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52 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
surely the sale could have been arrived at by mutual agreement without a court
order. As it transpired, the Court was determined to end the dispute by a formal
order for sale, and showed itself capable of paying a high price, in terms of
disrupting the law of concurrent ownership as long understood, 5 to bring about
that result. In hindsight, some would suggest that the Court might more
humanely have refused both combatants the orders they sought, and left it to
Death to bring an end to their quarrels.
All the foregoing, though not I hope without interest, is straightforward
enough. It is when we come to examine how the Court of Appeal, having
declined to authorize a mortgage for Mr. Chupryk, justified the order for sale,
sought by Mrs. Haykowski, that the real anfractuosities of the Court’s reasoning
come to the fore.
III.
THE SEEDS OF CONFUSION
In concluding that the powers conferred by the Trustee Act 6 were no longer
available to it in the circumstances, the Court had denied to itself not only the
ability to authorize Mr. Chupryk’s mortgage, which in truth it had no desire to
do; but also the most obvious and direct basis for granting Mrs. Haykowski’s
order of sale. Casting about for some juridical basis for making such an order, and
avowedly renouncing 7 any temptation to administer “palm tree justice”, their eyes
turned to the possibility that use might be made of what they termed the “Settled
Lands Acts”. In the end, they determined that they could not do so, but their
efforts in this context were to my mind unfortunate, and have generated
misconceptions which still persist.
Towards the close of his concurring judgment in Chupryk, O’Sullivan JA
wrote these words:
There is no doubt that the inability of a tenant for life to raise money for improvements
may work a hardship, not only on the tenant for life, but also on the remainderman and,
in some cases, others. No one can benefit from a situation where property is allowed to
deteriorate and run down. In England, this problem has been dealt with in a series of
statutes. The Settled Lands Acts recognize land held in succession as settled land and
authorize the tenant in possession to raise money for improvements, sometimes on his own
authority and sometimes with the approval of the court. Ontario and British Columbia
have enacted Settled Lands Acts to achieve the same purpose, but Manitoba has no Settled
5
6
7
Canada (supra note 1, (1980) 33 NR 622 (Martland, Ritchie and Estey JJ) and see Supreme Court
of Canada, Bulletin of Proceedings of the Supreme Court of Canada, Oct 10 1980 (Ottawa: SCC,
1980), p 31). This proved to be the end of the saga, for after this final but hollow victory for
Michael Chupryk, which seems largely to have escaped notice in the textbooks, his litigation
career goes “off the radar”.
See the article “A House Divided, etc”, presented later in this volume of the journal.
The Trustee Act, CCSM c T160, s 58 (1) [then s 60 (1)].
Supra note 1 at para 58.