Waechter v. Tozer, 2008 ONSCDC 65588

Court File No. 316/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JANET WAECHTER and KAREN SPEERS as Executors of the Estate of the late AUDRIE LORRAINE DYER Applicants

-and-

JOHN H. TOZER and EILEEN TOZER Respondents

Court File No. 72-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HANNA’S LANDING INC. Applicant

-and-

SANDRA EILEEN TOZER SPENCE Respondent

Court File No. DCO-798-88

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN H. TOZER and EILEEN H. TOZER Plaintiffs

-and-

AUDRIE LORRAINE DYER, Administratix of the Estate of the late JOHN W. DYER also known as JACK DYER, and the said AUDRIE LORRAINE DYER in her present capacity Defendants

Appearances:

Nicholas B. Roche Solicitor for Janet Waechter et al.

John W. Chidley-Hill Solicitor for Sandra Eileen Tozer Spence

E. Jean Polak Solicitor for Hanna’s Landing Inc.

REASONS FOR DECISION

Wood J.:

1. This was the return of an application and cross-application each requesting that a consent order dated March 27, 1991 and registered against lands owned by Hanna’s Landing Inc. (Hanna’s Landing) be struck from the parcel register. The main application was brought by the vendor of the lands to satisfy an undertaking given on closing to clear the title. The cross-application was brought by Hanna’s landing the purchaser to satisfy an undertaking given to the financial institution funding the purchase. The facts are not in dispute. I find them to be as follows.

Facts

2. In 1987 Jack and Audrey Dyer owned the lands recently purchased by Hanna’s Landing then known as Parcel 16825. Their son used these lands to operate a trailer park fronting on the Indian River and also as an informal junk yard housing many pieces of derelict machinery. The park was located in an area of single family cottages and homes also located on the river or a widening of it just upstream from the Dyer’s waterfront known as Mirror Lake. John and Eileen Tozer owned a permanent residence located where the lake narrowed into the river. It was designated parcel 11517.

3. Early in January 1987 the Tozers’ and the Dyers’ entered into a hand written agreement for the sale of a small part of the Dyer’s 52 acre parcel to the Tozers’. The purpose of the purchase was apparently to allow the Tozers’ to re-route a part of their access road, and to provide them with a buffer between their lands and the Dyer’s. For reasons which are not clear the Dyers’ refused to complete the transaction and the Tozers’ sued for specific performance. The action was settled through Minutes of Settlement executed on November 2, 1990. The settlement provided that the Tozers’ would acquire a smaller piece of land than originally agreed, but also an agreement that the Dyers’ would clean up a portion of their land lying next to the land being acquired by the Tozers’. The applicable portions of the minutes provided as follows:

The parties to this action hereby agree to the granting of judgment in settlement of this action as follows:

1. A vesting order shall be issued by the court, vesting in the plaintiffs those parts of lot 32 in concession 2 of the former Township of Medora now in the Township of Muskoka Lakes in the District Municipality of Muskoka and being

(a) Parts 1, 3, 4, 9, and 10 and part of parts 2, 5, and 8 on Plan 35R-11909 as marked in yellow on the attached sketch

(b) A right of way for pedestrian and vehicular traffic at all times as appurtenant to parcel 11517 in the Register for Muskoka and the lands described above, over part 7 Plan 35R-11909

3.The defendants and their successors in title to those portions of Parts 2,5,6,7, and 8 Plan 35R 11909 which are not included in the lands vested in the plaintiffs as set out above, shall be restrained from using the lands in the following manner:

(c) No derelict vehicles, boats or machinery will be stored or parked on the said lands, and

(d) No open storage of any materials of any kind shall take place on the lands, and any materials stored on the lands shall be kept in closed storage. Closed storage consists of any completely enclosed building or structure whether or not roofed, and any partly enclosed structure, whether or not roofed, such that the items stored therein are not visible from the lands of the plaintiff, from part 6, and 7, Plan35R 11909 or from the right of way leading from the said part 7 to the public road. The intent of such storage is that the use of the said lands by the defendants shall be neat, tidy, and orderly and not visually offensive. Such restriction to affect only those lands set out above in Plan 35R-11909 and not affect any other lands owned by the defendant.

