Property (short)_Dag - INTRODUCTION

By Nathan Moore,2014-07-10 19:13
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Property (short)_Dag - INTRODUCTION ...


    Harrison v. Carswell: right to exclude (shopping mall picketing in legal strike): 4 Union v. Eatons: right to strike trumps no solicitation policy (distributing leaflets): 6

    MB Petty Trespasses Act: excludes from liability for picketing: 7 ON: CL right to picket; statute law doesn’t say: hence unclear: 8


    Jack Layton: peaceful, non-disruptive leafleting violated s.2(b), not justified under s. 1: 8

    Committee for CC: gov’t not justified in right to exclude; some exceptions: character of place? public

    arena test: 1. open to public; 2. public automatically admitted to property as a right; 3. compatability of

    property’s purpose w/ such expressive activities; 4. impact of availability of such property for expressive

    activity on the achievement of s. 2(b)’s purpose; 5. symbolic significance of property for msg being communicated; 6. availability of other public arenas in the vicinity for expressive activities; if private:

    peaceful or obstructive activity: 8-9

    1987 Task Force TPA: no line btw private/public; individual policing process; discrimination: 9 Justifications for Property: Lockean/labour, consent, possession/occupancy (common one), utilitarian, law & economics, freedom and personality, radical/alternative: 10

    Moore: no conversion claim, no patent/possession to own cells; nothing unique about cells, labour-added by

    university; silent in statute read as not having those rights 11-12

    Other: Royal Commission on NRTs in Canada, Bill C-13, humans as objects of property (Leroy), poverty

    and property, Local 1330, right to shelter cases, chart: 12-14


     ?Certainty (Moore)/uncertainty (Johnson v. MacIntosh, native case), slave article: 15-16

    Key Rules of Possession (recap)

    Possession can give rise to proprietary title (ownership title) ?

    : (POSSESSORY TITLE or Possession as a Effective possession gives rise to presumption of title?

    root of title)

    A person in possession of land in the assumed character of an owner and exercising peaceably the ?

    ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.

    1907) PC (Aus) (CB 143) Perry v. Clissold (

     ?: the possessors interest relative to those of the TO: 14 Relativity of title

     ?Need a clear act (killing) that brings the object within certain control and clear intent to possess

    () (dissent: labour (Pierson); majority fatal blow (Post) Pierson

     ?FK rule: Finder has a better title to the object against all except the TO: () Armory

     ?Honest finder acquires right to keep object against all but the TO or one who can assert a prior right

    to keep the object (eg. the occupier), which was existing at the time when the finder took possession

    of the object

    o : if finder is a trespasser, occupier is preferred even if no intent to control () In obiterParker

    : don’t want to reward those that get things unfairly or via a criminal act. Policy?

Where an unattached object (Pro-finder)

    FK rule above ?

    Occupier (eg. shop owner) needs and an unattached knowledge of objectclear intent to possess?

    object before object is found, if they want to have a claim () Bridges

     over the premises Need to determine prior right: Clear intent to possess + custody and control?

    and anything in or on it (: weren't in habit of checking; if so, they might have better claim) Parker

    OWNER who has the premises of their land/house has no claim to the object lying never occupied?

    unattached on the land, b/c no clear intent if didn’t know it was there, so finder has better claim


    Where an attached object (Pro-Occupier)

    OCCUPIER has a better claim to title () obiter in Parker?

    FINDER has to show and exercise custody and control () clear intent to possessobiter in Parker?

    ? Parker: you have a duty to try to find TO; also if you come into possession of something, must deal

    with it; not always a good thing (whale example)

    ? In EE/ER context, employer owns found object whether attached or unattached (South


     ?If there is a contract over who owns something when (eg. A potential find), (contract prevailsCity

    ) CB 114 of London Corporation v. Appleyard

    it seems irrational and arbitrary (CB 122): 21 Distinction btw attached & unattached criticized: ?


