BERNARD KREINER, RUDOLF KREINER, WILFRED KREINER v. MONICA KREINER, 2023 SKKB 263

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 263 Date: 2023 12 05 Docket: QBG-BF-00338-2019 Judicial Centre: Battleford ___________________________________________________________________________ BETWEEN: BERNARD KREINER, RUDOLF KREINER, WILFRED KREINER and MONICA KREINER Plaintiffs - and - KADON INDUSTRIES LTD. Defendant Counsel: Hart R. Spencer for the plaintiffs Leonard H. Francis, K.C. for the defendant ___________________________________________________________________________ JUDGMENT BARDAI J.

December 5, 2023 ___________________________________________________________________________ [ 1 ] The central question to be answered in this case is whether the plaintiffs, Bernard Kreiner [Bernie], Monica Kreiner [Monica], Rudolf Kreiner and Wilfred Kreiner, collectively [Kreiner Family], have an equitable unregistered interest in lands registered at the Land Titles Office in the name of the defendant, Kadon Industries Ltd. [Kadon], that ought to be recognized. [ 2 ] At trial, only three witnesses were called: Monica and Bernie for the plaintiffs, and Kade Demuth [Kade] for the defendant.

Much of the evidence is uncontroverted, and the parties, by agreement, submitted a joint exhibit book. A couple comments should be made about the joint exhibit book. A courtesy copy of the joint exhibit book was not provided to the Court, and so, the Court only had the opportunity to examine the contents of the joint exhibit book after witnesses had testified. Further, not all of the documents in the joint exhibit book were put to witnesses, though counsel are on common ground that all documents in the joint book may be considered by the Court.

What became apparent late in the day, after witnesses had already testified, is that the trial book included material that would not ordinarily be admissible and entered into evidence. In particular: (

a) the joint exhibit book included previous affidavits filed by the parties, and the complete productions and affidavits of records; (

b) the joint exhibit book included a complete copy of the transcripts from each party’s questioning (formerly known as “examination for discovery”) of the adverse party; (

c) the joint exhibit book included a development plan with certain handwritten notations, but at trial, the author of those notations was disputed; (

d) the joint exhibit book included communications which, while not labelled as “without prejudice”, could be viewed as settlement discussions; and (

e) some of the documents in the joint exhibit book are not fully legible, though, thankfully, in the case of illegible documents in the joint book, additional copies were filed. [ 3 ] Most of these problems only became apparent to the Court after the plaintiff had closed its case, during the cross-examination of Kade. The Court appreciates that the parties prepared their case on the basis that this material would form part of the evidentiary record upon which the Court would base its decision.

Nevertheless, the Court has an important gatekeeping function and, accordingly, the Court indicated that it would proceed as follows in respect of the issues raised respecting the joint book of documents. [ 4 ] First, as a general rule and subject to specific exceptions, transcripts from a questioning are used at trial for the limited purposes of reading in admissions or impeaching an adverse witness.

In this case, the parties advised the Court that they wanted the entirety of these transcripts considered as though the witnesses had been asked the questions set out in the transcripts and provided those same answers at trial. Although the Court expressed reservations with this approach, given that it reflects the agreement of the parties, the Court agreed to proceed on this basis.

[ 5 ] Second, any without prejudice settlement discussions, whether marked “without prejudice” or not, will not be considered by the Court. [ 6 ] Finally, the handwritten notations on the documents will be considered as authentic except in the case of handwritten notations on “Schedule A” to the email of May 9, 2011, from Kade to Bernie as the evidence at trial with respect to these notations is that it is not known who made such notations, when and for what purpose. [ 7 ] As the parties have agreed on the contents of the joint exhibit book, the joint exhibit book and its contents have been considered by the Court in accordance with the agreement of the parties, subject only to the limited exceptions set out above. [ 8 ] Much of the evidence at trial was uncontroverted.

The uncontroverted material establishes: a. The plaintiffs are all siblings. b. The plaintiffs’ great uncle, Hugo Schlagintweit [Hugo], in the early 1900s settled in the Village of Goodsoil, Saskatchewan, and opened a practice as a general family physician. c. As of 1950, Clement Lauman [Clement] was the owner of the SW Quarter of Section (16), Township 63, Range 22, West of the 3rd in the Province of Saskatchewan. This quarter

section includes lakefront lands adjacent to Lac Des Isles, a lake located about an hour from Meadow Lake. d. In 1953, Hugo and Clement entered into an agreement whereby Hugo (identified as purchaser) purchased: one acre near the center along the northern boundary of the SW Quarter of

Section Sixteen (16) in Township Sixty-three (63) in Range Twenty-two (22) west of the 3rd Meridian, in the Province of Saskatchewan, including the right and privilege of using the road to this acre of land. The 1953 agreement includes a provision prohibiting any assignment unless the assignment is agreed to by the vendor, being Clement.

