Zelinski v Zelinski, 2021 SKCA 165

Court of Appeal for Saskatchewan Docket: CACV3567 Citation: Zelinski v Zelinski , 2021 SKCA 165 Date: 2021-12-16 Between: Gustav Zelinski and Dolores Zelinski Appellants (Applicants) And James Pidkowich and Kimberly Zelinski Respondents (Respondents) Before: Ottenbreit, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 3311 of 2018 and QBG 621 of 2019, Regina Appeal heard: September 9, 2020 Counsel: Khurrum Awan for the Appellants Jason Clayards for the Respondents Barrington-Foote J.A. I. INTRODUCTION [ 1 ] This appeal arises from a family dispute relating to two quarter sections of land, legally described as SW 18-29-14 W2 and NW 18-29-14 W2 [subject land]. The subject land was owned by Gregory Zelinski – the brother of Gustav Zelinski – prior to a 1996 foreclosure by Farm Credit Canada [FCC].

It was acquired from FCC by Gregory and his wife Kimberly Zelinski as joint tenants in 2001, and, since Gregory’s death in 2010, has been solely owned by Kimberly. Dolores Zelinski is Gustav ’s wife. [ 2 ] James Pidkowich rents and farms the subject land and wants to buy it from Kimberly unencumbered by easements. Gustav and Dolores assert two claims which would prevent him from doing so. They claim that they have an easement to maintain a water well and associated pipeline on the subject land for the purpose of supplying water to their acreage, as they have done since 1986.

They also claim a right of first refusal relating to the subject land. [ 3 ] In a January 23, 2020, fiat [Chambers decision], a Court of Queen’s Bench Chambers judge rejected both of those claims. She found that Kimberly had never consented to the grant of an easement and that it accordingly could not exist. She also concluded that if Gregory had verbally granted the water easement and a right of first refusal in 1986, as alleged by Gustav and Dolores, both had been extinguished by the FCC foreclosure.

In addition, she held that if there had been a verbal grant of an easement, it would have been unenforceable pursuant to s. 4 of the Statute of Frauds , 1677, 29 Cha II, c 3, in any event. [ 4 ] Gustav and Dolores have appealed the Chambers decision. They submit that the Chambers judge erred by failing to consider the issue of whether there was an equitable easement, and by summarily dismissing their claims, rather than finding such an easement exists or directing the matter to trial. [ 5 ] For the reasons that follow, I have concluded that the appeal should be dismissed. II.

BACKGROUND [ 6 ] This dispute has its roots in a joint farming arrangement between Gregory and Gustav, who agreed to work together to farm certain land owned separately by each of them, together with seven quarters of land which their father’s will had provided was to remain in his estate and be farmed by both of them. In pursuit of this bargain – which was not reduced to writing – Gustav agreed to purchase and relocate his residence on the acreage, which Gregory agreed to create by subdividing the subject parcel [Land Purchase Agreement].

He claims that before doing so, he asked Gregory to “grant [him] a right of first refusal to purchase all of his land in the event he would get out of farming because of his health”. Gustav also describes this aspect of their agreement as follows: 20. Pursuant to the Land Purchase Agreement, Dolores and I were, in 1986, also given a verbal right of first refusal for the Subject Lands as well as the farmyard.

This was done to maintain the continuity of the Estate and Greg’s farm along with our own should Greg run into financial hardship. [ 7 ] Gustav attests that the Land Purchase Agreement also included a water well that Gregory told him to dig on his property. He claims that they dug a test hole and that “the water on Greg’s land was better so he told me to dig my well there”. It is his evidence that he dug the well and ran the associated pipe with Gregory’s “recommendation and approval”. Both the well and the pipeline are located on SW 18-29-14 W2.

This alleged verbal grant was not documented and no caveat claiming an easement was filed at Land Titles. [ 8 ] Gustav deposes that this joint farming arrangement worked well for some time. However, in 1993, Gustav , Dolores, and his four sisters and their spouses, commenced what would prove to be a successful action challenging their father’s will. In the result, each of

the six children received one quarter

section of the farmland held by the estate. The joint farming arrangement was at an end. Gustav attests that he “went bankrupt and had a nervous breakdown”, that Gregory sold the farm equipment they had purchased together and kept the proceeds, and that the family conflicts arising from the estate litigation have never been resolved. [ 9 ] On September 6, 1996, a final order of foreclosure was granted in favour of FCC in relation to the subject land.

That order provided that the right, title and interest in the subject land of all of the defendants named in the foreclosure action – which included Gregory, Gustav , and Dolores – be foreclosed and that the subject land be vested in FCC. Approximately four and one-half years later, on March 26, 2001, the subject land was transferred by FCC to Gregory and Kimberly as joint tenants. The transfer states that the consideration for the sale was $34,000.

Gregory died in 2010, and, on January 24, 2011, title was issued to Kimberly as the surviving joint tenant. [ 10 ] On or about May 16, 2016, Gustav and Dolores filed a notice of interest claiming a non-mutual easement [registered easement] in the land titles registry against both of the quarter sections which make up the subject land as the servient tenement, and against the acreage as the dominant tenement.

