university of toronto faculty of law page 1 of 5

UNIVERSITY OF TORONTO FACULTY OF LAW PAGE 1 OF 5 DATE: December 16, 2019 TIME: 9:30 AM – 12:30 PM

ANNUAL EXAMINATIONS, 2019-20, DECEMBER 2019 Course: PROPERTY LAW (LAW103H1F)

Examiner: PROFESSOR ABRAHAM DRASSINOWER NOTE: 1. This is a 3 hour, closed book examination. You may not consult any materials other than

the casebook table of contents attached. 2. The exam is composed of 2 questions. The first question is worth 70% of your final

examination grade. The second question is worth 30% of your final examination grade. The suggested time allocations are 120 minutes for Question 1 and 60 minutes for Question 2. If during the examination you feel you need more factual information to answer Question 1, make and state any factual assumptions you require, and continue with your answer.

3. Cell phones, pagers and other communication devices are prohibited in exams. Cell

phones are not permitted as a time keeping device, therefore should not be visible on the desk during an examination. Communication devices left on the desk during an exam may be removed by the invigilator.

4. During the examination, only one student at a time is permitted to leave the examination

room. No student may leave within fifteen minutes of the conclusion of the examination. 5. At the end of this examination, the invigilator will ask you to stop typing and exit ExamSoft.

For students who are handwriting their examination, you will be asked to stop writing, count the total number of booklets used, record this on the front of the first booklet, and insert all booklets into the first booklet. You will then remain seated and quiet until all the examination papers are collected. The invigilator(s) will let you know when you can leave the examination room.

6. Time limits will be strictly enforced. Students who continue to write or type after the

examination has ended will have their answer booklets/examination envelope collected separately and may be subject to a penalty.

Instructions for handwriters: 7. Before you begin, ensure that you have written your pseudonym, course name, and the

number of the booklet on each examination booklet and the name of the instructor on the first booklet. Graduate students should write their full name and student ID. If you request an additional booklet(s) during the examination, write the required information on the booklet at the time you receive it. No time will be permitted for this at the end of the examination.

...continued page 2

Annual Examinations, 2019-2020

PROPERTY LAW, PROFESSOR DRASSINOWER of 5

Question 1 (2 hours – 70% of exam grade) Peter Mindful was an extremely successful psychotherapist internationally known for alternative approaches involving psychotherapeutic use of nature-walks and retreats. Peter owned a large lakefront tract of farmland (“Sleepy Fox”) in Truthville, Ontario, ideally suited for these purposes. His psychotherapy clients would not infrequently stay at Sleepy Fox for short periods. Peter had managed to help clients who had not been helped by other methodologies. Peter was deeply committed to the spirituality of the quest he facilitated. His vision of Sleepy Fox was of a sanctuary devoted to healing. Peter had two children, Bruce and Gillian. He cared about them a great deal. But he worried more about Bruce. Gillian was a successful entrepreneur, forever on the cutting edge of business developments, always keen to catch emerging waves in the world of technological innovation, an acute market analyst whose ability to make a very good living was beyond question. Bruce, on the other hand, was a quiet and simple fellow, kind enough, of course, but by no means the coldest beer in the fridge. He managed to follow his father’s footsteps and became himself a psychotherapist. But he lacked Peter’s entrepreneurial thrust and openness to the risks of deep spiritual exploration. Bruce had an acceptable, yet by no means thriving, psychotherapy practice, certainly not one sufficient to sustain the grandeur of Sleepy Fox. Sleepy Fox was indeed grand. A magnificent strip of land extending northwards from a major highway (“The Way of Despair”) running east-west, connecting Truthville to the nearest metropolitan centre, Fictionville, which is about forty-five minutes by car west of Truthville. Sleepy Fox is 350 meters wide (east-west) and 500 meters deep (south-north). Its northern boundary is at the southern shore of Lake Dothebestyoucan, which extends further northwards. The great attraction at the northern shore of Dothebestyoucan is Doubtville, a small but thriving town about six minutes by speedboat and an hour by rowboat from Sleepy Fox. Docking facilities at Doubtville, however, are scarce, privately owned, and thus costly to use, except for Jane Goodall’s small private dock, suitable to handle rowboats, as well as moderately sized speedboats. Peter was a close friend of Jane’s. She never minded him using her dock whenever he made the more or less frequent speedboat (or occasionally even rowboat) trek to Doubtville, whether to pick up or drop off clients, or just to visit or do housekeeping errands in Doubtville. She was very fond of Peter and his work. She is a very friendly and open-hearted person. Lake Dothebestyoucan is not the only way one can access Sleepy Fox. One can also access Sleepy Fox by land directly from The Way of Despair using an unpaved narrow road along the western edge of the property. The unpaved road runs along the entire property, ending at the Sleepy Fox dock on Lake Dothebestyoucan. One of the most charming features of Sleepy Fox is a small forest right in the middle of the property, extending from the eastern to the western boundary, and about 50 meters south-north, from about 225 meters from the southern boundary to about 225 meters from the northern boundary. This forest was essential to Peter’s nature-walk psychotherapy practice. Peter died in January of 2005. At that point Sleepy Fox was worth around $1.3 million. Peter’s will provided as follows:

