Cochrane Golf Club Limited v Cochrane (Town), 2023 ABKB 369

Court of King’s Bench of Alberta Citation: Cochrane Golf Club Limited v Cochrane (Town), 2023 ABKB 369 Date: 20230622 Docket: 2001 15655 Registry: Calgary Between: Cochrane Golf Club Limited Applicant - and - Town of Cochrane and Jennifer Foy et al Respondents _______________________________________________________ Reasons for Judgment of the Honourable Justice B.B. Johnston _______________________________________________________ [ 1 ] The Applicant, Cochrane Golf Club Limited (“CGC”), applies to discharge a caveat registered by the Town of Cochrane against the CGC lands.

They further seek a declaration that the covenant agreement is unenforceable. [ 2 ] The Respondents, the Town of Cochrane (the “Town”) and certain owners of the properties in the residential community of Riverview in Cochrane (“Riverview Residents”), oppose the application. Background

[ 3 ] CGC operates a nine-hole golf course in Cochrane, Alberta in the Riverview subdivision. CGC purchased the golf course and associated lands (“CGC Lands”) in 2003. [ 4 ] Cochrane Land Use Bylaw 01/2004 (“Land Use Bylaw”) divides the Town into land use districts. The CGC Lands were zoned as Recreation Commercial (“C-Rec”).

The permitted uses include “golf courses, parking lots, parks, signs and roof mounted solar systems.” There are also several discretionary uses available for the stated zoning. [ 5 ] In 2003, CGC, applied to amend the Land Use Bylaw to rezone the CGC Lands to allow CGC to construct a multi family development on land where the driving range was situated. There was significant opposition to the application. To address the opposition, a Town Councillor requested that CGC register a covenant to ensure that CGC would continue operate the remaining CGC Lands as a golf course.

CGC was agreeable to providing such a covenant, but Town Council ultimately voted against the 2003 application. [ 6 ] On March 20, 2006, CGC again applied for redesignation of a portion of the CGC Lands from C-Rec to Residential Multi- Use Dwellings (“R3”) to allow for part of the CGC Lands to be developed into residential condominiums (“2006 Amendment”). [ 7 ] The 2006 Amendment again faced significant opposition, including by the Riverview Residents.

CGC was unofficially advised by a Town Councillor that it was likely that Town Council would require a covenant to pass the Bylaw, however this was never officially requested. [ 8 ] The 2006 Amendment was given first reading on April 10, 2006. [ 9 ] On July 13, 2006, CGC wrote to the Town indicating they wished to “state [their] intention” that a restrictive covenant could be registered against the CGC Lands if the redesignation application was approved. The form of covenant could be subject to approval by the Town’s lawyers.

The covenant would provide for no further urban development on the existing golf course and prevent any further subdivision. The covenant would not include other facilities required for or associated with the golf course operations.

CGC also would transfer a half-acre parcel to the Town for a park. [ 10 ] Second and third reading of the 2006 Amendment were postponed on July 27, 2006, until CGC provided “the appropriate documentation to allow for the registration of a restrictive covenant on the remainder of the golf course.” On December 11, 2006, second and third reading were again postponed “until a signed restrictive covenant is delivered to the Town of Cochrane, including all residential properties in Riverview as registered grantees, including a provision in relation to costs of enforcement so that the unsuccessful party would have to pay the costs of the successful party.” [ 11 ] CGC’s lawyer delivered the signed covenant to the Town on December 21, 2006 (the “Covenant”) under trust conditions, including that the 2006 Amendment pass third reading and the subdivision approval be obtained. [ 12 ] The 2006 Amendment was passed by Town Council on January 8, 2007. [ 13 ] In the report to Town Council dated January 7, 2007, the Cochrane Planning and Development Officer noted that “in order to remove the [Covenant] from the remainder of the Golf Course lands, a decision would be required by Council and all of the benefiting lots within Riverview”. [ 14 ] On February 21, 2007, the Town’s subdivision authority approved the redesignation to allow for the residential development.

The conditions for approval included that the commitment by CGC to transfer a park to the Town be finalized, and the Covenant against the CGC Lands, specifically Plan 911 2550 Block B, and Plan 921 1697 Block A excepting all mines and minerals, be registered in favour of all the lots in the Riverview development. [ 15 ] The Covenant was registered at Land Titles on August 28, 2007, by way of caveat. [ 16 ] CGC proceeded with the multi family development. [ 17 ] Between 2018-2019 CGC and the Town had discussions relating to further commercial development on the CGC Lands.