     ?):where there is conflicting evidence to the story, party with Perry v. Gregory (metal detecting

    more plausible evidence has better claim to title

    o Evidence is based on custom and the subsequent actions of both parties: 22

     ?: (stocking): equal share for equal find; found when stocking burst open revealing Keron v. Cashman

    the $: 22

     ?(garbage can): = “person who first takes possession of lost property, but Edmonds v. Ronella Finder

    to be a legal finder, an essential element is an intention or state of mind with reference to the lost


    o difference is time of finding, when walked off property: fairness (in equity): 23


    : TO bring within 10 years; time starts at dispossession or discontinuance of possession S. 4s. 5(1) ?

    (when vacated/abandoned land); : extinguishment of TO’s right to bring action to recover (if not s. 15

    within 10 years, s. 4): 23-24

    : punish TO for neglect, reward/encourage active use of law, clearing Policy justifications for AP?

    land of title 24-25; : (also 13/107): 25 Squatters

    ? St. Clair Beach test for AP:

    ? 1. Actual possession for statutory period ? 2. clear act to dispossess: possession with the intention of excluding all other including the TO; AP

    needs “clear act” to show control over TO; to dispossess the TO: 26

    ? 3. discontinuance of possession for the statutory period by the owners and all entitled to

    possession: must only make a reasonable use of the disputed land given the general use to which the

    land is put; even minimal use is reasonable (eg. picking the cherries): 27: dispossession &

    discontinuance, more difficult burden on AP

? Limitation period (time starts ticking) at:

    o end of lease (Fairweather)

    o end of successive leases (Giouroukos): 27

? Inconsistent user test: AP’s acts to dispossess must be “inconsistent” with the form of enjoyment of

    the property intended by the TO (thus, owner’s intention impt) (Keefer)

    o Exception MM cases below

    ? continuous and exclusive possession: when the act of possession is continuous and exclusive;

    resulting from acts done to claim the land; dispossession occurred (Piper) 28

    ? 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 & acts in

    manner inconsistent with those intentions (Masidon)

    o If TO rights are undefined, it’s almost as if they can’t be trumped: 29

    ? Inferring intention: when possession of the lands is certain & unequivocal, the intention to

    dispossess (animus possidendi) can be inferred (Beaudoin): 29


    ? Wood v. Gateway: evidence of MM may infer intention to exclude TO (like Beaudoin); no

    inconsistent user test in MM cases; legally impossible to establish effective exclusion of TO from

    possession so open, constant, continuous, peaceful and exclusive of the rights of TO, enough in MM,

    but not in AP: 31

    ? Teis v. Ancaster Town: confirmed Wood v. Gateway, policy reasons: reward squatter/punish

    innocent trespasser if inconsistent user test applied: 32

    ? Moral test for AP: Lockean principle: 33


    ? History 33-35; Aboriginal title tenure: 35-36: Abs had right to enjoy some land and it should not be

    taken without their consent “pre-existing right” recognized under CL (57); Slattery article: 33-36


    ? Background: pre/post 1886: 38; freehold/leasehold; capacity to hold estates in land: 39

    ? Absolute/qualified FS: determinable/CS, CP: 39-40; Down case (is it CS or CP?) 41:

    Remoteness/Voided conditions: 41-42

    ? Qualified LE: 43; Waters test: must ascertain intent of the testator by looking at the language used,

    context in which language used and the circumstances of the will construction: 43-44; McColgan:

    applied Waters test in Dr case, license or LE?: 44-45

    ? LE continued: 45-46; DW: 46; present/future interests, CL remainder, vested remainders (interest)

    47-49, contingent remainders 49-50

    ? Equitable estates history: 50-51; principles 51-52; benefits: 52; difference btw law & equity: 52;

    Statute of Uses: 53; limits to Statute of Uses 53; PUrefoy v. Rogers: re: contingent remainders, if the

    legal executory interest can comply with the CL remainder rules, then it must 54

    ? Statute of Wills (1540): 55; exhausting operation of statute of Uses: 55-56; abolishment of statute of

    uses 56; future interests in wills 56-57

    ? Trusts: 57, how are they created

    ABORIGINAL TRUSTS/TITLE: ? Guerin: Crown not a trustee b/c no intention; BIG TWIST: Crown under an “equitable” obligation

    to deal with lands for the benefit of aboriginals arising from the Crown’s fiduciary duty and not

    merely a governmental responsibility

    o This fiduciary duty was imposed on the ground that the Crown had an equitable obligation to

    act in food faith and in the best interests of the AB occupants: 57-58

    ? DELGAMUUKW V. BC (58-61): guiding principles: Ab title? Less than FS absolute, more than

    mere license to occupy: it is sui generis:

