By Donald H. Lapowich
Local residents in B.C. incorporated a society in anticipation of buying land from the CPR. The land was subdivided into six lots, one of which was to be kept by the society as a park.
When the plaintiffs showed an interest in the property, the president and founder of the society “advised” the plaintiffs that all lots would have a right to “common moorage”. The plaintiffs went ahead and purchased a lot.
Later, the society “opposed moorage” and any dock being constructed. The court held that the plaintiffs “relied” on the society’s representations and it was the basis for their purchase. It was unjust for the society to now rely on alleged legal rights, and the plaintiffs were granted an easement. (Sykes v. Rosebery Parklands Development Society, 2011)
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Attacking the regulator: A lawyer brought an action against the Barreau du Québec, which controls the conduct of professional lawyers in Quebec. He complained that his Notice of Disbarment was published, notwithstanding that he had appealed. He claimed compensatory damages and exemplary damages.
The trial court dismissed the lawyer’s action, reasoning that the publication had been an error but was made in good faith by the council while performing its duties. Once the council learned of the error, it was immediately corrected.
The trial court also found that the lawyer could show no causal connection to any damages, which had not been proven.
The lawyer appealed the trial judgment but defaulted in proceeding, and an abandonment of the appeal was issued. The Quebec Court of Appeal dismissed a motion to extend the time for the appeal. The Court of Appeal reasoned that there was “no reasonable chance of success.” The lawyer then moved to file an Application for Leave to Appeal to the Supreme Court of Canada. That appeal was also dismissed. (Goldman c. Barreau du Québec, 2011)
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Two at fault: The plaintiff purchased the defendant’s mobile home in 2008. The purchaser (plaintiff) then discovered the tenancy of the vendor was month to month, and there were rumours that the park was to be redeveloped. The vendor did not disclose this.
In 2009, the purchaser received notice to vacate tenancy in one year, and the purchaser relocated.
The court held that the purchaser was entitled to damages for lack of disclosure (concealment of facts).
However, the purchaser’s losses were cut in half for contributory negligence in not taking reasonable care to determine whether the tenancy would span a period of years.
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Resulting trust: The plaintiff and defendant had a warm and friendly relationship for several years. When the defendant said she was not happy with her rental accommodation, the plaintiff indicated they would buy an apartment “as an investment” in which the defendant could live. The plaintiff and defendant discovered a suitable condominium. Because the defendant was the only one who satisfied the age requirement (bylaws) the title was placed in the defendant’s name.
The plaintiff provided the funds required to purchase the condominium. The defendant paid the rent of $650 per month.
When a dispute arose, a court found this was a “true resulting trust” and that the plaintiff was entitled to a declaration that they were the sole legal and beneficial owners of the property.
However, the defendant was entitled to continue occupation until she chose to vacate or until the end of her life.
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Restraint of trade: In a Quebec Court decision, a bookstore leased a spot in a shopping centre with a clause inserted in the lease that the owner of centre would not lease any space to any tenant whose principal use would be the sale of books.
When the shopping centre owner began to negotiate for rental space to a competitor, the bookstore sought an injunction to prohibit any such further lease.
The Court of Appeal upheld the trial judge, who ordered the owner of the centre not to lease space to the competitor. It ruled the trial judge could decide if the lease clause for exclusive rental was clear or ambiguous.
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
