Property is a bundle of rights Its a changing relationship .rtf by liningnvp



Property is a bundle of rights. It’s a changing relationship between subjects & objects.
Rights, liberties and duties form the basis of the relationship. Concept is always in flux
with soci-economic status of times.
   - Political, historical, economic dimensions that are always shifting and changing
       effecting balance of power to members of society
   - Property as RIGHT not as THING – notion of property as a RELATIONSHIP

There are 5 rights in the bundle:
   1) Power to transfer – the subject can give the power of property to someone else. The
      subject can bequeath the property to whomever she pleases. This concept can be seen in
      relation to estates.
          - Sell, licence
          - Limits circumscribed by the law
          - Estates law, aboriginal title, sales and gifts, trusts (equity principle), bailment,
   2) Immunity against taking – this is the right to prevent others from taking property
      against one’s will. You have ultimate ownership rights on your own property. But there
      are exceptions such as govt expropriation rights and adverse possession
          - Right to protect your property against other taking it
          - Easements – need right of way to take piece of land – not outright expropriation
              but it does impinge on land value
   3) Right to exclude others (and include) – this is the right to exclude non-owners and 3rd
      parties from your property and enforce this through trespass laws. There are limits on this
      too such as anti-discrimination. The difference between private and public is looked at
      here. Seen in Harrison v. Carswell- right to exclude and corresponding limitations.
          - Fundamental rights of property
          - Trespass
          - Right to include public spaces (although public can become private – always
              potential for shift)
          - Sometimes property owner can ask help of state/government to help enforce
              rights – ie. Trespass laws
   4) Liberty to use – you may not be able to use your property in a way that violates certain
      rules and restrictions. You cannot contaminate the environment for eg.
          - As owner, you can use property as you see fit within limits
   5) Immunity from damage – it is your right to not have your property damaged by others.
      There are common law actions for damage to property interests. They are called nuisance
      actions. A limit can be zoning.
          - Circumscribed – if police have warrant (seizure), at will (legal strike on your
              property), blancing since even when it is your property it is greater good to have
              certain individuals enter for reasons of freedom of expression or public purpose,
          - Limits and rights change over time

There are 3 types of property in common law property:
   1) Private property which can be owned by:

Dana Rotenberg Property Summary

       single owner
       multiple owners
       corporate owner
       (All of these owners exercise their property rights via the right to exclude)
   2) Common ownership is very different from private property. Here we have more
      communal rights where each member of society has an enforceable claim. These rights
      are not limited.
   3) State property are rights in property that the state has either created or taken away e.g.
      through expropriation

There are 7 justifications for property:
   1) Lockean/labour theory: This is based on John Locke’s theory. He talked about the fact
       that something becomes property when something becomes the state of nature. If it is a
       piece of land and you toil on it then that land should be yours. Whenever labour is mixed
       up with a thing and it is removed from the state of nature it becomes a piece of property.
       If you put in effort and labour into it then you deserve to own it so it becomes yours. It is
       a desert element. So how do you demarcate what you should deserve and own? Nazic
       says that if you pour a can of tomato juice in the ocean then do you own the ocean? How
       much labour is necessary? It is unclear. Therefore Labour and Desert are the key
       concepts under this theory
   2) Consent: there is the assumption that there is a creator who owns land and then bestows
       property on some who then get together and through consent agree as to who should own
       what. How does this actually happen? There should be credence in some sort of creator to
       begin with that bestows land.
   3) Possession or occupancy: this is the common law approach that we see in much of case
       law. The person who first owns or occupies the land/thing/chattel should be allocated
       property rights. There is some element of desert here as well. This theory allocates rights
       to particular persons and justifies the allocation of these rights. Possession is usually seen
       as the root of title. How fair is it that possession should be the root of title? If someone
       can do something before someone else why should they be able to own it and not
       someone else?
   4) Utilitarian: this is a Bentham theory, the greatest good for the greatest number. This one
       is not actually prescriptive and it doesn’t say what property should look like but it
       provides a tool in deciding the allocation of properties. It is thus very similar to
       possession theory.
   5) Law and economics: this is a very predominant theory and it springs from the Chicago
       school. One is prescriptive and says how things should work and stresses market
       efficiency. The most efficient property regime is that which promotes the most
       exclusivity. This branch is very big on the right to exclude. This is the same as rational-
       wealth maximization theory. The 2nd branch of economic analysis is used to describe the
       consequences of certain policies. It basically asks how are people going to behave if a
       certain rule is enacted. It suggests that legislation should take this behaviour into account.
       It tries to predict human behaviour and suggest solutions and the best way forward.
   6) Freedom and personality: we saw strains of this in the freedom of expression debate. 2
       strains. Property is seen to enhance human freedom and development and it gives citizens

Dana Rotenberg Property Summary

        autonomy rights. The more property you have the easier it is for you to be free and
        express yourself. The assumption here is that a citizen can get their hands on property and
        that the state will protect this private property. The 2nd strain is Hegelian based. This is
        essentially the ability to control resources so this control allows humans to exert their will
        over the external environment and demonstrate their individuality.
     7) Radical/alternative theories: These are the Marxist, feminist and the race theorists and
        cultural relativist theorists who in a sense posit that property is power. We need to
        recognize power dynamic. All these theories are based on the fact that there is a
        difference that separates all of us, so that in order to aspire for social change we need to
        have a more inclusive regime of property rights or completely re-conceptualize the way
        we conceive of property. Some environmentalists are actually taking refuse in this
        philosophy because many interests have been marginalized through discourse and
        through this new agenda the playing field can be equalized. Some view property as
        indispensable and that may not be the case. Property is not always power and power can
        be divided from other sources

Real Property (in rem)                               Personal Property (in personam)
     -   Remedy: return of the object itself “res”    -     Remedy: return was not the thing, but value
     -   E.g. land, property that is subject to a           of the property, damages
         judgement in reality, subject to certain      - E.g. chattels - things that can be picked up
         inheritance                                        and moved, carried away (china, jewellery,
-   enforceable against the whole world                     furniture); leases bc lessee has no property
                                                            interest in land
                                                       - Enforceable between parties to the dispute
1) Possessory            2) Non-possessory           1) Chattels real            2) Chattels personal
(Corporeal               (Incorporeal                e.g. leaseholds
Hereditaments) interests Hereditaments) such as
                                                                               i) choses in possession:
capable of being held in a right of way that
                                                                               tangible property
possession               enables someone to walk
                         across a neighbour’s                                  ii) choses in action:
                         land, but does not permit                             intangible property
                         this person to have                                   (promissory notes and
                         possession of the                                     bonds, IP -- patents
                         neighbouring land e.g.                                copyright trademarks
                         Easements                                             etc.)

Dana Rotenberg Property Summary


Harrison v. Carswell - SCC 1976– RIGHT TO EXCLUDE                                                                         (PRECEDENT)
FACTS                           RATIO                  Majority                      Dissent                           CONSIDERATIONS
-D and 11 others were           -mall owners have      -mall owner did not lose      -rule must be applied on          -balancing competing
picketing outside a Dominon     the right to exclude   the right to withdraw         merits of each case (facts        interests: mall owner’s,
store inside mall;              picketers because      control based on the          here different than in Peters)    picketer’s, public’s
-employees, legal and           the mall is private    Peters case                   -public areas open at all times   -profit vs. privacy
peaceful strike                 property ; mall        Peters was on public          during biz hrs to peaceful        -not same as
-4 counts of trespass under     owners have the        sidewalk; this IN mall        activity                          challenging legal title
Petty Trespass Act              right to protect       -no evidence that owner       -bad to do at whim                and ownership of a pvt
-issue of whether mall has      their profit           acted capriciously or in      -privilege of ppl only            dwelling
right to exclude ppl            interests’ – before    bad faith                     revocable if                      -despite small value of
                                freedom of             -right to exclude; right to   misbehavior/unlawful              action, case brought
ISSUE: Does shopping mall       expression             include only those who        activity                          since important issue
have sufficient possession      - mall owner had       meet owner’s stds             -must accommodate freedom         and want to alert
and control over public areas   sufficient             - so long as owner has        of expression; picketing also     legislature
Or                              possession and         right to control entry,       has limitations                   -future did dissent
Can shopping centre exclude     therefore right to     they can uninvited            -Right not to be excluded         -Fischel – law reflects
or control picketers given      exclude                people – owner never          - dissent codified in OLRA –      interests of capitalism
unrestricted invitation to                             relinquishes these rights     Holding no longer good law        (pg. 40)
public?                                                - legislature should deal                                       - MacPherson –
                                                       with this                                                       property need not
                                                                                                                       always be confined to
                                                                                                                       right to exclude others
        HARRISON: Discussion of Precedent

        Maj: importance of treating like cases alike – Peters main precedent – both situations dealing with shopping malls,
         similar legal questions, rights of shopping mall owner and not of tenant
         1. No suggestion that Peters wrongly decided so it should be followed – strength of precedent
         2. mall owner’s conduct important – no capricious behaviour

        Dis: 3 reasons for not following Peters
         1. Different issue
         2. Different facts (in Peters members of general public boycotting Cali. Grapes v. employee of store on premises of
             mall), peacefulness of activity obvious here, Peters dealing with whether owner had given up possession and not
             actual basis of lawful strike and value of that activity)
         3. Balancing role of decision-making (no mechanical/blind application of precedent), balancing interests (owner:
             profit, could be interfered by strikes/Picketer: advancing legitimate claim in peaceful way)

FACTS                           RATIO                  Majority               Dissent                                  CONSIDERATIONS
-peaceful picketing by          -an owner who has      -invitation
council members in front of     granted a right of     extended was
Safeway store                   entry to public has    general in nature
-issue whether plaza owner      not given up the       -someone asked to
had sufficient control of       right to withdraw      leave and who
common areas                    the invitation         doesn’t becomes a
-whether could invoke                                  trespasser
remedy of trespass on public
-check const’l validity of
Petty Trespass Act

         Dana Rotenberg Property Summary

RWDSU v. Eaton Company – 1986 - POST CARSWELL                                           (POST CHARTER)
FACTS                           RATIO                  POST CASE REACTIONS                                          CONSIDERATIONS
-union organizers were          -labour relations      - BC passed legislation prior to Harrison                    -no business disrupted
inside mall trying to sign up   law supersedes         -Manitoba amended Petty Trespass Act in 1978 with            -no customers
Eaton’s employees               mall’s policy          Section 4 amendments that justify picketing                  obstructed
(leafleting)                    -no solicitation       -in other words, Harrison dissent became the law;            -mall trying to protect
-was before biz hours so        policy had no          paradigm shift                                               large share of profits
customers not affected          justification to       -in Ontario the law regarding malls and picketing            from Eatons
-Cadillac Fairview had          interfere with         unclear                                                      -this case stands as
adopted a no solicitation       statutory union        -Shopping mall amendments in Ontario in 1992 which           good law
policy                          rights                 gave right to picket and supported Eatons ruling             -decision enforced by
-union complained to OLRB       -Ontario statute       -OLRA amended to codify Harrison (Dissent) and Eaton         court of appeal
that store violated rights of   trumps internal        cases – but then repealed 1995
employees to be unionized       policy of mall &       -s. 11 then repealed but Eatons still good case law
                                protects union         -thus according to case law there is a justifiable way to
ISSUE: did landlord engage                             picket but according to legislation there isn’t so unclear
in unfair labour practice                              *Macpherson: picketers have right not to be excluded
contrary to Ontario Labour                             - only thing that picketers have in Ontario now is case
Relations Act?                                         law – NO STATUTE now to have immunity from
                                                       liability for picketing which is why things are unclear
Post- Harrison Paradigm Shift
2 influences modifying common law
    1. Unfair labour practices rules: (RWDSU v. Easton’s)
    2. Shopping Mall Amendments conferring immunity from liability from trespass
 - Many cases have distinguished Harrison
 - Kuhn’s theory of paradigm shifts in science – reasoning used in science not value free or certain = theory
      changes occur because one theory more satisfying than another- paradigm shift in Private Property
FACTS                           RATIO                  LEGISLATIVE AMENDMENTS                                      CONSIDERATIONS
-municipal councilor            -freedom of            -BC legislation held that in relation to picketing there    -first charter victory for
arrested for leafleting and     expression violated was no trespass on real property if a member of public         free speech
refusing to leave premises      and unjustified        ordinarily had access to that property; 1992 Ontario same -s2b and s1
          In Ontario, the law regarding shopping malls and picketing is unclear. We did have shopping mall amendments in
          Ontario in 1992 which mimicked the Petty trespasses act and it gave the right to picket. It allowed trade union
          activity and supported the Eaton’s ruling and it also overruled Harrison. Thus OLRA had been amended to codify
          Eaton’s and Carswell cases. But while the OLRA was amended, s11 was repealed by the govt. So now according to
          case law there is a justifiable way to picket but according to legislation there isn’t, so ultimately the law about
          picketing in malls is unclear in Ontario. There is no law (there is no statute) although case law supports. In the
          OLRA there is a right to picket but there isn’t necessarily immunity for demonstrating in public places

          Dana Rotenberg Property Summary


Committee for the Commonwealth of Canada v. Canada – PUBLIC ARENA TEST
FACTS               RATIO                PUBLIC ARENA TEST (used in s1)              CONSIDERATIONS
-leafleting in      -govt violated       6 factors:                                  -if govt restricts access at whim, perverse
airport; peaceful   s2b and it was       1) traditional openness of area for         result for public policy
and political       not a justifiable    expressive activity – ‘type’ of place       -only ppl with property would be able to
-govt regulations   violation under      historically associated w/ public           express themselves
that said no        s1                   discussion                                  -some zones of public property have high
solicitation on     -to determine        2) whether public is ordinarily admitted    security and are off-limits
airport property    whether activity     to the property as a right                  Zones: internal govt offices, air traffic
-govt policy so     is allowed or not,   3) compatibility of the area’s purpose      control towers, prison cells, judges’
Charter kicks in    conduct public       and the activity                            chambers
since Charter       arena test           4) impact of the availability of the        *broad and generous interpretation’ but
used to challenge                        property for the achievement of the         ‘not overshoot actual purpose of right’
statutory govt       S2b does not give   activity’s purpose                          (Big M)
law                  a right of access   5) symbolic significance of the property     - looks at character of place – even
                     to all property     for the msg being communicated              though FOE rights is triumphant, it cannot
ISSUE: did           whether public or   6) availability of other public arenas in   be in every place – you can only exercise
prohibition          private - limits    vicinity for expressive activities          freedom of expression rights where you
violate their                                                                        have stake in property/property rights
rights under 2(b)                                                                    - 2 important factors: (1) type of place
of Charter                                                                           and; (2) type of activity
(freedom of                                                                          -airports are contemporary crossroad
expression)?                                                                         -does not hold ppl captive like in buses:
                                                                                     Lehma v. City of Shaker Heights
                                                                                     -public forum test is too broad
                                                                                     *MacPherson: state prop more like pvt
Societe de Transport de la Communaute Urbaine de Montreal – the area beyond the turnstile in a subway station is not
traditionally open to public debate so that a restriction on freedom of expression was upheld pursuant to s1

         TASK FORCE REPORT – treatment of the public in private malls
                 1987 Ministry of the AG task Force report on Ontario Trespass to Property act in
                 Since 1990 there have been no changes to the Trespass to Property Act
                 Inconsistency between the legal and common understanding that malls are public
                 in terms of the time actually spent in places, shopping malls rank 3rd after school
                  and home so you should always have free access to them
                 is this ranking still the same today where people are spending more time on the
                  internet than hanging out at the mall?
                 The counterargument to that is that there were complaints that the black
                  community were being banned from certain malls
                 Would certain ethnic groups be allowed more access to malls since they don’t
                  have access to other resources like home internet
                 Industrialization and social change have seen an acceleration in the process of
                  limitation of private property rights where public and private interests diverged

         Dana Rotenberg Property Summary

                         In the mid 1970s the SC talked about a duty of common humanity on property
                          owners towards trespassers who suffered injury
                         TPA does not take into account the developing trends in balancing the competing
                          social interests in publicly used property
                         Under the act a mall is no different than a private home and carries a general right
                          of exclusion of any visitor and the exercise of this right is legally subject to the
                          owner’s whim