    ? 1. content of AB title: sui generis (like Moore): inalienable, arises from prior physical occupation

    before the assertion of British sovereignty, it is communally held; special bond test: the uses must not

    undermine the nature of the attachment that the AB people have to the land

    o limits: can’t ruin the property (DW); must be site-specific rights to engage in a particular

    activity and the use has to be out of necessity

    ? 2. test for proof: must be descendants of the people who had collectively/exclusively occupied the

    territory in question at the time of assertion of Crown sovereignty:

    ? 1. pre-sovereignty control; OR 2. there must be continuity btw present and pre-soveriengty

    occupation (60)

? if #2 need not: prove unbroken chain of continuity between present and prior occupation OR have

    present use or occupation (61)

    ? Fertile grounds for litigation, re: special bond requirement, etc.: role of gov’t 61


    ? Bailment: owner of chattel parts with possession to another; usually express agreement, but can be

    imposed in finders & mistake

    ? License: owner of real/personal property agrees to permit another to enter onto/use property for

    specified purpose

    ? Lease: owner of real property agrees to lease property for a fixed period of time to another (CB 62)

? 1. is it a license or a bailment? How much control has been relinquished/given up? More control

    (bailment) duty/valet; less control (license (no duty) (no valet)

    ? 2. Std of liability depends on what type of bailment (Coggs v. Bernard): (not old strict liability std

    Southcote’s Case) sole benefit of bailor (low); sole benefit of bailee (higher); mutual benefit

    (ordinary negligence)

    ? 3. Is there a contractual limit on liability? Onus on bailee to establish non-negligence or

    contractual exclusion of liability; Heffrom v. Imperial Parking Co: parking lot attendant liable even

    though there was a contract: 63

? Lease v. License:

    ? Lease (K up, property down, but mix duty to mitigate up; has right to exclude all other persons

    (binding on world) including the LL, gives rise to an estate in land: better for T) OR License (K, so

    POK/damages; merely a permission/contractual right of entry to be on land for specified purpose:

    worse for T)? 64

    ? Street v. Mountford: lease construed as license: held lease anyways: 64-65

    ? Policy reasons for difference btw commercial/residential: security & bargaining power 65 ? Termination of Commercial Leasehold:

    ? 1. do nothing (don’t terminate lease, sue for rent as it comes due, no duty to mitigate),

    ? 2. terminate the lease, sue for rent up to date of termination, no expectation damages, no duty to


    ? 3. advise to re-let the property and enter into possession; inform T, claim for deficiency btw rent

    payable by the T and rent obtained by re-letting only after end of term, no duty to mitigate, if you

    relet have to stay within terms of original lease (same time frame)

    o re-letting seen as termination before in 1-3: Goldhar; Highway overrides Goldhar

    ? 4. Highway case, modeled on K law: terminate lease, recover expectancy damages, as long as noticed

    to defaulting T that these damages will be claimed, duty to mitigate though (67), can sue for damages

    to acquire new property; POK applies (68); 65-66

    o Wing Lee Holdings Ltd v. Coleman: need POK btw parties in option #4: 68 ? policy re: duty to mitigate 1 v. 4: 67

    ? Toronto Housing: wanted #1, but mitigated so NO: 67

    ? Pacific Centre: wanted #3 but mitigated with longer lease, so NO; couldn’t use #4 b/c no notice

    given; fertile grounds for litigation re: notice; (why couldn’t use #2 though?): 68