4. The defendants shall have until the 15^th day of May 1991 for the purpose of taking all actions necessary for compliance with the said restraining order and thereafter shall strictly comply with the said order.

5. These clauses of the Minutes of Settlement were incorporated verbatim into a judgment dated November 5, 1990.

6. As the lands to be acquired in the judgment were not yet severed, the Tozers’ obtained a severance and had a new reference plan prepared. The lands to be vested became parts 5, 6, 8, 9, 10, 12, and 13 on Plan 35R-14101, and the lands subject to the grant of right of way became Part 2 on the new plan. The vesting order was signed on March 5^th 1991 and entered in the Register on March 14, 1991 as instrument 161963.

7. On March 22^nd the parties through their lawyers, consented to a further order incorporating paragraphs 3 and 4 of the judgment describing the lands covered by the storage and cleanup terms as Parts 1, 2, 3, 4, and 7 Plan 35R-14101. That order which forms the subject of this litigation, was signed on March 27, 1991 and entered against the parcel register for the lands owned by the defendants on April 4, 1991 as instrument #162242.

8. Its’ wording is as follows:

This proceeding having been resolved by judgment dated the 5^th day of November 1990 and the parties having consented to the making of a further order relating to the lands described herein and constituting part of parcel 16825 in the Register for Muskoka being Parts 1, 2, 3, 4, and 7 on Plan 35R 14101 and upon reading the consent of the parties filed:

1. THIS COURT ORDERS that the defendants and their successors in title to Parts 1, 2, 3, 4, and 7, Plan 35R 14101, shall be restrained from using the lands in the following manner:

(a) No derelict vehicles, boats or machinery will be stored or parked on the said lands, and

(b) No open storage of any materials of any kind shall take place on the lands, and any materials stored on the lands shall be kept in closed storage. Closed storage consists of any completely enclosed building or structure whether or not roofed, and any partly enclosed structure, whether or not roofed, such that the items stored therein are not visible from the lands of the plaintiff, from part 1, and 2, Plan35R-14101 or from the right of way leading from the said part 2 to the public road. The intent of such storage is that the use of the said lands by the defendants shall be neat, tidy, and orderly and not visually offensive. Such restriction to affect only those lands set out above and not affect any other lands owned by the defendants.

2. THIS COURT ORDERS that the defendants shall have until the 15^th day of May 1991 for the purpose of taking all actions necessary for compliance with the said restraining order and thereafter shall strictly comply with the said order.

3. This order is registered against the parcel comprising the whole of the defendant’s remaining 52 acres. Although it is agreed that the order pertains only to the lands described therein and would not affect any other parts of the parcel were they severed or sub-divided. It is common ground that the Dyers’ never did clean up the lands and the Tozers’ never took any steps to enforce the order.

4. Both John and Eileen Tozer have since died. Their land is now owned by their daughter Sandra Tozer Spence the named respondent in the cross-application. Both Jack and Audrie Dyer have also died. Audrie Dyer’s estate sold the remaining Dyer lands to Hanna’s Landing on April 10, 2007.

Discussion

10. The applicants divided their arguments between counsel although each adopts the other’s position. The applicant Hanna’s Landing argues that the consent order it wishes removed exceeds the authority of the court and should not have been made. It advances two reasons for this position. The first is that a court order cannot bind non-parties. The second is that even if it reflects the will of the parties, the contract between the Tozers’ and the Dyers’ was just that, a contract with no power to bind anyone but the signatories thereto. They argue that this is so because it fails to comply with the rules of equity governing the making of restrictive covenants binding land. In addition they argue that the land registrar should not have registered the order of March 27, 1991 as it did not comply with the provisions of s.119 of the Land Titles Act.

