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A House Divided 225
In both provinces, as is obvious from this little chart, there is an “active”
provision (who can seek partition and sale) and a “passive one” (who may be
compelled to undergo that process). In this paper, I am not going to say much
about the latter aspect of things, interesting though it is. But I feel that it is
important to point out that in spite of the apparent congruency of language used
in the active and passive provisions of the statutes, 36 they are in fact quite different
in their scope. I shall argue below, and the Ontario courts have with growing
consistency held, that only a narrowly defined class of interest-holders may bring
action to secure partition or sale. But the class of persons against whom such an
action may lie, or who may find their interests affected, injuriously or otherwise,
by such partition or sale; the people, in other words, who may collaterally have
their interests in land converted into money, or re-allocated in some way by the
partition/sale process; is much broader, and this is in fact reflected, very properly,
in the wording of s 19(1) of the Manitoba statute and s 2 of the Ontario statute
supra. The illusion of perfect reciprocity between the active and passive provisions
of both statutes is just that – an illusion. If one simply but incautiously puts them
together, disregarding their difference of function, one may erroneously allow the
class of persons who can seek partition to become as inflated as the class of those
who may be compelled to “suffer” it, and this in turn will result in partition or
sale being made available to all sorts of persons who were never intended to have
access to these remedies.
It will be obvious, though, that whatever the dangers their drafting presents,
these two “pairs” of sections, in Ontario and Manitoba, lie at the core of their
respective statutes, and define and encapsulate the courts’ jurisdiction in these
provinces. It will be necessary to return to them presently in examining the caselaw
which they have provoked. But first, a brief digression seems to be called for.
III.
ONUS
THE SLOW DAWNING OF DISCRETION AND THE QUESTION OF
It will be obvious that the two “pairs” of sections isolated above not only
define the jurisdiction of the courts, but affirm its essentially permissive character,
as involving some measure of discretion. Thus in s 19(1) (Manitoba) and s 2
(Ontario), the persons listed “may be compelled to make or suffer partition...”.
This reflects an important change in the law. In Ontario, as late as 1869, the
Partition Act of that year had been expressed in mandatory language. 37 The
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“All persons (Man) [all parties, Ont] interested in, to, or out of any land” in the passive
provisions of the respective statutes: “Any person interested in land” in their active provisions.”
The inexact correspondence of the passive and active texts was commented on by Judge
Kingsmill in the early Ontario case of Rody v Rody, infra note 85.
Supra note 30.