                      BODY PARTS
Moore v. Regents of the University of California – BODY AND PROPERTY
FACTS                 RATIO              MAJORITY                            DISSENT (strong)           CONSIDERATIONS
-healthcare           -conversion        -Labour-added theory -              -why is it theft when      -majority mixed up patent
professionals were    claim not          LOCKE                               you steal cells from a     requirements w/ ownership
caregivers of         allowed as the                                         lab but not from a         requirements in considering
patient               patient does not   -no precedent in common law         person?                    whether Moore could have a
                      have title or                                                                     property interest in his cells
-extracted and        possession to      -conversion test not met – no       -silence in a statute
commercialized        own cells;         title & possession to begin with    doesn’t mean he has no     -whose interest being served?
cell lines without    breach of          – must have title to property       ownership; assume he       Public interest – basis of industry
notice/consent        confidence is      fort it to be subject to            does (same sort of         is being able to use cells to
                      the better claim   conversion                          reasoning in Harrison re   advance science, socially useful
-P sued on 1) tort                                                           silence)                   activity
of conversion 2)      -legislatures      -California law limits patients’
breach of             should bring in    continuing rights in excised        -just because he can’t     -slippery slope – if you can assert
confidence            some sui           cells                               get full value of patent   prop. Rights over your organs,
                      generic                                                doesn’t mean he’s not      could someone claim someone else
(conversion sort of   legislation        -patent perspective – nothing       entitled to a share        as property? (think of Dr. Horror-
like trespass)                           unique                                                         dispossessed left with few options
                                                                             --dissent says slavery     other than to sell their remaining
                                         -grounds of breach of               being outlawed shows       possessions – body parts)
                                         confidence (fiduciary/informed      we own us
                                         consent) adequately regulate                                   Gilmour Critique
                                         this issue                          **-Gilmour agrees with     -loss of control over one’s body
                                                                             dissent                    impairs freedom and integrity
                                         -statute silent so interpreted as                              -patient co-ownership not possible
                                         patient having no rights after                                 in patent law
                                         removal                                                        -once something property,
                                                                                                        commodity can be exchanged for
                                         -legislature should decide an                                  value (economic trumps
                                         issue w/ so many policy                                        personal/ethical)
                                         considerations                                                 - recognizing property rights in
                                                                                                        one’s own person will do little to
                                         -majority says that innocent                                   enhance dignity if ppl sell pieces of
                                         researchers will be affected                                   body
                                         who do socially useful                                         -Regulating biomaterials – not
                                         activities if body property                                    easy, many stakeholders, would
                                         recognized                                                     scientists spend time if they
                                                                                                        weren’t going to be rewarded?,
                                                                                                        public v. private funding – who
                                                                                                        would should use research funded
                                                                                                        by gov’t or private party?
                                                                                                           -robust regulations required!
POST MOORE  US courts somewhat more sympathetic to biomaterials as property

           Dana Rotenberg Property Summary

Gilmour’s Proposed Regulatory Regimes
    Licensing system with fixed profit-sharing for source of tissue
    Incomplete commoditization to allow source of tissue (but no one else) to receive compensation for
      certain body parts
    Permitting donation of tissue but no other form of alienation
    Allowing inter vivos sales of organs in limited circumstances, with compensation paid by health
      insurance system
    Requiring biotechnology enterprises to return a share of their profits to community, specifically to
    New legal category – to reflect new understanding and appreciation of nature of materials of human
      origin and the implications of their use and regulation as well as a needs-based approach to entitlement
      to body parts, and recognizing a common heritage of mankind, importing public trust concepts and a
      need to exercise stewardship in the management of this resource
    Need for different rues relating to persons and objects
    Need for a non-property regulatory system that will release one from the need to classify material
      of human origin as “object” and to justify departures from the abstract ideal of what is meant by
      classifying something as “property”

Royal Commission on NRTs in Canada (1993)
 - Commercialization of NRTs inappropriate, dehumanizing
 - Sui generis solution – Nuffield Council on Bioethics (1995) – Human tissue should not be property/Human
    Organ Trasplants Act (1989 UK) – prohibits commercial dealings in human organs
   o In Ontario, the Trillium Gift of Life Network Act governs inter vivos gifts for transplant of human
       tissue and post mortem gifts for transplant and other uses. This system is based on the consent of a
       living donor or family of a deceased individual.
   o There are statutory prohibitions on sales of human issues, but these may fail to regulate the commercial
       exploitation of products derived from human tissue.
   o In Ontario, the Assisted Human Reproduction Act of 2004 forbids commercialization of sperm and
       other reproductive materials


    - Women see property in a more fluid, unconstrained way - property boundaries adjust to interpersonal
      boundaries, not vice versa – resists being bound
    - Men see property more by negotiation, boundary dependant
    - Perhaps gendered perspective from essentialist position
    - Socialization plays a part in how men and women see property
    - Leroy Little Bear
    -    World view: Western v. Native
    -    Ownership: individual v. communal
    -    Unique perspective to European conquest
    - DELGAMUUKW (SCC 1997)
    -    Sui generis approach; exclusive occupation and use of defined land
    -    Request that TJ accept traditional oral histories as equal to expert evidence

         Dana Rotenberg Property Summary

    -    Western view neglects environment – disregard for nature, animals and shared interest
    -    Standard/norm of aboriginal people’s law is that land is not transferable and therefore is inalienable. Land
         benefits there from may be shared with others, and when Indian nations entered into treaties with Euros the
         subject of the treat, from the Indian’s viewpoint, was not the alienation of the land but the sharing of the

-western societies place a premium on individual autonomy and independence, often defined through owning assets,
private property
- dependent and powerless are poor and often without property
- to balance, right not to be excluded from the use or benefit of property
 United Steel Workers v. US Steel -1980 USCA– PROPERTY AND POVERTY
 FACTS                        RATIO                  CONSIDERATIONS
 -company wanted to           -no precedent to       -workers had no constructive entitlement
 demolish the plant since     allow closing plant    -Singer says that obligations to the company towards the workers could
 cheaper than modernizing     to be kept in          have alleviated social costs
 -union wanted to buy         operation or allow     -he says property is a social relationship and not just a thing
 plant or company to keep     union to purchase it   (social relations approach: be sensitive to power inequalities within
 it open                      (union wanted to       relationships; some members of the common enterprise are more
 -union brought action        avoid massive lay-     vulnerable; these inequalities are not natural and they are the direct result
 saying they had right to     offs)                  of the allocation of power)
 purchase plant because of
 long relationship btw
 company and employees
 - novel argument made by
 union re shared
 Vancouver v. Mauri –2002(Squatters lose)            South Africa v. Grootboom - 2000 (Squatters win)
 -200 people had been evicted from a building        -D and others became homeless after being evicted from their informal
 -they took up residence on city sidewalk around     homes on private land that had been identified as intended for formal low-
 building                                            cost housing
 -court said city was entitled to an injunction to   -court looked at the constitution and said that access to land for the
 remove people from the sidewalk                     purpose of housing was included in the right of access to housing
                                                     provision (s26)
                                                     -right incl more than just bricks & mortar: sewage, water, etc
                                                     -suggests a need to enshrine rights to property for those w/o legal rights to
           -    Western property system based on private property and right to exclude – not really
                inclusive understanding


          Concept of “First Possession”
             - Concept of possession demonstrates that property interests always relative and never
             - Possession as a root of title

          A person in possession of land in the assumed character of an owner and exercising peaceably
          Dana Rotenberg Property Summary

the ordinary rights of ownership has a perfectly good title against all the world but the rightful
owner –Perry v. Clissold
Carol Rose
Degrees of Ownership and Rights of Possession over Chattels
    • The parties who have interests in chattels:
           1. True owner
           2. Legal owner of the space where the chattel is found
           3. Lawful occupier where the chattel is found
           4. Person controlling access to the place where the chattel is found (Bridges v
           Foxworth - The ability to exclude people changes interest.)
           5. Person who finds the lost chattel
           6. Person who claims control over a person who claims possession from finding the
           7. Person who claims possession with reference to employment by another party

Pierson v. Post (1805 NY)
Facts:                  Holding:                                          Dissent:
2 guys hunting fox, 1 To show possession there must be a clear act        Property obtained when
scopes things out,      that brings the property within ‘certain          within reach and a
puts time in, waits     control’ and that shows the unequivocal           reasonable prospect of
and then interloper     intention to possess; the clear act is needed     success of having
comes and kills fox     so that the whole world understands the           possession (Custom)
and takes it away       nature of the possessor’s rights
2 elements of possession: CLEAR ACT & INTENT TO POSSESS

first hunter had put in labour by chasing
(Lockean theory)
-how do we know what is labour?
-other guy could also have put in labour
-they discuss the practice of fox-hunting and what is common to sport
-majority emphasizes the need for certainty
-certainty protects reliance and fairness
Johnson v. McIntosh (1823)
Significant for definition of possession in context of native land claims
Native granted land seen invalid because Native concept of possession goes against traditional
Native people left few traces – applying Pierson (Clear act and intent to possess) would have
been brutish
Common law gives preference to those who convince world that they have caught fish and hold
it fast – be aggressor to establish possessory interests – native standpoint does not coincide well
Problems with first possession
-beached whales on cape cod – sometimes first possession does not work to your advantage
Perry v. Gregory (2003)
P received signal from metal detector, asked D to verify signal - usual request for metal

Dana Rotenberg Property Summary

P requested D to verify signal, P began to dig, 2/3 dug and D machine confirmed reading, D
finished digging hole – belt plate revealed

P – plate belonged to person who digger – but to prevent machine from interfering with D’s, the
P stepped away to watch D retrieve belt plate – P reached for it and D gave it to him

Custom – first person to receive signal owns item found

Court: P’s version of facts more plausible – D had borrowed belt plate from P and then returned
it to him – D had note made claim to belt plait until 10 months after its discovery

Finders of Lost Objects
Armory v. Delamirie (Eng KB 1722)
Chimney sweep finds jewel

Finder has better title to goods against all except true owner – “FINDERS KEEPERS”

-the finder of jewel, though he does not by such finding acquire an absolute property or
ownership, yet he has such a property as will enable him to keep it against all but the rightful

-boy’s possession relative to true owner’s
Bridges v. Hawkeworth, 1847 CA – Finder or Occupier?
-P found money on D’s store floor and asked D to look for true owner; later asked for money but
D refused to give it up even though D promised to compensate for adverts

Occupier needs knowledge of object and manifest intent to possess unattached object –
speaks to Control

-the owner had no idea the money was there until the P brought it to his attention
-also the money was on the floor rather than under a tile or ‘attached’ to the premises
-it is important to note at what time the money was found since that helps ascertain the
relationship btw the parties
-also look at exactly where the money was found and character of place
Hannan v. Peel (Eng KB 1945) – Finder or Owner
     - Tenant found brooch while living in house – finder gives it to polie to search for true
     - Police do not find actual owner

An owner who has never occupied the premises of his/her land has no claim on an object
found lying unattached on that land: if unattached, finder rule prevails


Dana Rotenberg Property Summary

-the owner was absent from the property
-owner showed no intent to control

-the owner must show knowledge of the existence of the object and must directly show intent to
Parker v. British Airways (1982, CA) – Finder or owner/occupier?
Object = gold bracelet, finder = passenger
    - Finder gives it to official and asks them to find true owner and if not, return it to him
    - Tell sell it for $850 and keep proceeds

Issue: does British airways as occupier of land have better claim than finder?

Honest finder acquires right to keep object against al but true owner, or one who can assert a
prior right to keep the object, which was subsisting when finder took possession

Occupier has better right than finder to chattels “on or in but not attached to” premises if before
chattel found, occupier manifested an intention to exercise custody and control over the
premises and anything in or on it

-this case extends and adapts the rules applicable to finders and occupiers based on community
-the officials never took steps to go through the lounge to see if there were lost items – thus not
an intention to exercise custody over such items
-control and animus possidendi must coexist
**in some circumstances the intention of the occupier to assert control over articles lost on his
premises speaks for itself e.g bank

 - structure society to regulate rules of finders, occupiers, etc.
 - we want to encourage honesty
 - character of place is important
South Staffordshire v. Sharman -- Employee’s finding belongs to employee
Finder employed by plaintiff for digging up well, found 2 gold rings in mud

An employee’s findings are always property of the employer, not employee
 - this rule supersedes finders keepers rule
Kowal v. Ellis – Finder or Occupier?
P was driving on D’s land and saw abandoned pump and took it, now D wants it back

D has not claim to possession because he was not aware of the existence of pump
Occupier must have knowledge of the object and intent to control it

P entitled to possession until D can prove superior title given he is occupier of land
City of London v. Appleyard – Finder or Occupier?

Dana Rotenberg Property Summary

Finder and not occupier of contract says so
Rules of Possession
   1) Need a clear act that brings object within certain control and clear intent to possess
   2) Finder has better title to object against all except owner; “finders keepers” (Armory)
   3) Honest FINDER acquires right to keep object against all but true owner or one who can
       assert a prior right to keep object existing at the time the finder took possession (Pierson)
           o in obiter: if FINDER is a trespasser, OCCUPIER is preferred (Parker)
   4) Where an unattached object (pro-FINDER)
           o OCCUPIER needs knowledge of object and clear intend to possess before object
               is found (Bridges)
           o clear intent to possess + custody and control over the premises and anything in or
               on it (Parker)
           o OWNER who has never occupied the premises has no claim over the object
   5) Where an attached object (pro-OCCUPIER)
           o OCCUPIER has a better claim to title (obiter in Parker)
           o FINDER has to show clear intent to possess and exercise custody and control
               (obiter in Parker)
   6) In EMPLOYEE/ER context, employer owns found object whether attached or unattached
       (South Staffordshire)
   7) If there is a contract over who owns what when (e.g. a potential find), contract prevails
       (City of London v. Appleyard)

Finders Obligations and Occupier’s Obligations – Parker v. Brit Airways
Rules and Obligations of Finder
   1) the finder of a chattel has no rights over it unless it has been abandoned or lost and he
       takes it into his care and control
   2) the finder of a chattel acquires very limited rights over it if he takes it into his care and
       control with dishonest intent or as a trespasser
   3) a finder of a chattel while not acquiring any absolute property or ownership acquires
       aright to keep it against all but the true owner or those who are in a position to claim
       through the true owner or one who can assert a prior right to keep the chattel
   4) any servant or agent who finds a chattel in the course of his employment and who takes it
       into his care and control does so on behalf of his employer or principal who acquires a
       finder’s rights to the exclusion of those of the actual finder
   5) a person having a finder’s rights has an obligation to take such measures as in all the
       circumstances are reasonable to tell the true owner about the finding and to care for the
       chattel in the meantime

Rules and Liabilities of an Occupier
   1) an occupier of land has rights that are superior to those of a finder over chattels in or
       attached to that land and an occupier of a building has similar rights in respect of chattels
       attached to that building, whether in either case the occupier is aware of the presence of
       the chattel
   2) an occupier has rights superior to a finder over chattels that are in but not attached to the

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      building but only if, before the chattel is found, he has shown an intention to exercise
      control over the building and the things which may be upon it
   3) an occupier who shows an intention to exercise control over a building and things which
      may be in it so as to acquire rights greater than a finder’s is under an obligation to take all
      measures that are reasonable to ensure that lost chattels are found and to tell the true
      owner about the findings whether made by him or another person ***the manifestation of
      intention may be express or implied from the circumstances, including the circumstance
      that the occupier manifestly accepts or is obliged by law to accept liability for chattels
      lost upon his premises e.g innkeeper liability
   4) an occupier of a chattel (ship, car, etc) is to be treated as if he were the occupier of a

        statues allow finders to claim found objects
             o if true owner does turn up, finders keepers (e.g. NB regulation)
        honesty does pay
   •     Canada Shipping Act: s. 16 finders of buried treasures

Joint Finding
Perry v. Gregory- see above – First Possession, Joint Finders
Keron v. Cashman (1896) – Money in Stocking
-boys playing w/ stocking at time it burst and money came out; 1 say he found it and others say
all did

There is an equal share for those in common possession at the time of finding (the money
was discovered when they were all playing with the stocking as it burst open)

no evidence that Keron had intended to exercise custody and control over the stocking himself (if
so , better claim)
-policy reason is that court just wanted to split money because it was easier than figuring out
who found it first
-also an interesting point is that maybe if the first boy had been loud and clear in his intention to
keep possession, he’d control it (if he’d looked inside) – then it would have been finders keepers
unless true owner came forward
Edmonds v. Ronella (1973 NY) – Money in Garbage Can
-boys found money in garbage; girl came to help, reached in and took it; cops gave her finder
receipt; boys want their share

Since possession was jointly obtained, the joint finders entitled to equal share (was found in
legal sense when money taken off of property): principle of equity in play

-the time of the finding is important: in this case the time that they walked away from the
property with the money is characterized as the time of finding

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-this case can be used against an argument of clear intention to possess: rule to use when
we want a fair outcome in joint ownership scenario – everyone wins- equity (justice and
-also the girl didn’t want to exclude the which is why they went home with her
**to be a true finder 1) first take possession of lost property 2) have the intention or state of
mind with reference to the lost property

