eLaw - Property & Succession Update | January 2018 - No. 90

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Property & Succession Update January 2018
In This Issue
Equity Enforces Promises That the Law Does Not: SCC
Courts Play a Critical Role in Safeguarding Treaty Rights: SCC
Land Titles and Personal Property Registry Changes: Notices and Directives
Recommended Reading
STEP Programs

Equity Enforces Promises That the Law Does Not: SCC

The Supreme Court clarifies the law on proprietary estoppel in Cowper-Smith v. Morgan, 2017 SCC 61, a BC case involving a dispute between three siblings over their mother’s estate. Although the mother’s will provided that the estate would be divided equally among the siblings (in keeping with the plan made with her since deceased husband), her actions after her husband died (transferring everything into joint ownership with her daughter and executing a trust declaration in the daughter’s favour) depleted the estate of assets to divide. After the mother’s death the daughter decided to sell the house, ignoring a promise made to the brother who had agreed to move in with and care for the mother on the understanding that he would be able to live in the home permanently and eventually acquire his sister’s one third interest. Both brothers sued and were successful in setting aside the trust declaration on the basis of undue influence. The matter ended up in the Supreme Court, however, as a result of the Court of Appeal finding that proprietary estoppel did not apply since the daughter had no interest in the property when she made the assurances to her brother. The Supreme Court disagreed, finding that the Court of Appeal’s “proposed bright line rule — namely, that reliance on a promise by a party with no present interest in property can never be reasonable — is out of step with equity’s purpose, which is to temper the harsh effects of strict legal rules” (para. 29) and that “ownership at the time the representation or assurance was relied on is not a requirement of a proprietary estoppel claim.” These articles discuss the implications of the decision for estates and land disputes as well as for commercial litigation:  

Cowper-Smith and the Law of Proprietary Estoppel: Implications for the Oil and Gas Lease? - ABlawg

Equity Rules the Day: The Supreme Court of Canada Clarifies the Tenets of Proprietary Estoppel – WeirFoulds LLP

Courts Play a Critical Role in Safeguarding Treaty Rights: SCC

In First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, a land use planning decision involving treaty lands, the Supreme Court provides guidance on the law applying to treaty interpretation and the role of courts in resolving disputes concerning treaty implementation. The court set aside Yukon’s final plan for development of a largely untouched wilderness area with an intact ecosystem supporting the traditional activities of the First Nations, finding that Yukon’s conduct in breaching the planning process by making extensive changes to the Final Recommended Plan was “not becoming of the honour of the Crown.”  The court discusses the appropriate judicial role in resolving this type of dispute at paras. 32 to 34 of the decision, concluding that “under s. 35 of the Constitution Act, 1982, modern treaties are constitutional documents, and courts play a critical role in safeguarding the rights they enshrine. Therefore, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance.” These articles discuss the decision:

Supreme Court of Canada Sets Aside Regional Land Use Plan in Yukon – MLT Aikins

Judicial Intervention In Modern Treaty Processes Should Promote Negotiation And Reconciliation – Torys LLP

Land Titles and Personal Property Registry Changes: Notices and Directives

Fee changes for the Land Titles and Personal Property Registries came into effect on January 7, 2018. Revised fee tables for each registry are available at www.tprmb.ca/tpr/rg_directives/directiveindex.html.

The new Tariff of Costs in Mortgage Sale and Foreclosure Proceedings came into effect January 1, 2018. More information is available at http://www.tprmb.ca/tpr/rg_directives/tariff_costs_in_mortgage_sale_and_ foreclosure _proceedings.pdf
eRegistration is here - The Property Registry’s new electronic submission application for land titles documents launched in December and will become mandatory for all law firms on April 3, 2018. The eRegistration application can be accessed at https://ereg.tprmb.ca. Use of the land titles mortgage, discharge, caveat and transfer smart forms is now mandatory for all of these types of documents executed after December 17, 2017. More information about eRegistration and the smart forms is available in this checklist and at: http://www.tprmb.ca/tpr/rg_directives/eRegistration_launch_20171217.pdf .

Land titles Form 30 – Correction to Statutory Evidence has been approved and is available for download from The Property Registry’s website at www.tprmb.ca/tpr/land_titles/lto_offices/forms.html

Revised land titles forms have been approved and are to be used under The Real Property Act. The forms can be found on The Property Registry’s website at www.tprmb.ca/tpr/land_titles/lto_offices/forms.html. All previous forms under The Real Property Act are not to be used unless they have been executed prior to December 17, 2017. More information is available at www.tprmb.ca/tpr/rg_directives/directiveindex.html.

Phone number change for The Property Registry - The Property Registry has implemented a new telephone support system to better assist clients, with all six land titles offices and the Personal Property Registry adopting the same new phone number.

Recommended Reading

Guidelines Put New Burden on Home Buyers – this MLT Aikins post discusses the new guideline for residential mortgage underwriting, which came into effect January 1, 2018.

Kindness and Mercy – this Slaw post cites an Ontario Court of Appeal decision which the author says is “an example of a court both showing mercy and exercising the power it had with respect to a mortgagor’s equity of redemption with kindness.”

Electronic Wills Down Under and Closer to Home – this Slaw post canvasses some recent developments in the law affecting electronic wills (in Australia, New Zealand and England) and reviews the Canadian position on e-wills.

STEP Programs

Upcoming educational sessions offered by the Winnipeg branch of the Society of Trust and Estate Practitioners (STEP) include: Taxation at Death and Post Mortem Planning (a full-day course on February 1, 2018); Estate Litigation (March 20, 2018); and Health Care Directives/Assisted Dying (May 15, 2018). To register, or for information on how to become a member of STEP, check their website.


ISSN 1916-3916

 

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