Validity
What is the outcome if a court finds a condition subsequent void?
The condition drops off, and the gift succeeds.
What policy would you currently file a modern treaty claim under?
Comprehensive Land Claim Policy
Name that statute: 5 (1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the word “heirs”.
Conveyancing and Law of Property Act, RSO 1990, c C.34
Name that case: In what SCC case and year did the first finding of Aboriginal title in Canada occur?
Tsilhqot'in Nation v British Columbia, 2014 SCC 44
Based on the signalling words - in the event that, if, if and only if, on the condition that, when, shall take effect - what kind of condition likely exists?
Condition precedent
What are five ways a condition can be found to be void?
1. Uncertainty
2. Against Public Policy
3. Remoteness (RAP)
4. Restraint on Alienation
5. Repugnancy
What are the names of at least two different communities that have modern treaty agreements with the Crown?
1. Gwich'in People/Gwich'in Tribal Council
2. Labrador Inuit
3. Sahtu Dene and Metis Peoples
What does it mean to say that there is a possibility of fragmentation of ownership among different persons in succession?
It means that ownership of the same property can be divided over time, so that different people hold rights to possess it at different points in time.
Example: one person may hold a life estate now, while another holds the future interest that will become possessory later.
What is the Aboriginal title test set out by the SCC in Delgamuukw v British Columbia?
Pre-sovereign, continuous, and exclusive occupation of the land
Name that case: "Where it is doubtful whether a condition be precedent or subsequent the court prima facie treats it as being subsequent for there is a presumption in favour of early vesting."
Sifton v Sifton
When drafting her will, Margaret left a substantial sum of money to "whichever local group I think best promotes community spirit," without naming any specific organization. After Margaret died, her nephew Daniel filed an application with the probate court to claim the money as her heir. What argument can Daniel raise to claim the money? What case law can he draw from?
Daniel: Margaret’s bequest is invalid for uncertainty. The beneficiary is not sufficiently certain because the phrase "whichever local group I think best promotes community spirit" identifies no specific group, making the gift impossible for the court to determine the testator’s intention. The property, therefore, reverts to the estate and passes to other heirs. Daniel must demonstrate he is an heir by will or intestacy.
Hayes v Meade; Re Teppers Wills
The Kaska First Nation negotiated a land claim agreement with the federal and provincial governments to resolve outstanding Aboriginal rights and title over a large portion of northern British Columbia. The modern treaty agreement sets out land ownership, self-government powers, wildlife harvesting rights, and financial compensation. Shortly afterward, a dispute arose when a private mining company sought to engage in exploration activities in the territory. What rights can the Kaska First Nation assert in response?
Modern treaties in Canada are constitutionally protected under s. 35 of the Constitution. Their terms have legal force and can limit provincial or private activities. Kaska First Nation can argue that the modern treaty is binding on the Crown and third parties, and that the Crown cannot unjustifiably infringe their rights. They owe a duty to consult the Nation before making decisions that might adversely impact their treaty rights.
Maria executed a will that included the following: “I grant Purpleacre to Ben for life, then to Dana and her heirs.” Ben immediately moved onto the property and farmed the land for several years. Dana, who lives in another state, plans to build a vacation home on Purpleacre once she receives full ownership.
Identify all estate interests and who holds them.
1. Ben - life estate.
The words of limitation "to Ben for life" clearly create a present possessory life estate measured by Ben’s life.
2. Dana - vested remainder in fee simple absolute.
The phrase "then to Dana and her heirs" gives Dana a future interest that becomes possessory automatically when Ben’s life estate ends.
Because Dana is an identified person and no conditions must be met, her remainder is vested.
3. Maria - retains no future interest.
The full fee simple passes through Maria to Ben (life estate) and then to Dana (remainder in fee simple). Maria keeps nothing.
The Province of Ontario granted TimberCo a 25-year commercial logging license over a remote river valley in the Tsayen First Nation's traditional territory. The Tsayen Nation argues that the licensed area forms part of their traditional territory, where they hunted and maintained their cultural practices and traditions. They bring litigation asserting title over the region. In making out the elements of title, what kind of evidence can be presented?
The Nation must rely on evidence that proves their community has exclusively occupied, used, and managed the valley for hunting, governance, and cultural practices since before the assertion of Crown sovereignty.
Evidence: demonstrate control; oral histories and traditions; construction of dwellings; cultivation and enclosure of fields; regular use of definite tracts of land for hunting or ceremonies; and they exploited its natural resources.
Olivia owned a 200-acre ranch outside of town that had been in her family for three generations. Wanting to keep the land in agricultural use, Olivia executed a deed stating:
“Olivia grants to Alice the ranch so long as the ranch is used for cattle farming.”
Alice immediately took possession and began raising a small herd of longhorn cattle. She renovated the barn, installed new fencing, and invested heavily in expanding the cattle operation.
Five years later, Alice started considering converting part of the ranch into a commercial event venue, which would end cattle farming on the property.
What qualified transfer and future interest has been created?
Alice holds a fee simple determinable
Because the grant uses durational language (“so long as”) tied to cattle farming.
Olivia holds a possibility of reverter
If the land ever stops being used for cattle farming, the property automatically reverts to Olivia (or Olivia’s heirs, if she is deceased).
In her will, Roshanna devised her downtown commercial building "to Maurice, provided that he shall not sell for as long as the earth shall last; otherwise, the property will revert to my estate." Maurice accepted the gift and became the registered owner. Ten years later, Maurice subdivided and sold a portion of the land to a convenience store that sold licensed cannabis products. Roshanna's residuary beneficiaries now claim that Maurice has violated the condition subsequent and argue that the entire property must return to the estate. What kind of claim can Maurice raise, what must he demonstrate, and is he likely to be successful?