The agreement also provides: 8 In consideration whereof the vendor promises and agrees, to and with the purchaser, that upon the purchaser having paid to the vendor the said sum of money with interest as aforesaid, the vendor will, after such payment, convey and assure or cause to be conveyed or assured to the purchaser the said parcel of land by deed or transfer, prepared by the vendor’s solicitor at the expense of the purchaser, and the purchaser agrees that the title to be so conveyed or caused to be conveyed by the vendor shall be sufficient and shall be accepted by the purchaser, notwithstanding that same be subject to any conditions …. e.

Clement entered into a similar arrangement with Harald Kuckertz [Harald], and Harald built a cabin on the quarter section. f. The 1953 sale from Clement to Hugo was never recorded at the Land Titles Office. There was never a formal deed or transfer. g. Hugo built a basic 24 x 24-foot open concept cabin in 1953 [Cabin], to which a screened in room was later added, along with a shed and outhouse. There are no services to the Cabin. Water for the cabin is collected from rainwater, and appliances and power are run off of propane. It was and remains a basic, three-season Cabin.

The Cabin is built on an elevated ridge overlooking Lac Des Isles [Lake]. The distance between the Cabin and the Lake is between 50 and 100 meters. h. In the 1970s or 1980s (the evidence is slightly conflicted on this point but the conflict is not germane to the determination of the dispute), Hugo sold his interest in the Cabin to his nephew, Helmut Kreiner, the plaintiffs’ father. The only record of this transaction is a notarized letter from Hugo to the Rural Municipality of Beaver River #622 [RM] dated July 9, 1984. i. The transfer from Hugo to Helmut was not recorded at the Land Titles Office.

There is no evidence of a deed or formal transfer having been made. j. In 1986 or thereabouts, Clement sold his interest in the lands in issue, being the lands where the Kreiner Family Cabin and Harald’s cabin are situated to Joe Lauman, his nephew. Joe was aware that the Harald and Kreiner Family cabins were on the subject lands. k. In 2007, Kadon purchased half a quarter

section from Joe Lauman [Joe]. The land purchased by Kadon is comprised of 65 acres (as opposed to 80 acres) on account of the Lake. Title to the remaining 80 acres or thereabouts of the quarter section, which included the Kreiner Family Cabin and Harald’s cabin, remained registered at Land Titles to Joe Lauman. The area where the Kreiner Family Cabin and Harald’s cabin are located was specifically left out of the 2007 sale to Kadon. It was known at the time of the 2007 Kadon purchase that these cabins were on the quarter section. Kadon did not want to have to deal with the issue of these two cabins, and so the land that was purchased in 2007 went around the area where Harald’s cabin

and the Kreiner Family Cabin are located. l. Kadon’s plan with the 65 acres purchased in 2007 was to develop a lakeside subdivision consisting of 120 cabins and 77 RV lots. Exhibit P-2 reproduced above shows the subdivision with the location of Harald’s cabin and the Kreiner Family Cabin marked with an “H” and a “K” respectively. m. In 2008, Helmut purportedly sold his interest in the property to his children Rudi, Fred and Monica. In a notarized letter sent to the RM on September 3, 2008, the RM is advised of the sale and told to address future correspondence to Bernie.

The 2008 transfer was never recorded at the Land Titles Office. No formal deed or transfer from Helmut to his children was introduced at trial. n. Harald registered a miscellaneous interest on title to the lands on September 28, 2009. o. In May 2011, there was a meeting between Kade, Harald and Bernie. The discussions that occurred at such meeting are in dispute, but the parties are on common ground that a meeting was held and that subsequent to the meeting, Kade sent Bernie an email attaching a sketch of the development. p.