*Follows says joint sharing can be done for finder/occupier too!!!
Statute and Policy re Finders
Carol Gilligan – shared rights
    relational feminism – to understand relations between parties – think of fair solution
    ex. Of2 kids playing – girl wants to play game called “next door neighbours” and boy
       wants to play “pirates” – solution that they come up with that is to play pirate that lives
       next door – this is how girl resolves dilemma – different solutions emerging rather than
       taking turns which is what boy said to do
    we can be creative – more than one solution to a problem
Statute and Policy re Finders
    statutes allow finders to claim found object – if true owner does not turn up, finders
       keepers (NB regulation)
    honesty does pay
    Canada Shipping Act s. 16- finders of buried treasures must report to the Gov’t of Canada
    Goal is to reward honesty and punish trespassing, illegality

Adverse Possession
Barring Right of the True Owner (enabled by statute and common law)
 - If owner has abandons property, rights may be extinguished
 - In this case, finder’s possessory interests can take priority

Ontario Real Property and Limitations Act
 - If true owner does not come forward within 10 years (s. 15), his/her rights extinguished and
    possessor acquires absolute title (if common law requirements met)

Test from Real Property and Limitations Act:
Time starts running at time of dispossession or discontinuance of possession (s. 5)
P must sufficiently show:
           1. An uninterrupted period of 10 years
           2. In actual possession
           3. Intention to exclude the true owner;
           4. True owner in fact excluded as a result
 - Extinguishment of right at end of the period of limitation (s. 4 and s. 15)
 - Exception: property registered under Torrens system – no claim of AP
 - Limitation: must bring claim within 2 years of discovery
Policy – why should law protect adverse possessors (squatters) against TO?
   1. Punish TO for neglect
   2. Reward/encourage those who use land active use of land is good
   3. Clearing title of the land, curing title, certainty – making sure that what is on land is on

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       paper/admin purpose
Callahan says that 3 is most convincing argument
Self-Help Alternative/Squatter
Courts have shut down self-help remedies because:
 - Might encourage more squatting
 - Homeless distress should be relieved by charity/good deeds

But see:
   1. NYC Utsey family who successfully maintained possession – had done repairs to vacant
   2. Hampstead squatters

No law that you have to try to find true owner with adverse possession – no obligation like with
finders rights

Possession & Aboriginal Title to Land
K. McNeil:

English law has the effect of establishing aboriginal rights, but judges, policy makers, etc.
hypocritically undermine its legitimacy when they say that it does not apply
 - Normal to interpret the law in favour of colonizers
2 options:
    1. Apply English law to everyone, or
    2. Look for a new solution – SUI GENERIS (this preferred in Canada)
McNeil argues for option 1 – we need to return to fundamental common law principles
 - If we do this, we improve aboriginal bargaining power to argue entitlement to land
R. v. vanderpeet – court upheld conviction for stealing contrary to federal fisheries act – such
activity of stealing was not part of distinctive culture of people’s before arrival of Europeans…

St. Clair Beach (1974, HCJ Ct)
Old MacDonald had Grant’s farm
 - McDonalds have house on piece of property and they engaged in normal domestic and
     recreational use - removed trees, cleaned up place, planted grass, picnic table, skating rink-
     they lived there
 - Grants (title holder) have most of property - cherry trees on land in dispute and they would
     occasionally pick cherries- this is considered act to show they are still in possession
 - McDonalds did more with land/Grants (TO) and only picked cherries
 - McDonalds acknowledged to Grant that they knew Grant was actual owner because they
     tried to buy land twice
 - They found that 1 is satisfied in test yet 2 and 3 are not no adverse possession because all
     3 have to be satisfied

Test applied to establish adverse possession
   1. actual possession for the statutory period by themselves
   2. possession is with intention of excluding TO from possession; uses he wants to make

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        (animus possidendi, see Keefer)
    3. discontinuance of possession by the owners for the statutory period – there is no
        dispossession/discontinuance unless there are acts by the claimants which interfere with
        the purpose to which the owner devoted the land. The smallest act by the owner would be
        sufficient to show that there was no discontinuance of his possession
St. Clair wins – MacD meets 1 but fails to meet part 2, 3

Ratio: need possession with the intention of excluding all others including the TO. Need clear
act to show control.
Occasional use of the disputed land by the title holder in a manner consistent with the uses to
which the land may be put is sufficient to deprive the claimants of exclusive possession.
Possession cannot always be continuous and sometimes there are long intervals between the acts
of a use.
     Use case if arguing for true owner and against AP – MINIMAL USE

intention to exclude TO – putting up fence, sign, telling them off, etc. would have shown this
Limitation Period Cases – both cases AP loses, pro TO
Fairweather v. St. Marylebone Property Co. Ltd (1963 HL) – 99 year lease
-title holder leased plot of land for 99 yrs; squatter on tenant’s land > 12 yrs
-tenant couldn’t evict; tenant surrendered lease earlier than needed and thus ended leasehold
-freeholder’s time beg. to run at expiry

Time starts running against landowner at end of lease (either natural end of lease or when tenant

When tenant surrenders lease, then landowner has right to evict trespasser
Giouroukos v. Cadillac Fairview Corp Ltd (1983 Ont CA) – successive leases
-lessor granted successive leases to the same tenant over many yrs
-tenant occupied physically at all times
- lessor said the lands were being held for future development – keefer idea!!

Logic: Each time a lease ends the landowner/lessor regains possession. AP can only prove
dispossession if the landowner is in possession in the first place. So if the landowner is not in
possession (bc leasing land) cannot possible be dispossessed. Time does not start to tick at the
end of the first lease in successive leases; it is only when the landowner resumes physical
possession that there comes the chance of the landowner being dispossessed by a squatter

For successive leases: Time does not start to tick at the en of the first leases
Keefer v. Arillota (1976, Ont CA) - intention on part of title holder

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Facts and Considerations
-P an easement in the land for limited purposes but exceeded the rights of use by using it in more
-P wants adverse possession for entire strip
-even if they exceeded the rights they had this does not necessarily mature into a possessory title
**it is harder for a claimant to establish title by possession when he is on the property because of
a grant from the TO
**possession in part is possession of the whole if the possessor is the legal owner

 -   Outcome: AP’s acts insufficient to establish possession in relation to driveway or grassy
     area, but were sufficient to establish possession in relation to the garage. Therefore,
     owner’s title to garage area extinguished. (Building garage frustrates purpose of TO)

The animus possidendi that a person claiming possessory title must have is an intention to
exclude the owner from such uses as the owner wants to make of his property
 - Outcome: AP’s acts not sufficient to establish possession in relation to driveway or grassy
     area, but were sufficient to establish possession in relation to garage. Therefore, TO’s title
     to garage extinguished
 - Holding: AP must prove intent to exclude owner from intended usage; not enough for AP to
     merely exclude TO, but interfere or frustrate the TO’s intended use
 - It is presumed that the owner’s use may be for limited purposes and sporadic (ousted for
     use of garage area because such use never intended but not other areas)

 -   Inconsistent User Test: APs acts to dispossess must be inconsistent with the form of
     enjoyment of the property intended by the TO (thus, owner’s intention important)
 -   4th requirement added to St. Clair Test – look at intent of TO and implication- way of
     sabotaging AP
 -   Courts are sabotaging adverse possession – frustrating interests/intended use can be difficult
     to prove (encourages owners of property to be vague about intended use i.e. holding it for
     future uses, just want to look at it, etc.)

Dissent: not concerned with intention – would have granted AP

Bucknall: disagrees with intention part of test
Difficulties with intent:
    1. Providing itnerniton over 10 year period
    2. Context – speculative real estate, mutual mistake
 - Discusses Piper, Masidon, Beaudoin
Piper v. Stevenson – AP successful
She owned 6 acres and 8 were fenced in – AP made mistake that all 8 were hers – no complaint
on other side – sufficient to dispossess the owner

When the act of possession is continuous and exclusive, resulting from an act or acts done to

Dana Rotenberg Property Summary

 claim the land, dispossession has occurred
 Masidon Investments v. Ham – AP unsuccessful
 Intention Test: AP can acquire title only if he knows that he does not own the lands, knows who
 does own land, knows intentions which the TO has with regard to use of lands and acts in
 manner inconsistent with those intentions
   - nothing Ham did could be inconsistent w/ Madison’s intention to resell the land later for
      future development; Madison had no intention
   - if you want to protect land, better not to have specific use for it ie. Speculative real estate
 Beaudoin v. Aubin – mutual mistake – can’t use intention test
 Mutual Mistake

 AP successful; possession of the lands was certain and unequivocal and the intention (animus
 possidendi) could not be presumed

 Thus, if actual possession and dispossession of TO clear, then court will presume intent

 Intention to dispossess true owner can be inferred – they acted on understanding it was theirs
 (Woods and Teit confirm)
 Wood v. Gateway (1990 CA)
 -Woods honestly thought 2 acres was theirs
 -used it commercially, residentially, maintained
 -used openly & continuously
 -TOs had no idea it was theirs till survey done by Gateway
 -can the inconsistency test apply?
 - for 18 years applicants have openly and continuously enjoyed the use of land, 1 bldg lies
 exclusively on panel, active ongoing possession

 1. can the claimant of possessory title legally have the requisite intent to exclude when mutual
 2. can claimant legally exclude the TO when mutual mistake?
 3. did the P in this case exclude the D?

 The inconsistency test has no application in cases involving mutual mistake because how can
 the TO have intended to use the land if he didn’t even know he owned it?

 -in a case of mutual mistake, the Ds can establish possessory title by adverse possession if the
 possession of the land has been open, continuous, and exclusive of the rights of the true owners

  How to determine adverse possession in cases of mutual mistake:
 i.  Inferring Intention in Mutual Mistake: Where mutual mistake of title an inference may be
     drawn in favour of AP on intention to exclude TO (similar to Beaudoin)
ii.  Inconsistent User Test (Keefer) does not apply in mutual mistake cases of boundary lines
     (applies to situations where there is trespasser, where high onus on AP to prove
     dispossession – policy)

 Dana Rotenberg Property Summary

    iii.   Nature of possession: open, constant, continuous, peaceful and exclusive of right of true

      *inconsistency test should only be used for ‘knowing’ trespassers
      - labour added theory – cultivated, worked on land while TO has not
      Teis v. Ancaster Town (1997 CA)
      Confirmed Wood – inconsistent user test does not apply to cases of mutual mistake
          (1) Advertent Trespass cases (Masidon, Gioroukos) test: knowledge of owner, his/her
              intentions, acted against the owner’s intentions (adverse)
          (2) Mutual Mistake (Beuaodoin, Wood) test: sufficient that possessor is open, obvious and
              continuous possession for limitation period
      Bucknall’s Indicia for AP:
          1. possession has to be open and obvious
          2. intention to possess
          3. continuous possession
          4. enclosure of land in question
          5. formal repudiation of claims by true owner
          6. intend to possess as if the true owner
        - if give permission to enjoy land, difficult to claim AP
      General Points on AP
      Line fencing to keep cattle in is not enough to show actual possession (Leichner)

      Co-Owners – Possession issues problematic – family situation (Paradise Beach - sisters co-
      owned place – adverse possession can still apply if some do not possess and others actively

      Tracking – important that same person need not occupy land to make it continuous occupation to
      satisfy Limitations Act can be a succession of persons

      Tenancy at will can arise in family situations
       - Limitation period rums from one year after commencement of a determination of tenancy

      Laches/equity – may temper restrictive application of limitation periods

      To perfect possessory interest:
      Register under (1) quieting title statutes in each province , (2) land titles or (3) apply for
      Registration of title
      Land titles act (new electronic)
      Registry Act (paper)
       - Moving towards land titles but still dual system – right now patchwork system

CASE                     RULE
  1. St Clair Beach      Test for AP
                            1. Actual possession for statutory period

      Dana Rotenberg Property Summary

                       2. Such possession was with intention of excluding the owners or person entitled to
                           possession (Animus possidendi) AND
                       3. Discontinuance of possession by owners for statutory period
2. St Clair Beach Clear Act to Dispossess: Possession with intention of excluding all others including
                   TO. AP needs “Clear act” to show control over TO; to dispossess TO
3. St. Clair Beach Reasonable use: must only make a reasonable use of the disputed land given the
                   general use to which the land is put; even minimal use reasonable
4. Keefer          Inconsistent User Test: APs acts to dispossess must be “inconsistent” with the form of
                   enjoyment of the property intended by the TO (thus, owner’s intention important)
                   (4th tenet of St Clair Beach)
5. Piper           Continuous and exclusive possession: when the act of possession is continuous and
                   exclusive, resulting from acts done to claim land, dispossession has occurred
6. Masidon         Intention Test: AP can “acquire” title only if he knows that he does not own the lands,
                   knows who owns the lands, knows the intentions which the TO has with regard to use of
                   the lands, and acts in manner inconsistent with those intentions
7. Beaudoin        Inferring Intention (Mistake Case): when possession of the lands is certain and
                   unequivocal, the intention to dispossess (animus possidendi) can be inferred
                        Confirmed by Woods and Teis
8. Giouroukos & Limitation Period (Time Starts Ticking) at: End of Lease (Fairweather)/End of
   Fairweather     leases (Giouroukos)

   Fundamental Principles Governing Property Interests in Land

   5 ways to divide interests in land:
      1. Doctrine of Tenure (largely obsolete, except in relation to the Crown)
      2. Doctrine of estates
      3. Legal and equitable interests (the trust)
      4. Co-ownership
      5. Leases and licenses

   Doctrine of Tenure
   CROWN  Tenant in chief (eg. Tenants in chivalry freehold: indefinite duration; services due certain)
    Mesne Lords (intermediate lord)  Tenant in demesne (occupier farmer; rendered services to the
   Mesne lord; could be many holding interests but never owning land; rarely ‘free’, eg. Tenure in socage)
         All end belonging to Crown ultimately – no land without lord
         Patriarchal system/social/political/constitutional order
         Feudal services provided the Crown with operational resources
   Escheat: unlike other incidents of tenure, escheat has retained its importance and it is the only incident of
   tenure that likely remains in existence today
     - Whenever a tenancy came to end, land escheated back to Lord
     2 types:
     1. The land escheated back to lord if and when the tenant died without heirs (this has survived today)
     2. land also escheated to lord if tenant were convicted or serious crime (ie. Murder, robbery, suicide)

   Dana Rotenberg Property Summary

-person ‘seised’ of land is person against whom feudal services could be enforced
- someone always had to be seised of land and if seisin fell into abeyance, feudal system could not
function (abeyance of seisin = period of time during which it might be unclear who was seised of land)

Alienation in feudal times
2 types of alienation in feudal times:
    1. Substitution (ABC)

    2. Subinfeudation
       - disliked because it tended to lengthen pyramid – more people acting as in-betweeners
       -general lack of clarity
       - (abolished with The Statute Quia Empotores 1290)
           - all alienation had to be through substiutition – key to usher in era of free transfer
          - no new tenures created – structure flattens – no more lords (people becoming lords in
          -did not change that crown still absolute owner – just no intermediate players

         -Tenures Abolition Act 1660
           - in exchange for other sources of tax revenue (on beer for example) the Crown was finally
           forced to relinquish its claim to incidents of tenure
           -all land at that point was converted to what is called free and common socage [free of any
           tenurial services and common that it was not subject to any special incidents of tenure --- only
           type of tenure introduced in Canada and all land today remains held of Crown in free and
           common socage]
           -concept of escheat remains – person dies without will and that land then can be subject to
           repossession by Crown (confirmed by 1882 AG v. Mercer)
All alienation by substitution
Escheat still applies
Free and Common Socage - this is how all land in Canada remains

The History of Tenure in Canada
Treaty of Paris (1763)
 - France cede territory of new France to British crown in Treaty of Paris 1763
 - Ungranted or unoccupied land was all vested in Brit crown – Brits still recognized the pre-existing
     French claims to land and respected those claims (later stipulated in Quebec Act, 1774) [French
     settlers who were on land when Brits came were allowed to stay in occupied land and also preserved
     their possessions)

 Drulard (1907) (CA)
 - P sought declaration as to boundary of his land, claiming title to land based on pre-existing rights of
    certain French settlers
 - P (French) failed to establish claim to land because could not trace title to early French settlement

Constitutional Act, 1971
 - Division of Upper/Lower Canada (French/English)
 - First thing English did was to get rid of traces of French law – intro of Property and Civil Rights

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     Act (1792)

Property and Civil Rights Act, 1792
 - Doctrine of tenure introduced in Ontario law