The Town advised CGC this would require an amendment of the Covenant including an agreement that CGC indemnify the Town against any claim brought by the Riverview Residents. CGC would also require the consent of the Riverview Community Association. [ 18 ] CGC did not proceed with a further application for its proposed commercial development. [ 19 ] On December 18, 2020, CGC filed the originating application in the within action (“Application”). Issues [ 20 ] This Application raises the following the issues: 1. Is the Covenant contrary to public policy? 2. Does the Covenant run with the land? 3.

Is the Covenant spent, unworkable or obsolete? 4. Has the Town expropriated a property interest from CGC? 5. Can CGC avoid its obligations under an agreement when it has taken the benefit of that agreement?

6. Is CGC’s Application barred by the applicable limitation period? 7. Is CGC’s Application a collateral attack on the Town’s decision? Covenant [ 21 ] The Covenant provides: WHEREAS the Grantor [CGC] is the registered owner of those certain lands (the "Burdened Lands"), in the Province of Alberta described in

Schedule "A" hereto; AND WHEREAS the Grantees [Cochrane and CGC] are the registered owners of those certain lands (the "Benefitted Lands") in the Province of Alberta described in

Schedule "B"; AND WHEREAS it is the desire and intention of the parties to impose upon the Burdened Lands certain restrictions as to their use; THEREFORE, the parties hereby for themselves, their transferees and assigns and successors in title, declare, covenant, and agree as follows: 1.

Notwithstanding any land use or development by-law of the Town of Cochrane, no portion of the Burdened Lands shall be subject to any further development , in whole or in part except that the Grantor, its successors and assigns in title, shall be entitled to seek such further development of the Burdened Lands as may be associated with the operations of a golf course , subject to any applicable land use or development by-law of the Town of Cochrane, including but not limited to a new clubhouse, maintenance facilities, driving range, snack house and washrooms. 2.

The Grantor covenants and agrees with itself, its successors and assigns in title to observe and be bound by the covenants contained herein which shall be construed to be and shall be covenants running with the Burdened Lands and shall be appurtenant to the Benefitted Lands 3.

The Grantees, or any of them, may, with respect to any breach of the obligations by the owner or owners of the Burdened Lands enforce the provisions of this restrictive covenant and may, in addition to any other remedy that may be available at law, apply to a Court of competent jurisdiction to restrain such breach by injunction, The Grantees and none of' them shall have any duty to enforce the provisions of this restrictive covenant and this clause may be pleaded as an absolute bar to any action which claims otherwise. 4.

To the extent that enforcement proceedings in the Courts are taken with respect to this Restrictive Covenant, the solicitor/client legal costs of such enforcement shall be borne by the unsuccessful party or parties For greater certainty and clarification, if a Grantee (or Grantees) seek an order of the court compelling the Grantor (or its successor in interest) to comply with this Restrictive Covenant and are successful, the Grantor (or its successor in interest) shall pay the solicitor/client legal costs of such action.

If' the Grantee (or Grantees) brings such an action, but the Court finds that the Grantor (or its success in interest) is in compliance with the Restrictive Covenant, then the Grantee (or Grantees) shall pay the Grantor's (or its successor in interest) solicitor/client legal costs. 5. If any provision of this Restrictive Covenant shall be determined by a Court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected thereby, and each provision hereof shall be enforced to the fullest extent permitted by law. 6.

Words herein importing a number or gender shall be construed in grammatical conformance wit the context of the party or parties affect by this Agreement from time to time. 7. This Restrictive Covenant may be registered per se or by way or a Caveat by the Grantees against the Burdened Lands in the Land Titles Office for the South Alberta Land Registration District. [Emphasis added].

Schedule A Burdened Lands: Plan 911 2550 Block B Plan 921 1697 Block A excepting all mines and minerals And excepting thereout the subdivision shown on Plan _____

Schedule B Benefitted lands: Part “A” as to CGC: The subdivision shown on plan ______.

Part “B” as to Cochrane: The road municipally known as Riverview Drive and the park parcel described as Lot 71MR on Plan 931 1229. Part “C” as to portions of the Riverview subdivision... [22] The Caveat provides: Take Notice That The Town of Cochrane, a Municipal Corporation, of 101 Ranche House Road, of the Town of Cochrane, in theProvince of Alberta, claims an interest in the following described lands namely: Plan 911 2550 Block B ... Plan 9211697 Block A .... standing in the register in the name of COCHRANE GOLF CLUB LTD.

