White Resource Management Ltd. v. Durish, (1995) 178 N.R. 321 (SCC)

• Judge: McLachlin and Iacobucci, JJ.
• Court: Supreme Court of Canada
• Case Date: February 23, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 178 N.R. 321 (SCC);165 AR 20;26 Alta LR (3d) 153;[1995] 3 WWR 609;178 NR 321;89 WAC 20;[1995] 1 SCR 633;1995 CanLII 122 (SCC);121 DLR (4th) 577

White Resource Mgt. Ltd. v. Durish (1995), 178 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Victor R. Durish (appellant) v. White Resource Management Ltd., The Royal Bank of Canada and WRM Resources Ltd. (respondents)

(23483)

Indexed As: White Resource Management Ltd. v. Durish

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,

McLachlin and Iacobucci, JJ.

February 23, 1995.

Summary:

White Resource Management brought an action claiming priority of title on the regis­ter under the Land Titles Act to the petro­leum and gas rights in a quarter section of land. Durish counterclaimed, claiming, inter alia, that he had priority.

The Alberta Court of Queens' Bench, in a judgment reported 113 A.R. 1, held that White Resource Management had priority. The court allowed White's nonsuit motion on the ground that Durish's counterclaim dis­closed no good claim in law. Durish appealed.

The Alberta Court of Appeal, in a judg­ment reported 131 A.R. 273; 25 W.A.C. 273, dismissed the appeal. Durish appealed.

The Supreme Court of Canada allowed the appeal, quashed the nonsuit order and remitted the matter to trial for determination of the outstanding issues. The grounds upon which it was argued that Durish's counter­claim disclosed no good claim in law were not established.

Real Property - Topic 7930

Title - Registration of instruments - Caveats or cautions - Variation or dis­charge - Effect of - The Supreme Court of Canada stated that "the lapse of a caveat resulted in a corresponding loss of priority in the underlying interest", but did not destroy the underlying caveated interest - See paragraphs 27 to 28.

Real Property - Topic 7931.2

Title - Registration of instruments - Caveats or cautions - Assignment - Effect of - The Supreme Court of Canada stated that "an assignee of a caveated interest can claim priority through the original caveat" - See paragraph 23.

Real Property - Topic 8009

Title - Registration of instruments - Land titles system - Volunteers - [See first Real Property - Topic 8017 ].

Real Property - Topic 8017

Title - Registration of instruments - Land titles system - Title of persons relying on certificate of title - Vold registered a caveat to protect his agreement to purchase land, including mineral rights - The owner died - The executrix leased mineral rights to Pawnee, who filed a caveat - Vold's caveat was removed for failure to respond to a notice to take proceedings - Vold assigned his rights to White, who filed a caveat - Vold later assigned the same rights to Durish, who filed a caveat - Durish took an assignment of Pawnee's interest - The then registered owner trans­ferred title to Durish, subject to the White caveat - The Alberta Court of Appeal affirmed that White had priority of title - The court assumed, without deciding, that the indefeasibility rule (s. 195, Land Titles Act) was not limited to persons dealing directly with the registered owner - Durish took title subject to White's caveated inter­est - The Supreme Court of Canada held that the Court of Appeal erred, that Durish, as assignee of a caveated interest, could claim priority through the original caveat.

Real Property - Topic 8017

Title - Registration of instruments - Land titles system - Title of persons relying on certificate of title - Section 195 of the Land Titles Act provided in part that "no person ... dealing with ... the owner of any land in whose name a certificate of title has been granted shall be bound ... to inquire into ... the circumstances ... in which the owner or any previous owner of the land is ... registered or to see to the application of the purchase money or of any part thereof, nor is he affected by notice, direct, implied or constructive, of any trust or unregistered interest in the land ..." - The Supreme Court of Canada agreed that "the strict application of the section to only those dealing with the registered owner in fee simple is not in keeping with the principles of the Torrens system. ... To confine s. 195 protection to a small portion of these potential transac­tions -- those involving the registered owner in fee simple -- would be to di­minish the efficacy of the Land Titles sys­tem" - The court stated that s. 195 included "owners" of other interests - See paragraphs 17 to 21.

Words and Phrases

Owner - The Supreme Court of Canada stated that "owner" in s. 195 of the Land Titles Act, R.S.A. 1980, c. L-5, was not limited to the registered owner in fee simple - See paragraphs 17 to 21.

Cases Noticed:

Calford Properties Ltd. v. Zeller's (West­ern) Ltd., [1972] 5 W.W.R. 714 (Alta. C.A.), refd to. [para. 23].

Gas Exploration Co. of Alberta Ltd. v. Cugnet (1954), 12 W.W.R.(N.S.) 177 (Sask. Q.B.), refd to. [para. 23].

Union Bank v. Boulter Waugh Ltd. (1919), 58 S.C.R. 385, refd to. [para. 29].

Bensette v. Reece, [1973] 2 W.W.R. 497 (Sask. C.A.), refd to. [para. 31].

Landstrom Developments Ltd. v. Passburg Petroleums Ltd. (1984), 53 A.R. 96; 8 D.L.R.(4th) 363 (C.A.), refd to. [para. 31].

Statutes Noticed:

Land Titles Act, R.S.A. 1970, c. 198, sect. 144 [para. 7].

Land Titles Act, R.S.A. 1980, c. L-5, sect. 1(n), sect. 1(s) [para. 17]; sect. 16(5), sect. 59, sect. 135 [para. 36]; sect. 137 [para. 7]; sect. 195 [para. 17].

Land Titles Amendment Act, S.A. 1982, c. 23, sect. 23 [para. 25].

Authors and Works Noticed:

Alberta, Law Reform Institute, Report No. 63, Section 195 of the Land Titles Act (1993), generally [para. 21].

Hurlburt, W.H., Priorities and the Dis­charge of Caveats (No. 1): White Resource Management Ltd. v. Durish (1991), 29 Alta. L. Rev. 905, generally [para. 34].

Hurlburt, W.H., Priorities and the Dis­charge of Caveats (No. 2): White Resource Management Ltd. v. Durish (1993), 31 Alta. L. Rev. 411, pp. 422, 423 [para. 24].

Mapp, Thomas W., Torrens' Elusive Title (1978), p. 156 [para. 34].

Counsel:

Clive O. Llewellyn, for the appellant;

J.D. Bruce McDonald and Peter R.S. Le­veque, for the respondent, Royal Bank of Canada;

Domenic Venturo, for the respondents, White Resource Management Ltd. and WRM Resources Ltd.

Solicitors of Record:

Fleming, Kambeitz, Calgary, Alberta, for the appellant;

Bennett, Jones, Verchere, Calgary, Alberta, for the respondent, Royal Bank of Canada;

Milner, Fenerty, Calgary, Alberta, for the respondents, White Resource Manage­ment Ltd. and WRM Resources Ltd.

This appeal was heard on October 6, 1994, before La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada.

On February 23, 1995, McLachlin, J., delivered the following judgment in both official languages for the Supreme Court of Canada.