    ? Residential Leases: legislation; Kawar v. LT: T’s duty to mitigate; 190 Lees Ave Ltd., allowed to

    sue for prospective losses in residential context; 69

    ? Highway can be applied to Bailment and prospective losses: 69


    ? Policy why usually unenforceable: fraud, preference in law for bargains: 69-70

? Requirements for gifts: 1. deed of gift (formal), 2. Parol/oral gift: a. intent to gift by donor, b.

    acceptance by donee, c. sufficient act of delivery

    ? Cochrane v. Moore (1/4 horse): no delivery so can’t be gift; equity kicks in: express trust kicks in,

    no delivery requirement (70-71)


    ? 1. Express trust: 1. intention, 2. subject matter, 3. objects of trust (no need for delivery/writing


    ? BUT equity will not enforce an imperfect gift (Strong v. Bird)

    ? Watt v. Watt: (boat) applied Cochrane, no delivery, but express trust

    ? 2. Resulting Trust: delivery needed, but NO intention: 71

    ? 3. Constructive Trust: significant contribution to acquiring/maintaining it, prevents unjust

    enrichment (72): test from Rathwell in marriage/CL context: (103-104)

    o 1. enrichment (benefit conferred)

    o 2. corresponding deprivation (at P’s expense)

    o 3 no juristic reason for the enrichment (would be unjust to allow enrichment/retention of


    ? CL delivery requirement: Re: Cole: It’s all yours: harsh case: delivery necessary, so no gift;

    possession is in person who has title (in CL context): contradictory cases though: 72

    ? Constructive delivery (control test) v. symbolic delivery: 72-73

    ? Donatio Mortis Causa: gift made in contemplation of death: 1. no writing requirement, 2. intention,

    3. delivery; 4. subject to automatic revocation if donor recovers and does not die (no writing

    requirement): 73


    ? Agreement of P&S & closing; problems in A of P&S: 74

    ? Lysaght v. Edwards: vendor dies, equitable relationship: the vendor b/c in equity a trustee for the

    purchaser of the estate sold and the beneficial ownership passes to the purchaser

    ? Purchaser’s interest: enforceable against world, EXCEPT bona fide purchaser for value without

    notice: 74

    ? Purchaser bears risk of Liability for L&D: obiter in Lysaght: loss/damage to property btw K and

    closing; responsible for insurance (unless agreed otherwise)

    ? Vendor: in possession until closing date, must take reasonable care of estate, fudiciary obligation to

    purchaser, liable for willful damage and neglect; fertile grounds of lit: 75


    o “compels D personally to do what he promised to do”

    ? Lubben v. Veltri & Sons: SP granted against purchaser

    ? Semelhago v. Paramadevan: (V reneges house, price up); special rules/relationship regarding SP of

    KS for P&S of land should no longer apply; uniqueness standard should apply to real/personal

    property (arguably obiter): needed to justify not awarding SP b/c if not unique, damages OK

    ? but problems: What is unique?, encourages litigation, undermines SP, 75-76

    ? John E Dodge Holdings (Wonderland): What is unique? Property is unique if “its substance would

    not be readily available”: property must have a quality 1. that cannot be readily duplicated elsewhere

    and 2. particularly suited for proposed use; could have went both ways; but this is the law: 76

    VALID K:

    ? 1. general validity (sufficient in form/substance so no ground to set it aside)

    ? 2. vendor’s title (made out by V or accepted by P)

    ? 3. precision of terms (property, parties, price) Walsh v. Lonsdale: may read in price, by

    incorporating through reference to another document: fertile ground for litigation

    ? 4. statute of frauds s. 4: K for sale of land must be evidence by an “agreement…or some memo or

    note…in writing that is signed by the party to be charged”; gazumping OK: 77 ? can consider 2+ docs together to meet statute of frauds: Connelly v. 904 Water St. P&S/Mortgage

    78; Grime v. Bartholomew: incomplete vendor’s receipt and purchaser’s deposit cheque; court will

    read in signature/terms: 78


    ? Starlite Variety Stores v. Cloverlawn: equity will enforce a verbal agreement for lease if the

    elements of the doctrine of PP are met to prove the existence of the agreement; sufficient acts of PP:

    $ spent, conduct of parties, expected occupancy and relied on this: 78

    ? Four main criteria to establish part performance, which will exclude the statute: from Deglman

    v. Guaranty Trust Co. of Canada CB 504

    o 1. Where one party performs part of its obligation in reliance on the agreement (sufficient)

    o 2. Actions relied on as part performance must be detrimental to the performing party

    o 3. Acts must be solely referable to the contract itself (related to only one agreement)

    o 4. K must be in all other respects valid and enforceable by the court including identifiable


    ? Deglman: payment not enough = pp, no reliance, so damages

    ? Steadman v. Steadman: more liberal approach HOL: acts must be referable to SOME K that is

    consistent w/ alleged K, doesn’t have to be that K though: payment MIGHT satisfy PP

    ? Alvi v. Lal: if K involves land, payment can’t satisfy PP (HCJ)

    Family Context:

    ? Hollett v. Hollett (brothers four payments): Receipts constituted compliance with the Statute of

    Frauds and acts of part performance: were seen as common practices in the community: 1

    Compliance with writing requirement satisfied when parties to contract, subject matter (property) and

    consideration (price) are clear; 2) Cannot be too formalistic (restrictive) in family arrangements; b/c

    may result in frustration of normal social expectations

    ? Therefore: Receipts + House Excavation + reliance on fact that he had land = Equitable Interest:

    court read in that there was an actual sale so it satisfies s. of Frauds: 80-81

    ? Equity in leases: South Shore Venture Capital: (5 year verbal lease) doctrine of PP + Walsh

    principles (unexecuted draft lease): to provide relief for a T and justify equitable leasehold: 81

    Equities arise:

    1. to enforce existing agreement that is not in writing (notwithstanding SF), but is supported by

    sufficient acts of PP (Starlite, Steadman, South Shore) OR

    2. even in some circumstances if there is NO written or verbal agreement at all (eg. familial

    relationships, Hollett, Re Cole, Deglman): 81

    ? Unjust enrichment: when one person has conferred a benefit on the other in circumstances that

    create unfairness; the benefit is at the expense of someone else and it would be unfair to allow that

    person to keep that; remedies: damages or impose constructive trust 82 ? Proprietary estoppel: Request/encouragement by title holder to another, and subsequent action by

    that person in reliance on that request/encouragement (often family context); So if the person being

    induced RELIES on this, the inducer will be ESTOPPED and CANNOT go back on the promise: 82

    o Inwards v. Baker (father/son build): equitable grounds (holding); “the licensee should, at the

    request or with the encouragement of the landlord, have spent the money in the expectation of being

    allowed to stay there”gets interest in the land; key factors; notice, detrimental realicne, money/labour

    put in, father’s inducement, son lived there estoppel: (dissent) not necessary to imply K: 82-83

    o Dodsworth v. Dodsworth: (bro/wife) unjust enrichment, bro & wife reimbursed for houses expenses,

    but no interest in the land; position of the parties (bro/wife did not need this property); relationship

    (father/son stronger relationship than bro and sistser); how long lived there (son lived there in

    Inwards v. 9 months for free): 84-85

    o Pascoe v. Turner: (CL bastard man) equity in cohabitation couples (proprietary estoppel): all

    circumstances and facts of case give rise to equity that can only be satisfied by compelling the P (the

    inducing party) to give effect to his promise and meet the other party’s expectations

    o There’s inducement, encouragement and the inducee relied on this: 84: key facts: inequality of

    bargaining power (re education/finances/age); he is ruthless as well, so Denning wants to protect her


    ? profits a prendre/easements/covenants: 85

    o PAP: right to enter onto the land of another to extract some part of the natural produce/resources

    o PAP Similar to license: right to enter premises (the land) for particular purpose, BUT 1. PAP must

    remove something from the land, whereas license is open-ended/custom-based; 2. PAP NOT

    revocable, but license can be revocable at any time upon reasonable notice 86

    o Easements: “a right annexed to one parcel of land”…a. to use other land of different ownership in

    particular manner (positive); b. to prevent owner of other land from using his land in a particular

    manner (negative): 86

    o Gypsum Carrier Inc. v. Queen: need intention to create easement o 4 Requirements for an Easement CB 549 o 1. There must be a dominant tenement (enjoying benefit of easement) and serviant tenement