Under and by virtue of a Restrictive Covenant as to Use of Land dated the 12th day of December, 2006, a copy of which is attachedhereto and made part of this Caveat, executed by COCHRANE GOLF CLUB LTD., as grantor and grantee, for the benefit of theTOWN OF COCHRANE by virtue of its ownership of LOT 71MR BLOCK 4 PLAN 931 1229. It forbids the registration of any person as transferee or owner of, or of any instrument affecting the said estate or interest, unless theinstrument or certificate of title, as the case may be, is expressed to be subject to its claim.

Analysis Is the Covenant contrary to public policy? [23] CGC argues the Covenant is contrary to public policy for three reasons: 1. The agreement negotiated between the Town andCGC that required the Covenant, amounted to selling zoning for consideration and was ultra vires of Town Council; 2. The agreementand the corresponding Covenant fetters the discretion of future Councils which is ultra vires of Town Council; and 3. Town Councilwrongfully imposed the Covenant through an abuse of bargaining power. [24] The Respondents disagree. They argue the exercise of powers was intra vires and done in the public good.

Zoning for consideration [25] CGC relies on Pacific National Investments Ltd. v Victoria (City), 2000 SCC 64 (“Pacific 1”) in support of the propositionthat municipalities “cannot sell zoning” and “cannot zone in exchange for amenities” since municipal councils, like any legislative body,may not bargain away their legislative powers. Doing so would introduce extraneous concerns into the legislative process, such asexposure to litigation, if current or future municipal councils legislate contrary to the agreement.

Further, a contract that interferes withthe exercise of discretion and judgment is void as contrary to public policy. [26] CGC argues there was an improper exchange of zoning for consideration in this case because the Town would not pass the2006 Amendment until the Covenant was provided. Therefore, the Town abdicated its responsibility for land use planning to theprejudice of CGC. [27] The Town seeks to distinguish Pacific 1 on the facts. In particular, the Town notes that Pacific 1 was a claim for damages bythe developer against the municipality.

The dispute arose after the municipality entered into an agreement with the developer thatcontemplated a multi-phase development. The developer completed the first few phases and significant infrastructure that benefitted themunicipality that was tied to later phases. The municipality then refused to approve the final phases of the development. The SupremeCourt held that no damages were available to the developer for breach of contract as this would be void for public policy.

However, thecase came back to the Supreme Court in Pacific National Investments Ltd. v Victoria (City), 2004 SCC 75 (“Pacific 2”) to considerwhether damages were available for unjust enrichment. [28] In Pacific 2, the Supreme Court affirmed the right of the developer to recover damages for unjust enrichment even though itcould not recover based on breach of contract.

Therefore, the Town argues that Pacific 1 does not entitle CGC to simply take the benefitof its agreement and walk away without facing any of its corresponding obligations. [29] The Riverview Residents argue that the Town lawfully exercised its legislative powers under the Municipal Government Act,RSA 2000, c M-26 (“MGA”) and the Town’s Land Use Bylaw. Further, the Town exercised those powers in the public good: MGA; 360Ads Inc v Okotoks (Town), 2018 ABCA 319 at para 14; Galt-Canadian Woodworking Machinery Ltd. v. Cambridge (City), (ON CA), [1982] O.J. No. 2562 at para 15.

They assert that CGC offered a Covenant acceptable to the Town as part of the2006 Amendment. The 2006 Amendment was for the direct benefit of CGC, and the Town was obligated to balance the interests of CGCagainst the interests of the public, which included the Riverview Residents. They point out that public interest in planning anddevelopment matters is commonly construed to include strong community support or opposition to an application: Gatineau EnterprisesInc. v Development Authority of the City of Edmonton, 2016 ABESDAB 10170 at para 23.

The Riverview Residents, who opposed the2006 Amendment, also had a specific interest in the outcome by virtue of their ownership of affected lands and that the public interestdid not stand to benefit from the CGC development. They suggest that the Town’s actions at the time, including to require the Covenant,

amounted to reasonable and lawful conditions on CGC for the approval of the 2006 Amendment. By accepting the Covenant offered byCGC prior to approving the 2006 Amendment, the Town struck the appropriate balance between competing interests in its determinationof what was in the public interest. [30] I am not persuaded that what transpired in this case was the sale of zoning. Rather, the Town was facing an application by adeveloper (CGC) to change the zoning on lands in order that the developer (CGC) could develop and profit from those lands. Theapplication faced significant opposition for a variety of reasons.