11. The Dyer estate argues that even if the restrictive covenant is a valid one binding the land it is no longer required and therefore the court should exercise its jurisdiction under s.61 of the Conveyancing and Law of Property Act to remove it from the register.

12. The respondents argue not surprisingly, that the Minutes of Settlement constituted both a transfer of land and a valid restrictive covenant. They further argue that evidence of that covenant was properly registered against title to the Dyer’s lands by way of the March 27, 1991 order and that the covenant therefore runs with the land. In response to the Dyer estate’s position they argue that the covenant remains necessary to the respondents to properly protect their lands today.

13. I find that the issues to be determined are as follows:

a. Did the Court have the authority to make the consent order the applicants wish removed from title?

b. If so did the contract on which the order was based comply with the rules of equity governing restrictive covenants running with the land?

c. Is there any valid reason for the restrictions in the order to remain on title or should the Court remove them pursuant to its power under the Conveyancing and Law of Property Act.

d. Should the order of March 27^th, 1991 have been registered under the Land Titles Act.

Did the Court have the authority to make the consent order the applicants wish removed from title?

14. Counsel have been unable to refer me to any cases in which a court order rather than the contract itself has served as evidence of the parties’ agreement to bind land for the benefit of other lands. The first question to be answered is therefore can the parties’ intentions be accomplished by this unusual method.

15. Minutes of Settlement are a contract that can subsequently be embodied in an order or judgment of the court.[^1] It is clear from the wording of the minutes that the parties intended that the defendants and their successors in title were to be restrained from using a part of their lands in certain ways. This clearly created a restrictive covenant binding the parties to the action and purporting to bind their successors in title.

16. The applicant’s have argued that the consent judgment should not have been issued by the court as it exceeded the court’s jurisdiction in purporting to bind non parties, in this case the parties successors in title. In support of this argument the applicants have referred me to Frank W. Horner Ltd v Bio-Gestion Inc.[^2] a decision of the Federal Court in a trademark infringement case. In that situation the court rightly refused to incorporate wording which would have found a trademark valid as against the world without independently ruling on its validity, based solely on the agreement of the two parties to the action. Since the parties themselves had no power to bind people not privy to their contract the court had no power to do so based solely on the parties’ agreement.

17. However an agreement to create a restrictive covenant differs from a conventional contract. In this limited area, provided it is done correctly, the law allows parties to a contract to bind a specific group of people not party to the contract, namely their successors in title. The respondents argue that since a consent order of the court embodies and gives effect to the parties’ contract, it follows that in these limited circumstances, the court as the parties’ agent in effect, may do what the parties themselves may do.

18. In support of this position, the respondents rely on the Ontario Court of Appeal decision in Re Regal Constellation Hotel Ltd.[^3] That ruling provides that a vesting order once registered must be treated as a conveyance, which may not be revisited. From this the respondents extrapolate that a vesting order embodying a restrictive covenant once registered may not subsequently be set aside on appeal or altered by the court on the ground that the original order exceeded the court’s authority.

19. In Regal Constellation The Court of Appeal was dealing with a vesting order. Its analysis and conclusion were based upon the unique characteristics of that particular creature of statute. Writing for the court, Blair J.A. found that a vesting order has the dual characteristics of an order and a conveyance. Once registered therefore its effect is that of a conveyance and its purpose as an order is spent. He went on to find that since the order effected a change of title on registration any appeal from it was moot.

20. From this ruling the respondents would argue that the court cannot re-visit the March 27, 1991 order because it has been registered and therefore altered the title to the Dyer lands.

21. However the March 27^th, 1991 order was not a vesting order. That document had been registered some weeks earlier. Unlike a vesting order, the purpose of the order was not spent or accomplished on registration but continued to affect both the named parties to the action and purportedly their successors in title. It has none of the characteristics of a conveyance and therefore remains purely a court order and as such, subject to the limitations of what such documents may do.