Tenure in Aboriginal Title
 - Aboriginal title to lands is not tenurial because it does not originate from Crown grant
 - Aboriginal title arises by operating of law because of ‘pre-existing rights’ based on historical
     occupation and possession of the lands in question (Calder v. BC, 1973)
Aboriginal Title v. Aboriginal Sovereignty
 - According to Euros, mere discovery of North America was sufficient to assert sovereignty, at least
     as against other Euro nations (1763 Crown asserted sovereignty over Aboriginal land – R. v.
     Sparrow (1990) – never doubt that sovereignty and legislative power, and indeed underlying title to
     such lands vested in Crown)
 - Claims of aboriginal sovereignty not recognized in Canadian law, the concept of aboriginal title has
     been frequently considered and upheld
 - Although Crown asserted sovereignty, Crown nonetheless acknowledged that the aboriginal
     occupants of Canada had a pre-existing and legally recognized interest in their lands, much as the
     British Crown also recognized pre-existing interests of French settlers
Royal Proclamation, 1763
 - Established fundamental principle that no aboriginal lands in America were to be taken by without
     consent of aboriginal occupants
 - Aboriginal title not contingent on Royal Proclamation (St. Catharines Milling & Lumber v.
     Ontario, 1888)
 - Aboriginal title is pre-existing inherent right, recognized under common law and simply reflected in
     Royal Proclamation - founded on historic occupation and use of aboriginal lands
 - Rights to land as hunting ground
 - Crown entered into treaties with aboriginal peoples whereby their rights would be extinguished only
     by voluntary cession to Crown in exchange for rights to specified territories (reserves)
 - Object of Crown – to enter into as many treaties as possible with Aboriginals or to have Aboriginals
     voluntarily cede land – once this happened, these rights extinguished – absent this, there is lack of
Hidden Constitution: Aboriginal Rights in Canada (Bryan Slattery
Objective of Proclamation: to ensure that no Indian lands in America are taken by British subjects without
Native consent
 - Objective secured through 3 measures - Colonial governments are forbidden to:
     1. grant any uncede Indian lands
     2. British subjects to settle on them
     3. Private individuals to purchase them, with a system of public purchases adopted as the official
          mode of extinguishing Indian title
 - In 1763 most of American territories claimed by Britain were unceded lands held by native people –
     under proclamation such lands were automatically deemed Indian reserves
 - Reserve = any Indian land that has not been ceded or purchased by the Crown
Today, where does Royal Proclamation apply?
     To everywhere in Canada except Ontario and Prairies where there have been treaties signed –
        although some areas in Ontario where there are disputes (ex. Caledonia)
 - Pre-existing rights based on historical occupation and possession of land – only time it is
     extinguished is if it is voluntarily ceded – but NOT if purchased by Crown
 - Sovereignty question still alive – in Canada aboriginal people do not have sovereignty (Mabo)

Dana Rotenberg Property Summary

 -   Content of aboriginal title – something less than ownership under common law – access to land and
     resources so long as it is a way that is in line with traditional use of land
         -allowed to have uses that comport with traditional uses
         -something more than license byt less than ownership

Calder v. British Columbia (SCC 1973)
SCC accepted that aboriginal title is recognized at common law and was not extinguished merely by
acquisition of Crown sovereignty
Mabo v. Queensland (Australia, 1992)
 - International law recognized 3 ways for a nation to acquire sovereignty over another territory: by
     conquest, by cession, by occupation of land that was unoccupied
 - Court rejected concept as unjust discrimination based on prejudicial and false assumptions, finding
     that Aboriginal peoples were entitled at common law to claim rights to the land they had occupied
     prior to European contact

Content of Aboriginal Rights
 - Some form of pre-existing and continuing aboriginal interest in land was recognized by RP,
    Canadian courts slow to articulate the precise nature of this interest
 - If aboriginal title read narrowly, limited to lonely a right to occupy the land for certain traditional
    purposes, it would be of small economic value
 - If aboriginal title read more broadly to include wide rights to develop and exploit the full economic
    potential of the land, it is of much greater value
 - Issue addressed in Delgammukw v. BC (1997)

Doctrine of Estates

Doctrine of Estates
 - Doctrine of estates in land is another method by which interests in land can be divided among a
     variety of people
 - As tenure fragmented interests along the lines of exploitation and alienation, the doctrine of estates
     was the method developed to fragment interests in land over time
 - Doctrine of estates permits any number of people to hold interests in the same piece of land
 - In estates, the holders of estates in land will enjoy possession of the land in succession
 - Doctrine of estates determines the quantity of the interests – period of time during which a
     particular holder of the interest will be entitled to possession of land
 - Provides great flexibility to meet changing societal needs for increasingly complex arrangements for
     holding interests in land
 - All estates in land can be transferred by sale or gift

    (1) Life Estate (terminates)
X to A for life, and then to B

X grantor (alienated via substitution, retains nothing)
A has life interest until death (life tenant)
B gets life interest after A’s death (remainderperson)

X to A for life

X grantor (reversionary interest)
A life interest (life tenant)

Dana Rotenberg Property Summary

**back to X when A dies because no other grantee
    (2) Fee Simple & Fee Tail
Fee Simple:

A to B and his heirs

(in feudal times, only if A had heirs surviving could B’s interest continue – this changed and A’s
surviving heirs insignificant)

Fee Tail (Less significant type):

A to B

A dies, As descendant takes land (not B)
B’s interest terminates
 - Obsolete in all provinces except Manitoba
 - Fee tail deemed to create Fee Simple in Ontario
     The fee simple estate in free and common socage is most common way to hold interest in land –
        interest will endure as long as there are heirs (broadly defined) and not subject to any of
        services/special incidents of tenure
     Most closely resembles ownership – largest bundle of rights that one person can hold in land at
        common law
     Fee simple =/= ownership because slim tenurial relationship with Crown (Crown retains
        ownership and land is merely held by Crown)
     Escheat has become rare and the fee simple, in essence, is eternal
     Fee simple estate is largest known interest at common law and includes broad rights of alienation
        and exploitation of the land, these rights not unlimited
 - Use of land subject to statutory restraints regarding land use, environmental protection and planning
      laws – also rule against perpetuities, law of nuisance

Capacity to Hold Estates in Land
 - ‘legal persons’ includes both natural persons (individuals) and corporations - Both may hold estates
    in land
 - Historically, law placed variety of restrictions on certain individuals and corporations to hold and
    convey estates in land -- ex. Married women
 - These restrictions have been removed by statute and married women in Canada now accorded same
    legal capacity as unmarried people
 - At common law, minors had power to hold estate in land subject to restricted power of disposition
 - Statutory reforms now generally grantes courts wide powers to order sale/disposition of minor’s
    interest in property where it is necessary or proper for the maintenance or education of the minor
 - At common law, mental incompetents also had capacity to hold estates but with stringent
    restrictions on power of disposition – in Ontario this is dealt with by legislation dealing with
    substitute decision-makers
 - By statute, foreign citizens (aliens) may now acquire, hold, dispose of, and inherit real property in
    same way s Canadian citizens (not to give them immunity from provincial laws that may otherwise
    restrict their rights to hold property)
 - Corporation can exist indefinitely – land held by corporations was effectively immune from many
    of incidents of tenure, including relief and escheat

Freehold and Leasehold Estates

Dana Rotenberg Property Summary

 - Duration uncertain as is case with life estates, fee simple estates and fee tail estates
 - Because it is always unknown when death will occur, life estate is necessarily of uncertain duration
 - Non-freehold estate
 - Leasehold estate is of maximum duration, fixed in time
 - Either for fixed term or can be terminated on sufficient notice at any time
 - Estate of fixed duration
 - Common way to divide interest in land over time

 -    Landlord who holds fee simple estate in land conveys possession of land for period of time to tenant
 -    Landlord retains right to possession of property at expiration of lease—reversion
 -    This interest reverts back to its original grantor and does not pass to a third party
 -    ‘ownership’ does not apply neatly apply to leashold estate because neither landlord or tenant enjoy
      sole and exclusive rights of ownership
 -    Tenant has possessory interest for duration of leasehold estate and the landlord retains a reversion

Statutory Provisions (post July 1886)
    1. Inter Vivos (Grant)

To X (fee simple)
To C and his heirs (fee simple)

 -    If grantor wishes to convey only a life estate, must say: “To X for life” (absent this limitation fee

     2. Will (Devise)

To X (fee simple)

 -    Fee tails: May 27, 1956 (legislation on both grants and devises/wills)
      Before: to X and the heirs of his body (fee tail)
      After: to X and the heirs of his body (fee simple)

Variations on Fee Simple
2 types:
Absolute : terminates only if holder of estate dies without heirs, escheats
  - This is what you want
Qualified : may terminate on the happening of some event (long arm of testator – 3 types)
  - Lesser form of fee simple title
         3 Types of Qualified Fee Simple Estates

     1. Determinable Fee Simple
     2. Fee simple subject to a condition subsequent
     3. Fee simple subject to a condition precedent

     1. Determinable fee simple

Automatically “determines” on the occurrence of some specified event – which may never occur
Grantor’s interest called possibility of reverter – possibility that estate will revert to grantor upon

Dana Rotenberg Property Summary

determining event
If occurrence of determining event becomes impossible, determinable fee estate becomes absolute

X to A in fee simple until B marries

A: fee simple; will determine (if and when B marries), then reverts to X
X: possibility of reverter

Key Words: so long as, while, during, until
   2. Fee simple subject to a condition subsequent

Determining event sets limits for the estate, compels compliance with the condition (condition of
Where determining event itself sets limits for estate, the condition subsequent is an independent clause
added to a fee simple absolute
Grantor maintains right of entry – right of entry for condition broken
Does not determine automatically – grantor must re-enter to bring estate to end
May defeat an estate that has already been granted and is thus a condition of retention

X to A in fee simple on condition that A does not marry Y

X: has right of entry (if condition broken)
A: has fee simple (provided that she does not marry Y)/if A marries Y then it breaks condition
X must re-enter upon breach – if X does not, A keeps estate (Fee simple absolute)

Key Words: on condition that, provided that, but if
   3. Fee Simple subject to a condition precedent

Grantee receives nothing unless condition is satisfied (condition of acquisition)
Characterization of grant/devise often crucial to question whether grant will take effect

X to A on the condition that she marry B

X grantor – present interest in fee simple (until condition fulfilled)
A takes nothing if condition unfulfilled (marriage condition)
If A marries B, A takes fee simple absolute

Key Words: on the condition, provided that
Re Down (Ont CA 1968)
X to A when he reaches 30 provided he stay on the farm
 - This devise might be construed condition precedent or condition subsequent
 - Clear that A must attain 30 before devise can take effect and that this is a condition precedent
 - Less clear whether A must simply be on the farm at time he attains 30, thus satisfying a second
     condition precedent – or whether A must continue to stay on the farm as a condition subsequent
 - If devise only involves condition precedents and both have been satisfied, A will take a fee simple
 - If devise includes condition subsequent, A will only take fee simple subject to condition subsequent
     and the estate may be liable to forfeiture of he ever ceases to stay on the farm

Dana Rotenberg Property Summary

Rule Against Perpetuities
 - Deals with creation of interests in land that may arise in future – ex. Of right of entry or possibility
     of reverter
 - Law dislikes interests that might arise at remote point in time – tend to cloud title of land and
     restrict alienation and development
 - If it is too far off into future, you strike it down and fee simple subject to condition subsequent
     becomes fee simple absolute

Void Conditions
May Void Condition when:
Restraint of alienation
 - Complete prohibition of sale/mortgage of land to anyone
 - Land can be sold to one person only – unduly restraining
 - Land cannot be alienated without consent of another person
 - Some partial restraints have been upheld – ones prohibiting particular class of persons because here
      there is still ability to transfer (but could be counter to public policy
Contrary to public policy
 - Conditions that incite crime/illegal act
 - I’ll give you this if you take care of this person
 - I’ll give you this if you separate from your husband, change religion, child reside with one parent
Too uncertain
When Condition Void
Condition Precedent: entire grant fails (because cannot be satisfied) but will try and still permit
grant/devise via a “vesting construction”

Condition Subsequent: only the condition will fail thus transforming the qualified estate into an absolute

Determinable fee: like a condition precedent, entire grant fails (Eisenhauer)
Re Essex County Roman Catholic Separate School Board and Antaya (HCJ, 1977)
 - Court considered question of whether grant in question was determinable fee simple, or a fee
      subject to a condition precedent
“To be used for school purposes only: the said grantor reserves to himself and his heirs the preference to
buy the said property at the current price should the same cease to be used for the purposes intended”
 - Applicant successfully brought motion under provision in Education Act which permits court to
      remove any restriction in deed that limits the use of property for school purposes, if the property has
      been vested in a school board for at least 50 years

Qualified Life Estates
3 Types:
    1. Determinable life estate
    2. Life estate subject to condition subsequent
    3. Life estate subject to condition precedent
    1. Determinable Life Estate

X to my widow for life so long as she remains unmarried

“For Life” = life estate

Dana Rotenberg Property Summary

“So long as” = determining
X grantor (retains reversionary interest)
Widow: determinable life estate to terminate upon: 1, death or 2, remarriage, then reverts to X
    2. Life Estate Subject to a Condition Subsequent

X to my widow for life provided that she does not remarry

“for life” = life estate
“provided that” = condition subsequent
X (or his estate) subject to right of entry
Widow: if she remarries, estate can be cut short but if grantor fails to enter then she keeps life estate
    3. Life Estate subject to condition precedent

X to my widow for life on the condition that she gets her law degree from OsHall

X grantor
Widow takes nothing until condition fulfilled (law degree from OsHall is condition)
If widow gets her law degree, takes a life estate

Re Waters (1978, HCJ)
 -   son and executors want to seek advice from court on construction of will – they are arguing that
    their dad only gave woman license to occupy and not the property
 - Issue: (1) what devise conveys life estate or mere license to occupy; (2) deals with repairs that city
    of Toronto has ordered and whether woman had to pay for them
 - Life Estate!
 - Key test: ascertain intent of testator (this was made in contemplation of marriage, no other
    condition, etc)

   (1) Life Estate granted
 - Must ascertain intent of the testator (language used, context in which language used, circumstances
     of will construction)
   (2) Responsible for repairs
 - Where a person accepts a benefit under a will on a condition that she will discharge a certain
     liability, she takes the benefits with the burdens
Re McColgan (1969, HCJ)
 - Estate seeking advice
 - At time of death woman living with him and had been nursing him for a while
 - Will executed in ’65 and he died in ‘67
 - Mary left there after a few months to return to US, she got sick and was under care of US doctor for
     indefinite period- not surrendering right to make my home at that house
 - Returned to house in ’68 and has remained ever since
 - 1st Issue: is this a mere license to occupy or something like a life estate which would include ability
     to earn income from property, etc.
 - Court looked at express intentions – context and circumstances of testator and language used
 - “until death” – goes beyond license
 - Property to be held as “home until death”
 - 2nd Issue: if it is more than license, is it determinable life estate or life estate subject to condition

Dana Rotenberg Property Summary

 -   If you are recipient, you want condition subsequent but if executor, you want determinable
 -   Condition void for uncertainty

   (1) Life estate granted; property to be held as a home not subject to mere permission to occupy
 -   Examine context of circumstances of testator, beneficiaries and the estate itself
   (2) Life estate was subject to a condition subsequent and condition void for uncertainty
 - Condition must be such the court can see from the beginning, precisely and distinctly, upon the
     happening of the event it was that the preceding vested estate was to be determined
Clavering v. Ellison (1859)
Leaving for period of years to go abroad was seen too remote

Modern Trust
X is legal title holder; A trustee; B is the beneficial title holder
How are trusts created?
    1. By a grant or devise
    2. Pursuant to formalities (constitution, rights, responsibilities, powers of trustees)
    3. Pursuant to fiduciary obligations
    4. Even without an express intention: resulting and constructive trusts
    5. Perhaps by Crown (re aboriginal lands)
Guerin (SCC, 1984) looked at trust issue; all levels differed
Trial: Crown a trustee; CA: No because no intention; SCC: Crown not trustee because no intention; but
Crown under an ‘equitable’ obligation to deal with lands to benefit of aboriginals arising from a fiduciary
 - They won’t call it a trust but relationship something like a trust
 - If they called it a trust, it would mean that they would eventually get property
 - Trustee holds property for beneficial title holder – administers and has fiduciary duties
 - Beneficial title holder (third party) gets legal right depending on conditions that have been set
      between title holder and trustee
 - Different ways to create trust – clearest way through legal contract (grant/will)

Delgamuukw v. BC (1997 SCC)
 - BC Aboriginals bringing action for declaration that they have proprietary rights and self-
     government rights for northern part of BC
 - If not property rights, whether they should be compensated by federal government

Issue: is aboriginal title a constitutional right?
    1. What is content of the right?
    2. What is the test for the proof of the title?
Outcome: no declaration back to trial; aboriginal title was constitutionalized by s. 35

   1. Content: sui generis
   2. Test: must be descendants of the people who had collectively and exclusively occupied the
       territory in question at time of assertion of Crown sovereignty (possess= root of title)

What is nature and scope of protection afforded to aboriginal title pursuant to s. 35 of Constitution?
Sui Generis Content                                          Proof of Title Test
 - Underlies all dimensions of AB title                      Must be descendants of the people who had
 - Distinct from fee simple (thus from common law);          collectively and exclusively occupied the

Dana Rotenberg Property Summary

     but also not explained by AB own rules of property      territory in question at the time of assertion
 -   Must look at both                                       of Crown sovereignty