In the face of that opposition, CGC offered the Covenant to turn theopposition into support and allow the Town to perform its legislative function in considering whether the zoning change would serve thepublic interest.

Ultimately, the Town determined that it was in the public interest for development to proceed on part of the CGC Landssince there were commitments made by the developer that included a Covenant that the remaining lands would remain under the currentzoning. [31] The facts of this case are materially different from Pacific 1 where the municipality had “down-zoned” the subject lands afterthe developer invested significant funds in developing the lands including to the direct benefit of the municipality. This was contrary tothe agreement the municipality made with the developer at the outset of the development.

The Court found that the developer could nothold the municipality to an agreement that had the effect of restricting the municipality’s right to exercise its legislative function in thefuture as it saw fit. [32] In this case, the Town is not seeking to escape its obligations under an agreement as was the case in Pacific 1. Rather, it is thedeveloper, CGC, that is looking to escape its contractual obligations under an agreement it freely entered. As part of that agreement,CGC offered a Covenant to appease the strong opposition to its development.

Now that CGC has taken the full benefit of thedevelopment that was facilitated by its offering of the Covenant, it seeks to be relieved of the very obligations that was instrumental to itgetting its development approved. I do not read Pacific 1 as relieving a developer of its contractual obligations to a municipality once thedeveloper has secured the full benefit of such contract.

Even if it were given such a reading, Pacific 2 would suggest that there could bean equitable remedy in the circumstances that would still hold CGC to a fundamental commitment it made to the Town and theRiverview Residents. [33] As noted above, I do not see this case to be a sale of zoning. I find that CGC volunteered to put a Covenant on the remainderof the CGC Lands as part of the 2006 Amendment.

The Town considered the public interest of both allowing the development to proceedat that time and the impact that the Covenant would have on the remainder of the CGC Lands when it exercised its legislative functionand approved the 2006 Amendment. Fettering of discretion [34] CGC argues that the Covenant wrongfully fetters the Town Council’s discretion and is therefore void as against public policy.Specifically, they allege that the Covenant entered by the Town in respect of the remainder of the CGC Lands, fetters, or prevents futureTown Councils from engaging in the legislative process without undue influence.

They cite the communications with the Town on theprospect of considering further development and the Town’s identification of the Covenant as a potential barrier, as proof that theCovenant has the effect of fettering the Town’s further exercise of its discretion and performance of its legislative function. [35] The Town’s response is the same as set out above: namely, that the Covenant is enforceable as against CGC and CGC hastaken full advantage of the agreement by providing the Covenant. [36] The Riverview Residents also suggest that the Town’s ability to deal with future zoning applications remains unfettered bythe agreement it entered with CGC or by the Covenant.

They further argue that CGC’s effort to void the Covenant on the basis that itfetters the Town Council is without merit as the arguments advanced by CGC are contrary to the terms of the Covenant, contrary toproperty law principles and contrary to contract principles. With respect to the terms of the Covenant, the Riverview Residents point outthat they are parties to the Covenant and enjoy rights thereunder. Even if the Covenant was held to be unenforceable due to fettering theTown’s discretion, the Covenant may still be enforced as between CGC and the Riverview Residents.

Further, covenants can and oftendo create enforceable rights between landowners even in the absence of privity of contract and estate: Bruce Ziff, Principles of PropertyLaw (2018) at p. 448; Carruthers et al v Tioga Holdings Ltd (1997), (AB KB) at para 38; Brown v Belleville (City),2013 ONCA 148; Condominium Plan 0125764 v Amber Equities Inc, 2015 ABQB 235. Finally, they argue that one may be a party to acontract even if they are not a signatory to it: Hawman v Regina Exhibition Assn Ltd, 1999 SKQB 123. [37] I do not find that the Covenant has the effect of fettering the present or future Town Councils.

The Town is free to considerany application relating to the CGC Lands. Neither the Covenant nor the agreement it struck with CGC prevent such consideration.Instead, the Covenant is merely one of the factors that the Town may consider in exercising its discretion on any application that may bebrought. Other factors would include the position of the Riverview Residents as well as the other usual factors considered in the Town’slegislative process.