The notice of interest describes their claim as follows: TAKE NOTICE that Gustav Zelinski and Dolores Zelinski hereby claim an interest as grantees under and by virtue of an easement granted by Gregory Michael Zelinski and Kimberly May Zelinski, as grantor, in favour of Gustav Zelinski and Dolores Zelinski, as grantees, over the following land of the grantor: [legal description of the subject land] for the benefit of the following land of the grantees: [legal description of the acreage] pursuant to which easement agreement the grantor did grant to the grantees an easement over a portion of the Servient Tenement for the purpose of the use of a water well located on the Servient Tenement and for the construction and maintenance of a water pipe line to transport water from the well to the Dominant Tenement. [ 11 ] On July 19, 2017, counsel for Kimberly advised counsel for Gustav and Dolores that Kimberly denied the existence of the registered easement but was prepared to enter into a water easement agreement if issues arising from other alleged trespasses to the subject land were resolved.

However, that resolution did not occur. As a result, James filed an originating application pursuant to s. 107 of The Land Titles Act, 2000 , SS 2000, c L-5.1 [ LTA ] [James’s application], on November 22, 2018, seeking, among other things, an order discharging the registered easement.

Kimberly filed an affidavit in support of James’s application, deposing that the non-mutual easement was registered without her knowledge or consent. [ 12 ] On March 6, 2019, Gustav and Dolores filed a competing originating application pursuant to s. 11 of The Queen’s Bench Act , 1998 , SS 1998, c Q-1.01 [ Gustav ’s application], for a declaration that the registered easement is valid, and an order that Kimberly “honor” their right of first refusal and sell the subject land to them at a fair market value.

Gustav ’s application summarized the material facts relating to the right of first refusal and easement as follows: 1. The Subject Lands are subject to a right of first refusal agreement which was agreed to between Gustav and Dolores Zelinski and Greg Zelinski in 1986 when Gustav and Dolores agreed to sell some of their land and move to their current acreage in order to help Greg farm his land and the Estate land. This is when the Applicants’ acreage was subdivided from SW 18-29-14 W2. 2.

The Applicants have requested that the Respondent, Kimberly Zelinski sell the Subject Lands to the Applicants at a fair market value, but this offer has been rejected. … 6. The water well is subject to a valid non-mutual easement, which was agreed to by Gustav Zelinski and Gregory Zelinski when they subdivided the Applicants’ acreage from the Subject Lands in 1986. [ 13 ] In her affidavit responding to Gustav ’s application, Kimberly deposed that she married Gregory in 1989, and lived with him on a farm across the road from both the acreage and the subject land for almost the entirety of their married life.

She attested that she has had no contact with Gustav and Dolores since 1992. She stated that Gregory frequently discussed farm and family matters with her, but that he never told her he had granted a right of first refusal or easement to Gustav . She also said that she first heard of the alleged right of first refusal as a result of Gustav ’s application. III. THE CHAMBERS DECISION [ 14 ] The Chambers decision addressed both James’s application and Gustav ’s application.

The Chambers judge dealt first with the question of whether there was a sufficient evidentiary foundation to enable her to decide those applications summarily. She cited Saskatchewan Valley Potato Corp. v Barrich Farms

(1994) Ltd ., 2003 SKCA 118 , [2004] 7 WWR 425 [ Barrich Farms ], for the proposition that she could do so if the following conditions had been met: (

a) the essential facts are not in dispute; (

b) the evidence is not complex; and (

c) the law is not complex. She concluded that the evidence on which the validity of both the alleged easement and the alleged right of first refusal turned was not controverted, and that neither the evidence nor the law were complex. [ 15 ] Turning next to the easement, the Chambers judge noted that the notice of interest stated that both Gregory and Kimberly had granted the easement. She found that Kimberly was the only person who could consent to the grant of an easement since 2010, as she had been the sole owner since that time.

The Chambers judge also found, relying on Buch v Koch , 2009 SKQB 506 , 364 Sask R 1 [ Buch ], that Kimberly’s consent would have been required during the period from 2001 to 2010, as she was then a joint tenant and one joint tenant

cannot bind the other. On this basis, she found that there could not be an easement, as Kimberly’s affidavit evidence that she did notconsent was uncontroverted. [16] As to the easement Gregory had allegedly granted verbally to Gustav in 1986, the Chambers judge held that even if such aneasement had been granted, it would be unenforceable due to the application of s. 4 of the Statute of Frauds. Further, she concluded thatany such easement would have been extinguished by the “foreclosure of the Subject Lands in 1996” (at para 20).

In this respect, she citedthe language of the foreclosure order and noted that Gustav and Dolores had been parties to the foreclosure action. [17] In the result, she found that the registered easement was invalid and must be discharged. [18] The Chambers judge then dealt with the right of first refusal. She adopted the following statement of the law (at para 24): A right of first refusal is a contractual right that only takes effect when a vendor accepts an offer to purchase from a third party (CharlesCattle Co. v. Herriman, 2017 SKQB 325 at para 16).