 Features:                                                       1. Occupation of lands at time when
 1. AB title is inalienable                                         British asserted sovereignty, pre-
 2. Arises as a result of (1) prior physical occupation of          sovereignty
     land (2) before the assertion of British sovereignty        2. In the alternative, use present
 3. Community held: collective right held by all                    occupation to prove pre-sovereignty
     members of a nation                                            occupation

2 main tensions:                                               Need NOT:
    1. Greater than AB rights                                      (1) prove unbroken chain of continuity
  - AB title encompasses the exclusive right to use and            (2) have present use or occupation
      occupy the land held pursuant to the title for a
      variety of purposes which need not be aspects of           - standard: substantial maintenance of
      those aboriginal practices, cultures and traditions            the connection between people and the
      which are integral to distinctive aboriginal cultures          land (unclear standard)
    2. BUT, less than fee simple (therefore limited)             - defined in terms of the common law
  - Lands held pursuant to aboriginal title can’t be used            and AB systems of law
      in a manner that is irreconcilable with the nature of
      the attachment to the land which forms the basis of
      the group’s claim to AB title
Flanagan’s Critique
    1. highlights the tension of the content of aboriginal title
      a. rejected Crown’s argument that it’s only a right to use land for activities that are AB rights
      b. unwilling to accept the broad proposition that the land is fee simple which would give AB a
           right to do whatever they choose
  - someplace in between – sui generis
    2. Fertile ground for future litigation
  - What types of activities are allowed on aboriginal grounds?
  - What are pre-existing systems of aboriginal law?
    3. Role of Court/Politics: defer to government; political issue to settle land claims
Leases, Licenses and Bailments

Bailment: owner of chattel parts with possession to another
Eg. Lend car to a friend
 - Owner retains title, but no longer in possession; bailee is in possession
 - Contract (if for consideration) or gratuitous
 - tort

 Bailor = owner
 Bailee = borrower

 Usually express agreement/consensual, but may be imposed in 2 cases:
 1. finders (see Parker v. BA): the finder of lost property might be considered a bailee of the lose
     property; a finder may be referred to as a quasi bailee)
 2. mistake where one person is in possession of another person’s goods, and under impression that
     they are his/her own

Dana Rotenberg Property Summary

Owner of real/personal property agrees to permit another to enter onto/use the property for a specified

Eg. Going to the movies

Licensor = owner
Licensee = borrower

 - contract (if for consideration) or gratuitous
 - tort
Owner of real property agrees to lease property for a fixed period of time to another
-Grant of exclusive possession giving rise to an estate in land

Landlord: owner
Tenant: borrower

-contract or tort – situated at crossroads of property and contract law and is subject to both bodies of law

Bailment: Bailee’s duty of care
Standard of Liability

Standard of liability depends on type of bailment:
    1. Sole benefit of the bailor: low duty of care – liable for gross negligence (slight diligence)
 - Eg. Gratuitous deposit for safekeeping – can you watch my bag?
    2. Sole benefit of bailee: higher duty and liable for slight negligence (great diligence)
 - Eg. You can drive my car today (for free)
    3. Mutual Benefit: ordinary negligence unless altered by terms of contract
 - Applies to all contractual bailments involving exchange of consideration
 - Eg. D’Agostino hires out Scotti to Whiskas for a fee, to star in cat food commercial

Emerging standard: who was intended to benefit
Modification of Standard
Liability may be modified or excluded where:
    1. The arrangement is a license, not a bailment, or
         -in case of license, no liability
    2. Liability has been excluded by contract
Bailment or License:
Test: how much control has been relinquished
-where A allows B to place an item of personal property on A’s land, is the arrangement of a bailment or
merely a license to enter the land for a specified purpose?

 -    If more control relinquished: bailment (duty)
 -    If less control: license (no duty)
      (unless altered by contract)
Heffron v. Imperial Parking Co. (1974, OntCA)
Sign: we are not responsible for anything that happens to your car…

Dana Rotenberg Property Summary

Bailment: delivery of personal chattels in trust, on a contract, express of implied, that the trust shall be
duly executed, and the chattels redelivered in either their original or an altered form, as soon as the time
or use for, or condition on which they were bailed, shall have elapsed or been performed

License: simply grant of authority to another to enter upon land for an agreed purpose as to justify that
which otherwise would be a trespass and its only legal effect is that the licensor until the license is
revoked is precluded from bringing an action for trespass

Combination of following factors favor relationship of baiolor-bailee rather than licensor-licensee
                     a. The owner of the care delivered the keys and therefore the control over the
                         movement of his automobile to the attendant at the attendant’s request
                     b. The parking ticket had a serial number which would indicate that the surrender
                         of the specific ticket would be necessary in order to obtain delivery from the
                         attendant of the automobile
                     c. The provision of the attendant raises a reasonable inference that he is supplied
                         by the owner of the business for more than mere function of receiving money
                         upon the parking of the car
                     d. The parking lot closed, according to the conditions announced on the ticket and
                         signs, at midnight and no conditions were imposed concerning the removal of
                         cars prior thereto
                     e. The notice of a closing hour reasonably infers an active operation of the
                         parking lot rather than a passive allotment of parking stations from which the
                         car owner could at any time, day or night, unilaterally withdraw his parked
                     f. The practice of the parking lot owner (although unknown to the owner of the
                         car) was to place the keys left in automobiles at the end of the day in the office
                         of the appellant’s car parking garage across the road
 - No mutual intention of a mere parking of the car by the respondent owner on the appellant’s lot
    without any action required by the appellants beyond the collection of the fee
 - Factors – different from that of license that is passively granted by the appellant as licensor to the
 - Respondent surrendered and appellant accepted control of this valuable and highly mobile item of
 - Delivery of possession by respondent to the appellants of the care under contract of a bailment
 - Distinguished Bata on its facts – express inclusion of words “charges are for use of parking space
    only” in the parking ticket in Bata

 Contents of car – generally type that you would expect in car
 - Once keys fall into hands of person intent on stealing car, it makes no difference whether personal
    property mentioned is located in trunk or car
 - Items were constructively included in the bailment arrangement and were property included in the
    claims made by the respondent

Bata v. City Parking Canada Ltd (Ont CA 1973)
 - P parked car in parking lot and left keys in car on request of attendant
 - Car was stolen, P brought action against lot
 - P unsuccessful – court determined relationship was license rather than a bailment
 - “Charges for use of parking spaces obly” = exclude any nothing that arrangement entered into is one
     of bailment and “comp assumes no responsibility for loss or damages due to fire, theft, collision or

Dana Rotenberg Property Summary

    otherwise to vehicle or contents, however cause” = effectively remove doubt on this matter
Minichiello v. Devonshire Hotel
 - When bailment exists, there will be constructive bailment of other items that might reasonably be
    expected to be in, or part of, the principle chattel (for this reason P in Heffron able to recover value
    of personal property contained in car)
 - P left car (and keys) with parking attendant, paid 40 cents, informed attendant that there were
    valuables in car (briefcase with over $16,000 of jewels)
 - Briefcase disappeared and P was able to recover this amount on grounds that the P’s statement to
    the attendant was sufficient to enable the court to conclude that one could reasonably anticipate that
    property of such value might be in the case

Exclusion of Liability
If bailment exists, can bailee contractually limit liability? (bailment is also a contract)
  - Contract matter, not property
  - E.g. Parking lot tickets with disclaimer on reverse

 - Bailment + non-return = presumption of negligence
Onus on bailee to establish non-negligence or contractual exclusion of liability

 -    After Heffron, law undergone development
      as matter of Canadian law, doctrine of fundamental breach is merely rule of construction and not
      a rule of law
       subsequent case law has recognized that parties to a contract can freely and knowingly negotiate
      a clause excluding liability even for fundamental performance under the contract
       characterize fundamental breach as rule of construction, rather than law
                              as law of construction, courts have determined that the exculpatory
                                  clause will not be interpreted, or ‘constructed’ as excluding liability for
                                  fundamental breach unless the clause does so in clear and unambiguous
      possible to contract out of liability for fundamental breach in Canada, providing that parties do so
in clear and unambiguous manner

Exculpatory Clauses
 - common in cloakrooms, where sign will be posted stating something like: not responsible for lost
     goods (also on ticket)
 - bailor must have either actual or constructive notice of the clause at the time he/she entered bailment
 - placement of exculpatory clause critical
 - if clause is not prominently and obviously displayed, may not apply
Bailments and Third Parties
 - questions arise when chattel is bailed and, through misuse or defect, causes injury or damage to a
     party other than the bailee

 Owner of chattel may be liable to 3rd party in at least 3 cases:
 1. if bailee is acting simultaneously as the bailor’s agent, the bailor may be liable for the negligent acts
    of the agent
 2. the bailor may be guilty of some personal negligence
 3. the bailor may bail complicated machinery, along with an operator, to the bailee, in which case the
    bailor will remain liable for the operator’s negligence

although bailee merely in lawful possession of the bailor’s property, she may nonetheless maintain a right

Dana Rotenberg Property Summary

of action against a third party who has damaged or wrongfully deprived the bailee of the bailed property

Distinction between Lease and License
Distinction between lease and license = exclusive possession

Distinction important for 2 reasons:

   1. Whether binding on 3rd parties:
 - Lease: Yes
 - License: No (but may sometimes bind)
     (lease creates an estate in land that, subject to specific requirements of the relevant land recordation
     acts, is generally binding on the world / license is merely agreement between contracting parties)

   2. In wrongful eviction:
 - Lease: tenant can bring an action to recover property, in property law (and legislation)
 - License: no, only contract law applies

 -   More remedies available under lease than license

 -   Lease is grant of exclusive possession giving rise to an estate in land whereas license is merely a
     contractual right to enter onto the land of another for a specified purpose and constitutes little more
     than a defence to an action in trespass
 - Essence of lease = tenant has right to exclusive possession of leased premises and right to exclude
     all other persons including LL
 - License does not give rise to a right of exclusive possession but merely permits the license to
     enter onto the premises
Street v. Mountford (1985, HOL)
 - Some landlords drafted agreements that provided owner could enter the premises at any time
     without licensee’s permission and further provided that owner reserved right to assign additional
     lodgers in premises - inconsistent with right of exclusive possession enjoyed by tenant
 - Inclusion of such provisions designed to ensure that court would construe agreement as license and
     not leashold estate
 - These occupants (technically licencees) were denied any of protections available in applicable rent
     control legislation or landlord and tenant legislation
 - Court not convinced – these licences are shams and LL on the hook
 - Test: EXCLUSIVE POSSESSION – tenants had exclusive possession so you can’t say they had
     mere license

No equivalent in Canadian law – because legislation broad enough to include such license-like
arrangements (ie. Residencies Tenancy Act, 2006)

Residential v. Commercial Tenants
Separate legislation for residential and commercial tenants (Commercial Tenancies Act/Residential
Tenancies Act)
  - In context of residential tenancies we see inequality of bargaining power between landlord and
     tenant that is assumed not to be there in commercial context
  - Need for separate consideration through the law
Commercial tenancies – more freedom of contract concept prevails- independent parties assumed to be
independent parties who can look after their affairs

Dana Rotenberg Property Summary

Principles of Property and Contracts in Leaseholds: Termination Remedies
 - As long as lease continues, landlord will retain reversionary interest and ll’s right to actual
     possession of land is suspended during tenancy (ll remains seised of land for duration of lease)
 Issue of termination critical for a number of reasons:
 1. In context of commercial leaseholds, there have been significant changes
 - Remedies available to LL and duties imposed on LL, on wrongful termination by tenant have been
 - Returning to contract analysis in context of commercial leasehold estates
 2. In context of residential tenancies, wrongful termination by LL has serious consequences for
     residential tenant
 - Residential tenant is frequently weaker bargaining party
 - Residential tenancy in Ontario attempts to balance competing interests of the tenant and landlord –
     one the one hand there is need to protect tenants; on other hand need to protect LL’s reversionary
     interest over leased premises

Highway Properties Ltd. V. Kelly, Douglas & Co (SCC 1971)
Issue: repudiation of an unexpired lease by major tenant in shopping centre and resumption of possession
by landlord with notice to the defaulting tenant that it would be held liable for damages suffered by
landlord as result of admittedly wrongful repudiation

 -   Goldhar - Laskin overrides this case

 -   Commercial lease is conveyance and not a contract
 -   Takes commercial lease in different direction

 -   Rule of surrender by operation of law, and consequences of the rule for a claim of prospective loss,
     are said to rise above any intention of the party whose act results in the surrender, so long as the act
     unequivocally makes it inconsistent for the lease to survive – would not apply to case where both
     parties evidenced their intention in the lease itself to recognize a right of action for prospective loss
     upon a repudiation of the lease, although it be followed by termination of the estate
          -difficult to reconcile with dogmatic application of surrender irrespective of intention

 -   Landlord not under duty of mitigation but mitigation is in fact involved where there is a re-letting
     on the tenant’s account

 Before Highway Properties, 3 mutually exclusive options available to LL where tenant vacated
 premises and ceased paying rent before end of term (developed when property law saw lease as
 conveyance rather than contract):
 1. LL could refuse to accept abandonment and treat lease as subsisting, suing for rent as it came due
 2. LL could terminate lease and sue for rent accrued to date of termination (LL not entitled to damages
    or rent for any period after termination)
 3. LL could inform tenant that she proposed to re-let the premises on tenant’s behalf, and at end of the
    term, LL could claim any deficiency between rent payable by tenant and rent obtained by re-letting

In Highway Properties, SCC added another option for LL faced with tenant’s wrongful repudiation of the
lease – modeled on contract law rather than on property
       LL entitled to terminate lease but with notice to the defaulting tenant that damages will be

Dana Rotenberg Property Summary

     claimed on footing of present recovery of damages for losing benefits of lease over its expired term
 -   LL entitled to terminate lease and recover damages for period after retaking of possession
 -   Normal rules relating to recovery of expectation damages for breach of contract ought to be applied
     to commercial leases
Landlord’s Duty to Mitigate
 - Where LL Intends to rely on 4th contract remedy (Highway Properties) the LL is under obligation to
     mitigate any loss and his/her damages will be accordingly reduced if she fails to mitigate
 - If LL seeks to rely on first property law remedy (above) and elects to treat lease as remaining in
     force and sues for rent as it comes due, LL not under duty to mitigate
 - Toronto Housing Co. v. Postal Promotions Ltd. – LL not entitled to damages because LL had
     successfully avoided any loss – if LL successfully avoids loss, LL cannot rely on first property
     remedy that would otherwise entitle LL to treat lease as subsisting until termination

Transferring Interests in Land: Legal & Equitable Interests

Policy: Law highly suspicious of property claims based on alleged gifts because:
fraud (ascertaining proof difficult in gift scenario)
Preference for bargains (even Peppercorn theory suffices)

Social Role of gifts: different ideology – common law unilateral v. social meaning

 -   Equity plays big role – common law tempered by equitable doctrines – constructed trust doctrine
     (way to soften rigidity of CL)

Ex. Indian Potlatch – ceremony given by family to display hereditary possessions – dances, songs,
carvings – distribution of gifts to those attending
 -    repression of potlatches speaks to biases in law
Requirements for Valid Gift Inter Vivos
Deed or gift- gift of real or personal property in writing and signed by the donor, sealed and delivered

Parol/oral gift – absent written deed, a gift nonetheless recognized and enforceable if 3 criteria met:
    1. Intention to gift by donor
    2. Acceptance by done; and
    3. Sufficient act of delivery (speaks to possession)
(formality relaxed in US)
Proving Delivery
To Prove Delivery:
  - Property literally given away – act of delivery by donor before, during, or after declaration
(proving delivery problematic)
Goal is clarity – trying to clarify ownership rights
Cochrane v. Moore (1890, CA)
Facts:                                  Holding:
Owner says he is going to give ¼
interest of horse to Moore and          No gift of chattel is valid unless accompanied by delivery (applied
Moore orally accepts (intention +       old common law, to change rule court says you need legislation)
acceptance), owner sends letter to
Yates (owner of stable) to say that     But – Court applies Equity!

Dana Rotenberg Property Summary

he is gifting ¼ horse to Moore
(clarification in writing to owner)     Cochrane (who came to purchase the horse and have possession)
                                        became a trustee of Moore, beneficiary
-owner indebted to Cochrane (3rd
party) – owner of horse tells           Moore gets ¼ value of horse via equity – not common law re gifts
Cochrane that ¼ horse belongs to
Moore – Cochrane acknowledges -           -   Constructive delivery of undivided ¼ part of horse, or act
- then goes back on promise saying            perfecting gift of incorporeal part so far as nature of subject-
Moore does not get horse because              matter of the gift admits
there was no delivery so the gift         -   Courts do not need transfer by deed, or in case of transfer by
was invalid                                   contract for good consideration, shewing in its terms an
                                              intention that the ownership should pass at once before or
-debtor sues Moore                            without immediate delivery
                                          -   Courts might now be satisfied of gift by one and the
                                              acceptance of it by another, which are facts that constitute the
                                              opposition of transfer of ownership of chatter by way of and
                                              as a gift
Watt v. Watt Estate (1987)
Facts:                                          Holding:
 - Woman laboring for 20 years unpaid           Common Law Position on Delivery: delivery of 1 of 2 sets
     at marina                                  of keys insufficient for delivery of boat (owner retained set
 - On paper, marina owner is only               of keys
     owner of a boat                            (keys have symbolic meaning)
 - Logs say that she and owner co-own
     boat                                       But, Equity: owner’s writing, conduct and words
 - P also had keys to boat                      constituted an express trust of ½ interest of boat on behalf
 - Marina owner dies and executor               of plaintiff
     wants boat but P says no, this ½ boat
     is mine                                    Equity saves the day again!

