1864684 Alberta Ltd. Plaintiff - v. -, 2016 ABQB 371

Court of Queen’s Bench of Alberta Citation: 1864684 Alberta Ltd v 1693737 Alberta Inc, 2016 ABQB 371 Date: 20160714 Docket: 1501 05062 Registry: Calgary Between: 1864684 Alberta Ltd. Plaintiff - and - 1693737 Alberta Inc. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice G.A.

Campbell _______________________________________________________ The Application [ 1 ] This application seeks the determination of creditors’ entitlement to net sale proceeds (the “Proceeds”) from the June 2015 sale of certain improved lands, located in Airdrie, Alberta (the “Land”). The Land consisted of a commercial condominium development that was being developed by 1693737 Alberta Ltd. (the “Developer”). The Land was sold in a court-supervised receivership.

The Receiver paid the Proceeds into Court. [ 2 ] There are four classes of creditors that could claim entitlement to the Proceeds. [ 3 ] 1753435 Alberta Ltd., 1713527 Alberta Ltd., Lorrin Baerg, Garth and Betty-Jo Hopfe, Storehouse Holdings Ltd. and John and Kris Bennett (collectively “the Purchasers”) claim priority entitlement to the Proceeds over all other creditors. The Purchasers claim

priority under a statutory trust created by s 14(3) of the Condominium Property Act , RSA 2000, c C-22.

Their interests were registered against the title to the Land, albeit after several other interests had been registered. [ 4 ] Of the three remaining classes of creditors, two argue that priority to the Proceeds should be based on the order in which the interests were registered against title to the Land pursuant to the Land Titles Act , RSA 2000, c L-4. [ 5 ] Red Star Drywall Ltd., Abacus Construction Inc., Abacus Steel Inc., Tanas Concrete Industries Ltd., Defined Glass & Design Ltd., KDM Utilities Ltd. and Mid-West Contracting Ltd. (collectively “the Lienholders”) claim priority entitlement to the Proceeds pursuant to their builders’ liens (the “Builders’ Liens”) that were registered on the title to the Land. [ 6 ] Kulwinder Sekhon (the “Caveat Holder”) argues that priority to the Proceeds should be determined based on the order in which the interests were registered against title to the Land pursuant to the Land Titles Act . [ 7 ] The fourth class of creditor, a Mortgagee, did not participate in this application.

Background [ 8 ] For the purpose of this application, the parties agreed to a common set of factual assumptions. The factual assumptions are as follows: 1. Under agreements for purchase and sale, the Purchasers paid deposits to the Developer to purchase condominium units to be constructed on the Land as contemplated by s 14(3) of the Condominium Property Act the (“Deposits”). The agreements expressly provided that the Deposits were to be used to purchase the Land and construction of a commercial condominium unit and project on the Land. 2.

Deposits were paid both before and after builders’ liens were registered on title to the Land. 3. All Builders’ Lien claims are valid and enforceable as registered. In a separate action, pursuant to an application by the owner of the Land[], the lien fund was set. 4. The caveat re agreement charging land is valid and enforceable as registered. 5. The Developer did not hold the Deposits in a separate trust account as required by the Condominium Property Act . 6. The Developer used the Deposits to fund the construction of the Condominium Project on the Land[]. 7.

The Developer was unable to complete the project, a Receiver [of the Land] was appointed and the Land[][was] sold in the receivership. 8. The Receiver paid the net sale proceeds from the sale of the Land[].into Court. [ 9 ] The Developer itself was never assigned into or the subject of bankruptcy. The only asset of the Developer held in receivership by the Receiver was the Land. The Receiver did not sell any other property of the Developer.

The Issue [ 10 ] Although the parties in their briefs discussed the priority of the lien fund as a whole, the parties agree that the sole issue to be determined on this application is: Does the trust claim being advanced by the Purchasers, based upon the foregoing assumptions, have priority over the registrations on title to the Land? [ 11 ] For the reasons that follow, the answer is No. The Lienholders’ and Caveat Holder’s Position [ 12 ] The Lienholders and Caveat Holder argue that the Proceeds currently being held by the Court stand in place of the Land sold by the Receiver.

These Proceeds act as security for any validly registered encumbrance that existed against the Land prior to the receivership sale. [ 13 ] The Lienholders and the Caveat Holder contend that priority to the Proceeds should be determined in accordance with the order of registration of encumbrances filed against the title to the Land.