Harald entered into a settlement agreement with Joe Lauman, dated effective May 1, 2011, pursuant to which Joe agreed to transfer an interest in the one acre of land where Harald’s cabin is located. Harald, under the terms of the agreement, agreed to discharge his miscellaneous interest. q. A new miscellaneous interest was registered by Harald on August 10, 2011. r. In 2014, Kadon purchased from Joe the remaining 80 acres of the quarter section, which includes the lands upon which the Kreiner Family Cabin is located and on which Harald’s cabin is located.

Resolution was reached with Harald in respect of his registered interest on these lands. No resolution with the Kreiner Family was reached or sought as the Kreiner Family did not have any sort of registered interest against the lands. s. Kade plans to build his retirement home on the 80 acres purchased and has already taken steps towards developing the lands by building a shop, running gas and power lines and putting in a private airstrip. t.

The Kreiner Family have been paying taxes to the RM in relation to the Cabin, though it is not clear whether the taxes are for the improvements (the Cabin) or the land and Cabin. Kadon has also been paying taxes for the lands since they acquired them.

u. In a letter dated August 17, 2016, the RM advised that Kade would not be allowed to build his dream home because the zoning bylaw precludes more than one residential building on the parcel.

The RM provided three options: i. leave the Kreiner Family Cabin without making any alterations but then no further residential building may be constructed; ii. remove the existing Kreiner Family Cabin, after which the RM will accept a development permit from Kade for the construction of his home; or iii. subdivide the land (including dealing with municipal reserves, offsite fees, road construction and other costs). [ 9 ] There are very few material facts in dispute. Monica Kreiner [ 10 ] Monica is a mediator who works in Alberta.

Her testimony concerned the use of the Cabin over the years by the Kreiner Family, their connection with the land, the importance the Cabin plays in their family and her early memories, dating back to when she was three years old, of going to the Cabin. The Cabin is the place where the Kreiner Family and extended family come together. She has had no dealings directly with Kade and/or Kadon. Bernie Kreiner [ 11 ] Bernie lives in Alberta. He served as town manager for the Town of Hinton for a period of 23 years.

In that capacity, he developed some familiarity with the land titles system in Alberta. [ 12 ] In May 2011, a meeting was held with Harald, himself and Kade. The meeting was arranged by Harald. The purpose of the meeting, according to Bernie, was so that he and Harald could understand the new development and make sure it was not going to affect their respective cabins. Bernie’s evidence is that at the meeting, Kade assured them that the development would not affect their cabins, other than the manner in which the Lake would be accessed.

Following the meeting, Kade forwarded to Bernie by email a sketch of the development. Bernie’s evidence is that the Kadon development was completed in 2013 and that he and his family began using the new access point to get to the Lake in 2014. [ 13 ] Bernie was aware as of the 2011 meeting that the Kreiner Family had not registered any interest with the Land Titles Office, but as he was told the development was not going to affect the Cabin, he was unconcerned. He says he felt confident in his discussions with Kade and did not want to “upset the applecart”.

Bernie says Harald left the meeting unsure of what he was going to do. [ 14 ] During his cross-examination, Bernie acknowledged knowing that the Kreiner Family had never registered any interest in the land and was aware of this in 2008. The 1953 agreement between Clement and Hugo was disclosed to Kade in May 2018. Bernie acknowledges that the Lauman Landing Development did not affect the Kreiner Family Cabin and that the lands on which the Cabin is situated is not part of the Kadon subdivision. In 2016, he learned that the land on which the Cabin is located had been sold by Joe to Kadon.

Bernie acknowledges that in terms of the documentary record supporting the Kreiner Family claim, it consists of only: a. the 1953 agreement between Clement and Hugo; b. the July 9, 1984, letter to the RM; c. the September 3, 2008, letter to the RM; and d. tax notices and payments to the RM. Kade Demuth [ 15 ] Kade’s evidence is that Kadon purchased from Joe the initial 65 acres in 2007 and by 2010 had completed its subdivision comprising of 120 cottage lots and 77 RV lots.

This land did not include the areas where the Kreiner Family Cabin or Harald’s cabin were/are located. [ 16 ] In May 2011, Kade met with Harald and Bernie, at which time they asked him about services and whether services could be provided to their cabins. By this point the subdivision was complete, the services were in, and he did not consider providing services to Harald’s cabin or the Kreiner Family Cabin. Kade says that Harald and Bernie did not express concern about the impact of the project known as “Lauman’s Landing” because the project was done.