Trust: to create a trust, typically execute deed of trust, define property, identifying trustees/beneficiaries,
Express Trust:
    1. Intention
    2. Subject matter (what is it)
    3. Objects of the trust (who benefits)
    4. No need for physical delivery, or writing (Cochrane)
Common Law
Parol/Oral Gift
Intention + Delivery
Deed of Gift
Intention + delivery + in writing
**Equity will not perfect an imperfect gift – has to be almost perfect

Resulting Trusts & Constructive Trusts
Resulting Trust arises in 2 ways:
   1. Transfer of property without donative intention, there is delivery but no intention
   2. Where a party purchases property in other’s name without intending to make a gift

Dana Rotenberg Property Summary

Presumption of advancement: traditionally where a man transferred property to wife or kids, he was
presumed to have intended to make a gift. Reversed by some modern family law statutes

Constructive Trust arises: in cases where a person without title to property has made a significant
contribution to acquiring or maintaining it
 - Intention of donor note important
 - Prevents ‘unjust enrichment’; ensures just result
 (does away with intention and prevents unjust enrichment)

 ** fairness between parties key in equity

Re Cole (1964, CA)
Facts:                             Holding:
-issue of delivery of a gift of     - If the act in itself is equivocal – consistent equally with an
contents of house in a family           intention to transfer chattels to his wife or with an intention on
context                                 his part to retain possession but give her the use and enjoyment
-husband going bankrupt, trying         of the chattels as his wife – the act does NOT constitute delivery
to say that property belongs to
wide                                 -   NEED DELIVERY
-when they bought house,
husband says “it’s all yours”      Timing of Delivery – delivery may precede, follow or e simultaneous
and she touches everything         with words of gift
-bankruptcy – sneaky behaviour
going on                           Prior: pre-existing possession is fine – no actual delivery needed

                                     Exception in common living (matrimonial context): possession is the
                                     person who has title
Examples of cases where Delivery NOT necessary – distinguished from Cole
Tellier (1906) – dad gifts daughter piano/live together – VALID GIFT
Macakedie Estate (1998) – father gifts son paintings as birthday gifts/live together so delivery imposed.
Langer (1932) – largely identical to Cole : man brought fiancée to new home, showed her furniture and
declared “it’s all yours”, yet court held VALID GIFT

Common Law Delivery Requirement
Constructive delivery – “control” test
e.g. Bauernschmidt handing over only keys to safe deposit box –VALID
- counter example: Keeping set of keys to car/boat (Watt)

Symbolic Delivery: eg. By handing over photo of car, or placing hand upon church organ in presence of
done, accompanied by words of gift – doubtful of legal status

History: requirement relaxed over time but not for oral gifts
Policy: (1) prevent fraud; (2) clarity/evidence of intent

Donatio Mortis Causa
A gift made in contemplation of death

   1. No writing requirement

Dana Rotenberg Property Summary

    2. Intention
    3. Delivery
    4. Subject to automatic revocation if donor recovers and does not die (main difference from inter

History 17th century; Statute of Frauds required transfers of land in writing; donation/equity circumvented

Hunter v. Baluke?

Transferring Interests in Land: Legal & Equitable Interests

Typical Real Estate Transaction
Two Stages:
   1. Agreement of Purchase and Sale
 - Terms of sale agreed (with help of agent)
 - Closing date set when vendor agrees to execute deed, purchaser agrees to pay balance of purchase
 - Purchaser tenders deposit (about 2% of purchase price)

   2. Closing
 - Purchaser’s financing in place
 - Vendor’s title checked (due diligence)
 - Vendor hands over deed and keys in return for balance of purchase price
Mechanics of Agreement
 - On form – buyer, seller, description of property, describe where it fronts, detailed as possible,
     deposit, chattels included, etc.
 - Anything you don’t want to pass goes on agreement – onus on seller to indicate what chattels you
     don’t want to part with
 - Rental items – has to be in agreement
 - Delineate all terms, completion date, indicate closing
 - Signed, sealed, delivered

Effect of Agreement
 - Vendor and purchaser sign APS, then vendor becomes a trustee of property for purchaser and
     purchaser is beneficial title holder that is vested in possession with legal interest
 - Purchaser becomes legal title holder only on obtaining possession at closing
 - Even though vendors have signed agreement, they still have responsibilities – still relationship when
     this agreement alive before closing date
 - Many things could go wrong – place burns down, vendor dies
Lysaght v. Edwards (Eng ChD 1876)
 - Decided shortly after fusion of courts          - Equity steps in and allows for specific performance
     of law and equity                             - Purchaser has right against vendor except when
 - Agreement of purchase and sale,                     “bona fide purchaser for value without notice”
     deposit paid, they agreed to                  - Vendor as trustee has duty of care towards purchaser
     everything, title checked but vendor              – must take reasonable care of estate
     dies before closing date                      - Vendor liable for wilful damage and neglect to
 - Vendor’s estate says there is no                    purchaser
     contract here but purchaser still wants

Dana Rotenberg Property Summary

     property so they sue for specific          “the moment you have a valid contract for sale the
     performance                                vendor becomes in equity a trustee for the purchaser of
 -   Actual validity of contract not at issue   the estate sold, and the beneficial ownership passes to
     – the effect of contract is                the purchaser”

Effect of Agreement: Equitable Interests
Liability for Loss or Damage
Purchaser bears risk of loss or damage to property between contract and closing
 - Responsible for insurance (unless parties agree otherwise)
 - Purchaser has equitable interest in property – enforceable against entire world except bona fide
      purchaser for value without notice
Vendor in possession must take reasonable care
 - May not treat land as her own
 - Liable to purchaser for both wilful damage and neglect

Purchaser’s Interest
Equitable property interest, not contractual enforceable against entire world, except bona fide purchaser
for value without notice

Vendor’s Interest
Retains personal property in equity:
 - Right to payment of purchase price
 - Charge or lien on the estate to secure payment of purchase price
 - Right to retain possession until the purchase money paid
Specific Performance
Specific Performance: decree that compels the D to personally to do what he promised to do

Remedy for both Purchaser and Vendor is specific performance in equity
 - Every piece of land unique, damages inadequate
 - Since SP always available, beneficial ownership passes with the contract itself
 - Lubben- SP against purchaser
Lubben v. Veltri & Sons Corp (1997, CA)
 - Agreement in place and then one party backs out
 - Purchaser wants to assign their rights to company who did not have money who couldn’t go through
    with financing
 - Sorry purchaser, agreement still valid – court forces SP against purchaser to buy property/complete
Semhalgo v. Paramadevan (1996, SCC)
 - Vendor wants out of deal – they signed agreement and then changing market prices kick in
 - Purchaser still wants property – unique piece of property
 - Purchaser wins and forces sale of property

Current Significance:
  - Special rules regarding specific performance of contracts for purchase and sale of land should no
      longer apply, ‘uniqueness’ standard should apply to both realty and personal property
1. What is unique?
- uncertainty re characteristics that will qualify as unique (size, shape, proximity, view, etc)
- inconsistency of decisions

Dana Rotenberg Property Summary

2. Encourages litigation
3. Undermines specific performance

John E. Dodge Holdings Ltd. V. 805062 Ont Ltd (2003, ONtCA)
 - Land near Canada’s Wonderland – Dodge wanted to purchase property to build hotel in lucrative
 - At time of case there was nothing there
 - Vendor doesn’t want to go through with agreement and purchaser wants SP
 - UNIQUE – placed near mall, traffic patterns, proximity to 400,etc.
 - Vendor argues that there were other suitable properties around area so Not unique

Property is unique if a substitute would not be readily available; property must:
(1) have a quality that cannot be readily duplicated elsewhere and
(2) be particularly suited for proposed use

 -   Property unique on date of actionable wrong – sufficiently unique to give rise to remedy in SP
     (must figure out uniqueness of property at time of breach and not when case goes to trial because
     things change)
 -   Uniqueness – broad – requiring that it be fairly easy for Ps to establish unique interest in property
     and this claim for SP

To award specific performance:
 - Is there a valid contract?
SP If uniqueness of property

Considered Semelhago

Valid Contract
4 Requirements of a Valid Contract
   1. General validity
   2. Vendor’s title
   3. Precision of terms
   4. Statute of Frauds, s. 4 (needs to be in writing, signed by person being charged)

-When contract valid, you can get specific performance or damages
-If contract not valid, look to equity to make it enforceable…
     1. General Validity
  - General requirements for validity of contract must be satisfied
                -Offer, acceptance, consideration AND
                -there must be “no ground whatever for setting it aside as between the vendor and
                 purchaser” (e.g. fraud, unconscionability, bad faith)
     2. Vendor’s Title
  - Must be made out by vendor accepted by purchaser
     3. Terms must be sufficiently precise to support specific performance
Walsh v. Lonsdale (1882 Eng CA)

Dana Rotenberg Property Summary

Facts: lease           Issue: is payment     Held: yes, precise; therefore valid contract and specific
agreement executed     term precise          performance of lease (the 540 loom per/year requirement
but no lease           enough to grant       described a minimum rent, and advance payment provision
delivered;             specific              applied to that minimum rent)
discrepancy on         performance?           - Courts read in validity
payment term                                  - Need some flexibility because agreements aren’t
                                                   always totally precise- courts can step in
    4. Statute of Frauds

“memorandum or note in writing”

Can consider two or more documents together?
 - Agreement of purchase and sale and mortgage: Connelly v. 904 Water St.(1994 Ont CJ)
 - Vendor’s receipt and purchaser’s deposit cheque: Grime v. Bartholomew (1972, NSSC)

Gazumping – practice in UK – when vendor makes oral agreement trying to get higher price for property
– don’t commit yourself to anything
-this induces purchasers into reliance that they actually have property
--Can Purchaser 1 enforce agreement on person who said there was a deal? Equality steps in where court
flexible and cares about fairness – read in allegiance to S of F

Exception to Statute of Frauds: Part Performance
Connelly v. 904 Water Street Ontario Ltd
 - Corporation entered agreement of purchase and sale of land – corporation agreed to give back
     second mortgage as part of purchase price
 - Personal guarantee was separate document that made no reference to terms of corp’s mortgage as
     outlined in agreement of purchase and sale (which was signed)
 - Court held that it could look at both agreement of purchase and sale (which had not been singed)
     and mortgage document (which was signed on behalf of corp) to determine content and extent of
Looking at both documents sufficient to determine extent of guarantee – satisfied s. 4 of S of F

Grime v. Bartholomew (1972)
 - Incomplete receipt signed by vendor and deposit cheque for purchaser were read together to
    constitute necessary memorandum of agreement of purchase and sale

Exception to Statute of Frauds  Part Performance
Starlite Variety Stores Ltd. V. Cloverlawn Invesments Ltd.
Facts:                             Issue: Was there part performance to justify an exception to SofF?
 - Tenant who wants to lease
      property to operate          Equity will enforce a verbal agreement for lease if the elements of
      franchise but CLoverlawn     the doctrine of part performance are met to prove the existence of the
      does not execute lease       agreement
 - Tenant spent money on
      expectation that they would Equity will enforce a contract for purchase and sale, even if contract
      be give occupancy- wants     not valid (eg. Oral contract) when (from Deglman):
      damages at least to be           1. Where one party performs part of its obligations in reliance
      compensated (could not get           on the agreement (Part Performance)

Dana Rotenberg Property Summary

     SP because place had been             2. Actions relied on as part performance must be detrimental to
     rented to higher bidder)                 the performing party (unjust enrichment)
 -   C argues that no agreement            3. Acts must be solely referable to the contract itself
     in place – not in writing –           4. Contract must be in all other respects valid and enforceable,
     SofF (used as defence)                   including identifiable terms
 -   Shelving units, advertising
     signs, other changes made,        -    Payment alone does not qualify as part performance –
     air conditioning, etc. –               restrictive interpretation
     general bacj and forth –
     showed PP                   Tenant wins – equity will enforce K for P&S even if contract not
                                 valid when 4 factors met
Deglman v. Guaranty Trust Co of Canada (1954 SCC)
 - Restrictive approach considered in Starlite

Issue: Was there PP to circumvent the SofF? Was payment a sufficient act amounting to PP?
  - Court awarded damages (as payment for services)
  - But mere payment alone does not qualify as actions for PP to justify title

Mere payment of money does not qualify as part performance
Steadman v. Steadman (1974 HOL)  liberal approach
  - Acts must be referable to some contract that is consistent with alleged contract
  - When you account for all circumstances, payment might satisfy PP
Alvi v. Lal (1990 Ont HCJ)  restrictive approach
If contract involves land, payment of money alone cannot constitute PP
Hollett v. Hollett
D purchased several acres of land       Holding:
and verbally agreed with P, his          - Compliance with writing requirement pursuant to SofF (4
brother, that P could have ½ of land          receipts) but not part performance
to construct home in return for ½
purchase price                          Receipts constituted compliance with SofF and acts of part
                                        performance seen as common practices in community, thus no PP
P made payments by 4 installments
and D gave receipts “for payment on         1. Compliance with writing requirement satisfied when its
land” but refused to issue bill of sale          clear: parties to contract, subject matter and consideration
until home built                                 (Walsh)
                                         - 4 receipts “for payment on land” implies purchase (if it was
P started construction of home but            a rental relationship would have said so)
abandoned it- concerned about not           2. Part Performance
having title and wife wanted to move     - House excavation alone (with acquiescence/help of D)
                                              would not satisfy PP because practice in rural
20 years later, when D planned to             Newfoundland community practice to allow houses to be
sell land, P brought application              excavated on property without amounting to gift or transfer
forward for ½ of interest in land             of property

                                         Receipts + house excavation = equitable interest
South Shore Venture Capital Ltd. V. Hass (1994 NS SC)
Facts:                                            Court applied doctrine of PP + Walsh principles
Tenant took possession under oral lease for 5     (parties to contract, subject matter and consideration)
years                                             to provide relief for a tenant and justify equitable

Dana Rotenberg Property Summary

No lease was ever executed and LL
subsequently tried to evict tenant – in absence      Unexecuted draft lease + acts of tenant = equitable
of written lease, tenant merely periodic             leasehold
(monthly) tenant
                                                     Valid lease for 5 years – LL would not be able to
Tenant claimed that he could rely on PP to           repossess place until 5 year term expires
establish equitable leasehold and that applying
Walsh he was in same position in relation to LL
as if he had a deed for lease for 5 years

Equity & Unjust Enrichment
   1. Enforce existing agreement if PP, or
   2. NO agreement
 - Often arise out of family arrangements (Hollett)
 - Tension between expanding role of equity (Denning) v. opponents stating that equity erodes
     property doctrines
 - Encourages judicial creativity

Equitable Principle: Unjust Enrichment (ground to get interest when no valid contract)
 - A principle that permits courts to intervene when one person has conferred benefit on other in
     circumstances that create unfairness
 - Courts either give remedy of damages (quantum meruit) or impose constructive trust (where no

If sufficient acts of PP, courts will justify entitlement to property by leasehold or freehold interest – can
also do this under unjust enrichment

Proprietary Estoppel
Request/encouragement by title holder to another, and subsequent action by that person in reliance on that
request/encouragement (often family context)
  - Eg. Aunt promises nephew that if he builds home on her land, she will transfer property to him
  - If nephew spends $ in reliance on her promise, she may be estopped from evicting him as trespasser

Person who has an equity may enforce this against a third party who has notice
Inwards v. Baker (1965, CA)
Facts:                                Holding:
Father encourages son to build house Denning: Licensee should, at the request or with the
on land and so does his own labour,   encouragement of the landlord, have spent the money in
moves in 1931                         expectation of being allowed to stay there

Father dies 20 years later and will      Father allowed an expectation to be created in son’s mind that
was dated before he house incident –     home he built would be his home (for life)
leaves property to wife, other kids      Danckwerts: son has other option to build on other land where he
                                         would have been legal owner/tenant and have his own home; but
Children take steps to kick him out      induced into doing otherwise
after mom dies                             - Equity created by estoppel: equitable estoppel; not
                                              necessary to imply contract/promise
Son tries to proprietary estop kids