It may be that at some point in the future, it will be in the public interest to have some or all of the remaining CGCLands rezoned and/or developed and the Town will be free to exercise its discretion should that time come. [38] Even if the Covenant fetters the Town’s discretion to some extent, I find that the Riverview Residents are both interestedparties to the enforceability of the Covenant and express parties to the agreement that saw the Covenant come into existence.

CGC wasfacing significant opposition to its development and to overcome that opposition, it offered the Covenant with the obvious and logicalintention to convince the Riverview Residents that if this development was allowed to proceed, then the golf course would remain intactand there would be no further development on the CGC Lands.

In the circumstances, the Riverview Residents can enforce their rightsunder the Covenant whether the Town can or will do so. [39] While CGC argues that it was forced into including the Riverview Residents as benefactors of the Covenant during the 2006Amendment proceedings, it is hard to escape the fact that CGC did not object at the time and made a conscious decision to press aheadwith the development on part of the CGC Lands while acknowledging to the Town and to the Riverview Residents, that in doing so, itwould not seek to develop the remainder. Yet now that seems to be the intention of CGC.

In these circumstances, I reject any suggestionthat CGC was forced to either provide the Covenant or include the Riverview Residents as benefactors of same.

Imbalance of bargaining power [40] CGC argues that the Covenant is void due to an imbalance of bargaining power between the parties. Therefore, requiring theCovenant was an abuse of power by the Town: Bristol Developments (Alberta) Ltd. v. Sturgeon (Municipal District No. 90), [1992] AJNo. 1458 (ABQB) cited to 1992 CarswellAlta 1228 at para 7; Prairie Communities Development Corp. v. Okotoks (Town), 2011 ABCA315 at para 52. CGC asserts it was entitled to have Town Council consider the 2006 Amendment on the merits and in accordance withthe MGA.

Further, CGC’s only route to completion of a condominium development and access to needed funding to upgrade the golfcourse, was through Council. I disagree. [41] I find that it was CGC that offered the Covenant as part of the 2006 Amendment in a clear attempt to assuage the significantopposition to its development. Offering the Covenant did precisely what it was intended to do: it quelled the opposition and allowed theTown to approve CGC’s development.

Also, the fact that CGC only sought to challenge the Covenant once it received the full benefit ofthe development distinguishes it from the cases referenced in its argument (i.e., Bristol and Prairie Communities). [42] CGC experienced no more of an imbalance of bargaining power vis a vis the Town than the Riverview Residents who wouldbe affected by the development and were in strong opposition to the development. The Town was responsible for weighing the interestsof CGC, the Riverview Residents and the public at large in dealing with the 2006 Amendment.

The suggestion that CGC had no otheroption but to provide the Covenant simply ignores the same authorities cited by CGC where the challenge of the municipalities’ abusewas made in a timely fashion. CGC has waited years to bring its challenge and has taken all benefit from the agreement that it now seeksto set aside. I do not agree that any imbalance of power between CGC and the Town, if such existed, is grounds to void the agreement,the Covenant or the commitments made by CGC when it pursued and successfully obtained approval for its development.

Does the Covenant run with the land? [43] CGC argues the Covenant does not run with the land. CGC suggests that when properly interpreted, the Covenant creates apositive obligation upon CGC to operate a golf course on the CGC Lands, the Covenant does not touch and concern the lands it is statedto benefit and the Covenant does not contain language that it is imposed for the protection of specified land of the covenantees: Russell vRyan, 2016 ABQB 526 at para 44; Galbraith v. Madawaska Club Ltd., (SCC), [1961] SCR 639; DurhamCondominium Corporation No. 123 v.

Amberwood Investments Limited, (2002) (ON CA), 58 OR (3d)481(ONCA); Hi-Way Housing (Sask.) Ltd. v. Mini-Mansion Construction Co. Ltd., (SK CA), [1980] 5 WWR 367(SKCA); Aquadel Golf Course Limited v. Lindell Beach Holiday Resort Ltd., 2009 BCCA 5. [44] In Westbank Holdings Ltd. v. Westgate Shopping Centre Ltd., 2001 BCCA 268 at para 16, the Court of Appeal outlined thenecessary conditions for a covenant to run with the land: (

a) The covenant must be negative in substance and constitute a burden on the covenantor's land analogous to an easement. Nopersonal or affirmative covenant requiring the expenditure of money or the doing of some act can, apart from statute, be made to run withthe land. (