It does not create an interest in the land, and does not attach to the land (Powers vWalter, (1981) (SK CA), 9 Sask R 89 at para 9 (SKCA)). Further, the remedy of specific performance is only availableif title has not already passed. [19] The Chambers judge concluded that if a right of first refusal had been verbally granted in 1986, it would have been exercisableat the time of the FCC foreclosure in 1996. As she put the matter, the right “obviously was not exercised, as Gustav and Dolores did notpurchase the Subject Lands at that time” (at para 25).

She found that since it was not exercised, it would have been extinguished by theforeclosure order. [20] Finally, the Chambers judge found that a verbal right of first refusal is barred by s. 4 of the Statute of Frauds, and that therewas no evidence of part performance to “validate a verbal agreement” (at para 26). IV. ANALYSIS A. Did the Chambers judge err by failing to find that there was a watereasement over the subject land, or by failing to order that this issue be sent to trial? 1.

Was there a water easement created by an express grant that is presently enforceable againstKimberly? [21] I will deal first with whether the Chambers judge erred by failing to find that Gustav and Dolores had been granted an easementover the subject land for the benefit of the acreage which is enforceable against Kimberly. [22] A joint tenancy is characterized by four unities: unity of possession; unity of interest; unity of title; and unity of time: HuntEstate v Hunt Estate, 2016 SKCA 63 at paras 12–17, 480 Sask R 68; Anne Warner La Forest, Anger & Honsberger Law of Real Property,loose-leaf (2021-1) 3d ed, vol 2 (Toronto: Thomson Reuters, 2021) at §14:2.

Unity of interest means that, as a general rule, both jointtenants must act together in order to deal with an interest in the land. The reason that is so is explained in Robert Chambers, The Law ofProperty (Toronto: Irwin Law, 2021) at 84: Unity of interest means that each tenant has the same interest in the right they hold together. This is required for joint tenants, who hold theright collectively as if they were one person. There are no distinctions among them. Joint tenants do not have equal shares. Despite thelanguage of shared rights (which is hard to avoid), there are no shares in a joint tenancy.

Normally, joint tenants must act in unison if theywant to deal with their right (e.g., to transfer, lease, or mortgage it). However, a joint tenant can act alone to sever the joint tenancy andturn it into a tenancy in common if they want to have a share that they can deal with on their own. (Emphasis added) [23] In Buch, the Court made the same point in relation to a residential tenancy agreement signed by only one of the joint tenantsthat owned the land.

Justice Gunn cast the question as being whether one joint tenant could bind the other as lessor: [9] In the text, Sir Richard Edgar Megarry and Sir William Wade, The Law of Real Property, 4th ed. (London: Stevens & SonsLimited, 1975) at p. 394 the Honourable Sir Robert Megarry and Professor H.W.R.

Wade explain the principles of joint tenancy: Any legal act, eg., a conveyance or lease of the land, or a surrender of a lease requires the participation of all the joint tenants; one cannotdispose of it by himself, for he by himself has not the whole estate in it. … [24] Kimberly and Gregory owned the subject land as joint tenants from 2001 to 2010. There is no suggestion that there was an actthat could have severed the joint tenancy prior to Gregory’s death. Kimberly has been the sole owner since 2010.

As the Chambers judgesaid, there is uncontested affidavit evidence from Kimberly that she never consented to the grant of an easement. Further, there is noevidence that she authorized Gregory to do so on her behalf.

As a result, there is no basis for Gustav and Dolores’s claim that they have aneasement to access water on Kimberly’s land that was granted by Gregory and Kimberly, as stated in the notice of interest, or by Gregory,as stated in Gustav’s application. [25] Gustav and Dolores assert that if Gregory granted an easement, Kimberly’s title is subject to that easement despite the lack ofevidence that she made such a grant. That argument is based on equitable considerations and is addressed below. 2.

Did the Chambers judge err by failing to either find that there was an equitable or impliedeasement, or to direct a trial of that issue?

[26] Given that there was no express grant of an easement by Gregory and Kimberly, the issue is whether Gustav and Dolorespossess what they have described as an equitable water easement. They submit that such an easement may arise in Saskatchewan despitethe fact that title to land is governed by the Torrens system embodied by the LTA and its predecessor legislation, and no caveat of noticeof interest was filed until 2016. [27] The LTA does not prevent the creation and enforcement of equitable or unregistered interests in land.

As noted in DunnisonEstate v Dunnison, 2017 SKCA 40 at para 61, [2017] 8 WWR 18, “this Court has on a number of occasions found, as the Alberta Court ofAppeal did in Passburg, that, as against persons creating them, equitable and unregistered interests are valid and enforceable under aTorrens system (see: Bensette; Fleck v Davidson Estate, (SK CA), [1997] 2 WWR 60 (Sask CA) at para 1;and Olney at para 66)” (emphasis added).

See to the same effect Passburg Petroleums Ltd. v Landstrom Developments Ltd. (1984), 1984ABCA 78 , 8 DLR (4th) 363 (Alta CA) at paras 12–14, leave to appeal to SCC refused [1984] 2 SCR viii. [28] An easement may arise other than by way of an express grant. The manner in which this may occur is summarized below.Gustav and Dolores take the position that the Chambers judge erred by failing to address the question of whether they have such aninterest.