This evidence is in contrast to the evidence given at discovery by Kade when Kade’s evidence was that he had no real recollection of the 2011 meeting. Kade’s explanation is that having reviewed the records, his memory has been jogged. He says the meeting was about the provision of services because he does not know what else it could have been about. According to him, not much was discussed at the meeting. [ 17 ] Beyond the initial 2011 meeting with Bernie, Kade had a chance encounter with Bernie in 2016 and some communications in 2018.

Otherwise there has been no contact with Bernie or anyone in the Kreiner Family other than perhaps a brief discussion with Bernie’s brother at another chance encounter. [ 18 ] Kade acknowledges that he knew of Harald’s cabin and the Kreiner Family Cabin before the 2007 initial purchase by Kadon from Joe. Joe had told him there were agreements from 1953 pertaining to the Kreiner Family Cabin and Harald’s cabin, but he was not provided with a copy of the 1953 agreement between Clement and Hugo.

Joe told him these cabins predated his 1986 acquisition of the lands. [ 19 ] Kade saw the 1953 agreement between Clement and Hugo for the first time in 2018. Kade says Kadon has paid land taxes for the land it acquired in 2014 since the 2014 acquisition.

Positions of the Parties [ 20 ] The Kreiner Family argues that Kadon knew of the existence of the Cabin long before it purchased the lands in issue from Joe in 2014, that Kadon in 2011 represented that their development would not impact the Kreiner Family Cabin and that this proved to be untrue. The Kreiner Family did not register their interest because the 2011 representation gave them comfort that they did not need to.

In 2014, when Kadon purchased the land on which the Cabin is located, Kade was aware of the existence of agreements binding the land dating back to 1953, Kade was aware of the representation made by him to Bernie and Harald, and Kadon took advantage of the fact that the Kreiner Family had not registered an interest to try to defeat the Kreiner Family interest and acquire the lands on which the Cabin is located free and clear of any interest.

The Kreiner Family says this amounts to fraud and that Kadon should not be allowed to rely on The Land Titles Act, 2000 , SS 2000, c L-5.1 [ Act ], in circumstances where one of their principals, Kade, made a fraudulent misrepresentation. [ 21 ] The position of Kadon, as set out in its brief and in argument, is that: 1. There was never any fraud; and/or 2. Alternatively, even if there was fraud, it does not matter because the original transfer deed was never complied with and no interest in land was acquired by the Kreiner Family. The 1953 contract is vague.

It does not comply with s. 21 of The Planning and Development Act, 2007 , SS 2007, c P-13.2 , and the payment of taxes on improvements does not create an interest in land pursuant to ss. 194 , 206 and 207 of The Municipalities Act , SS 2005, c M-36.1 . Issues 1. Did Kade and/or Kadon engage in fraud? 2. If there was fraud, are the Kreiner Family precluded from relief because the original transfer deed was never complied with, no interest in land was acquired by the Kreiner Family and/or by virtue of noncompliance with s. 21 of The Planning and Development Act, 2007 .

Law and Argument [ 22 ] The Court fully understands and appreciates why the Kreiner Family have and are pursuing this matter. The Cabin is a special place. It is a place where their family has come together for more than a generation. They have occupied this Cabin in the summers since 1953. It is where Monica saw her first big fish. It is the place where the family bonded. It is the place where they disconnected from technology. It is the place where they took their relatives when they came to visit from Germany.

It is where the children of the family spent their summers. [ 23 ] Kade likewise has a connection to these lands. The lands overlook the Lake and subdivision he developed. It is the place where he wants to retire, the place where he and his partner want to build their dream home. [ 24 ] The Court appreciates why this land is so important to the parties. Of course, this case, as with any case, must be decided based on the application of the law to the facts. Did Kade and/or Kadon engage in fraud? [ 25 ] It is not in dispute that as a general rule, parties are entitled to rely on what is registered on title.