Dana Rotenberg Property Summary

Children say: sorry son, you have        Criticism:
mere licence which we have now           -rendered land unsalable and discouraged son from ever moving
revoked                                  counter to alienability principle under law

TJ: widow and kids win – no              - compare Dodsworth (1973) – sister invites younger bro and wife
contractual agreement between dad        to live with her. They do and spend $$ improving relying on
and son                                  expectation. Sister repents and sues for possession
                                                -court ruled that D allowed to stay until sister paid back $$
Pascoe v. Turner (1979 CA)
Facts:                                                                  Issue: Is there a trust? Did D prove
 - Co-habitating couple – common law for 10 years – she did             facts amounting to estoppel? If so,
      secretary stuff for her – she purchased small things for house    what is equitable relief?
      – hr owns title to house                                          (is there mere license to occupy for
 - He had affair – she wants ½ house and contents                       lifetime of is there transfer in fee
 - He argues he only gave her license to occupy – revocable at          simple?)
      his will
 - she pleads trust, license and estoppel                               Holding: Proprietary Estoppel
 - he encouraged her = estoppel                                         All circumstances and facts of case
 - P held property in trust for                                         give rise to equity that can only be
 - Judge found constructive trust                                       satisfied by compelling the P (the
                                                                        inducing party) to give effect to his
Court looks at behaviour of parties at trial                            promise and meet the other party’s
History of conduct of P (ruthless- inference that he is determined to     - Woman altered her position
kick her out)                                                                  for the worse on basis of
                                                                               acquiescence and
If court finds license, not good for woman – mere license won’t cut            encouragement of legal
it                                                                             owner is estopped from
                                                                               retaining his land
Woman made repairs even though she had little $$                        Reasons: contingent on
Her capital reduced when she lived with P – impoverished by
relationship                                                            -strong pronouncement by court

He guaranteed that she would have roof over her head

1973 – house is ‘all yours’ and she began to invest (P encouraged)

Priorities and Registration           (FYI)
RegistryAct/Land Titles (electronic) – patch work system
 - Priorty as between legal interests first created
 In absence of registration system:
 - Prior equitable interest prevails, if the equities are otherwise equal
 - Legal claim prior to equitable legal prevails, where equities are equal
 - Equitable claim prior to legal; prior equitable claim is enforceable against all except bona fide
     purchaser for value without notice
         -actual, imputed or constructive notice (bound by anything you should have known)

Non-Possessory Interests in Land

Dana Rotenberg Property Summary


Property as Bundle of Rights
   1. Power to transfer
   2. Immunity from taking
   3. Right to exclude others (and include)
   4. Liberty to use
   5. Immunity from damage

1-3 = possessory rights
4-5 = limitations on liberty to use

Limits on use of Land
Limits may be ‘voluntary’ or ‘imposed’
 - ‘Voluntary’ land use planning tools: profits a prendre, easements, covenants (this is our focus)
 - ‘Imposed’ land use limits: torts, planning controls, government regulations
Profit a Prendre
Right to remove natural resources from another’s land
 - Crops, timber, fish, games, minerals, gas, oil

 -    Distinguished from an EASEMENT – while easement confers right to use the land belonging to
      another, profit a prendre confers right to take from another’s land some part of land or minerals or
      natural produce or animals existing upon it

 -    Not a LICENCE - profit a prendre not revocable as licence is

 -    Binds successive users without notice

 - Many cases that abo claim to hunt/fish is categorized as profit a prendre although usually sui generis
 - R. v. Sparrow
 - Questions of sovereignty not addressed – does not address interests

Relation to licenses?
Relation to aboriginal resource rights?

A right annexed to one parcel of land

     (a) To use another’s land in particular manner, not involving taking of natural produce or sol of the
         land (positive easement) or
     (b) To prevent the owner of the land from using his land in particular manner (negative easement)
 -     Classic examples – right of way over land
 -     Right to have drainage and sewer pipes under land
 -     Right to tunnel under land
 -     Right to erect power transmission system
 -     Right to erect signs and billboards on land
 -     Right to emit smoke and discharge to adjoining property

Dana Rotenberg Property Summary

  - Right to make noise
  - Right to have roof overhang adjacent property
  - Right to hang clothes on neighbor’s land
  - Right to use kitchen/washroom of adjoining premise
  - Right to burial plot/church pew
Gympsum Carriers Inc. v. The Queen
  - Ocean freightliner which collided on federally owned bridge and they wanted to say they aren’t
      liable for damages because of damages but then they found no easement
  - G resisted claims of repairs and loss of profits on basis that no damage or injury was caused to any
      property owned by railway companies, or to any property in which they had a proprietary interest
  - Federal government given full control over maintenance and betterment of property and had
      responsibility for repairing bridge
  - At best they had licence in respect of land – no liability here
No easement found because no intention to create an easement
4 Requirements of Easement
    1. There must be dominant tenement (enjoying benefit of easement) and servient tenement
         (burdened by easement)
    2. Easement must accommodate dominant tenement
    3. Dominant and servient tenement may not be owned or occupied by same person
    4. Easement must be capable of forming the subject matter of a grant (not assigned)
    1. Dominant and Servient Tenement
  - Easement must be linked with 2 parcels of land one over which easement exercised (servient), one
      in favour of which created (dominant) easement

Easement in Gross
In US possible for someone who does not hold interest in adjoining land to hold an easement over a
servient tenement – easement in gross [effective land planning, multiple users on one piece of property,
users don’t need to have adjoining piece of land]
  - Easement in gross = land encumbered – problematic for alienability purposes
  - In Canada, no easements in gross (Ackroyd v. Smith 1880)

Easement v. Profit a Prendre
 - No taking from actual land – right to do something/refrain to do something
Ackroyd v. Smith (1850)
 - P’s predecessor in title had entered into an agreement to permit the D’s predecessor in title to use
     road to cross P’s land
 - Subsequently, dispute about whether arrangement constituted merely licence between two original
     parties, or whether it was easement and thus binding on P (whose land would habe been servient
 - Right to licence and not an easement – words of grant were too broad and might have conferred
     rights on those other than the owner of the dominant tenement
 - Easements cannot be granted in gross
   2. Accommodation of Dominant Tenement
Easement must benefit dominant tenement itself, now owner personally; must make it a better and more
convenient property

Easement must accommodate not persons but land
Re Ellenborough Park (1956 Eng CA)
Facts                                     Holding

Dana Rotenberg Property Summary

 -   Number of houses with garden in            -    In relation to 2nd requirement (that easement
     centre enclosed by houses                       accommodate dominant tenement), the court
 -   Title to garden was vested with                 concluded that the right to use the garden conferred a
     trustees and each house owner paid              benefit on dominant tenement and not merely a
     into fund for maintaining garden                personal advantage upon the dominant owner
 -   Only those residing in houses entitled     -    Granting free access to cricket land, letting boats on
     to use garden                                   canal, running independent business activity –
 -   Question: whether owners of houses              extraneous to property
     surrounding garden had enforceable
     right in respect of use and enjoyment          1. Character of connection to dominant tenement:
     of garden – necessary to find                     does easement enhance the “use of a house as a
     easement to demonstrate right                     house”? (needs to enhance normal use)
                                                    2. Geographic proximity to dominant tenement: are
                                                       they neighbouring parcels? (need to be physically
                                                       close by)
   3. Different Owner/Occupier
Dominant and servient tenements may not be owned or occupied by same person
 - This is being watered down
   4. Subject Matter of Grant
Easement must be capable of forming the subject matter of a grant

Right claimed must:
   1. Not confer a right of possession (easements are non-possessory)
   2. Not be too vague, and
   3. Be of utility and benefit
Confusing and unhelpful

In re Ellenborough Park, rights claimed not too vague – did not amount to claims of joint occupation and
they represented claims beyond mere recreation and amusement and were if real utility and benefit

Negative Easements
English law traditionally allowed owners to create only 4 negative easements:
 - right to air, light, support and water in an artificial stream (any others via covenants)

courts traditionally reluctant to recognize negative easements: Phipps v. Pears (1965 CA)
Phipps v. Pears (1965 CA)
Facts:                                             Holding:
2 pieces of property abutting, throughout year Denning: no right to be protected from weather – must
they switch owners and one of properties sold be in covenant (contractual rights between parties) and
(not fit for habitation) and its demolished        not easements
which exposes other house
                                                   Talks about case where windmill blew on mill and then
16 says they had right of support that is now      schoolhouse built which cut off winds – miller had no
gone so 14 owes them duty to maintain              remedy – right of wind and air is not a right knwn to law
support of structure and support from weather
                                                   Cannot unduly restrict neighbour’s enjoyment of land
16 saying they had negative easement to be
protected from weather
Negative/Positive Easements - - Policy
Why the policy against negative easements?

Dana Rotenberg Property Summary

    1. Hamper legitimate development
    2. Unduly restrict owner in enjoyment of own land
Policy: pro-development and restriction on servient owner’s enjoyment and use
 - Realm of private trying to order property without government’s interference

Advantage of Easement over Covenant:
 - Easements enforceable regardless of privity, whereas enforceability of covenants may depend on
    privity of parties
 - No prescriptive rights to light/air (Fountainbleau, 1959)
 - Covenants don’t necessarily run with land but you have to litigate to get easement off property

Right now, system overlapping mechanisms – city bylaws, easements, covenants
Fountainbleau Hotel Corp. v. Forty-Five Twenty-Five Inc (Fla CA 1959)
Facts                                    Holding:
 - Luxury hotel owner brought             - No prescriptive right to light/air or unobstructed view
      injunction to prevent rival hotel        of ocean
      next door from building tall
      addition on ground that new
      addition would create shadow after
      2pm everyday over pool, cabana,
      sunbathing areas

A contractual promise
 - Unlike easement or profits a prendre, covenants can only be created by express agreement (privity
 - Parties to covenant:
 - Covenantor (promissor): bears burden of covenant
 - Covenantee (promisee): enjoys benefits of covenant
Types of covenant:
 - Positive: requires covenantor to DO something
 - Restrictive (negative): requires the covenantor to REFRAIN from doing something
Freehold covenants are generally unenforceable in the absence of privity
 - Ie between anyone other than original vendor and purchaser
Restrictive Covenants
Re Drummond Wren (1945) Ont HC
Held covenant VOID because:
    1. Offensive to public policy
 - Well-organized principles in common law and legislation domestically and internationally; not
      breaking new ground
 - Takes judicial notice of history of anti-semitism
 - Moral duty for social cohesion
    2. A restraint on alienation: land should be freely alienable
    3. Uncertain: too vague to be applied in court
 - Terms “jews” too vague
Noble and Wolf v. Alley (1951) SCC
Vendors and purchasers applying together to have covenant removed but neighbours appeal

Held covenant void because:

Dana Rotenberg Property Summary

    1.   Does not touch and concern land to bind successors in title of the covenantor (is an outright
        restriction on alienation – concerns people)
    2. Uncertain
    3. Restraint on alienation
  - No discussion on public policy – focus only on technical considerations
  - Conveyancing Law of Property Act not considered: no covenant on land can be discriminatory
Other Type:
Other types of restrictive covenants eg. Competition/business (McDonalds 1994) got a permanent
injunction against would-be restaurant to operate in same mall McD leased from
  - Mall breached covenant
  - When in breach of covenant, injunction to restrain the breach
  - In some cases damages: Wrotham Park (1974) homes already occupied and there was a shortage of
      housing (developer had covenanted to get pre-approval from P before construction and did not)
  - Amend or removal of covenant: generally, parties may decide to remove covenant expressly or
      change it (make sure reflected in title registration)
Covenant Reform
Does law work?
Wide consensus that it does not…
  - OLRC recommended a simple rule that burdens and benefits run in transfers of land
  - One law of ‘servitudes’ (in US, project on the New Restatement)
  - We are still waiting…

Though we have more public regulation eg. Ontario Planning and Development Act, etc.

2 developments in recent decades have created new interests in use of covenants and easements and
profits a prendres as planning tools:
      1. Increasingly widespread recognition or need for individual and group action, in addition to
           governmental efforts to foster protection of the environment, both in urban and natural settings
      2. Political changes in Canada and elsewhere that emphasize private, rather than public, methods
           of regulation

Private efforts to protect environment using conservation covenants can succeed only if there is
complementary public restructuring of institutional arrangements, including legal reforms to ensure
effective, inexpensive and streamlined use of these legal tools

Family Property

Historical Background
Legal status of married woman pursuant to doctrine of coverture was complex relating to many areas of
law in addition to property - biblical teaching that husband and wife become one flesh

Marriage converted wife into legal nonperson

Dower & Curtesy
 - Life interests in some of other spouse’s property for surviving spouse – after other spouse’s death
 - Both available until recently in most provinces
 - Wife’s write to dower created problem for conveyancing – subsequent purchaser’s interest would be
    subject to wife’s dower right
 - Most provinces, wife’s right to dower at common law augmented by statute

Dana Rotenberg Property Summary

 -   Husband’s right of curtest similar to but also different from a wife’s dower right – arose when man
     married woman seised of inheritable estates, that is of lands and tenements in fee-simple or fee-tail,
     and had by her issue born alive and capable of inheriting such estate – on wife’s death, husband held
     lands for his life as tenant by curtesty of England

Property and Impact of Divorce Reform
Murdoch v. Murdoch (1975, SCC)
Facts                          Holding:
 - Married in 1943,              - Court concluded that there had been no financial contribution by
      separated in 1968              her that would sustain declaration of resulting trust
 - At separation, she files      - Court distinguished cases in which non-financial, byt valuable
      claims for financial           contribution had been made by spouses to acquisition of property
      support and declaration        because claims of non-titled spouses in those cases were directed
      that her husband was           to property interests in matrimonial home
      trustee for her for      Maj: she just did work done by any ranch wife
      undivided ½ interest in    - Must show that property was acquired with ‘common intention’
      property owned by him          where titleholder was trustee, and each would own ½ interest
      and in relation to which   - Need to show financial contribution
      she claimed they were
      ‘equal partners’         Laskin (Dissent): facts justified declaration of constructive trust –
 - Claim based on idea of      significant contribution of physical labour beyond ordinary
      resulting trust          housekeeping duties

                                   -   She did NOT get ½ interest despite work

                                     This case led to FLA (kicks in 1978-80)
Reform: Family Law Act
 - Only applies to married couples
 - S. 4 add up value of all property owned by couple at date of separation
 - Then split the value of all property to get equal amounts

“property” – any interest, present or future, vested or contingent, in real or personal property and
    a. Property over which a spouse has, alone or in conjunction with another person, a power of
        appointment exercisable in favour of himself/herself
    b. Property disposed of by spouse but over which the spouse has, alone or in conjunction with
        another person, a power to revoke the disposition or a power to consume or dispose of the
        property, and
    c. In the case of a spouse’s right under a pension plan that have vested the spouse’s interest in the
        plan including contributions made by other persons

  - Requires court to determine what ‘property’ is
Professional Degrees as Property?
Corless v. Corless (1987, Ont)
Facts:                                    Holding:
Wife claimed that her husband’s LLB       Degree = Property within s. 4 of FLA
should be valued as property at time of   But NO VALUE so not included in calculation of net family
divorce                                   property but Value of husband’s law partnership was
She supported him while in law school

Dana Rotenberg Property Summary

and followed him through it all (moved,
quit jobs, raised kids, started new
business that did not profit)
Keast v. Keast (1986 Ont Dis Ct)
Distinct from Corless
-court awarded extra ‘compensatory’ support
Linton v. Linton (Ont HCJ)
PhD NOT PROPERTY even though wife supported him financially to enable him to acquire it
-court awards substantial and ongoing financial support
Caratum v. Caratum (1992, Ont CA)
Facts:                  Holding:                                                    Considerations:
They split 2 days       LICENCE NOT PROPERTY under s. 4 because:                    -right to work in general
after he gets dental         1. Not transferable                                    – how do you put value
licence and she is           2. Required personal efforts on part of title holder   on different kinds of
trying to get ½              3. Right to work in general: floodgate argument, if licences – trades,
value of licence                 prof degree property, then also any other type of professional – slippery
                                 work requiring qualifications, eg. Electrician,    slope
                             4. Difficult to value degrees                          Right to exclude
                                                                                    important for
                        In matrimonial context, fallacy lies in treating licence as classifying something as
                        property on valuation date, when most of its value          property – think about
                        depends on personal labour of licensed spouse after         Moore body parts
                        termination of the relationship – future labour does not    discussion
                        constitute anything earned or existing at valuation date

                      No constructive trust – if licence not property then
                      nothing to which trust could attach

                      Woman gets lump sum $30,000 of spousal support
                      which equal to value of trust that she had received at