They assert that she was obliged to do so, and to either find that there is such an interest or order that the issue be decided at trial.Notably, neither the notice of interest nor Gustav’s application asserted that there was an equitable or implied easement, and, if so, on whatbasis. However, Kimberly and James did not deny the assertion by Gustav and Dolores that this issue was “adequately canvassed in oralsubmissions for the Chambers judge to be alive to that issue and … need to address it”.

Nor did they argue that this issue should not beconsidered because it was not identified in the notice of interest or Gustav’s application. [29] Did the Chambers judge fail to grapple with the substance of this issue? The Chambers decision is brief. The Chambers judgeconsidered whether Kimberly had granted an easement and found she had not.

She did not advert to equitable considerations in doing so.She also dealt with the allegation that Gregory had verbally granted Gustav and Dolores an easement in 1986, finding that it would havebeen extinguished by the FCC foreclosure and would have been “barred” by the Statute of Frauds in any event. [30] However, the Chambers decision does not address the question of whether an equitable easement could have been found toexist notwithstanding the foreclosure, as in Sauer v 648657 B.C. Ltd, 2019 BCSC 43 [Sauer].

Nor does it deal with the possibility thatthere was an implied easement of the kind found to exist in Bruce v Dixon, [1957] OJ No 540 (QL) (CA). In Bruce, the owners of twoadjoining lots had agreed to search for water, and, if they found it, to construct a well for the use of both of them as near as possible to theboundary line.

The Court found that the agreement that the well was to be for the mutual benefit of both owners included “an impliedgrant on the part of each of them of an easement over his lands, necessary for the enjoyment of the use of the water by both owners fromtime to time” (at para 3). [31] In the result, I respectfully conclude that the Chambers judge erred by failing to consider the “equitable” easement issue at all.It accordingly falls to this Court to determine if it has sufficient evidence to decide this issue, or to direct that it be decided only after theparties have the benefit of some or all of the procedures that would apply in the prosecution of an action. 3.

Did Gustav and Dolores have an equitable or implied easement? a. Potential bases for an equitable or implied easement [32] To begin, it bears emphasizing that it is not clear what issues the Chambers judge could reasonably have been expected toaddress in relation to an equitable easement.

There is no evidence as to whether the submissions made by Gustav and Dolores to theChambers judge adequately identified the nature of their claim that an easement may have arisen other than by way of an express grant.Their submissions relating to equitable easements at the hearing of this appeal were vague and tentative, as to both the specific doctrinethat would apply and the facts that would engage that doctrine. Those submissions might be characterized as a proposed result searchingfor a foundation. [33] There is no reason to think that the submissions made to the Chambers judge were any clearer.

That was an important omissionon the part of Gustav and Dolores. Easements may arise by operation of law in several ways, each of which have different requirements.Easements of necessity, for example, were described by Rouleau J.A. in McClatchie v Rideau Lakes (Township), 2015 ONCA 233, 333OAC 381: [48] Easements of necessity are easements presumed to have been granted when the land that is sold is inaccessible except by passingover adjoining land retained by the grantor. The concept arises from the premise that the easement is an implied grant allowing thepurchaser to access the purchased lot.

See Nelson v. 1153696 Alberta Ltd., 2011 ABCA 203, 46 Alta. L.R. (5th) 113, at paras. 40-43, leaveto appeal to S.C.C. refused, [2011] S.C.C.A. No. 423; and Dobson v. Tulloch (1994), (ON SC), 17 O.R. (3d) 533 (C.J.(Gen. Div.)), aff’d (1997), (ON CA), 33 O.R. (3d) 800 (C.A.). [49] Necessity is assessed at the time of the original grant: Nelson, at para. 42; Dobson, at p. 541. … [34] Easements of necessity may also be available to an original grantor who retains part of the land: Toronto-Dominion Bank vWise, 2016 ONCA 629 at paras 22–23, 133 OR (3d) 195.

However, as Rouleau J.A. noted in McClatchie, regardless of whether the partyclaiming the benefit of the easement is the grantor or the grantee, “[o]ne of the prerequisites for an easement of necessity is that it must benecessary to use or access the property; if access without it is merely inconvenient, the easement will not be implied” (at para 53). [35] Easements may also arise pursuant to the rule in Wheeldon v Burrows (1879), 12 Ch D 31 (CA), which is sometimes referred toas an easement by way of an implied grant or an easement of apparent accommodation.