22. In general a court order cannot bind individuals who are not parties to the action in which the order was made. Had the matter gone to trial, and the Tozers’ been successful, the court could not have made an order binding anyone but the Dyers’ as defendants. While a court order may reflect the agreement of the parties it remains an order of the court and as such, absent statutory authority may not bind non-parties.

23. Since neither party to the original action retains any interest in the lands either subject to or benefiting from the original agreement there remains no reason for the order to remain on title and it should be removed.

24. I believe this finding to be determinative of the matter but in the event that I am mistaken I shall consider the issues raised under the subsequent headings set out above to determine whether the order if valid meets the requirements for creating a restrictive covenant.

Did the contract on which the order was based comply with the rules of equity governing restrictive covenants running with the land?

25. In Ontario a restrictive covenant running with the land must:
    1. be negative in substance
    2. have a defined servient tenement and be annexed to dominant lands ascertainable with reasonable certainty
    3. be made by the owner of the lands to be burdened
    4. be for the benefit of lands owned by the the covenantee, which lands must be mentioned in the covenant.
    5. not be unlawful as offending public policy.[^4]

Is it negative in Substance?

26. Paragraph 3 of the Minutes of Settlement provides that:

3.The defendants and their successors in title to those portions of Parts 2,5,6,7, and 8 Plan 35R 11909 which are not included in the lands vested in the plaintiffs as set out above, shall be restrained from using the lands in the following manner:

(a) No derelict vehicles, boats or machinery will be stored or parked on the said lands, and

(b) No open storage of any materials of any kind shall take place on the lands, and any materials stored on the lands shall be kept in closed storage. ……….

27. The wording of (a) and the first clause of (b) are negative in that the defendants are prohibited from storing things openly on the land. The balance of (b) is positive in character in that to store things in a closed building requires some action or expenditure by the defendants. To the extent that this action or expenditure is required the covenant is not negative and cannot stand.

28. However a positive requirement may be severed from what is otherwise a negative covenant.[^5] This leaves the prohibitions against storing of derelict vehicles, boats, or machinery, or open storage of materials of any kind as potentially valid negative restrictions.

Is there a defined servient tenement annexed to dominant lands ascertainable with reasonable certainty?

29. The lands bound by the covenant are properly described as parts on a reference plan in both the Minutes of Settlement and the following judgment and order. The requirement of annexation of the servient to the dominant lands is also met. Annexation requires that the benefit be to the identified dominant lands and not merely co-lateral to them. In this case the value of the Tozer’s lands or even of their right of way would be directly benefited by an absence of derelict machinery surrounding them. Therefore the second requirement has been met.

Was the covenant made by the owner of the lands to be burdened?

30. There is no issue here the Dyer’s owned the servient lands when the Minutes of Settlement were filed.

Was the covenant made for the benefit of lands owned by the covenantee, which lands must be mentioned in the covenant?

31. The description of the benefiting lands is problematic. The original Minutes of Settlement provide:

(3) A vesting order shall be issued by the court, vesting in the plaintiffs those parts of lot 32 in concession 2 of the former Township of Medora now in the Township of Muskoka Lakes in the District Municipality of Muskoka and being

(c) Parts 1, 3, 4, 9, and 10 and part of parts 2, 5, and 8 on Plan 35R-11909 as marked in yellow on the attached sketch

(d) A right of way for pedestrian and vehicular traffic at all times as appurtenant to parcel 11517 in the Register for Muskoka and the lands described above, over part 7 Plan 35R-11909

4. The defendants and their successors in title to those portions of Parts 2,5,6,7, and 8 Plan 35R 11909 which are not included in the lands vested in the plaintiffs as set out above, shall be restrained from using the lands in the following manner:

(e) No derelict vehicles, boats or machinery will be stored or parked on the said lands, and

(f) No open storage of any materials of any kind shall take place on the lands, and any materials stored on the lands shall be kept in closed storage. Closed storage consists of any completely enclosed building or structure whether or not roofed, and any partly enclosed structure, whether or not roofed, such that the items stored therein are not visible from the lands of the plaintiff, from part 6, and 7, Plan35R 11909 or from the right of way leading from the said part 7 to the public road. The intent of such storage is that the use of the said lands by the defendants shall be neat, tidy, and orderly and not visually offensive. Such restriction to affect only those lands set out above in Plan 35R-11909 and not affect any other lands owned by the defendant.

