Doctrine of Estoppel Must Yield to Overriding Public Interest: SCC

In Immeubles Jacques Robitaille inc. v. QuÈbec (City), 2014 SCC 34, the Supreme Court dismissed the appeal of a company convicted of violating a zoning bylaw by operating a non-conforming use parking lot on its property. The company raised the doctrine of promissory estoppel, arguing that various actions (or lack of action) by the City in tolerating the non-conforming use gave them an acquired right to operate the lot. The City was aware of the non-compliant use for many years, for example, and had even collected taxes on its operation. The court found, however, that the doctrine of estoppel must yield to an overriding public interest and may not be invoked to prevent the application of an express legislative provision. In this case, the by-law created a strict liability offence related to the public interest and did not authorize the city to consent to a non-conforming use. As noted in this article, the decision makes it clear that businesses need to do their due diligence before relying on the advice of municipal officials as to acceptable uses.

Appeal Court Upholds Tax Exemption for Non-Contiguous School Parking Lot

The City lost its appeal of the motion judge's decision exempting the WSD from paying property taxes for a parking lot adjacent to but not right next to a school in Winnipeg School Division v. Winnipeg, 2014 MBCA 50. The court agreed with the lower court finding that s.24 of The Municipal Assessment Act (extending s.22 "to include land that is contiguous to the real property") does not limit the application of s.22(1) (the section authorising tax the tax exemption) to contiguous land, but rather extends the exemption to include contiguous land used for the needs of a public school.

No Merit to Landlord's Appeal: MBCA

In Chong v. Wan, 2014 MBCA 35, a landlord was unsuccessful in seeking leave to appeal three Residential Tenancies Commission compensation orders requiring him to refund more than $38,000 to foreign students living in accommodation described by the Commission as "uninhabitable." The appeal judge was not persuaded by any of the landlord's arguments concerning breach of procedural fairness by the Commission, which had provided him and the tenants full opportunity to be heard.

Failure to Obtain Surveyor's Certificate Not Fatal to Application for Statutory Easement

A cottage owner whose unpermitted 1996 addition encroached six feet onto the neighbouring property was granted an easement over the neighbour's land but ordered to move a non-compliant septic tank in Howarth v Farguson, 2014 MBQB 103. The neighbours, who bought the property in 2003, brought an application to compel the respondents to move the addition, which they argued impeded their access to the waterfront and limited their space for parking. The court found that the respondents, who had failed to obtain a surveyor's certificate, nonetheless had an honest belief that they were building on their own property. The size and nature of the addition were also factors considered by the court.

Consequences of Non-Compliance with Historical Designation Notice Provisions: MBQB

In St. Charles Enterprises Ltd. et al v. The City of Winnipeg, 2014 MBQB 100, the court declined to order that the St. Charles Hotel be delisted because the City failed to file a notice of historical building designation at the land titles office within the required statutory timeframe. The hotel was a validly designated building, at the request of its owner, for almost 25 years before the notice requirements came into force. Section 157 says the City "must register" a historical building designation notice in the land titles office...within one year after the amendments came into force, for any building listed before then. The court found that the use of the word "must" in the section was meant to be directory not mandatory, and that the consequences of failure to comply should be dealt with on a case-by-case basis, looking at such factors as the nature of the non-compliance and the resulting prejudice. In this case, the court found the non-compliance was minor and did not prejudice the owner.     

Landlord Waived Right to Compliance: MBQB 

A landlord who received rent from a tenant for 12 years and never questioned the tenant's compliance with the renewal formalities of the lease waived its right to compliance with the provisions in the lease relating to the tenant's option to renew according to the court in Sturgeon Tire (1993) Ltd. v. Ramon Clifford Burron et al, 2014 MBQB 73. The court granted the tenant summary judgment on its claim to exercise its right to purchase the land.

No Bad Faith by Municipality in Vacating Caveat: MBQB

The RM acted properly in discharging a caveat giving notice to the public of the existence of a conditional use order and development agreement which had expired and were of no force and effect, according to the court in Samborski v MacDonald (Rural Municipality), 2014 MBQB 78. The court found that the original developer had neglected to fulfill the affirmative covenants set out in the development agreement (to establish a landscaping business within a year) and it therefore expired.

Deficiency in Service Outweighs Rule That Client Bound By Lawyer's Actions: MBQB  

Peyton v. Peyton (Estate of), 2014 MBQB 66 is a must read case for estate lawyers. The court granted an extension of time to apply for an accounting and equalization under Part IV of The Family Property Act to a surviving spouse who claimed she had no knowledge of the s.31 notice her executrix daughter had sent to the mother's former lawyer. The court reviews the many factors that come into play in determining whether to grant an extension of time, including compliance with the rules for serving documents not qualifying as an originating process, service upon a lawyer who is not a lawyer of record, whether circumstances occurred which were beyond the surviving spouse's control, and whether the court has a residual discretion to refuse an extension and, if so, whether it should be exercised.

Property Registry Officially Transferred to Teranet

The Property Registry Statutes Amendment Act, which received royal assent September 13, 2013, was proclaimed in force March 29, 2014. It amends several pieces of legislation which govern the operation and authorities of the Property Registry, including The Real Property Act, The Personal Property Security Act, and The Registry Act, allowing services under those acts to be provided by a designated service provider. As noted in this news release, the agreement to transfer operation of the Property Registry to Teranet came into effect March 28, 2014. For a more detailed explanation see the explanatory note to Bill 34 and the recently published Summary Document on the transfer to Teranet.

Bill 70, The Real Estate Services Act, was introduced May 20, 2014. It replaces The Real Estate Brokers Act and makes consequential amendments to other acts to address concerns about the regulation of real estate services. The explanatory note to the bill and this government news release discuss the changes in more detail.

Fee Changes: LTO and PPR

Fee changes came into effect May 25, 2014 at the Land Titles Office and the Personal Property Registry pursuant to Manitoba Regulations 71/2014 and 72/2014. The changes are detailed in this Property Registry notice.

Property Registry Notices  

This Registrar-General notice announces the appointment of several statutory officers of the Land Titles Office and the Personal Property Registry effective March 29, 2014.

This notice sets out the registration rules for statutory easements and describes what the Land Titles Office will look for when examining agreements creating such easements.

Upcoming CPD: LSM

Hone your practice management and technology skills at these upcoming LSM CPD programs:

• Paul Unger of Affinity Consulting Group will present three back-to-back technology programs on June 12, 2014 at the Law Society classroom. Register for one or more sessions to learn what you need to know about iPad for Legal Professionals, Managing your Technology, and Acrobat for Legal Professionals.

• Canada's Anti-Spam Law: What Your Clients Need to Know - presenters Brian Bowman and Andrew Buck will review how Canada's new Anti-Spam law is about to fundamentally alter online marketing activities in Canada at this lunch hour webinar on June 17, 2014. Register as a group and receive a discount.

• Making Great and Lasting First Impressions - discover simple ways to enhance your image and connect with others at this lunch hour webinar on September 23, 2014 from 12:00 noon to 1:00 p.m. Group registrants receive a discount.  

• Perfecting the Twenty-First Century Law Practice - Law office management expert Jim Calloway, Director of the Oklahoma Bar Association Management Assistance Program, will be in town October 3, 2014 to present this all day program on the many ways to improve your practice. Register now to take advantage of the early bird rate.