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A House Divided: Access to Partition and Sale
under the Laws of Ontario and Manitoba
J O H N I R V I N E *
I.
INTRODUCTION
T
his paper 1 examines some important questions concerning the law of
partition, and of “sale in lieu of partition”, a substitute remedy which in
most common law jurisdictions made its appearance in the law at a
relatively late date. The writer has no ambition to cover the subject
comprehensively. Rather, it is hoped that further essays in this journal will appear
presently, to address issues deliberately set aside in this article. In particular, the
all-important question of how judges use their discretion in this context is a topic
which both deserves and needs close and separate treatment; so that all this article
attempts on that topic, is to show how, again at a surprisingly recent date, the
whole phenomenon of judicial discretion, with all its potential for flexible and
sensible decision-making, finally entered the picture.
My present aim is to draw attention to an interesting anomaly. Historically,
Manitoba has often “borrowed” legislation from Ontario, its older and more
populous neighbour, often with minimal adaptation. It did so in 1878, when it
passed its first Partition Act, 2 essentially copying the then-current Ontario Act 3
almost word-for-word. While minor differences and amendments have crept in
over the ensuing 133 years, and Manitoba’s Act has been subsumed into the
eclectic or amorphous Law of Property Act, 4 the statutory provisions in both
provinces, especially the core provisions which will be examined in this paper,
remain recognizably and obviously the “same package”. Yet when we come to
examine the functioning of these essentially identical provisions, as interpreted by
*
1
2
3
4
Professor, Faculty of Law, University of Manitoba; Member, Manitoba Law Reform Commission.
The second essay in a trio of interrelated offerings destined for the Journal. The first, found
earlier in this issue and entitled “Unsettled Estates: Manitoba’s Forgotten Statute and the
Chupryk Case”, addressed aspects of the province’s law regarding consecutive interests in real
property. In this sequel, we consider the rules governing the partition and sale of concurrent
interests, and its shape in the aftermath of the Perpetuities and Accumulations Act, SM 1982, c 3-4,
e 43.
SM 1878, c 6.
Partition and Sale Act, SO 1869 (32 Vict), c 33.
CCSM c L90.