32. I have emphasized those parts of the wording that I consider to be crucial to whether or not the document sets out a dominant tenancy ascertainable with reasonable certainty to which the servient tenement is annexed. It should be noted however that the Minutes of Settlement were never registered. The descriptions highlighted above are split between two instruments. The vesting order registered on April 14, 1991 as instrument number 161963 contains the description of the vested lands in paragraph 2 of the minutes. The restraining order registered on April 4, 1991 as instrument number 162242 contains the wording of paragraph 3 of the minutes.

33. The courts in Canada have not been sympathetic to restrictive covenants. In general they have required strict compliance with the rules set out above. The identification of benefited lands has been particularly problematic. I have been referred to a number of decisions in which restrictive covenants were struck down either because they failed to make any mention of the lands to be benefited[^6] or those lands were not identified precisely enough.[^7] There is a presumption against finding that a restrictive covenant runs with the land in Ontario[^8] and therefore courts have been reluctant to go beyond the instrument itself to discover the dominant tenement.[^9]

34. The cases in Ontario reflect a clear unwillingness to look beyond a clear identification of the dominant tenement in the registered instrument itself. The courts will seldom look beyond that instrument even to a second registered instrument, to ascertain it.

35. This approach is clearly set out in the test articulated by Judson J. in the Supreme Court of Canada’s decision in Galbraith v Madawaska Club Ltd. at p 653[^10] and cited in most of the later decisions.

the description of the dominant tenement) fails to meet what I think must be regarded as the minimum requirements that the deed itself must so define the land to be benefited as to make it easily ascertainable.

36. The only identification of the dominant tenement in the March 27, 1991 order, is its reference to stored items not being visible “from the lands of the plaintiff, from parts 1 and 2, Plan 35R 14101 or from the right of way leading from the said part 2 to the public road.” There is no further identification of “the lands of the plaintiff” or “the right of way leading from the said Part 7 to the public road” in either the original Minutes of Settlement or the two registered orders.

37. While it is tempting to conclude that anyone could, with a modicum of effort, search the title to the surrounding lands, and thereby ascertain the description of both the plaintiff’s lands and the right of way, I find that a subsequent purchaser is not required by the law of Ontario to go to that effort. Such is the reluctance of the courts to enforce restrictive covenants that any vagueness in description will result in a finding that the dominant tenement has been insufficiently identified. Since the plaintiffs never had any interest in Part 1 of the reference plan, this leaves only the right of way over Part 2 Plan 35 R 14101, as a properly identified dominant tenement. Part 2 is a gore with an area of .043 acres or 1873 square feet.

38. While an interest in a dominant tenement may be less than fee simple such as a lease, or arguably a right of way[^11], the result in this case is patently ridiculous.

39. Before proceeding I should add that I have considered the fact that both the description of the dominant tenement and the words of annexation occur in that part of paragraph 3(b) which I have found to be a positive covenant and therefore not binding on the Dyer’s successors in title. It should be noted that this paragraph also contains the valid negative covenant that there be “no open storage of any materials of any kind”.

40. In my view the fact that the description and words of annexation occur in the same paragraph as and refer in part to a covenant that does not bind the servient tenement in no way affects their ability to form a part of and support the validity of the document containing the negative covenant.

Is the covenant unlawful as offending public policy?

