Laba et al. v., 2014 MBCA 107

Citation: Laba et al. v. 4027183 Manitoba Ltd. et al., Date: 20141125 2014 MBCA 107 Docket: AI 14-30-08103 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : FRANK JOHN LABA and LABA ) HOLDINGS LTD. operating under the ) firm name and style of “WHITEMOUTH ) TRANSFER” ) ) M. D. Jodoin and (Plaintiffs) Respondents ) C. M. Penner ) for the Appellant - and - ) ) J. J. A.

Hogue 4027183 MANITOBA LTD. ) for the Respondents ) (Defendant) Appellant ) ) Appeal heard and - and - ) Decision pronounced: ) November 25, 2014 CHED ENTERPRISES LTD., EDWARD ) NIELSON, RANDALL SCOTT ELLIOT, ) JOHN DAVID DePOURCQ and BUDGET ) RECYCLING AND REPAIR INC. ) ) (Defendants) ) BURNETT J.A. (for the Court): [ 1 ] The defendant, 4027183 Manitoba Ltd. (402), is the registered owner of real property located at 1065 Oxford Street, in the City of Winnipeg, in Manitoba (the property). 402 appeals a decision dismissing its motion for an order discharging a caveat from title to the property.

The caveat was filed by the plaintiffs and claims a beneficial and equitable interest in the property as a result of an alleged agreement. [ 2 ] The motion judge found, on the basis of the individual plaintiff’s own evidence, that there was no such agreement. However, the motion judge declined to vacate the caveat because the individual plaintiff is a shareholder of one of the corporate defendants, Budget Recycling and Repair Inc. (Budget), and Budget provided a guarantee in relation to a mortgage registered against the property.

The guarantee document was not provided as part of the record. [ 3 ] 402 raises three grounds of appeal, namely:

i) that the plaintiffs do not have an interest in land, and the caveat must therefore be discharged; ii) that the plaintiffs have delayed in proceeding with this action; and iii) the filing of the caveat was barred pursuant to The Limitation of Actions Act , C.C.S.M., c. L150. [ 4 ] With respect to the first ground, the law in Manitoba is settled. If a claimant has no interest in the land, the caveat cannot be sustained (see Mellco Developments Ltd. et al. v. Portage la Prairie (City) et al. , 2002 MBCA 125 at paras. 93-94 , 166 Man.R. (2d) 285).

[ 5 ] In Willman v. Ducks Unlimited (Canada) , 2004 MBCA 153 at paras. 62-63 , 187 Man.R. (2d) 263, this court accepted that (at para. 62): …. …. … [T]he view ‘that any right conferred by contract relating to land against the registered proprietor is a sufficient “interest” to support a caveat’ is too wide. The right must be capable of crystallizing into an interest in land.’” In the caveat the plaintiffs claim an interest in the property on the basis of an agreement. There is no other claim alleged.

The motion judge found that there was no agreement, and we have not been persuaded that there is any reason to overturn that finding. It was not open to the motion judge to uphold the caveat on a basis not set out in the caveat. Simply put, the plaintiffs have not demonstrated that they have an interest in land based on an agreement, and the caveat must be discharged. [ 6 ] Given our conclusion with respect to the first issue, it is not necessary to address the other two grounds of appeal raised by 402. [ 7 ] 402 shall have its costs in this court and in the court below. J.A. J.A. J.A.