b) The covenant must be one that touches and concerns the land; i.e., it must be imposed for the benefit or to enhance the value ofthe benefited land. Further that land must be capable of being benefited by the covenant at the time it is imposed. (

c) The benefited as well as the burdened land must be defined with precision the instrument creating the restrictive covenant. (

d) The conveyance or agreement should state the covenant is imposed on the covenantor's land for the protection of specified land ofthe covenantee. (

e) Unless the contrary is authorized by statute, the titles to both the benefited land and the burdened land are required to beregistered. (

f) Apart from statute the covenantee must be a person other than the covenantor. [45] CGC asserts that the requirements of a, b and d are not met. [46] The Town notes that the issue of whether the Covenant runs with the land is irrelevant for the purposes of this application asthe parties before the Court are the same parties to the agreement that saw the Covenant provided. The Town submits that even if theCovenant does not run with the land, it still creates contractual rights between the parties: 880682 Alberta Ltd. v. Molson BreweriesProperties Ltd., 2002 ABQB 771. I agree.

It matters not whether the Covenant runs with the land as CGC is the original contractingparty to the Covenant and is still bound by that agreement. Nevertheless, I will address the arguments on whether the Covenant runs withthe land. [47] I accept that for restrictive covenants to run with the land, they must be negative covenants and not impose positiveobligations upon the landowner: Aquadel. However, I do not agree that in this case, the Covenant properly interpreted, creates a positiveobligation upon CGC to operate a golf course.

As the Town correctly points out, the Aquadel, dealt with a covenant that contained threeprovisions read together: 1. Not to use the lands for any purpose other than a golf course; 2. To maintain the golf course to an acceptablestandard and; 3. To give certain persons a preferential rate for use of the golf course. When read together, the only reasonableinterpretation was that the covenant required the landowner to operate a golf course on the lands which was a positive obligation asletting it go to wilderness would render the requirement of #2 and #3 above meaningless.

These additional terms make Aquadeldistinguishable from this case. A similar distinction was also made in 1530 Foster Street Ltd. v. Newmark Projects Ltd., 2018 BCCA198. [48] I do not interpret the plain and ordinary wording of the Covenant as creating any positive obligation upon CGC to operate agolf course on the CGC Lands. Instead, the Covenant sets out a negative obligation that the CGC Lands will not be subject to any further

development except such development as the grantor of the Covenant is entitled to, but not required to, seek. Hence, the Covenant meets the requirement of being a negative covenant to be able to run with the land. [ 49 ] CGC argues that there is no evidence that the Covenant touches and concerns either the Town’s benefitted lands or that of Riverview Residents and therefore the Covenant can not run with the land.

The Town responds that CGC has reversed the onus and that CGC must establish that the connection between the burdened lands and the benefitted lands is absent and argues that there is some evidence of concerns to the Town’s roadways from development showing the required connection. The Riverview Residents point out that the lots listed in

Part C of the Covenant form part of the Riverview community in which a large percentage are situated immediately or nearly adjacent to the Golf Course. The proximity to the golf course, they argue, make them a golf course community whether they were specifically developed that way or not. Further, a number of Riverview Residents have given evidence that they find value in the Covenant preventing loss of precious green space and protecting their use and enjoyment of their respective residences. [ 50 ] I accept the evidence of the Town and the Riverview Residents that the Covenant touches and concerns their lands.

Even in the absence of this evidence, I find it to be obvious that the Town’s lands and more so the lands of the Riverview Residents being adjacent to or near the CGC Lands, derive sufficiently clear benefit and value from the Covenant to satisfy the requirement that the Covenant touches and concerns them to run with the lands. [ 51 ] CGC also argues that the Covenant fails to state that it is imposed for the protection of specified land of the covenantees, and such omission is fatal to it running with the lands. [ 52 ] In response, the Town notes that the wording used is suggestive rather than mandatory in that the word used is “should” and not “shall” or “must” or “required” and in any event, is not an essential requirement for the Covenant to run with the land: 1530 Foster Street .

The Riverview Residents argue that the Covenant is sufficiently clear as to its being imposed for the benefit of the specified lands of the covenantees and if not found to be clear, should be interpreted against the draftsperson of the Covenant being CGC. [ 53 ] In reading the Covenant, I interpret the Covenant’s wording to be indicative that it is imposed for the protection of the lands of the Town and the Riverview Residents identified therein.