Title generally provides conclusive proof as to who has an interest in the subject lands. Sections 2(1) (s), 13 , 14 , 15 , 23 and 24 of the Act provide:

Interpretation 2 (1) … (s) “interest” means any right, interest or estate, whether legal or equitable, in, over or under land recognized at law that is less than title; … Effect of title 13

(1) Where the Registrar issues a title pursuant to this Act : (

a) subject to

section 14, the registered owner holds the title free from all interests, exceptions and reservations ; and (

b) subject to

section 15 : (

i) the title is conclusive proof that the registered owner is entitled to the ownership share in the surface parcel, mineral commodity or condominium unit for which the title has issued; (ii) the title may not be altered or revoked or removed from the registered owner ; and (iii) no action of ejectment from land or other action to recover or obtain land lies or shall be instituted against the registered owner . … Exceptions to clear title

14 Every title is subject to: (

a) any interest that is registered against the title pursuant to this Act or any other Act or law; and (

b) the exceptions, reservations and interests that are implied pursuant to sections 18 to 20, whether or not those exceptions, reservations and interests are registered against the title or mentioned on any title. Exceptions to conclusive title 15

(1) In the following cases, title is not conclusive proof that the registered owner is entitled to the ownership share in the surface parcel, mineral commodity or condominium unit for which the title has issued : (

a) where the registered owner has acquired the title by participating or colluding in fraud ; … Reliability of title 23

(1) A person taking or proposing to take from a registered owner a transfer or an interest in land or dealing with a title : (

a) is not bound : (

i) to inquire into or ascertain the circumstances in or the consideration for which the registered owner or any previous registered owner acquired title ; or (ii) to see to the application of the purchase money or any part of the purchase money; and (

b) notwithstanding any law to the contrary but subject to sections 18 and 35, is not affected by any direct, implied or constructive notice of : (

i) any trust ; (ii) any other unregistered interest; or (iii) any unregistered transfer .

(2) Knowledge on the part of the person that any trust or other unregistered interest or any unregistered transfer is in existence must not of itself be imputed as fraud. Reliability of interest 24

(1) A person taking or proposing to take an interest in a title or in another interest for the purpose of obtaining priority over any other trust or unregistered interest is not bound to inquire into and, subject to sections 18 and 35, is not affected by any direct, implied or constructive notice of any trust or any other unregistered interest.

(2) Knowledge on the part of the person that any trust or other unregistered interest is in existence must not of itself be imputed as fraud. [Emphasis added] [ 26 ] The parties are on common ground that the Act provides for indefeasibility of title.

In Primrose Drilling Ventures Ltd. v Registrar of Titles, 2021 SKCA 15 , [2021] 8 WWR 241 , the Court considered many of these provisions of the Act and notes at paragraphs 41 and 42: [41] In MC3 Resources Inc. v Hogan , 2014 SKQB 109 , [2014] 7 WWR 305 , Pritchard J. described these provisions as follows: [42] Sections 23 and 24, along with ss. 13-15 and s. 47, give life to the Torrens System.

These sections provide for indefeasibility of title, and correspondingly guarantee that a purchaser of real property can rely on the register to determine who has title to that property, and what interests are registered against that property ( CIBC Mortgages Inc. v. Saskatchewan (Registrar of Land Titles) , 2005 SKQB 470 , 273 Sask. R. 137 at paras. 14 , 28). These sections are particularly important in resolving competing priority interests and in cases of fraud ( CIBC Mortgages , supra ; Helland v. Flexxifinger QD Industries Inc. , 2013 SKCA 30 , 417 Sask.

R. 1 ). [43] In other words, and generally speaking, a legal interest must be registered against title in order to bind a subsequent purchaser of that property. If an interest is not registered, the property will pass to the new owner free of that interest ( Jen-Sim Cattle Co. Ltd. v. Agricultural Credit Corporation of Saskatchewan , 2006 SKQB 173 , 277 Sask. R. 193 at para 18 ). [44] These sections lie at the heart of the Torrens System. They allow a purchaser of land to rely on the description of the property in the registry.

A purchaser does not have to “look behind the curtain” in order to determine who actually owns the property and what interests are applied against it. [42] This statement correctly emphasizes that, generally, a purchaser of real property can rely on the register to determine who has title and what other registered interests exist in, over or under the land that is the subject of the title. It is also the case that title will generally pass to the new owner free of unregistered interests. However, as I have noted, it is an overstatement to suggest that the registry is everything.

The legislation and the case law make that clear. The description of the property in the registry is not everything. Just as indefeasibility has exceptions, so too do the mirror and curtain principles that are often said to describe the effect of registration.

[27] What all this means is that Kadon, upon acquiring the subject lands from Joe, was entitled to rely on the title andtook title subject to the registered interests, unless the Kreiner Family establishes that Kadon or its principal engaged in fraud. If fraud isestablished, then and only then are the Kreiner Family entitled to the protection afforded by s. 15 of the Act. [28] There is no question that Kadon had knowledge of the existence and use of the Kreiner Family Cabin, butknowledge alone is not enough to find fraud. Section 23(2) of the Act makes this clear.

