. 451 (Q.B.), refd to. [para. 38]. C......
  • Moore v McIndoe, 2018 ABQB 235
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 28 Marzo 2018
    ...of the subdivision prohibition in the Planning Act, RSA 1970, c 276, included a Court judgment (Wensel v Wensel, 1976 ALTASCAD 179 (CanLII), 5 AR 379, [1977] 1 WWR 32, at paras 13-14 (CanLII version)). Subsequent to argument in Wensel, the Legislature amended the Planning Act to include Cou......
  • Lofthaug et al. v. Canadian Immigration Specialists Ltd. et al., 2011 ABQB 609
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 6 Septiembre 2011
    ...22 B.C.L.R.(2d) 70 (C.A.), refd to. [para. 34]. Wensel, Re, [1976] 2 W.W.R. 267; 65 D.L.R.(3d) 327 (Alta. T.D.), affd. [1977] 1 W.W.R. 32; 5 A.R. 379; 72 D.L.R.(3d) 1 (C.A.), refd to. [para. Chiste et al. v. Northern Electric Co. Ltd., Canadian General Electric Co. Ltd. and Canadian Westing......
  • Sullivan v. Newsome, (1987) 78 A.R. 297 (CA)
    • Canada
    • Court of Appeal (Alberta)
    • 22 Mayo 1987
    ...G. Ford Homes Ltd. v. Draft Masonary (York) Co. Ltd. (1984), 43 O.R.(2d) 401, refd to. [para. 20]. Wensel v. Wensel, [1977] 1 W.W.R. 32; 5 A.R. 379, refd to. [para. Otan Developments Ltd. v. Kuropatwa (1978), 12 A.R. 15; 7 Alta. L.R.(2d) 274 (C.A.), refd to. [para. 24]. Knowlton v. Registra......
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