Relying on Romspen Investment Corporation v Certified Financial Services & Mortgage Corp , 2014 ABCA 136 , 240 ACWS (3d) 196, the Lienholders and the Caveat Holder argue that the legislative regimes set out in the Land Titles Act , the Law of Property Act , RSA 2000, c L-7 and the Builders’ Lien Act , RSA 2000, c B- 7, govern the priorities of the various claims against the Land (and subsequently the Proceeds), despite seemingly unfair or inequitable outcomes.

Citing Bank of Montreal v 1323606 Alberta Ltd , 2013 ABQB 596 , 571 AR 353, these parties argue that the Torrens title registration system is meant to provide a clear and definite mechanism for evaluating the status of claims to interests in land. Registered interests take priority in the order they were registered, without any regard to unregistered interests.

Allowing unregistered claims, such as the Purchasers’ trust claim, to take priority over registered interests would frustrate the purpose of the Torrens system, undermine the authoritative nature of the Land Titles Act and wreak havoc for commercial certainty in land dealings.

[14] The Lienholders argue that the case relied on by the Purchasers, Iona Contractors Ltd v Guarantee Co of North America,2015 ABCA 240, 602 AR 295 [Iona Contractors], does not support the Purchasers’ position. In their view, Iona Contractors deals withs 22 of the Builder's Lien Act, which deems the funds received from the owner to be trust funds in the hands of the recipient. In contrast,the Lienholders submit that s 14 of the Condominium Property Act, upon which the Purchasers rely, merely imposes an obligation upon adeveloper to hold purchase funds in trust in accordance with a purchase agreement.

The Lienholders argue that s 14 does not deem atrust, but merely imposes an obligation to hold funds in trust. [15] In short, the Lienholders and the Caveat Holder submit that the interests that were registered on title to the Land at the time ofits sale trump any unregistered interest the Purchasers may have by equity or statute. The Purchasers’ Position [16] The Purchasers argue that s 14(3) of the Condominium Property Act impresses a trust on the Deposits so that the Depositsnever became the property of the Developer. As such, the Proceeds are not property available for distribution to other creditors.

Insupport of this position, the Purchasers rely on the recent Court of Appeal decision in Iona Contractors. [17] The Purchasers also argue that the three-fold common law requirement for the creation of a trust (intention, certainty ofobject, and certainty of subject matter) is made out in these circumstances. As the trust monies were wrongfully used to develop theLand, the Purchasers argue that they are entitled to a continuing beneficial interest not merely in the trust property but in the proceedsthereof.

They rely on Ward-Price v Mariners Haven Inc, (ON CA), 57 OR (3d) 410, 2001 OJ No 1711, for thisproposition. [18] Relying on Japan Canada Oil Sands Ltd v Stoney Mountain Steel Corp, (AB KB), 290 AR 251, [2001]AJ 533, the Purchasers argue that their interest, created by a statutory trust, is superior to and defeats secured creditors such as theLienholders, the Caveat Holder and the Mortgagee. Applicable Law [19] This application engages the

interpretation and interplay of two provincial legislative regimes: (1) the consumer protectionregime under the Condominium Property Act and (2) the Torrens land registry regime (which also fosters elements of consumerprotection) under the Land Titles Act. In addressing this issue, it is important to understand the legislative intent of each statute.

Whileonly a few provisions from both statutes are directly applicable to the present application, these provisions are to be read in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the legislation: Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at para 21, 154 DLR (4th) 193. [20] The contextual method of statutory

interpretation assumes that there is horizontal consistency between statutes. Horizontalconsistency means an

interpretation favouring harmony between statutes should prevail. Apparent conflicts should be resolved so as to re-establish that harmony (Pierre-André Côté, The

Interpretation of Legislation in Canada, 2d ed (Cowansville, Québec: Les ÉditionsYvons Blais Inc., 1991) at 288). As Professor Sullivan states, “the provisions of related legislation are read in the context of the othersand the presumptions of coherence and consistent expression apply as if the provisions of these statutes were part of a single Act” (RuthSullivan, Sullivan on the Construction of Statutes 6th ed (Markham, Ontario: LexisNexus Canada, 2014) at 417). [21] I first discuss the legislative purpose of each statutory regime.