Knowledge of an unregistered interest must notof itself be imputed as fraud. In short there must be something more as noted in Kirilenko v Lavoie (1981), (SK KB),127 DLR (3d) 15 (Sask QB) at 26-27, where Sirois J. found: The cases serve to illustrate the divergences of opinion which may exist when a given set of facts is submitted with a view todetermining whether or not they constitute fraud.

The mere fact that the holder of an unregistered interest is “hurt” or “deprived of hisproperty” by the act of a person who, with notice or knowledge of that interest, acquires and registers an adverse interest, does not affectthe position of that person. That person has the statute in his favour. But he must abstain from fraud. If the designed object of a transferbe to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick,causing an interest not to be registered, and thus fraudulently keeping the register clear.

It is not, however, necessary or wise to giveabstract illustrations of what may constitute fraud in hypothetical conditions for each case must depend upon its own circumstances. Inevery case it is a question of fact. The act must be dishonest and dishonesty must not be assumed solely by reason of knowledge of anunregistered interest.

To cheat is always to defraud, and in giving due weight to the word “dishonest” it is necessary to remember thatthis means some dishonesty in addition to the knowledge of the aggrieved party’s equity. [29] The Kreiner Family rely on Fleck v Davidson Estate (1995), (SK KB), [1996] 1 WWR 686(Sask QB) [Fleck], where Kyle J. held: [6] There are many, many cases of situations where an unregistered interest has come into conflict with a registered interest. See V.Di Castri, Q.C., Registration of Title To Land, Vol. 2, (Carswell, 1987, as updated to Rel. 4, 1995), chapters 18 and 19.

Rarely, if ever,has there been a case where, as here, a purchaser has contracted to obtain the property under an instrument clearly accepting theunregistered equitable interest, then has obtained a fee simple title, then has permitted the unregistered interest to continue unimpededfor 15 years and then, perhaps tiring of the inconvenience of the lease and thinking that the money would be useful, has decided to seekan order of this Court terminating the other interest and directing that it be paid to him. [30] The elements of civil fraud are aptly summarized at paragraph 21 of the Supreme Court of Canada’s decision inBruno Appliance and Furniture, Inc. v Hryniak, 2014 SCC 8, [2014] 1 SCR 126.

In order to succeed in their claim, the Kreiner Familymust establish: a. a false representation made by Kade and/or Kadon; b. some level of knowledge of the falsehood of the representation on the part of the Kade and/or Kadon (whether through knowledge orrecklessness); c. the false representation caused the Kreiner Family to act; and d. the Kreiner Family’s actions resulted in a loss. a. Was a false representation made by Kade to Bernie? [31] The Court did not hear any evidence from Joe or Harald.

There was suggestion in argument that both men havepassed away. [32] The first issue that must be decided is a factual one. What exactly was said by Kade to Bernie at the May 2011meeting involving the two men and Harald. On this point, I prefer the evidence of Bernie to that of Kade. Kade, at his questioning, didnot recall the specifics of the meeting. At trial, he says his memory was jogged by his review of material and that his evidence is that themeeting was about the provision of services because he does not know what else it could have been about.

Bernie’s evidence meanwhileis that Kade told him and Harald that the development would not affect their cabins. [33] The 2011 meeting for Kade was unimportant. He was concerned with his development which was in the processof being completed. He did not have an independent recollection of the meeting and is rather speculating on what was discussed. I do notfind that he misled the Court, but his memory of that meeting is just not reliable. Notwithstanding that I accept Bernie’s account on thispoint, I do not find that Bernie and Harald were misled by Kade.

In 2011, Kadon did not own the lands on which the Kreiner FamilyCabin and Harald’s cabin were located. The picture of the development forwarded to Bernie makes it clear that the Kreiner Family Cabinis not part of the Kadon lands or the development as it existed in 2011. The Kadon 2011 development did not affect the Kreiner FamilyCabin beyond changing the way the Kreiner Family accessed the Lake. This was acknowledged by Bernie during his cross-examination.I do not accept any suggestion that any representation, deceit or assurance was given beyond this minimal communication.