                       Court recognize value in practice but not in degree
Clegg v. Clegg (2000 Ont Sup Ct)
Facts:                                                        Holding:
During marriage husband involved in business but sold it Payments owed to husband were within
just before separation – at time of sale he entered into      definition of property in FLA, and that the
non-competition agreement valued at $1,500,000                fact that they were not transferable did not
                                                              make them non-property
Wife claimed entitlement to property in relation to
equalization, while husband argued that payments under
agreement related to personal service not to compete and
were therefore beyond definition of property pursuant to
US and Professional Degrees as Property
  - Woodworth v. Woodsworth (1983) Mich CA
  -    Husband’s law degree was “family asset” to which wife contributed; expectation of economic

Dana Rotenberg Property Summary

 Other US states not property; different approach
 - Reimburse costs, share in enhanced earning capacity, equivalent opportunity (Morgan)
Critical Perspectives on Property and Professional Degrees
 - Why can’t you say that it’s like business law where asserts are split
 - Difficult in family situations because couple makes decisions as unit – not thinking for themselves -
     doesn’t work when split and woman stays at home
 - Biases in social ordering – where woman still earn less then men – doesn’t make sense for women
     to work – as unit it makes sense for man to work because he will bring more money to union
 - Biases self-imposed, women tend to gravitate to lower paying jobs
 - In corporate law, you still value good of business – things that are not true property

Equity and Family Property
Pettkus v. Becker (1980 SCC)
Facts:                                       Holding:
Together for 19 years common law, 14         SCC – confirmed CA decision – ½ interest as constructive
years she worked on bee farm to              trust
acculumalte property and any money she
made she would spend on farm meanwhile       Not resulting trust because common intention that property
he puts earnings in separate account         was jointly owned not found (when he bought property no
                                             common intention) – other judges said it was resulting trust
She wants ½ interest in property – granted
at trial because they were in joint          Constructive Trust more lenient – unjust enrichment 3 part
operation – also given $1500                 test (Rathwell)
                                                  1. Enrichment (benefit conferred)
CA – used constructive trust – given ½            2. Corresponding deprivation (at P’s expense)
interest                                          3. No juristic reason for enrichment (it would be unjust
                                                      to allow enrichment/retention of benefit)

                                             Other issues: duration of relationship, causal connection to
                                             justify property interest, proportional shares

                                              -   Not enforceable – she kills herself as protest
Georg v. Hassanali (1989 Ont)
Facts:                                       Holding:
Woman cohabite did most of work              Court concluded that test for unjust enrichment in Pettkus
running 183 suite apartment building for     has been met
10 years
                                             Constructive trust - entitled to half interest
Apartment owned by male cohabite who
ended relationship when he married
someone else
Stanish v. Parasx (1989 Man)
Facts:                                       Holding:
Woman cohabite provided only household       Each of parties had received some compensation for their
labour and childcare, while male worked      efforts and there was no unjust enrichment – Test NOT met
at paid employment and provided for
couple’s financial needs                     Just working in house will not amount to constructive trust-
                                             must do something more – maintain apartments, bee farm,

Dana Rotenberg Property Summary

Peter v. Beblow (1992 SCC)
Facts:                                         Holding:
12 year common law relationship                Contribution seen as sufficient
                                               Issue – whether contribution has to be financial..
She did all domestic work, looked after
kids, worked part time and paid some costs
Socorchan v. Socorchan (1986 SCC)
non-titled cohabite had contributed to         Holding:
maintenance of property owned by other         Constructive Trust held
(thus not requiring contribution to
acquisition of property)
Anderson v. Luoma (1986, BCSC)
Facts:                                         Holding:
Lesbian couple separated after 10 years –      Couple not entitled to statutory remedies under family
one partner had borne kids, provided bulk      property regime because they were same-sex couple
of work at home and other partner worked
outside of home                                Constructive trust in relation to some property owned by
                                               titled spouse
Buist v. Greaves (1997 OJ)
Facts:                                         Holding:
Same as Anderson                               Rejected claim to constructive trust by non-titled partner in
                                               a same-sex relationship on ground that there was no

New Property Concepts

Property and the Charter
Should property be protected by Charter in s. 7 – life, liberty and security of the person

Including Property in Charter (McBean) would:
    1. Be irrelevant to propertyless class of Canadians
    2. Have a negative impact: eg courts could strike down a labour law that prevented the firing of
        workers who join a trade union if it means that such a law deprived the employer of property
  - Would not help disenfranchised

 -   Could thus also affect: land utilization, social welfare, labour, other socially useful schemes

American Case re Economic Interests
Goldberg v. Kelly (US SC)
Welfare benefits had status of property; due process hearing required before welfare benefits could be

Adopted Reich’s views on entitlements as:
 - Sources of security
 - Professional licenses
 - Union membership
 - Employment contracts
 - Pensions
 - Stock options
 - Welfare benefits

Dana Rotenberg Property Summary

Section 7 and Protection for Economic Interests – Canadian Developments
Queen v. Fisherman’s Wharf (1982)
Issue: whether collection provisions of the NB retail sales tax legislation allowed lien to be put on
property used by taxpayer?

Held: Dickson –legislation did not allow lien to be put on property as a violation of s. 7 right to
enjoyment of ownership of property which extends to ‘security of person’

How Property related to security of person:
-property from which companies produced their income and loss of property would negatively affect
earning capacity
- from this, inferred that any property loss which causes a decrease in income is property which relates to
security of person
-more plausible to argue that outer edge of s. 7 – that state action which deprives person of all or
substantial portion of capacity to produce income would invade security of person ie. Removal from
welfare scheme, confiscation of property essential to one’s work, cancellation of licence which is
essential to pursuit of one’s occupation

Opens up s. 7 to protect economic rights – security of person may be presumed to include rights not to be
compromised in the ideas of life an liberty

No reason to view security of person as being exhaustively defined by reference to privacy and bodily
integrity and not as encompassing economic aspects of personhood –concept of person includes
autonomy, self-direction and social activism

Pre-condition for self-direction is ownership of property
Right to work/right to economic survival?
Courts take a restrictive view of protection
R. v. Banks
- Squeegee kids – Ontario Safe Street Act designed to prevent aggressive squeegee kids
- no protection for economic survival
- Court held that legislation was constitutional and did not contravene s. 7 protections
-Right to economic survival NOT protected by s. 7
Right to Welfare?
Mass v. Min of Community and Social Services (1996 Ont)
Court held that it was within government’s competence to determine level of welfare benefits, thus
upholding government’s decision to reduce level of benefits by 20%

Court concluded that reduction did not infringe recipient’s life, liberty, security of person contrary to s.

Government entitled to reduce welfare – no violation
Right to Housing?
South Africa v. Grootboom (2000)
Held: while not entitled to housing immediately, s. 26 of SA constitution obliged state to devise and
implement a coherent, coordinated program to provide relief to those in desperate need

Finding in favour of evicted tenants

Dana Rotenberg Property Summary

Right not to be excluded
  - Right to exclude, could also be right not to be excluded
  - Consistent with liberal-democratic ethic
  - Every individual has right to equal access, to develop human capacities
  - Can take either of 2 forms
      1. Right to labour, or
      2. Right to an income
Manitoba Fisheries v. Queen (1978 SCC)
Facts:                                    Plaintiffs entitled to compensation for government taking
Ps owned and operated fish exporting      goodwill of business
business, successfully intil the feds
enacted legislation giving exclusive      Good will as new form of property?
rights to carry on such a business to
statutory corporation                     Suggested approach – looking at fair market value – good will
                                          as property – traded, bought, sold, compensated
Ps claimed compensation for property
interests against Crown

Mossman on Property Scholarship
  1. Lawyers for lawyers
  2. Judicial decisions are affected by jduges’ values, beliefs, assumptions; unstated factors
  3. Property scholars take little interest in uncovering non-law, focus on doctrine
  4. Law is not in a vacuum
  5. Legal process not neutral
  6. Judges in role of redistributive justice all the time
  7. No logical reason to deny ‘new’ property
  8. Property is now more public than private

Dana Rotenberg Property Summary


Fair Dealing in Canada
Copyright Act s. 29 enumerated purposes:
    1. Research or private study
    2. Criticism or review
    3. News reporting
Common Law Test
    1. Must fit within these purposes
    2. Use must be fair
    3. Sufficient knowledge (in 2 and 3)
CCH v. LSUC (SCC 2004)
Facts:                               Holding:
                                     The unanimous judgment of the court was given by Chief Justice
Law Society of Upper Canada          McLachlin. The Court held that the Law Society did not infringe
offered request-based, non-profit    any copyright when single copies of decisions, statutes,
photocopying services to students,   regulations, etc. were made by the library.
members, judiciary, and authorized

The Law Society provided single
copies of legal articles, statutes,    The third issue deals with the scope of “fair dealing” and more
and decisions to those who             specifically what constitutes “research”.
                                       When claiming “fair dealing” the claimant must show that 1) the
The Law Society argued that the        dealing was for the purpose of either research or private study and
service they offer is necessary to     that 2) it was fair.
providing equal access the library’s
collection of legal materials. Many    In interpreting “research” the Court states that it “must be given a
of the materials are non-circulating   large and liberal interpretation in order to ensure that users' rights
which makes access to the original     are not unduly constrained.” (para. 51) Consequently, it is not
copies difficult to those who do not   limited to private and non-commercial contexts. Therefore, the
work near-by.                          library made the copies for research purposes.

Three of the largest publishers of     McLachlin then examined the meaning of “fair” in the contexts of
legal sources, CCH Canadian            “dealings”.
Limited, Carswell Thomson
Professional Publishing and            She describes fair dealing as being a “question of degree” that
Canada Law Book Inc., sued the         cannot be defined concretely. She defines six factors to determine
Law Society for copyright              fairness.
                                           1.   the purpose of the dealing
                                           2.   the character of the dealing
                                           3.   the amount of the dealing
                                           4.   alternatives to the dealing
                                           5.   the nature of the work
                                           6.   the effect of the dealing on the work.

                                       In application of these factors to the facts McLachlin found that,

Dana Rotenberg Property Summary

                                      given the restrictions put in place by the Law Society for copying
                                      the materials, the library was acting fairly.

                                      McLachlin decided not to answer the fourth issue.

                                      Notes on Fair Dealing
                                       - FD moved from defence to user right
                                       - FD preferable to other exceptions
                                       - Liberal interpretation of FD and exceptions
                                       - Purposes not limited to non-commercial contexts (lawyers
                                           carrying on the business of law for profit conduct non-
                                           infringing research)
                                       - Great Library practices live on…
Purpose (and commercial nature) of dealing
 - Cannot be given restrictive interpretation or result in undue restriction on user rights
 - Courts should adopt objective test: user’s motive
 - Commercial research Can be FD

 - Access policy clear on purposes; reasonable safeguards
 - When use unclear librarian is gatekeeper
Character of Dealing
 - Multiple copies, widely distributed can be unfair
 - If copy destroyed post use can be more fair
 - Custom and practice of industry

 - Only single copies made to single users
 - No expressed application of custom (in other facts – Great Library practices)

Amount of Dealing
 - Weaker consideration
 - Copying entire academic articles or an entire decision can be fair

 - Access policy: single case copies, less than 5% secondary sources
 - Librarian gatekeeper; no evidence of multiple copies made
Alternatives to Dealing
Weighs against FD if:
    (1) A non-copyright work available and
    (2) Work was not reasonable necessary for purpose

 - No alternatives (20% non-TO patrons, no borrowing privileges thus had to copy)
 - Availability of license irrelevant (fact that user did not have licence, is not proof that no FD –

Dana Rotenberg Property Summary

    beware of owner’s monopoly (user-centric)
Nature of Work
 - If unpublished, dealing more fair
 - Because wider public dissemination of work (author/owner eclipsed by user)
 - Counter to US and UK cases (user-centric)

 - Works were essential to legal research
 - Subject to Access Policy stating purposes

Maybe too far on user side?
Not very consistent with precedent
Effect of Dealing on Work
 - Competition with market of original work against FD
 - Seems to be less important that other factors v. UK and US

 - No evidence of market impact (suggests publishers have burden)
   1. Liberal approach – purposes
 - Expanded since “should not be given restrictive interpretation” considered under factor 1
 - New purposes may be included
 - Crown copyright: can copy court decisions (and likely other works)

     2. Liberal Approach -- factors 6 more or less

     3. Exceptions and FD (FD preferred)

     4. Approach to copyright lawsuits
 -     Typically, P proves infringement and D defends
 -     CCH skips infringing, and in some ways, P disproves FD

     5. Burden of Proof and agency
 -     Library relies on its practices, no need to adduce evidence of FD of third party users
 -     Need express knowledge of end user activity

   6. Cautionary note on CCH policy:
 - Reaffirms Theberge CA dual objectives:
         -balance between creator and promoting public interest in encouragement of arts/dissemination
         -ill-conceives policy/language:
                  Public v. creator (policy)
                  Owner v. user (issue)
 - Ill-conceived academic scholarship:
 -       Public v. creator
Before CCH – Mixed Approaches
Restrictive Interpretation (Michelin FC 1997)
No acknowledgement, not fair, entire work, no US law

Liberal Interpretation

Dana Rotenberg Property Summary

(Allen OCJ 1997; US law)

*Boudreau OCJ 1997) Fraudulent dealing/bad faith

Breen FC 1985, author’s skill, time and talent_

Bad faith and motive not considered iN CCH but it was considered in cases before
After CCH – Liberal Interpretation
Liberal Interpretation
Tariff 22, SCC 2004
Balance owners v. users rights, not loopholes

Re Media Monitoring
C Board, March 2005 comment on FD:
   (1) Profit-drive research may be FD
   (2) Agency may exonerate third parties

Re Breakthrough Films and TV
C Board, March 2006 dissent
 - Yes, balance BUT cannot condone industry practices that view licensing copyright as an
 - FD may lead to areas that were previously protected, unprotected thus need to account in tariffs

Tariff 22A
C Board, Oct 2007
 - Streaming music is fair dealing

Policy considerations
    1. Stakeholder positions and industry create power imbalances
 - Where is author/creator?
 - CCH does not account for her
    2. Rest of Copyright Act
 - Is there balance? Is the Act clear enough to communicate this balance?
 - Author-centric provisions may be necessary (accounting for contract role, moral rights) to balance
      liberalized FD/potential future exceptions and right holder centric existing provisions
 - Addressing overall damages (varied)
    3. Role of Contract (can promote/undermine authors /FD)
    4. Technology (ditto) thus relationship between FD and TPMs
    5. Fair dealings: parody? Time shifting?
    6. Best practices (industry speicifc guidelines which will be considered from parties to courts)
    7. Business models evolving (open access, creative commons…)
    8. International implications (CCH most likely Okay)
    1. Do nothing (wait and see other cases)
    2. Legislate CCH factors?
    3. Cherry-pick other laws (eg fair use)?
    4. Clearly copyright issues in educational sector – signal out important purposes (eg. Add
         educational uses in FD?) rifle shot approach?

Dana Rotenberg Property Summary

    5. Consult with stakeholders and study evolving practices and encourage industry-based fair dealing
    6. Clarify copyright act? Policy objectives and stakeholder needs

Copyright Ownership
Litigating extent to which oral contracts envisioned electronic publishing:
 - If you are staff writer, doesn’t apply to you
 - We are talking freelance writers

Copyrigt being undermined
Balancing between diverse interest
Publishers as pirates
Freelancers vulnerable group- more and more outsourcing – growing # of ppl
Each time new technology, resurgence of cases – we need suitable framework in laws
Canada Copyright Act
13(4) Assignments & Licences
The owner of copyright in any work may assign the right, either wholly or partially, and either generally
or subject to limitations relating to territory, medium or sector of the market or other limitations relating
to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof,
and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in
writing signed by the owner of the right in respect of which the assignment or grant is made; or by the
owner’s duly authorized agent

Globe and mail sued by freelance author
One incident of contract in writing but no electronic use clause in contract
5-4 decision in favour of Roberson –writers group happy

Canada’s only decision that carved out digital rights
Court said that when you decontextualize work that is infringement but if you keep it within context of
newspaper then it is okay (carved out CD Rom Rights)
Majority in Robertson
e-databases decontextualize articles from newspaper
  - Does not follow that articles in newspaper can be decontextualized to point that they are no longer
        presented in manner that maintains their intimate connection with newspaper
Cd rom faithful to essence of newspaper
  - Does not need to remain faithful to essence of original work
  - CD ROM does so by offering users, essentially, a compendium of daily newspaper editions
SCC Majority on Media Neutrality
Media neutrality reflected in 3(1) of Copyright Act which descripes right to produce or reproduce a work
in any material form whatever. Media neutrality is not a licence to override the rights of authors – it
exists to protect rights of authors and others as technology evolves
Contract trumps Copyright
If it is determined that freelance authors have in fact impliedly licensed the Globe the right to republish
articles in electronic databases, this decision will, of course, be of less practical significance

Parties are, have been, and will continue to be free, to alter by contract the rights established by the
Copyright Act

Dana Rotenberg Property Summary

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