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Real Property - General

. Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp.

In Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp. (SCC, 2020) the Supreme Court of Canada comments on the historical distinction between property law and contract law:
[19] Strata Co. argues that there is no difference between enforcing a post-incorporation contract against it and enforcing the burden of a positive covenant against it as if it ran with the land: A.F., at para. 71. But this submission disregards the important distinction between contract law and property law: Design Services Ltd. v. Canada, 2008 SCC 22, [2008] 1 S.C.R. 737, at para. 39; J. Beatson, A. Burrows and J. Cartwright, Anson’s Law of Contract (30th ed. 2016), at pp. 27-28. Landowners may use real covenants to create rights enforceable by one owner against another, even in the absence of privity of contract: B. Ziff, Principles of Property Law (7th ed. 2018), at p. 448. The resulting interests are distinct from contractual rights, as a restrictive covenant binds subsequent purchasers in equity, whereas the right to contractual performance is a legal interest that is personal to the contracting parties. Another distinction between real covenants and contractual rights in this instance lies in the timing of the creation of the right. When equity is used to enforce a restrictive real covenant against a subsequent purchaser who purchased the land with notice of the covenant, the right being enforced is a pre-existing equitable right which persisted through the transfer from the predecessor in title: Rhone, at p. 317. Contractual rights, on the other hand, are created at the time of contract formation. In the case of a post-incorporation contract, they are created after the corporation comes into existence when the parties objectively manifest an intention to be bound by a new agreement on the same terms as those of the pre-incorporation contract. Thus, real covenants and contracts create juridically distinct forms of rights and obligations, which should not be confused with one another.

[20] Further, the historical reluctance of common law courts to impose the burden of either a positive or a restrictive real covenant on a subsequent purchaser was founded on the principle that “a person cannot be made liable upon a contract unless he was a party to it”: Rhone, at p. 316; see also p. 318. Thus, to enforce a positive covenant against a subsequent purchaser of land “would be to enforce a personal obligation against a person who has not covenanted”: Rhone, at p. 321. To enforce a positive covenant against a party to a contract, however, would be to enforce a personal obligation against a person who has in fact covenanted to perform that obligation. The imperative which militates against enforcing a covenant against a successor in title does not exist when the successor in title has assumed the covenant by way of a contract (i.e. the covenant will survive only if there is a chain of contracts between subsequent successors in title). The enforcement of a contractual right against a party to the contract is therefore not to be equated with the enforcement of a real covenant against a subsequent purchaser.
. Keatley Surveying Ltd. v. Teranet Inc.

In Keatley Surveying Ltd. v. Teranet Inc. (Ont CA, 2017), which was really a copyright case, the court sets out a brief history of the land registration system in Ontario, including current computerization:

[10] For some 200 years under the land registration system in place in Ontario, documents registered or deposited with land registry offices (“LRO”), including plans of survey, have been accessible and copies have been available on request to anybody for a prescribed fee. No part of that fee has ever been payable to the land surveyor who prepared the plan of survey, or to the authors of any other documents registered or deposited on title.

[11] Under the previous paper-based regime, anyone wanting a copy of a registered or deposited document attended at the appropriate LRO and requested a copy. The staff prepared the copy for the set fee.

[12] In 1991, Teranet and the Ontario government began a joint project aimed at creating:

• an electronic land registration and administration system (“ELRS”); and

• a province-wide index map.

[13] When completed, the ELRS would allow users to remotely and electronically access the land registration system, either for the purpose of searches, or to register or deposit documents. As in the days of the paper-based system, users were entitled to obtain copies of any document (now digital copies), including plans of survey, registered or deposited in the system, for a set fee. Again, as in the days of the paper copy regime, no part of that fee went to the land surveyor.

[14] The ELRS was completed in 2010. Land surveyors, working under contract with Teranet, played a key role in the creation and development of the ELRS. They are among its primary users.

[15] Teranet manages the ELRS for the Province. It acts under statutory authority and pursuant to the terms of licensing agreements with the Province: The Electronic Land Registration Services Act, 2010, S.O. 2010, c. 1, Sched. 6. Pursuant to those agreements, the Province retains all rights, title, and interest, including intellectual property rights, to the data used in the ELRS. The agreements between Teranet and the Province provide that Teranet has access to the data in the system pursuant to the licence granted by the Province. Teranet’s role is exclusively that of a service provider retained by the Province: see Keatley 2015, at para. 11.

[16] As the motion judge noted, Keatley’s copyright complaints arose subsequent to the arrival of the ELRS. He observed, at para. 11:
[U]nder the paper-based land registration system, land surveyors understood and accepted (even if they had no direct knowledge of the statutory provisions that made this clear) that the province had the right to copy and sell the plans of survey once they were registered or deposited at the land registry office.
[17] In argument before the motion judge, Keatley apparently took the position that there was no breach of copyright under the paper-based system operating before the implementation of the ELRS. As the motion judge summarized, the appellant argued that the Province’s outsourcing of the operation of the ELRS to a for-profit third party, including providing copies of plans of survey, created the copyright violation: Keatley Surveying Ltd. v. Teranet Inc., 2016 ONSC 1717 (CanLII), 131 O.R. (3d) 703, at paras. 17-18 (“Keatley 2016”).

[18] When pressed in oral argument in this court, counsel maintained the position taken before the motion judge, but argued that providing copies of plans of survey under the old paper regime also breached land surveyors’ copyright, albeit in a less egregious manner.

[19] In my view, both the change from paper to electronic copies and Teranet’s role in the operation of the ELRS are irrelevant to the merits of Keatley’s claim of copyright in plans of survey registered or deposited in the ELRS. The copyright rests in either the Province or the land surveyor who prepared the plan of survey. If the land surveyor has copyright, the making and distribution of paper or digital copies of the plan of survey is a breach of copyright whether done by an employee of the Province or by a third party hired by the Province to perform that function. Equally, if the Province has copyright in the registered or deposited plans of survey, the appellant has no claim for breach of copyright regardless of whether a government employee, or a third party retained by the government, makes the copy.
. Ju v. Tahmasebi

In Ju v. Tahmasebi (Ont CA, 2020) the Court of Appeal commented about unspecified time expectations in a real estate conveyance context:
[20] Where there is no express reference in an agreement to the time of performance, the law requires performance within a reasonable time. What is reasonable will be determined upon the facts of the individual case: Illidge v. Sona Resources Corporation 2018 BCCA 368, at para. 61. The application judge was under no obligation to set out what date would have been reasonable. The key is that, in light of all of the operative facts, she concluded that August 7, 2018 was not reasonable.


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