1. I leave the northern half of Sleepy Fox to Bruce but only for so long as he practices psychotherapy.

2. I leave the southern half of Sleepy Fox to Gillian, but if she does anything on or to the land inconsistent with the healing spirit of Sleepy Fox, Bruce shall become entitled to her half.

3. If either Bruce or Gillian wish to sell their half of Sleepy Fox, he or she must first offer his or her sibling a chance to buy his or her half at fair market value.

4. I leave any and all other interests to Gillian.



Things went well between Bruce and Gillian in the period immediately following Peter’s death. Bruce continued developing his psychotherapy practice on Sleepy Fox. Gillian used Sleepy Fox as a weekend and holiday retreat, during which she would truly treasure outings to Doubtville, more often than not with Bruce keeping her company. The proportion of Bruce’s clients that came from Doubtville increased over the years but, like his father’s practice, the lion’s share of Bruce’s practice came from Truthville and, mostly, from Fictionville. The forest remained part and parcel of Bruce’s practice, so much so that Gillian never wondered onto the forest, except when she crossed it by car to reach the dock to go to Doubtville. In fact, both Bruce and Gillian have always regarded the forest as part of Bruce’s half anyway. If Gillian ever considered this, she generally wound up dismissing it from her mind by saying to herself that her Dad had always worried more about Bruce than about her. She was the capable one. In retrospect, trouble began sometime toward the end of 2009, about five years after Peter died. Bruce’s practice had been growing, it is true, but he had become suddenly disillusioned with psychotherapy. Truth be told, he had always had doubts about psychotherapy, and these doubts grew in intensity when his father died. Bruce had never really felt he had his father’s talent or appetite for in-depth exploration of the psyche. As early as January of 2007, Bruce had already began changing what he offered his clients, moving progressively away from seeking to facilitate insight and/or (self-)knowledge for his clients, towards practices that emphasized physical well-being, stress-management, disciplined exercise, relaxation, healthy dieting, and unity with nature. Of course, this increased Bruce’s use of the Sleepy Fox forest as a healing space quite significantly. In fact, as of late November 2009, Bruce had incorporated animals, particularly horses, into his stress-management and stress-reduction practices, in a by now successful and popular venture to add horseback riding to the nature-walk outings. With the safety of the horses in mind, Bruce set up a fence, about four feet high, across Sleepy Fox at the southern boundary of the Sleepy Fox forest. He also installed a gate, always left unlocked, at the point where the fence intersected with the unpaved road running along the western edge of Sleepy Fox. There can be no doubt that, throughout these developments, Bruce continued to think of himself as a practitioner addressing psychic distress in a variety of forms. By late 2009, however, very few, if any, of Bruce’s clients would have regarded themselves as doing psychotherapy. Some were even slightly disdainful of traditional psychotherapy, as if looking into one’s past, and into childhood experience in particular, were a meaningless exercise at best devoid of therapeutic value. The romance of using Sleepy Fox as a weekend and holiday retreat exhausted itself for Gillian not too long after her father died. She did enjoy her trips to Doubtville whenever she spent time at Sleepy Fox, but the whole thing was getting somewhat boring and stagnant for a busy and innovative entrepreneur like herself. She respected Bruce’s projects, and, like her father, worried more than a little about Bruce, but she also had an incessant and gnawing feeling that Sleepy Fox, or at least her own half of Sleepy Fox, could be used more profitably. Finally, after many years of patient silence, Gillian decided to take action in late 2018. After consulting a lawyer regarding her rights in Sleepy Fox, she developed plans to turn her half into a highly exclusive high-end boutique restaurant attached to a luxury getaway venue offering the usual amenities, including a small Golf course and golfing lessons for corporate executives, and the option to travel leisurely by boat to and from Doubtville. While small, the Golf course would nonetheless require razing her half of the forest on Sleepy Fox to the ground. Still, Gillian’s was not a large-scale venture, as she envisioned very few high-paying guests. Bruce was absolutely scandalized when he heard of Gillian’s plans. He told her that her plans were clearly inconsistent with their father’s vision for Sleepy Fox, and that he would never allow her or her guests to use his land or the dock on his land to reach Doubtville by water. Angrily, Bruce locked the gate that is at the point where the fence at the southern boundary of the forest intersects with the unpaved road running along the western edge of Sleepy Fox. For her part, Gillian was stunned by his negativistic attitude. Also angrily, she replied that she had consulted a lawyer and that she would not be allowing him or his clients to access Sleepy Fox from the highway using the unpaved road.