In 3021386 Nova Scotia Ltd. v Barrington(Municipality), 2015 NSCA 30, 357 NSR (2d) 289, the Nova Scotia Court of Appeal, and in Roop v Hofmeyr, 2016 BCCA 310, [2016] 12WWR 83 [Roop], the British Columbia Court of Appeal adopted the

summary of this rule provided in Anger & Honsberger Law of RealProperty at §17:12: When land owned by one person is divided and part of the land conveyed to another, even if there are no words in the instrumentexpressly creating an easement, a court will imply that the new owner was granted easements of necessity and any continuous and

apparent easements which existed as quasi-easements during unity of ownership. Thus, the implied grant will render the retained landservient and the newly acquired portion dominant. The test for necessity is fairly stringent. In order to make a successful claim for an easement of necessity, it would have to be shown that itwould be impossible to enjoy the dominant land otherwise. A common example is a right-of-way which would provide the only possibleaccess to a piece of land. In order for a quasi-easement which was exercised during unity of ownership to become an easement by implication of law, the rightclaimed must meet certain criteria: (

a) it must be necessary to the reasonable enjoyment of the part granted; (

b) it must have been used by the owner of the entirety for the benefit of the part granted up to and at the time of the grant; and (

c) it must have been apparent at the time the land for which the easement is claimed was acquired. (Footnotes omitted) [36] The rule in Wheeldon v Burrows was also nicely summarized by Huddart J.A. in Babine Investments Ltd. v Prince GeorgeShopping Centre Ltd., 2002 BCCA 289, 212 DLR (4th) 537, as follows: [16] In this Court the appellants relied primarily on the common law rule explained in Wheeldon v. Burrows (1879), 12 CH. D.31 (Eng. C.A.) founded on the principle that a grantor or lessor cannot derogate from his grant or lease of the land.

By this “doctrine ofapparent convenience” as counsel called it, the purchaser or lessee of part of an entirety is entitled to all continuous and apparenteasements over the remainder of the entirety which are necessary to the reasonable enjoyment of the part granted and have been and are atthe time of the grant used by the owners of the entirety for the benefit of the part granted. [37] In Roop, Smith J.A. confirmed that the conditions necessary to establish an implied grant of an easement are the same as for animplied easement of apparent accommodation, as both are based on the rule in Wheeldon v Burrows (Roop at para 5).

Justice Smith alsoexplained the distinction between an implied easement of necessity and an implied easement necessary for the reasonable enjoyment of aproperty: [38] … [A]n implied easement of necessity is to be distinguished from an implied easement necessary for the reasonable enjoyment ofa property. The former arises when there is no access to the grantee’s property (e.g., it is land-locked) and necessity requires an impliedeasement for any enjoyment of the property.

The latter arises when there is derogation of part of a parcel of land (by a grantor) to anotherparty (the grantee) and reasonable enjoyment of the derogated land requires an implied easement. See Halsbury’s Laws of England, vol.14, 4th ed. (London, UK: Butterworths, 1980) at 31, para. 61. … [40] … [W]hat is meant by “necessary for the reasonable enjoyment of the property granted” remains vague and ambiguous.

What isclear is that “necessary for the reasonable enjoyment of the property granted” does not mean actual “necessity” as required for an“easement of necessity”, but seems to require a lower threshold of something more than mere inconvenience but less than considerableinconvenience. See Barrington at paras. 27-37 and Pertman v. Grandin Park Properties Inc., 2015 ABQB 262 at paras. 47-49. [38] Barton v Raine (1980), (ON CA), 114 DLR (3d) 702 (Ont CA), demonstrates another basis on which aneasement may arise despite the lack of an express grant.

There, a father and son owned houses located very close together on adjoininglots. A driveway located on both lots provided access to the garages located behind each house. The Ontario Court of Appeal found thatthe father and son had a common intention that they would each have the right to use the driveway, and that an easement could be implieddespite that the driveway was not strictly necessary to access the garages.

In Sauer, Weatherill J. summarized this “implied easement basedon common intent” as follows: [77] In circumstances where two neighboring landowners have participated in a joint enterprise with the implied intention that bothproperties will benefit, the law of equity can intervene to provide a remedy. The benefit must be both an obvious and necessary inferencefrom the circumstances: Barton v. Raine (1980), (ON CA), 114 D.L.R. (3d) 702 (Ont. C.A.) at 711. … [79] Examples of circumstances where the courts have found an implied easement based upon the common intentions of the partiesinclude Canada Lands Co.

CLC Ltd. v. Trizechahn Office Properties Ltd., 2000 ABQB 166, where a waste system was built on one lot andthe compactor and dumpsters for the waste system were built on the adjoining lot; Bruce v. Dixon, [1957] O.J. No. 540 (C.A.) whereneighbors undertook the drillings of a well for their common use; and Spur Valley v. Csokonay et al, 2000 BCSC 1356, where a watersystem for a campground had been built to service 80 lots.

See also The Owners Strata Plan NES33 v Westshore Developments Limited, 2015 BCSC 1280, which demonstrates the requirement thatthe easement must be for the benefit of both properties. [39] An easement may also arise if the conditions necessary to engage proprietary estoppel have been met.

The elements of thatdoctrine were described by McLachlin C.J.C. in Cowper-Smith v Morgan, 2017 SCC 61, [2017] 2 SCR 754: [15] An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that hewill enjoy some right or benefit over property; (2) the claimant relies on that expectation by doing or refraining from doing something, andhis reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of his reasonable reliance, such thatit would be unfair or unjust for the party responsible for the representation or assurance to go back on her word: see Thorner v.