Consumer Protection under the Condominium Property Act [22] The Condominium Property Act is remedial consumer protection legislation designed to protect purchasers of condominiumsbefore their purchased condominium is built, recognizing that condominium purchasers are generally not in equal bargaining positionswith developers.

As our Court of Appeal explained in Condominium Corporation No 0321365 v 970365 Alberta Ltd, 2012 ABCA 26 atparas 8-9, 519 AR 322 [MCAP]: The Legislature opted not to bar closing of purchase agreements where a unit or related common property is not substantially completed.Instead, the Legislature has sought to achieve its objective by statutorily mandating that developers hold back in trust from purchaseproceeds sufficient funds to substantially complete sold units and their related common property. … In enacting this package of legislation, the Legislature was alive to several economic and social realities.

On the one hand, it did not wantto prevent developers from securing, on reasonable terms, the financing required to build and complete condominium projects. On theother, it recognized that consumers needed to be protected from hit and run developers, who promise much but deliver little, whetherbecause of ineptitude, negligence, greed or worse yet, fraud.

Through this statutory regime, the Legislature has provided some reasonableassurance that what developers agree to provide, and purchasers agree to buy, will be completed as promised. [23] To protect condominium purchasers from these “hit and run” developers, s 14(3) of the Condominium Property Act creates astatutory trust and holdback provision that prohibits condominium developers from using condominium purchaser funds to develop thecondominium.

The legislative scheme requires the developer to hold purchase funds in trust until the certificate of title is issued to thecondominium purchaser, unless the deposit money is paid out under one of the statutory exceptions. [24] The Legislature expressly provided exceptions to the statutory trust and holdback provision in s 14.

These exceptionsrecognize the need to achieve a balance between two competing objectives: (1) protecting condominium purchasers’ rights and (2)permitting developers to obtain the financing necessary to complete the construction of new condominium projects: see MCAP,McDonald J.A. dissenting on other grounds at paras 172 and 173.

[25] These exceptions relieve a developer of its obligation to hold the purchase funds in trust. For example, s 14(10) of theCondominium Property Act allows for the purchase funds to not be held in trust if the Minister approves the purchase arrangement.Section 67(1) of the Condominium Property Regulations, Alta Reg 168/2000 outlines the requirements for such arrangements. Sections14(4) and (5) of the Condominium Property Act require the developer to only hold sufficient funds in trust to substantially complete thecondominium development.

However, in the present circumstances, none of these exceptions apply. [26] To conclude, the Condominium Property Act is legislation enacted for specified parties, namely condominium purchasers,who are given certain rights and protections. The legislative regime set up under the Condominium Property Act obliges developers tohold money in trust that is paid to them by condominium purchasers. The purpose of this legislation is to ensure condominiumpurchasers are protected in respect of money paid until such time as one of the events stipulated in s 14 occur.

Certainty of Interest in Land Provided by The Torrens Land Registration Systemunder the Land Titles Act [27] The Torrens land registration system as codified in the Land Titles Act was recently reviewed by Justice Toploinski in Bankof Montreal v 1323606 Alberta Ltd, 2013 ABQB 596 at paras 21-30, 571 AR 353: [21] In Alberta, interests in land are tracked by the Torrens title registration system. [22] The Torrens system provides for efficient management of land title by requiring that any legal interest in land be recorded in aregistry operated by the Land Titles Office of the Service Alberta Department.

It is designed to meet a simple policy goal – to provide aclear, definitive mechanism to evaluate the status of land. [23] This policy goal was explained by the Privy Council in Gibbs v. Messer, [1891] A.C. 248 at 254: The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain.

The object is to savepersons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the historyof their author's title, and to satisfy themselves of its validity. ... [24] The Torrens system protects any person relying on the register … and the rights afforded by it are substantive. [Citations deleted] [25] Title as provided in a Torrens registry is absolute proof of ownership, with only limited exceptions. Justice Estey in CanadianPacific Railway Company v.

Turta (No. 2), (SCC), [1954] SCR 427 at 443, [1954] 3 DLR 1 stated the principle in thismanner: That one who is named as owner in an uncancelled certificate of title possesses an "indefeasible title against all the world", subject tofraud and certain specified exceptions, while one who contemplates the acquisition of land may ascertain the particulars of its title at theappropriate land titles office and deal with confidence, relying upon the information there disclosed. ... [26] An acknowledged by-product of this approach to land title is that the Torrens system may, from time to time, impose hardships.This is particularly true when a person does not promptly register their title.

