Emma Ruth Bradley Blanchard

This decision addresses the impact of a Court of Appeal ruling that declared certain contingent property interests in a 1981 development agreement void for perpetuities.

The Superior Court was remitted to determine which other provisions of the 1981 Agreement and related contracts were affected and rendered inoperative.

The court found that the voided sections fundamentally altered the original bargain, which included a path for the evolution and potential redevelopment of the golf course lands, not a perpetual obligation to operate a golf course.

Consequently, several provisions related to the golf course's perpetual operation, sale, right of first refusal, and redevelopment path were declared inoperative.

The 40% open space principle was largely maintained but its application to golf course redevelopment was clarified.

This appeal concerned the application of the rule against perpetuities to land development agreements.

ClubLink Corporation ULC appealed a lower court decision that upheld perpetual obligations to operate a golf course or convey the land to the City of Ottawa.

The Court of Appeal found that the contractual provisions requiring conveyance of the golf course lands to the City, or reconveyance back to the original owner, created contingent interests in land.

As these interests did not vest within the 21-year perpetuity period, they are void and unenforceable.

The court clarified that the expectation of a contingency materializing is not a factor in determining if an interest in land is created.

The appeal was allowed, and the relevant sections of the 1981 Agreement were declared void.