Major,[2009] UKHL 18, [2009] 1 W.L.R. 776, at para. 29, per Lord Walker; see also Sabey v. von Hopffgarten Estate, 2014 BCCA 360, 378

D.L.R. (4th) 64, at para. 30; Clarke v. Johnson, 2014 ONCA 237, 371 D.L.R. (4th) 618, at para. 52; Idle-O Apartments Inc. v. CharlynInvestments Ltd., 2014 BCCA 451, [2015] 2 W.W.R. 243, at para. 49; Scholz v. Scholz, 2013 BCCA 309, 340 B.C.A.C. 151, at para. 31.The representation or assurance may be express or implied: see Wolff v. Canada (Attorney General), 2017 BCCA 30, 95 B.C.L.R. (5th)15, at para. 21; Sabey, at para. 33; B. MacDougall, Estoppel (2012), at p. 446; Snell’s Equity (33rd ed. 2015), by J.

McGhee, at p. 335. … … [17] Where protecting the equity of the case may demand the recognition of “new rights and interests…in or over land” (Crabb v. ArunDistrict Council, [1975] 3 All E.R. 865 (C.A.), at p. 871, per Lord Denning M.R.), proprietary estoppel can do what other estoppels cannot— it can found a cause of action: see MacDougall, at p. 424; McGhee, at pp. 330-33.

Where the ingredients for a proprietary estoppel arepresent, the court must determine whether it is appropriate to satisfy the equity by recognizing the modification or creation of propertyrights “in situations where there is want of consideration or of writing”: Anger & Honsberger Law of Real Property (3rd ed. (loose-leaf)),by A.W. La Forest, at p. 28-3. See also Michel v Saskatchewan, 2021 SKCA 126, where Leurer J.A. discusses and applies this reasoning from Cowper-Smith. b.

Gustav and Dolores have no claim for an equitable or implied easement as against Kimberly [40] At the hearing of this appeal, counsel for Gustav and Dolores raised each of the potential grounds for the creation of aneasement identified above. In each case, they characterized the question as relating to the existence of an equitable easement, rather thanan implied easement. Indeed, they also suggested that an easement may have arisen merely because Gustav and Dolores had continuouslyused and maintained the well since 1986, and, in particular, since Kimberly became a joint owner in 2001.

They relied on Wouters vFourjay Developments Ltd. (1998), (ON SC), 38 OR (3d) 369 (WL) (Ct J (Gen Div)) [Wouters], in this context, whichis best understood as having found a right-of-way by prescription (Wouters at para 41). [41] In the result, while many theories were raised by Gustav and Dolores during this appeal, none were fully formed or finallyselected. That is consistent with the central theme of their submissions. They did not emphasize the assertion that an equitable easementhad been made out.

Rather, their counsel repeatedly submitted that the evidence that would be relevant to such a claim was incomplete, asthey did not have the opportunity to cross-examine Kimberly. It was their position that this evidence would include, among other things, (

a) what Kimberly knew as to dealings between Gregory and Gustav in 1986 relating to the well and pipeline; (

b) what Kimberly knew as to Gustav’s and Dolores’s use and maintenance of the well and pipeline both before and after 2001; (

c) how the subject land was used between 1996, when it was acquired by FCC, and 2001, when it was purchased by Gregory andKimberly; (

d) how Gregory and Kimberly came to acquire the subject land in 2001; and (

e) the extent to which the well was necessary due to differences between the water under the subject land and the water underthe acreage. [42] In this context, Gustav and Dolores stressed certain uncontested facts. They noted that Gregory and Kimberly were husband andwife, and that Kimberly had for many years resided across the road from the subject land. They suggested this meant she must haveknown a good deal about the joint farming arrangement and their use of the well and pipeline.

They pointed out that Gregory had a rightof first refusal in relation to the subject land pursuant to s. 27 of The Saskatchewan Farm Security Act, SS 1988-89, c S-17.1 [SFSA], andsuggested that this right may have played a role in the 2001 acquisition of those lands by Gregory and Kimberly. [43] However, the evidence in relation to some of these issues was minimal, and in relation to others – including as to the use of thesubject land from 1996 to 2001 and the course of dealings which resulted in its acquisition by Gregory and Kimberly – was missingentirely.

There was also no evidence relating to the SFSA argument, which, as counsel for Kimberly and James pointed out, had neverbeen raised prior to the hearing of the appeal. [44] In broad terms, it was Gustav’s and Dolores’s position that the additional evidence that might be obtained, particularly bycross-examining Kimberly, would be probative in determining whether Kimberly should be treated as being in the same position asGregory, based on all of the circumstances that might affect the equities as between her and Gustav and Dolores.

That, they suggested,might enable them to assert their claim for an easement against Kimberly, and to demonstrate that she was not a bona fide good faithpurchaser for value without notice who was entitled to the protection afforded by the indefeasibility provisions of the LTA. For thesereasons, Gustav and Dolores submitted that the Chambers judge erred by failing to direct that there be a trial at which all of the evidencerelating to the use of and dealings with the subject land could be adduced.

In their view, she was obliged to make such an order, as theshortcomings in the evidence were not speculative, but were disclosed by the record. [45] With respect, I have a different view. [46] To begin, and as noted above, the Chambers judge applied the test specified in Barrich Farms when deciding whether James’sapplication to discharge a registered interest pursuant to s. 107 of the LTA should be determined summarily.