    (burdened by easement)

    o 2 parcels of land; No easement in gross: Ackroyd v. Smith: pros/cons 87

    o 2. Easement must accommodate dominant tenement, not necessarily the owner personally

    o Re Ellenborough Park: garden adding benefits to land; look at 1. character of connection to

    the DT (does it enhance use of house, for eg.); 2. geographic proximity to DT (need to be

    neighbouring parcels): 88

    o 3. Dominant and servient tenements can NOT be owned or occupied by the same person; has to be

    different parties in easements

    o 4. Easement must be capable of forming the subject matter of a grant (not assigned): 87

    o Right claimed must:

    1) Not confer a right of possession (easements are non-possessory): the rights claimed can’t

    amount to a claim to joint occupation of the park or would have substantially deprived the

    owners of proprietorship or legal possession

    2) Not be too vague AND

    3) Be of utility and benefit: rights claimed can’t be ones of mere recreation and amusement:

    confusing/unhelpful though: 88

    ? Negative easements: usually not accepted eg. Phipps v. Pears: no protection from weather, need

    covenant instead, policy against negative easements: 88-89

    ? Advantages of easements over covenants: covenants POK problems, easements NO: 89 ? Fontainebleau Hotel Corp: no right to air/light: 90

    ? Covenants: contractual promise, POK concerns: covnenator (promisor) bears burden of C;

    covenantee (promisee): enjoys benefit of the covenant; Positive C: requires CR to do something;

    restrictive: requires covenantor to refrain from doing something: 90

    CL running of benefit requirements:

    ? 1. Where covenantee has a legal interest in the land that is benefited by the covenant

    ? 2. Covenantee’s assignee must have the same legal estate as the covenantee

? 3. Covenant must touch and concern the covenantee’s land: meaning “it must be shown that the

    covenant was entered into for the benefit of the land owned by the covenantee and not merely for his

    personal benefit”: 91-92 (may need to enforce through equity when this test not met) ? Smith/Pakenham’s case: covenantor need not own the land to make running of benefit of C at law

    enforceable: 92

    ? ONLY a Burden of C cannot pass at law, whether positive or negative: Parkinson v. Reid (staircase):

    no privity; Rationale Keppell v. Bailey CL burden, no privity = doesn’t pass; b/c CE cannot enforce

    against CRA due to concerns re: alienability, difficult ascertain existence of Cs for person

    subsequently dealing with the land 93

    o BUT if burden & benefit, will pass, even if no privity (Smith); banks in good repair; CR

    covenanted a benefit to CEA: 93

    ? OLRC’s suggestions: 1. enter into new C each time; 2. legislation; 3. Halsall v. Brizell Rule: takes

    burdens with benefits, SOLUTION IS EQUITY THOUGH 94-95


    Burden of C will run in Equity where: ? 1. C has to be negative or restrictive: refrains the person from doing something

    ? 2. CR A takes with notice of the C

    ? 3. CE holds land that is affected by the C (like dominant tenement requirement)

    ? 4. C touches and concerns CE land (like 'accommodate' requirement in Easement)

    ? 5. C was originally given w/ intent to bind successor, not just the CR

    o equity supposed to be flexible though!: 95

    ? Tulk v. Moxhay: CE (Tulk) wants to enforce against CRA (Moxhay): a burden in equity: can

    enforce b/c would be inequitable to allow M. to use land inconsistent with K of which he had

    NOTICE (purchaser CRA has to do some DD to find out what obligations are in order for burden of

    C to run in equity) & USE IMPT TOO: why inequitable? 95-96

    ? Post-Tulk: courts scaling back in equity:

    1. C must be restrictive/negative for equity: Amberwood positive C: burden did not run

    a. Tulk construed as negative C; distinction make sense? 96

    2.C unenforceable if the assignee of the CR is a CR A must take with notice: usual equitable rule:

    bona fide purchaser for value without notice (therefore squatters not covered): 97