Maurice can argue that the condition subsequent in Roshanna’s will is invalid for being an unreasonable restraint on alienation. The restraint restricts his right to freely dispose of property, one of the bundle of rights significant to property ownership. Courts treat restraints on alienation with suspicion because they undermine marketability and the free transfer of property. A condition that restricts the whole power of alienation completely (question of substance and not of form) is repugnant to the absolute estate given.
Cases: McEachern v New Brunswick Housing; Attwater v Attwater; distinguish Re Macleay; Doe d. Gill v Pearson, some restraint permissible.
As part of a modern treaty agreement, the Hatun First Nation holds fee simple title to a portion of its settlement area. Historically, they have fished salmon in the Wavern River, a right recognized under the modern treaty. When a commercial fishing company applied for an expanded harvesting license, the Province approved it without consulting the Hatun Nation. In the spirit of sharing, the Nation chose not to sue for a breach of the duty to consult. However, it was subsequently revealed that internal reports existed that warned that salmon stocks were critically low and that the Nation’s food-fishing needs would likely be harmed. That year, the Hatun community was forced to shut down its traditional salmon harvest for the first time in generations. The Nation claims that the province prioritized commercial profits over the community’s constitutionally protected harvesting rights. What claim can they assert?
They can assert that the Crown infringed their s.35 rights and that the infringement was not justified.
1. No compelling and substantial objective demonstrated
•To constitute a "compelling and substantial objective," the broader public goal asserted by the government must further the goal of reconciliation
•If a compelling and substantial public purpose is established, the government must show the incursion is consistent with the Crown’s fiduciary duty
2. Crown breached its fiduciary duty
Proportionality in the justification process:
•Incursion is necessary to achieve the government’s goal (rational connection);
•Government is going no further than necessary to achieve its objective (minimal impairment);
•Benefits that may be expected to flow from the goal are not outweighed by adverse effects on the Indigenous interest (proportionality)
In 1920, Manhatt executed a will conveying her rural property on the outskirts of Kanata using the following language: "I give Yellowacre to my daughter Louellen, then to my grandson Peter, and then to the Water Association of Kanata (WAK)."
When Manhatt passed, Louellen moved into Yellowacre and lived there for many years, while Peter, then aged sixteen, made plans to farm the land once he received possession. Decades later, Louellen had passed, and after working the land for years, Peter entered long-term care. Peter left the property to his daughter, claiming that he received a fee simple estate. He asserted that it is presumed a fee simple is passed unless words of limitation cut the estate short. The executor argues that Manhattan’s 1920 will did not give Peter a fee simple, and the property is to go to WAK. Discuss how the court might interpret what was intended at the time Manhatt created the will.
A court interpreting the clause - "I give Yellowacre to my daughter Louellen, then to my grandson Peter, and then to the Water Association of Kanata (WAK)" - must determine her intention as of 1920, using the ordinary meaning of the words in the will and the legal presumptions that applied at that time.
In 1920, courts commonly interpreted sequential gifts as creating a life estate in the first taker, even without the express phrase "for life." For fee simple, magic words required - "and their heirs"
Louellen - present possessory interest, with Peter taking after her interest ended.
Peter - It was presumed a life estate was passed unless the magic words "and his heirs" were included. These words were not included in Peter's grant.
Additionally, there was a subsequent taker, so no intestacy would occur.
WAK - remainder party.
The Batawa First Nation has lived in the Cariboren region of southern Ontario since long before European contact. The Nation has historically hunted caribou in the area, governed land use through Hereditary Chiefs, maintained seasonal camps, and regulated access for outsiders.
A draft agreement-in-principle with Canada and Ontario recognizes Aboriginal title over parts of the region, outlines shared decision-making on wildlife management, and provides for a land-use planning process requiring the Nation’s participation.
Discuss how a court would distinguish between Aboriginal title ownership and fee simple title ownership in Canada. In your answer, address both the source and nature & content of each form of title.
Source
Aboriginal Title: Prior occupation of Indigenous peoples in organized societies.
Fee Simple: Crown grant, statutory transfer, or private transfer between owners.
Nature & Content
Aboriginal Title: collective interest, alienable only to the Crown, economic component, inherent limitation - uses must be consistent with the community's historic attachment to the land, right to possess, control, make decisions, steward resources, cannot be infringed without justification.
Fee simple: individual or corporate interest, free alienation, economic component, only limitation is lawful use, bundle of rights - use, possess, exclude, etc., can be lawfully expropriated with compensation.
In his will, Muhammad left his lakeside cottage "to my nephew, Ishaaq, provided that he attends and ultimately does well in an accredited medical program within five years of my death." Ishaaq, who had always dreamed of becoming a doctor, enrolled in a program shortly after Muhammad's death. He moved into the cottage while attending school. However, midway through the program, he took a leave of absence due to financial constraints and did not return within the five years. Mohammad’s estate now claims that Ishaaq never satisfied the condition and therefore cannot keep the cottage. What is Ishaaq's best possible argument?
Ishaaq can argue that the condition should be interpreted as a condition subsequent - courts favour early vesting interpretation (Sifton), signaling words, possible partial intestacy.
Validity test for CS: "Where a vested estate is to be defeated by a subsequent condition, that condition must be such that the court can see from the beginning, precisely and distinctly, what needs to be met to keep the estate" (Clavering v Ellison).
Is it clear what Ishaaq has to do to keep the estate? What does "ultimately do well" mean? Does he have to graduate? What grades are required to "do well"?
If CS and found void, the condition drops off, and the gift succeeds.