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A House Divided 235
her invitation to order partition or sale. 78 Mortgagees of shares however, have on
occasion been acknowledged to have a right to seek partition or sale, provided
that they first acquire, by foreclosure or otherwise, the right to immediate
possession of the land. 79 Similarly, in some jurisdictions it has been held that
judgment creditors may seek partition if, and only if, their efforts to realize upon
the judgment debt have reached the point where possession of the debtor’s share
has been gained. 80 Other potentially contentious fact-situations might easily be
imagined. But all discussion in this area is potentially confounded by a number of
variables – as to the question of whether the plaintiffs’ right to immediate
possession is an indispensable prerequisite, the Canadian Law is almost 81
uniform. But as to whether the claimant must also be a co-owner, in the sense of
sharing “insimul” the estate to be divided or sold, the picture is confused by
differences between the statutes of various jurisdictions. And often too, as in cases
advanced by persons seeking orders of sale to realize upon their as yet inchoate
dower rights, the answer may of course be determined not by the partition
legislation of the province, but rather by the particular directions of its dower or
homestead legislation. 82
Returning once more to the wording of the Ontario and Manitoba statutes, it
must be acknowledged once again that their expansive and imprecise wording;
and in particular their failure to define who is a “person interested in land” 83 have
created that dichotomy of views, or antithesis of perspective, as to how the statutes
of these two provinces should properly be construed and applied. Those
conflicting perspectives, the “plain meaning” approach, and the “essentialist”
approach, must now be examined in the context of the reported case-law over the
years.
VI.
CONFRONTING THE CASE-LAW
It may perhaps be thought remarkable that so stark a difference of
perspectives, on so fundamental an issue, would for decades remain unresolved
and indeed unaddressed by the courts of Canada’s most populous province. Yet
really we should not be surprised, for, then as now, the great majority of partition
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Though he also refused her application because she was neither joint-tenant, tenant-in-common,
nor coparcener.
Fall v Elkins (1861), 9 WR 861.
Re Craig (1929), 1 DLR 142 (Ont SC).
The most blatant contradiction of it lies, unfortunately, in the leading Manitoba case of Chupryk
v Haykowski, extensively discussed later in this paper.
A particularly valuable analysis of who may demand partition generally, which illustrates all these
variables in play (and just about every imaginable fact-situation) is to be found in Pepler, supra
note 76, at pp 4-8 inclusive.
Supra note 34 at s 20(1), and note 35 at s 3(1).