    3. CE must retain land which was benefited by the C

    a. Problem in homeowner’s association/municipality, b/c don’t’ actually own the land;

    overcome through legislation

    4. C must touch and concern the land and not be merely a personal C

    a. Molson Breweries: didn’t touch/concern land b/c of geographical proximity (200 miles away)

    5. Intention part of CR to bind successors and not just CR personally; 97

    Benefit will pass/run in equity where:

    1.C touches and concerns the land

    2.A is entitled to the benefit if C is:

    a.Annexed to the land either expressly or by implication (ie. a deed that says that C is

    for the benefit of an identifiable parcel of land or the owners of the land), OR

    b.Expressly assigned in addition to the conveyance of the land; OR

    c.Between owners whose parcels of land comprise a building development scheme

    (developer imposed mutual C on the purchasers of all the lots, for benefit of

    development as a whole) 98

    : 98 Restrictive C’s public policy problems?

    : , injurious to public good, restraint Re Drummond WrenVOID based on public policy grounds?

    on alienation, uncertain (“Jews” vague); land carries restriction would fail: 98-99

    , could have used Re Drummond Noble and Wolf v. Alley: VOID on technical not policy grounds?

    Wren for authority, but didn’t although similar

     Rule is that if restrictive C is against public policy: void & removed ?

    : injunction usually OR damages (Wrotham Park): 100 Remedies for breach of C?

    : as long as agreement btw parties Amend/remove C?

    : 100 Covenant reform?


    History: 100-101 ?

    : (married couple, house in his name) no trust b/c no intention/contribution (just ordinary Murdoch?

    ranch wife; Laskin dissent would have found constructive trust

    1978-1980, divide equally; : constructive trust in context of marriage Reform FLA 1978 Rathwell?

    Corless (law degree is property, but no value), Keast (med not property), Professional degrees? ?

    Linton (Phd not property)

    Caratun (dental): degree not property, b/c below but awarded extra $: ?

    o1. not transferable (cannot be alienated and this ability is key in property)

    o 2. required personal efforts on the part of the title holder

    o 3. right to work in general: floodgate argument

    o 4. difficult to value the degree: 102

    : 1. reimburse costs, 2. share in enhanced other discussion cases in US how they dealt with it?

    earning capacity, 3. equivalent opportunity

    : specialization disadvantage 102; critiques of Caratun: 103 Knetsch?

    : pensions property; Clegg: payments from non-compete property: CARATUN VERSUS Clarke?

    fertile ground for litigation: 103


    : (beehive) constructive trust in Rathwell appropriate for CL couple, uses test from Pettkus v. Becker?

    RAthwell: 103-104; other issues: 1. need to restore justice with co-habitees/longstanding relationship; 2. causal connection btw contribution and actual property; 3. proportional shares: depend on what put in or just split evenly? Not sure 104

    : Contribution? Georg: Y; Stanish: N (just household Subsequent Application of Pettkus?

    labour/childcare): court more likely to meet Pettkus test when more tangible/businessy

    : (better): CL woman contributed work in home = CT; (best): didn’t Peter v. BeblowSorochan ?

    contribute to acquisition, but CT anyways, 104-105

    105 Same sex couples ?


    Prop not entrenched in Charter, if so may be irrelevant/have negative impact 105 ?

    : property Goldberg v. Kelly; entitlements: 106 Welfare benefits?

    (restaurant): lien on property violates s. 7: 1. any property loss that Queen v. Fisherman’s Wharf ?

    causes a decrease in income relates to the security of the person; 2. OR loss of property deprives all/or a substantial portion of capacity to produce income 106

    : Banks, N; Masse v. Min of Comm & Soc Services N: 107; Right to workRight to Welfare right ?

    Y in SAfrica; N in Canada to housing

    MacPherson; example: : goodwill valued, entitled Right not to be excluded MB Fisheries V. Queen?

    to compensation for gov’t taking goodwill of business

    : Mossman: 8 points: 108-109 Need for Reform of Property Law?

    109-115 IP

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