Download PDF - Robson Hall Faculty of Law

246 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
VII.
CONCLUSIONS
Morris puts beyond debate several propositions which were already apparent
from the foregoing discussion, namely: “That the provisions of ss 19-26 of
Manitoba’s Law of Property Act are “essentially identical” to those of [Ontario’s]
Partition Act”. 129 Despite this, the Ontario Partition Act applies only as between the
holders of concurrent interests, as distinct from consecutive ones, whereas in
Manitoba, Chupryk flatly denies this. 130 In Ontario, abundant authority shows that
only a claimant in physical possession of the land, or the immediate right to such
possession, may seek partition or sale in lieu thereof. Chupryk v Haykowski flatly
rejects that view in Manitoba.
It is idle of course, to enquire which of these approaches is “right”. It
depends upon whether one prefers a “plain meaning” interpretation of the shared
language of the respective statutes (which might well support the Manitoba view)
or a more historically-sensitive, contextual or “essentialist” construction (which
would favour the Ontario position). I would merely note that
a) The Manitoba doctrine in Chupryk seems to have been adopted in
ignorance or disregard of the existence in Manitoba of “Settled Estates”
legislation (admittedly of a rather recondite kind) which might, had it
been acknowledged, have deterred the Court from “stretching” the
function accorded to the partition legislation.
b) To allow, as Chupryk does, that partition or sale may be effected between
consecutive owners, creates difficult conundrums of valuation.
c) The result of Chupryk will be that in Manitoba only a sole fee simple
owner in possession of land will be immune from the efforts of other
interest-holders (however small, and however distantly suspended in
futurity their interests may be) to unseat them. Only the Court’s
discretion stands between them and the liquidation of their tenure. 131
There will be some whose response to the situation outlined in this paper will
be “so what If an unrestricted right to seek partition or sale is made available
under the Law of Property Act, and simply renders redundant the powers of sale
previously available under other statutes, what harm can there be in that;
129
130
131
Morris, supra note 120, at 484.
Per O’Sullivan JA: “I agree with my brother Matas that the Law of Property Act... covers successive
interests, as well as concurrent interests, in land.” Supra note 69 at 554.
There are limits to the utility of reductiones ad absurdum, but the English case of Dodd v Cattell,
supra note 77, gives food for thought. O’Sullivan JA’s reflection in Chupryk, ibid, that “In the vast
majority of cases, application of the provisions of our Law of Property Act can do justice as
between owners of successive interests, since they will have money in lieu of money’s worth”
seems question-begging and provocative. The questions it raises will be revived and discussed in
my third note in this series to appear in a forthcoming number of this journal.