Justice Estey continues: ... Moreover, it contemplates that those who acquire a registerable interest in land will, without delay, effect registration thereof andavoid possible prejudice. That such a system may from time to time impose hardships is obvious and, therefore, in addition to preservingactions against the wrongdoer, the legislature has provided an assurance fund out of which, in appropriate cases, compensation may bepaid to those who suffer a loss. [30] … There is no legal obligation to investigate possible unregistered claims which may be attached to land. In Sibley v.

BritishColumbia (Registrar of Land Titles), [1981] B.C.J. No. 43 (B.C.S.C.), Selbie L.J.S.C. said this at para. 33: To the suggestion that the petitioners, personally or through their solicitor, should have, in effect, "double checked" the abandonment bycontacting the party who put the Caveat on in the first place, I can only say that I know of no such duty on the part of a bona fidepurchaser acting in good faith. That would be an intolerable burden to put on prospective purchasers -- to investigate every known,suspected or rumoured, prior unregistered claim before entering into their contract.

The law provides a procedure for the protection ofclaimants and they ignore those procedures at their peril. ... [Emphasis added] To require otherwise frustrates the legislative intent of the Torrens system: Szabo v.

Janeil Enterprises Ltd., 2006 BCSC 502 atpara. 40, 55 B.C.L.R. (4th) 188. [28] The Torrens registration system as codified in the Land Titles Act assures commercial certainty for those who deal with land.The system accepts that, in exchange for certainty of title, some meritorious claims to land may be defeated. [29] In addition to transferring title from one individual to another, various interests can be registered on title. Builders’ liens,mortgages and caveats are among these registerable interests.

Section 15 of the Land Titles Act states that: The Registrar shall keep each certificate of title and shall record on it the particulars of all instruments, caveats, …and other matters bythis Act required to be registered … on the certificate of title…[Emphasis Added] [30] “Instruments” is given an extensive definition in s 1(

k) of the Land Titles Act, and includes: a grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate or exemplification of will, letters of administration, oran exemplification of letters of administration, mortgage or encumbrance [Emphasis Added]

[31] Encumbrance is further defined by s 1(

e) of the Land Titles Act as: any charge on land created or effected for any purpose whatever, inclusive of … builders’ liens, when authorized by statute, andexecutions against land, unless expressly distinguished [Emphasis Added] [32] The Builders’ Lien Act authorizes builders’ liens to be registered according to the Land Titles Act. Therefore, builders’ liensare incorporated into the Torrens registration system and individuals registering builders’ liens on title are entitled to rely on the Torrenssystem as an accurate depiction of the land’s title and the various interests affecting that land.

Analysis [33] When the Land was sold under the court-supervised receivership, it was subject to various encumbrances and interestsregistered on its title. The Proceeds are the net sale proceeds of the Land. Although in a different form, the Proceeds stand in place of theLand (Nova Holdings Ltd v Western Factors Ltd (1965), (AB CA), 51 WWR 385, 51 DLR (2d) 235; Builders’ LienAct, RSA 2000, c B-7, s 54).

The rights and priorities of the parties holding the encumbrances and registrations on the Land still apply;however, the security in this case has become the Proceeds instead of the Land. [34] The question is who is entitled to the Proceeds realized from the sale of the Land. [35] The Land Titles Act is a statute of general application to all lands situated in Alberta (Hager v United Sheet Metal Ltd, (SCC), [1954] SCR 384 at para 147, [1954] 3 DLR 145).

As such, its provisions govern all dealings with land except as maybe repealed, altered, or modified by another provincial statute. [36] The Land Titles Act provides a specific regime for determining priority of claims to interests in Land. [37] Priorities between claimants who claim against the same land was always recognized at equity. Incorporating these equitableprinciples, the Torrens land registry system of this province explicitly recognizes priorities by statute. Sections 14(3) and 56 of the LandTitles Act specifically address priorities of competing registrations against land.

