ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-36711
DATE: 2012-10-29
B E T W E E N:
BRUCE ECO LANDBANK INC. and CROOKS HOLLOW FARM CORPORATION
William P. Dermody, Counsel for the Applicants
Applicants
- and -
BRUCE ECO INDUSTRIAL PARK CORPORATION
Wade W. Sarasin, Counsel for the Respondent
Respondent
Heard and Reserved: October 25, 2012
REASONS FOR JUDGMENT
CRANE, J.
[ 1 ] The applicant, hereinafter ‘Landbank’, was the purchaser and the respondent, hereinafter ‘Park’, was the seller of certain commercial properties located in the Township of Bruce. The applicant, hereinafter ‘Crooks’, is the mortgagee of these properties.
[ 2 ] The parties together with the sole shareholder of Park, Terra Corporation, hereinafter ‘Terra’, entered into an Agreement dated the 28 th day of October, 2006.
[ 3 ] The Agreement provided for the transfer of the aforesaid properties from Park to Landbank (at that time, a corporation to be formed); a contemplated marketing agreement to be negotiated between Landbank, Crooks and Terra; and for a contingent future transfer to Terra of a shareholding interest in Landbank.
[ 4 ] The Agreement further provided that instrument LT058934 registered on 9 January, 2005 by Park be removed by it.
[ 5 ] Subsequent to the Agreement the parties and Terra have not made a marketing agreement. There has been a falling out between the principals with no ongoing discussions.
[ 6 ] On 23 June, 2010, Park, through its solicitor, registered instrument BR42663 “Notice of an Unregistered estate, right, interest or equity Section 71 of the [ Land Titles] Act ”.
[ 7 ] Landbank and Crooks by Notice of Application seek by this process the removal of these registrations by an order of this Court directed to the Director of Land Titles.
[ 8 ] The applicants also seek a declaration that the lands are not subject to claims represented by the aforesaid registration under s. 71 of the Land Titles Act .
[ 9 ] Counsel for the respondent accepts that the registration of notice of option be removed. An order is granted. Counsel for the applicants will draft the formal Order.
[ 10 ] Instrument BR42663 provides no information of the unregistered interest in, or to, the subject lands. Indeed, s. 71 has been the subject of only minimal jurisprudence as to its factual and legal scope and breadth.
[ 11 ] During the course of the hearing of this application, counsel on being told that a trial of an issue may be required, indicated that they, consulting together, would be able to draft a proposed case for Court approval.
[ 12 ] I direct a trial of issues as to whether Park, Terra or any related persons possessed a registerable interest in the subject lands by the execution of the Agreement in 2006 and secondly, at the time of the registration of the instrument on 9 January 2010.
[ 13 ] I ask counsel to submit their draft(s) to me within 2 weeks, following which I recommend an initial telephone conference to be arranged by counsel through the trial coordinator at Hamilton.
The Honourable Mr. Justice D. S. Crane
Released: October 29, 2012
COURT FILE NO.: 12-36711
DATE: 2012-10-29
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: BRUCE ECO LANDBANK INC. and CROOKS HOLLOW FARM CORPORATION Applicants - and – BRUCE ECO INDUSTRIAL PARK CORPORATION Respondent REASONS FOR JUDGMENT CRANE, J. DSC//dm
Released: October 29, 2012