In Barrich Farms, JacksonJ.A. summarized that test as follows: [26] The issue is whether the chambers judge erred in concluding, based on this evidence and the pleadings before her, that there wasno “bona fide question of law or equity” as to the disputed claim (which are the words appearing in this Court’s judgment in Gaar ScottCompany). In answering the question before her, she had to consider, inter alia, such matters as (

i) the degree of dispute between theparties (see Gaar Scott Company); (ii) the completeness and complexity of the evidence (see Block); and (iii) the complexity of the law(see Block). [Footnotes omitted]

[ 47 ] Neither party suggested that this test should not apply, despite the fact that the Chambers decision dealt not only with a s. 107 application, but with Gustav ’s originating application, which named both James and Kimberly as respondents. For that reason, I will take the same approach, even though Barrich Farms does not apply to all originating applications. [ 48 ] The evidence relating to the claim for an easement is simple, largely uncontested, and, on the face of it, sufficient to decide if an easement exists. Gustav and Dolores argue that the evidence is not complete.

However, that argument is based on speculation, rather than any conflict in the evidence or ambiguity in Kimberly’s evidence. The evidence is sufficient to decide whether any of the doctrines identified by Gustav and Dolores apply. In the result, the pleadings and evidence do not raise a bona fide question of law or equity in relation to the claim for an easement that calls for a trial. This issue can be decided summarily. [ 49 ] Turning to the various potential grounds for the creation of an easement described above, I would first note that Wouters cannot assist Gustav and Dolores.

In that case, the Court concluded that an interest in land had been acquired by prescription.

Section 150 of the LTA abolishes the doctrine of prescription in Saskatchewan, providing as follows: 150 No right to the access and use of light or any other easement, right in gross or profit à prendre is: (

a) acquired by any person by prescription; or (

b) deemed to have been acquired by prescription at any time. This

section is the successor to s. 72 of The Land Titles Act , RSS 1978, c L-5 , which was to the same effect. [ 50 ] Second, there is no basis to conclude that there is an easement of necessity relating to the well and pipeline. To the contrary, Gustav deposed that there was water available at the time of the grant not only on the subject land, but on the acreage. It was his evidence that a single test hole demonstrated that the water on the subject land was “better”. That evidence would not support the inference that the well and pipeline were necessary.

No authority was offered as to the proposition that the need to pay to replace a well, regardless of amount, would constitute necessity. Further, there was no evidence as to the cost of a new well. [ 51 ] Third, there is insufficient evidence to find that the conditions necessary to engage the rule in Wheeldon v Burrows exist, as to either an easement of necessity or an easement for the reasonable enjoyment of the acreage. That rule requires, among other things, that the right claimed must have been used by the owner of the entire property for the benefit of the part granted up to and at the time of the grant .

There is no evidence that Gregory used water from the subject land, whether at or near the present site of the well or otherwise, prior to the subdivision of the acreage and the transfer from Gregory to Gustav and Dolores. Rather, it is Gustav ’s evidence that the well and pipeline were created at the time of the subdivision and sale.

Further, Kimberly would not have known anything about the dealings between Gregory and Gustav in any event, as her relationship with Gregory began in 1988, two years after those dealings occurred. [ 52 ] Fourth, the conditions necessary for an implied easement based on common intent are absent.

Although Gregory and Gustav intended to pursue a joint farming enterprise, there was no evidence that they intended that both the acreage and the subject land would benefit from the water that would be produced by the well, or, for that matter, that water from the well was used at any time for the purpose of their joint farming arrangement.

Gustav ’s evidence is that the well and the pipeline were for the purpose of supplying water to the acreage. [ 53 ] Fifth, although there is some evidence that might have supported a claim in proprietary estoppel as against Gregory, there is no such evidence as against Kimberly. As noted above, Kimberly’s relationship with Gregory began in 1988.

That being so, there is no basis to conclude that she could have made or even known of the representations that Gustav claims Gregory made when Gustav purchased the acreage. [ 54 ] Further, Gustav and Dolores provided no authority for the proposition that knowledge acquired long after the events identified as the basis for proprietary estoppel could ground such a claim. Given that detrimental reliance is essential, I cannot see how it could.

To the extent they might be taken to have suggested, in relation to both proprietary estoppel and other potential grounds for their claim, that because Kimberly was Gregory’s wife and became sole owner due to their joint ownership, she should be dealt with as being subject to the same equities, I reject that notion. The fact that they were married, in and of itself, tells us nothing as to whether she knew, promised, or did anything that might result in a finding that Gustav and Dolores can assert a property right as against her on any basis. [ 55 ] There is the important matter of the foreclosure.

Kimberly became an owner of the subject land only in 2001, when she and Gregroy acquired the title from FCC. As is noted above, FCC had acquired its title pursuant to a final order of foreclosure which provided that the right, title and interest in the subject land of all defendants named in the foreclosure action be foreclosed. Gustav and Dolores were named defendants. It was suggested that the foreclosure documents may not have come to their attention.