Section 14(3) makes the order of registration the orderof priorities, providing that: 14(3) For the purposes of priority between mortgages, transferees and others, the serial number assigned to the instrument or caveatshall determine the priority of the instrument or caveat filed or registered. [38]

Section 56 states that: Instruments registered in respect of or affecting the same land have priority the one over the other according to

section 14 and notaccording to the date of the execution. [39] The Alberta Legislature, in s 203 of the Land Titles Act, has chosen expressly to recognize the priority of registeredencumbrances over unregistered trust claims. [40]

Section 203 states: 203(1) In this section, (a) “interest” includes any estate or interest in land; (b) “owner” means (

i) the owner of an interest in whose name a certificate of title has been granted, (ii) the owner of any other registered interest in whose name the interest is registered, or (iii) the caveator or transferee of a caveat in whose name the caveat is registered.

(2) A person contracting or dealing with or taking or proposing to take a transfer, mortgage, encumbrance, lease or other interest from anowner is not, except in the case of fraud by that person, (

a) bound or concerned, for the purpose of obtaining priority over a trust or other interest that is not registered by instrument orcaveat, to inquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the interestacquired the interest or to see to the application of the purchase money or any part of the money, or (

b) affected by any notice, direct, implied or constructive, of any trust or other interest in the land that is not registered by instrumentor caveat, any rule of law or equity to the contrary notwithstanding.

(3) The knowledge of the person that any trust or interest that is not registered by instrument or caveat is in existence shall not of itself beimputed as fraud. ... [41] Thus, the priority of interests, registered and unregistered, attached to a piece of land are to be determined in accordance withthe Land Titles Act, except as they may be repealed, altered or modified by another statute, such as is argued in this case, theCondominium Property Act.

[42] It is of note that the Law of Property Act is consistent with the Land Titles Act in expressly legislating that a registered chargeon land has priority over an unregistered charge on land: see Law of Property Act, s 64(2)(b). [43] As the Land Titles Act contains specific provisions for determining priority of interests in land, the question becomes whetherthe Condominium Property Act repeals, modifies, alters or ousts these provisions of the Land Titles Act. [44] Section 14(3) of the Condominium Property Act is engaged.

It provides: 14(3) A developer shall hold in trust all money, other than rents or security deposits, paid by the purchaser of a unit up to the time thatthe certificate of title to the unit is issued in the name of the purchaser in accordance with the purchase agreement. [45] The Condominium Property Act restricts contractual freedoms in order to ensure consumer protection.

Section 80 states that: 80(1) This Act applies notwithstanding any agreement to the contrary and any waiver or release given of the rights, benefits orprotections provided by or under sections 12 to 17 is void. [46] Therefore, any contractual provision which purports to relieve a developer of its duty to hold purchase funds in trust is void.

Inthis case, in violation of s 80(1), the agreement between the Developer and the Purchasers permitted the Developer to use the Deposits todevelop the Land rather than hold the Deposits in trust. [47] The Developer violated Condominium Property Act s 14(3) and used the Deposits to pay costs associated with thedevelopment of the Land, including building costs. In doing so, the Developer breached the statutory trust. However, the Deposits ceasedto be deposits when they were co-mingled with other funds and activities used to improve the Land.

The Deposits were no longeruniquely identifiable and became inseparable from other funds and activities that added value to the Land, such as the work effortsundertaken by the Lienholders. Any trust interest associated with the Deposits became an interest in land subject to the Land Titles Actregime. [48] As discussed above, the Land Titles Act requires the registration of interests in land in order to gain priority over others alsoclaiming interests.

It follows that the priority of the Deposits, which were capable of becoming registered interests in land, must havetheir priority dealt with according to the Land Titles Act. [49] The Condominium Property Act is silent as to the effect of the Land Titles Act on a s 14(3) statutory trust interest and does notexpressly provide that the trust interest is enforceable with priority without registration.

While the Condominium Property Act expresslyimpresses a trust on deposit money, it does not do so on the condominium property itself nor does it specifically exclude the operation ofthe Land Titles Act generally, or specifically, ss 14 and 203(

a) of the Land Titles Act. That is, s 14 of the Condominium Property Actdoes not alter or modify the express indefeasibility or priority regime provisions of the Land Titles Act. [50] Contrary to the Purchasers’ assertion, I do not find that the Iona Contractors decision helpful. The Purchasers argue that IonaContractors establishes that a provincially created statutory trust takes priority over all creditors who have protected their claimedinterest in land by registering their interests on title to the land.

In my view, the factual differences between Iona Contractors and thiscase render that decision of no assistance to the Purchasers on this application.