Matters have not been helped by the fact that, just yesterday, Gillian forced the locked gate open and took some prospective investors for her luxury getaway venture all the way to the dock on Sleepy Fox using the unpaved road, and then on to Doubtville by speedboat. What truly offended Bruce is that Gillian stopped somewhere along the road and took the investors for a short walk in the forest. During that walk, she tripped on a metal box buried under some wet leaves. The box contained $650 thousand in cash. No one has any idea where the money came from, and Gillian claims that, so long as that remains the case, the cash is hers. In fact, she has suggested to Bruce that if he wants to part with his half of Sleepy Fox, she would just hand him the cash. Bruce just walked into your office seeking legal advice. Please write a memo describing his legal position.



Question 2 (1 hour – 30% of exam grade) In Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd., the Court (SCC) states: “A common characterization of the problem in this appeal is whether it is to be resolved according to the law of property or according to the law of contract; but, in my opinion, this is an over-simplification.” Discuss. *** THE END ***

Table of Contents

Volume One

CHAPTER ONE: POSSESSION AND TITLE AT COMMON LAW (a) Introduction: What is Possession? ................................................................................................ 1

Pierson v. Post (1805) 3 Cai. R. 175 .............................FOX............................................................. 2

Clift et al. v. Kane et al (1870) 5 Nwfld L.R. 327 ............SEALS...................................................7

The Tubantia [1924] All ER 615 (Pr. & Ad. Div.) .........SHIPWRECK...................................... 15

Popov v. Hayashi (2002) WL 31833731 .........BASEBALL............................................................. 21

(b) Finders: General Principles .......................................................................................................... 31

Armory v. Delamirie (1722) 93 E.R. 664 ............CHIMNEY SWEEP......................................... 32

Keron v. Cashman et al., 33 A. 1055 (N.J. Chancery 1896) .......SOCK.................................. 33

Note ............................................................................................................................................................ 35

(c) Finders and Occupiers .................................................................................................................... 36

Parker v. British Airways Board, [1982] 1 QB 1004 (C.A.) .......BRACELET........................ 37

(d) Finders and Illegality ...................................................................................................................... 55

(e) Adverse Possession of Land: Introduction ............................................................................... 58

Merrill, "Property Rules ......and Adverse Possession" (1985) 79 Northwestern University Law Review 1122 .................................................................................................................................... 62

(f) Adverse Possession: The “Quality” of Possession ............................................................. ....74

Re St. Clair Beach Estates v. MacDonald (1974), 50 D.L.R. (3d) 650 (Ont. Div. Ct.)…...................................................................CHERRY PICKING.....................................…...76 Mendes da Costa and Balfour, Property Law (Toronto, 1982) ................................................ ..80

Re Lundrigans Ltd. and Prosper et al. (1982), 132 D.L.R. (3d) 727 (Nfld. C.A.)…CABIN...82

Notes……………………………………………………………………………………………………....84

−i−

Beaudoin v. Aubin (1981), 125 D.L.R. (3d) 277 (Ont. H.C.) .......STRIP OF LAND............. 85

(g) Adverse Possession and the Inconsistent Use Test: Judicial Repeal? .................... .... ...90

Masidon Investments v. Ham (1984), 45 O.R. (2d) 563 (C.A.) ...MAKESHIFT AIRPORT.. 90

Notes ................................................................................................................................................ ... ..... 98

(h) Retreat from the Inconsistent Use Test ......................................................................... . ..... ..101

Buckinghamshire County Council v. Moran [1989] 2 All E.R. 225 C.A. .LOCKED GATE..102

Teis v. Ancaster Town (1997), 35 O.R. (3d) 216 (C.A.)…......PARK LANEWAY……….127

Mutual Mistake or Unilateral Mistake .................................................................. ………….….... 134

Rose, “Possession as the Origin of Property” (1985) 52 University of Chicago Law Review 73 ............................................................................................................................................... ..136

CHAPTER TWO: BAILMENT

Heffron v. Imperial Parking Co. et al (1974), 3 O.R. (2d) 722 .......PARKING LOT.......... ..152

Fairley & Stevens (1966) Ltd. v. Goldsworthy (1973), 34 D.L.R. (3d) 554...JOYRIDE...161