41. There is no issue here. No party has argued that the covenant offends public policy.

42. I conclude from the preceding analysis that were the order found to be capable of binding the Dyer lands as embodying a valid restrictive covenant its wording is such that its benefit would be restricted to a small portion of the Tozer’s right of way and not enure to the benefit of any other land owned by the Tozers’ or over which they had a right of way.

43. This absurd result leads directly into the third issue identified at the beginning of this discussion.

Is there any valid reason for the restrictions in the order to remain on title or should the court remove them pursuant to its power under the Conveyancing and Law of Property Act.

44. Section 61 of the Conveyancing and Law of Property Act R.S.O. 1990 C. 34

Provides that the court may modify or discharge a restrictive covenant. In considering the predecessor to this section in Re Ontario Lime Co. Ltd.[^12] Middleton J.A. of the Ontario Court of Appeal indicated that this power should be exercised “with the greatest caution” and not where the making of the order would “substantially depreciate the adjacent land”. The true function of the section he held “is to enable the court to get rid of a condition or restriction which is spent or so unsuitable as to be of no value and under circumstances when its assertion would be clearly vexatious.” I find that these words describe the present situation aptly for two reasons.

45. The first is that since the registration of the order, The Township of Muskoka Lakes has passed a general property standards By-law #99-34. The definition of waste material in section 1. is as comprehensive as that in the order. Section 2.20 of the by-law requires all yards or vacant property to be kept clean, cleared up, and free of all garbage, waste material, refuse or other debris, including particularly, inoperative vehicles. In short every property in the township is now subject to the same requirements as those I have found would remain valid were the order found to embody a valid restrictive covenant. Clearly the restrictions purpose is spent.

46. The respondents argue that they have no power to force compliance with the by-law whereas they can personally enforce a restrictive covenant. With respect that is not the test. Middleton J.A. made it clear in Ontario Lime that the determinative issue was whether or not the removal of the covenant would substantially depreciate the adjacent land. With the protection of By-law #99-34 in place the loss of the covenant will not affect the value of the Tozer lands in the slightest. No one consciously buys the ability to bring a lawsuit, which is all the existence of the covenant would add to the Tozer lands.

47. The second reason rests on my finding that the only land benefited by the covenant if there is one, is a .043 acre gore over which the Tozers have a right of way. For anyone possessing such a miniscule interest, to seek to enforce the covenant against the Dyer lands would, in the words of Middleton J.A, be “clearly vexatious”.

48. For these reasons I find that irrespective of whether the March 27, 1991 order creates a valid restrictive covenant, this is an appropriate case for its being removed from title to the Dyer lands.

Should the order of March 27th, 1991 have been registered under the Land Titles Act?

49. Even if the court had the authority to make the March 27, 1991 order, the applicants argue that it should never have been accepted for registration and therefore should be removed from the register for that reason alone. Their reason for this position is that the registration does not comply with section 119 of the Land Titles Act. That sub-section provides that upon the application of the owner of lands a restrictive covenant may be registered against them provided it complies with subsection (4) That sub-section provides as follows:

(4)A covenant shall not be registered under subsection (3) unless

(a) the covenantor is the owner of the land to be burdened by the covenant

(b) the covenantee is a person other than the covenantor

(c) the covenantee owns land to be benefited by the covenant and that land is mentioned in the covenant and

(d) the covenantor signs the application to assume the burden of the covenant.

50. The applicant’s argument is that the application was not made by the Dyers’ nor was it signed by them to assume the burden of the covenant. It is common ground that the application for registration of the order was signed and filed by the Tozer’s lawyer.

51. This argument is based upon the mistaken assumption that the registration of the March27, 1991 order was made under s. 119 of the Land Titles Act. That section provides a procedure for the registration of a transfer containing a restrictive covenant in the usual form. As such it replicates the requirements developed by the courts for deeds prior to and under the now obsolete land registry system.