First, Iona Contractors does not address the land registryregime set up by the Land Titles Act, nor does it discuss the priority of an unregistered statutory trust over registered interests in land.Second, the decision was concerned with whether the provincial Builder’s Lien Act was in operational conflict with the federalBankruptcy and Insolvency Act, RSC 1985, c B-3 for the purpose of determining whether the money held in a provincial statutory trustwas to be included or excluded in the bankrupt’s estate pursuant to paragraph 67(1)(

a) of the Bankruptcy and Insolvency Act. This presentapplication does not involve bankruptcy nor does it involve the

interpretation of the Bankruptcy and Insolvency Act. [51] Similarly, the Japan Canada Oil Sands Ltd v Stoney Mountain Steel Corp, (AB KB), 290 AR 251,[2001] AJ 533 and Ward-Price v Mariners Haven Inc, (ON CA), 57 OR (3d) 410, 2001 OJ No 1711, decisionsrelied on by the Purchasers are distinguishable on the facts and issues and are of no assistance in determining the issue in thisapplication. [52] In my view, the combined effect of ss 14, 56 and 203 of the Land Titles Act decides the issue. [53] The Lienholders and the Caveat Holder are persons who took an encumbrance, as defined by s 1(

e) of the Land Titles Act,from the Developer, who was the owner of the Land. The Lienholders and the Caveat Holder added value to the Land; the Lienholdersthrough their work efforts and the Caveat Holder through its alleged injection of cash. These parties were able to review the registrationson the title to the Land prior to making their decision to add value to the Land. They then registered their interests on the title to theLand, in order to establish the priority of their claims and protect their interest. That same option was open to the Purchasers. [54]

Section 203(

a) is clear that the Lienholders and the Caveat Holder were not required, for the purpose of obtaining priority fortheir interest, to inquire into how the purchase money for the Land was sourced or applied. They were also not affected by notice of anytrust interest in the Land that was not registered by instrument, any rule of law or equity to the contrary notwithstanding. [55] The legislative intent is to ensure that persons seeking to acquire new interests in land can rely on the existing title with noneed to make any further inquiries about competing claims, title defects or equitable unregistered claims.

In accordance with the LandTitles Act registry system, registered interests take priority by date of registration and therefore take priority over any unregisteredinterests. Thus, absent fraud as set out in the Land Titles Act (which fraud is neither alleged nor proven), the Purchasers’ unregisteredtrust claims do not create an interest in land that would take priority over registered encumbrances.

To do so would contradict the plainwords of ss 14, 56 and 203 of the Land Titles Act. [56] If the Legislature wished to give priority to an unregistered trust claim created by s 14(3) of the Condominium Property Actover registered interests on land notwithstanding the provisions of the Land Titles Act to the contrary, clear language would have beenused. It did not do so. To suggest otherwise, would defeat the Legislature’s intent in adopting the Torrens land registration system for

determining priority of claims to interests in land and would undermine the commercial certainty created by our Land Titles Act registry system. In Alberta, all persons dealing with land are entitled to rely on the face of the certificate of title in determining the interests to that land. Absent fraud as set out in the Land Titles Act , priority created by registration should remain intact. Conclusion [ 57 ] It appears that there are not sufficient funds to pay all the encumbrancers on the Land in full.

Undoubtedly, and regrettably, the Purchasers and other holders of encumbrances who registered later in time stand to suffer from the actions of the Developer. [ 58 ] However, the Purchasers always had the right to protect the priority of their unregistered trust claim by registering their claim on title to the Land, which many Purchasers ultimately did, but only after other interests were registered on title to the Land.

The Purchasers also retain their in personam right to seek a remedy from the Developer for breach of trust. [ 59 ] In conclusion, I find that the Purchasers’ unregistered statutory trust claim does not take priority over the registered interests on the title to the Land. Instead, priority to the Proceeds is to be determined and set in accordance with registration under s 14(3) of the Land Titles Act . Heard on the 09 th day of June 2016. Dated at the City of Calgary, Alberta this 14 th day of July, 2016. G.A. Campbell J.C.Q.B.A. Appearances: Douglas S. Nishimura; Nicole T.

Taylor-Smith; Mohamed Amery and Norm Anderson; Colin Harris for the Applicant Purchasers Anthony L. Dekens for the Respondent Kulwinder Sekhon Yvonne M. Williamson; Adrianna Worman; Chris Williams; Jodi Fraser; James Wilde; Julie V. Shepard for the Respondent Lienholders