However, Gustav and Dolores did not lead evidence to that effect, nor to the effect that they were not properly served as required by The Queen’s Bench Rules . [ 56 ] In any event, title was issued to FCC in accordance with the direction to the Registrar in the final order of foreclosure; that is, “freed and discharged from all encumbrances” except two caveats which are not relevant to this appeal.

That title was conclusive proof that it had a fee simple interest in the subject land, with the right to transfer that title free from all interests, exceptions and reservations, except those specified in the LTA : see generally Primrose Drilling Ventures Ltd. v Registrar of Titles , 2021 SKCA 15 at paras 37–51 , [2021] 8 WWR 241, for a recent

summary of indefeasibility pursuant to the LTA , and the right of a registered owner in fee simple to transfer that title. [ 57 ] Kimberly, in turn, was entitled to rely on the register when she acquired her interest as a joint owner of the subject land. That interest included the right of survivorship. There is no evidence which might suggest that she was a volunteer, rather than a bona fide purchaser for value from FCC on the terms specified in the transfer.

As such, the principle that the title of a volunteer is defeasible at the behest of the rightful owner of the land (see Olney v Great West Life Assurance Company , 2014 SKCA 47 at para 66 , [2014] 8 WWR 293) does not apply. Even if we assume that Gustav and Dolores could have asserted a claim for an easement against Gregory based on an express grant after the foreclosure – a question that I need not decide – Kimberly is not Gregory. Absent evidence of bad faith, her title would not be defeasible at the behest of Gustav and Dolores, who claim pursuant to an unregistered interest.

There is no evidence of bad faith, or, for that matter, that she had any knowledge of their claim. To the contrary, it is Kimberly’s uncontradicted evidence that Gregory

never told her of either an easement or a right of first refusal. [58] As noted above, Gustav and Dolores rely on Sauer as authority for the proposition that an unregistered easement may not beextinguished by a final order of foreclosure. The Court there found that there was an implied easement based on a common intention to theuse of a lot at issue as the means of access to construct and utilize a project for the purpose for which it was built.

Justice Weatherillconcluded that the mortgagee that foreclosed on the property had “acquiesced in and encouraged the use of the Access Road by thoseinvolved in construction of the works on Lot C, including the petitioners, for the common purpose and with the common intent ofcompleting the Project” (at para 82).

For that reason, he held that “the shared use of the Access Road from the outset for ingress to andegress from the Project’s amenities was such that equity should intervene to grant an implied road access easement over Lot A consistentwith the intentions of all of the parties” (at para 83). [59] Here, and for the reasons explained above, there is no similar basis to conclude that there is an easement that is enforceable asagainst Kimberly. That would be true even if, as in Sauer, the mortgagee could have been found to be in the same position from anequitable perspective as Gregory.

There is no such evidence as against FCC, and thus no basis to suggest that equity should intervene asagainst FCC. For these reasons, Sauer is distinguishable. [60] In the result, Gustav and Dolores do not have a valid claim for an equitable or implied easement as against Kimberly. B. Did the Chambers judge err by failing to find that there was a right of firstrefusal, or by failing to order that this issue be sent to trial? [61] As noted by the Chambers judge, a right of first refusal is not an interest in land, but a contractual right.

Justice Woodssummarized the law on this point in Powers v Walter (1981), (SK CA), 124 DLR (3d) 417 (WL) (Sask CA): [9] It is clear that the right of first refusal is contractual right only and does not by itself create an interest in land. However, when anoffer to purchase is made, if it is within the contract or, in this case, one which the grantor of the option was prepared to accept, then anoption arises, in this case a 30-day one. This option to purchase then becomes an equitable interest in the land. Such a right is capable ofbeing protected by caveat.

See also Barrich Farms at para 27, and Charles Cattle Co. Ltd. v Herriman, 2017 SKQB 325 at para 16, 77 BLR (5th) 89. [62] Gustav alleges that he and Dolores were granted a right of first refusal by Gregory when they purchased the acreage. As notedabove, Kimberly played no

part in those dealings between Gustav and Gregory. Indeed, as has been explained, she had no relationship withGregory or with the subject land at that time. Even if there would have been an enforceable contract between Gregory on the one hand andGustav and Dolores on the other, Kimberly was not a party to that agreement.

She deposes that she first learned of the alleged right of firstrefusal as a result of Gustav’s application. [63] Gustav and Dolores submit that their contractual right became an interest in land either at the time of the foreclosure or whenJames made an offer to buy the subject land that Kimberly wished to accept. Even if the foreclosure had that effect – a proposition forwhich Gustav and Dolores offered no authority – that equitable interest was foreclosed.

Even if they could have claimed a right of firstrefusal as against Gregory after the foreclosure, there is no basis for such a claim against Kimberly. [64] Further, and for substantially the same reasons as in relation to the claim for a water easement, the Chambers judge did not errby failing to order that this issue be sent to trial. The evidence was simple, uncontradicted, and sufficient to decide this issue.

Thesubmissions by Gustav and Dolores to the contrary are based entirely on speculation. [65] In the result, the Chambers judge did not err by failing to find there was a right of first refusal or by failing to order that thisissue be tried. V. CONCLUSION [66] For these reasons, the appeal is dismissed. Kimberly and James shall have one set of costs in the usual way. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.