52. The attempt by the Tozers’ and Dyers’ to accomplish the same end by means of Minutes of Settlement later embodied in a court order is unique so far as I know. A plain reading of s.119 makes it clear that it does not pertain to court orders but rather transfers. Court orders are registered under s. 25 of the Land Titles Act. That section provides:

officers appointed under this Act shall obey the order of any competent court relating to registered land on being served with the order or a certified copy thereof.

53. Thus in the event that the order were valid, it was properly accepted for registration. It is only to the extent if any, that the order exceeded the court’s authority that it should not have been registered.

Conclusion

54. For the reasons set out above I find that in purporting to bind the successors in title to the Dyers’ and thus the Dyer land the court exceeded its authority and therefore the March 27, 1991 order was invalid. Rule 59.06(2) of the Rules of Civil Procedure empowers the court to vary or set aside an order where fraud or mistake is established. I am satisfied that it was mutual mistake on the part of the original litigants that caused them to have the court make an order that was beyond its jurisdiction. This court is therefore entitled to alter the order to remove the reference to successors in title or to set the original order aside. Since no party to the original action retains an interest in any of the lands little purpose would be served by varying the order. It should therefore be set aside or more suitably in this situation ordered removed from the register.

55. I further find that even if I am mistaken in ruling that the order was made without authority, its form is such that it creates a benefit for only a non-corporeal interest in .043 acre portion of a right of way and as such remains of no practical value. Therefore it should be removed from title pursuant to the power vested in the court by s. 61 of the Conveyancing and Law of Property Act.

56. Finally I find that the court should exercise its power under s.61 of the Act as the passing of By-law #99-34 has rendered the restrictions in the original Minutes of Settlement redundant.

Order

1. The order of the court dated March 27, 1991 and registered against parcel 16825 in the register for Muskoka on April 4, 1991 as instrument number 162242 shall be struck from the register.
2. The parties may arrange to speak to costs through the trial office either in person or by telephone conference call.

Justice T.M. Wood

Released: December 11, 2008

[^1]: Frank W. Horner Ltd v Bio-Gestion Inc (1980) 47 C.P.R. (2d0 168 (F.C.T.D.) [^2]: ibid. [^3]: Re Regal Constellation Hotel Ltd. (Receivership) (2004) 2004 206 (ON CA), 188 O.A.C. 97 (4) Shepherd Homes Ltd. v. Sandham (No.2), [1971 1 W.L.R.1062 [^4]: Thunder Bay (City) v 1013951 Ontario Ltd. [2000] O.J. No. 1292 (S.C.J.) [^5]: Thunder Bay v 1013951 Ontario Ltd ibid [^6]: Thunder Bay v 1013951 Ontario Ltd ibid
Galbraith v Madawaska Club Ltd. 1961 16 (SCC), [1961] S.C.R. 639 [^7]: Dundee Development Corp v Westfair Properties Ltd [2000] S.J. No. 695 (Sask Q.B.)
Mt Matheson Conservation Society v. 573132 B.C. Inc. [2002] B.C.J. 1254
Piazza v Hopely [2001] A.C.W.S. (3d) 386 Ont. S.C.J.
Mohawk Square Developments v. Suncor Energy [2007] O.J. No 3552 (S.C.J.) [^8]: Lamvid Inc. v. 427654 Ontario ltd. (1985) 1985 2003 (ON SC), 50 O.R. (2d) 782 (H.C.J.) as referred to in Mohawk Square Developments v Suncor Energy ibid [^9]: Coats J. has included a useful review of the case law on this issue in Mohawk Square Developments Ltd. v Suncor Energy Inc. ibid [^10]: Galbraith v Madawaska Club Ltd. 1961 16 (SCC), [1961] S.C.R. 639 [^11]: Pacific International Equities Corp. v. Royal Trust Co. [1994] O.J. No. 2159 (O.C.J.G.D.) [^12]: Re Ontario Lime Co. Ltd., 1926 362 (ON CA), [1927] 1 D.L.R. 765 (Ont. C.A.)