Even if that were not the case, I do not agree that this is a mandatory requirement for the Covenant to run with the land as such wording is only suggestive. [ 54 ] I find that the Covenant runs with the CGC Lands. Is the Covenant spent, unworkable or obsolete? [ 55 ] CGC argues in the alternative that the Covenant is unenforceable as it has become spent, unworkable, or obsolete: Potts v. McCann , 2002 ABQB 734 . CGC therefore should be relieved of its obligations under the Covenant because the golf course is not profitable.

CGC does not cite any authority for the proposition that a landowner’s profitability or lack thereof can render a restrictive covenant unenforceable. [ 56 ] The Town points out that CGC has the burden to prove that this remedy is available at law notwithstanding the provisions of

section 48 of the Land Titles Act (that allows restrictive covenants to be discharged in certain cases) and to establish that it should be applied in this case. [ 57 ] The Riverview Residents further challenge the assertion that CGC is not able to operate a golf course on the CGC Lands profitably as alleged. [ 58 ] I agree with the position of the Town and the Riverview Residents that even if the remedy is available under common law, I do not find that the Covenant has become spent, unworkable, or obsolete as those terms would reasonably be interpreted.

As long as people continue to play golf, there is a need for golf courses and the CGC Lands fill that need. Has Cochrane expropriated a property interest from CGC? [ 59 ] CGC argues in the further alternative that the Town has expropriated the CGC Lands without compensation: Expropriation Act , RSA 2000, c E-13 . [ 60 ] This argument is without merit and fails. CGC has put forward no case authorities where a developer that has freely entered into an agreement with a municipality to restrict future development was treated as an expropriation.

As the Town points out, expropriation is the taking of land without the owner’s consent. In this case, CGC offered the Covenant and consented to it. Can CGC avoid its obligations under an agreement when it has taken all the benefit of that agreement? [ 61 ] The Town argues that it is not appropriate to grant the remedy to reverse the agreement, whether through rescission or declaring it void, as CGC has already taken the full benefit of that agreement.

In support of its position, the Town cites authorities for the following propositions: a. a party alleging duress must show they objected to the agreement at the time it was made and took steps to avoid the contract within a reasonable period of time: Attila Dogan Construction and Installation Co. Inc. v AMEC Americas Limited , 2014 ABCA 74 ; b. The court should be reluctant to find a contract void for uncertainty when one side has fully performed their obligations thereunder: Ko v. Hillview Homes Ltd., 2012 ABCA 245 ; and

c. The Court should not rescind a contract when one party has already performed their obligations thereunder: Rosas v. Toca , 2018 BCCA 191 . [ 62 ] The Town’s argument that the Court should be loathe to intervene in this case as CGC has enjoyed the full benefit of the agreement it negotiated with the Town and the Riverview Residents has significant appeal. Not only is there no evidence that CGC objected to providing the Covenant in conjunction with its development of part of the CGC Lands, the evidence shows that CGC freely offered the Covenant at the time of the 2006 Amendment.

I agree that having already enjoyed the full benefits of the deal it struck, CGC ought not now be allowed to escape its burdens. Is the claim statute barred? [ 63 ] The Town and the Riverview Residents argue that the remedy sought by CGC is barred by the relevant limitation period citing section 3(1) of the Limitations Act . [ 64 ] Having found the Covenant enforceable, it is not necessary to deal with this issue and I decline to do so.

Is the claim a collateral attack? [ 65 ] The Town also argues that the Application is a collateral attack on two decisions made by the Town: the decisions relating to the bylaw amendments and the subdivision approval in respect of the CGC Lands. They argue the CGC has followed the wrong process by initiating this Application.

They suggest that the proper process was a judicial review of the Town’s decision on the bylaw amendments which was required to be brought within six months of the decision and an appeal of the subdivision decision to the applicable board which was required to be brought within 14 days. [ 66 ] Having found the Covenant enforceable, it is not necessary to deal with whether the Application represents an impermissible collateral attack. Conclusion [ 67 ] I dismiss the application. [ 68 ] Costs may be spoken to within 30 days. Heard on the 12 th day of April 2023.

Dated at the City of Calgary, Alberta this 19 th day of June, 2023. B.B. Johnston J.C.K.B.A. Appearances: Matthew Schneider for the Applicant, Cochrane Golf Club Limited Jennifer D. Sykes for the Respondent, the Town of Cochrane Peter J. Major, K.C. & Sepand Asefi for the Respondents, Jennifer Foy et al