This isevident by Bernie’s evidence and the fact that Harald left this meeting, according to Bernie, unsure as to what he would do. Promptlyfollowing the meeting, Harald negotiated a new deal with Joe. [34] Apart from this meeting in May 2011, there were no other meaningful discussions between the parties. Kadondid not acquire the lands on which the Kreiner Family Cabin is located until 2014, years after the May 2011 meeting. [35] This case is not Fleck where there was a 15-year track record of recognizing the unregistered interest andagreement to forgo reliance on the indefeasibility of title.

The evidence just does not lead to such a conclusion in this case. In this case,Kadon knew of the existence of the Cabin, did not mislead the Kreiner Family, did not agree to forego reliance on the indefeasibility oftitle, and relied on the state of title. The Kreiner Family or their predecessors did nothing in more than half a century to register anyinterest. At no time was the Kreiner Family misled by Kade and/or Kadon.

b. Some level of knowledge of the falsehood of the representation on the part of Kade and/or Kadon (whether through knowledge or recklessness) [ 36 ] Having determined factually that there was no falsehood, reckless or otherwise, this element of the claim cannot be made out by the Kreiner Family. c. The false representation caused the plaintiff to act [ 37 ] In this case, there was no false representation, but frankly, even if there was, that is not what caused the Kreiner Family to act or, in this case, not act.

I do not accept the evidence of Bernie that because of the assurance given at the 2011 meeting, he decided not to proceed with any form of registration. The evidence before the Court is that, since 1953, the Kreiner Family and their predecessors took no steps to register any interest on title. Bernie, as a town manager for 23 years, had knowledge of the land titles system. Nevertheless, the Kreiner Family chose not to act. It is also worth noting, and it is uncontroverted, that Harald, who attended the exact same meeting as Bernie in 2011, soon after that meeting, took steps to negotiate a new deal.

Harald took steps to act while Bernie did not. [ 38 ] The Kreiner Family made a decision not to take steps to try to register any interest. Their predecessors made that decision in 1953 when Hugo failed to get a deed, a transfer or any registration. The same decision was taken some twenty years later when Helmut purportedly acquired an interest from Hugo but again failed to register any transfer, deed or other interest. Again in 2008, when Bernie and his siblings purportedly acquired an interest, they failed to register. The 2011 meeting did not cause the Kreiner Family to not act.

The fact of the matter is that the Kreiner Family did nothing before the meeting in terms of pursuing registration and continued to do nothing after the meeting. d. The Kreiner Family’s actions resulted in loss [ 39 ] In this case, there is a loss to the Kreiner Family. It is a loss arising from their actions or, in this case, more than sixty years of inaction. It is a loss not caused by anything Kade said or did not say but, rather, by the Kreiner Family’s own inaction.

Their loss is regrettable, but it is a loss that arises not from being misled but from a failure to act diligently and take steps to register an interest in the same fashion as Harald did. [ 40 ] In the circumstances, I find factually that there simply was no fraud. [ 41 ] Having determined that there was no fraud, it is unnecessary for me to deal with the balance of the arguments made by Kadon. Costs [ 42 ] Kadon has succeeded in its position. It seeks costs on a Column 4 basis, but this was not a complicated claim. It was a simple one-day trial. I order Column 1 costs. Conclusion [ 43 ] I order: 1.

The land described in Title #146254046 is owned by the defendant, Kadon Industries Ltd., free and clear of any claim of the plaintiffs. 2. The plaintiffs and anyone acting on their behalf shall cease and desist from interfering with the quiet enjoyment by the defendant to the said land. 3. The Cabin owned by the plaintiffs and all other personal property located on said land shall be removed by the plaintiffs by September 1, 2024, at the sole cost of the plaintiffs, who shall also remove all debris and clean up the site at their cost.

This should afford ample opportunity to the Kreiner Family to remove their personal effects and Cabin if that is what they decide to do. 4. The plaintiffs and anyone acting on their behalf are, after September 1, 2024, restrained from trespassing on the said land but may access the lands using the existing roadway until that date. 5.

If the plaintiffs fail to remove their Cabin and personal property from the said land by September 1, 2024, the Cabin and personal property shall be considered abandoned, and the defendant shall be free to take possession of the Cabin and personal property and deal with same as it may deem necessary. 6. The defendant shall have its costs on Column 1 of the Tariff of Costs. “N. Bardai” J. N. BARDAI