Punch v. Savoy's Jewellers Ltd. et al. (1986), 54 O.R. (2d) 383……RING……..………......174

Taylor Estate v. Wong Aviation Ltd. [1969] S.C.R. 481 .......DEAD PILOT.......................... ..186

CHAPTER THREE: GIFTS

Cochrane v. Moore (1890), 25 Q.B.D. 57 ..................1/4 HORSE............................................. ...194

In re COLE, A BANKRUPT. Ex parte THE TRUSTEE OF THE PROPERTY OF THE BANKRUPT. [No. 486 of 1961] ………"IT'S ALL YOURS!"…………………………………..215

Kooner v. Kooner, [1979] B.C.J. No. 84 .......SHIFTY GRANDPA............................................ ...235

Brown v. Rotenberg et al. [1946] O.R. 363-376 .......PASSPORT............................................. ...239

Re Zachariuc; Chevrier v. Public Trustee, (1984) 16 E.T.R. 152 (Ont. Dist. Ct.) ..LITTLE JIG..246

CHAPTER FOUR: THE NATURE OF PROPERTY

Moore v. The Regents of the University of California et al. (1990) 793 P.2d 479...SPLEEN...251

−ii−

International News Services v. Associated Press 248 U.S. 215 (1918) ...NEWS................ .287

Notes ......................................................................................................................................................... 307

Victoria Park Racing and Recreation Grounds Ltd. v. Taylor [1937] HCA 45…RACETRACK... 310

Stewart v. The Queen (1988), 50 D.L.R. (4th) 1 (S.C.C.) ...LIST OF EMPLOYEES............ 334

Notes ......................................................................................................................................................... 348

Caratun v. Caratun (1992), 42 R.F.L. (3d) 113 (Ont. C.A.) ..DENTAL LICENSE............ 349

Notes ......................................................................................................................................................... 359

Saulnier v. Royal Bank of Canada, [2008] 3 S.C.R. 166 .....FISHING LICENSE................ 360

Tsilhqot’in Nation v. British Columbia, 2014 SCC 4 ...ABORIGINAL TITLE.....................375

Volume 2

CHAPTER FIVE: THE RIGHT TO EXCLUDE

Harrison v. Carswell (1975), 62 D.L.R. (3d) 68 (S.C.C.) .......PICKETING............................. 1

Notes… ..................................................................................................................................................... 13

Cadillac Fairview Corp. v. R.W.D.S.U. (1989) 71 O.R. (2d) 206 (Ont. C.A.) .........................EATON CENTRE..................................................................................................15

T.W. Merrill, “Property and the Right to Exclude” ....................................................................28

CHAPTER SIX: INTRODUCTION TO THE COMMON LAW OF REAL PROPERTY - THE DOCTRINES OF TENURE AND OF ESTATES

(a) Introduction to Tenure and Estates .......................................................................................... 38

Gray, Elements of Land Law ............................................................................................................ 38

(b) Types of Estates: Gray, Elements of Land Law ................................................................... 41

R. Scane, Notes on Life Estates and Estates in Fee Tail .......................................................... 42

Note on Presumptions and Words of Limitation ........................................................................ 44

(c) Present and Future Interests ....................................................................................................... 46

−iii−

(d) Introduction to Conditional Estates ......................................................................................... 48

(e) Conditions Subsequent: Defeasible and Determinable

Re McColgan, [1969] 2 O.R. 152……DOCTOR..……………………………...……...50

(f) Conditions and Uncertainty………………………………………………………...56

Sifton v. Sifton, [1938] 3 All E.R. 435 (P.C. – Ont.) ..SEMESTER ABROAD...................... 57

Clayton v. Ramsden, [1943] A.C. 320 (H.L.) ......JEWISH PARENTAGE.............................. 63

Notes ......................................................................................................................................................... 79

(g) Conditions and Public Policy .................................................................................................... 80

Re Noble and Wolf, [1949] 4 D.L.R. 375 (Ont. C.A.) ....CONGENIAL COTTAGERS........ 81

Notes ......................................................................................................................................................... 97

Re Canada Trust Co. and Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321 (Ont. C.A.) ................................SCHOLARSHIP................................................................................... 98

Notes ......................................................................................................................................................... 107

Restraints on Alienation: General .................................................................................................. 113

Laurin v. Iron Ore Company of Canada (1977), 82 D.L.R. (3d) 634 (Nfld. S.C.T.D.) ……………EMPLOYEE HOUSING.……………………………........…………… .. ..….115

Stephens v. Gulf Oil Canada Ltd. et. al., (1975) 25 C.P.R. (2d) 64 (O.C.A.)........................................................................................................3-PARTY AGREEMENT...................................... 121

CHAPTER SEVEN: EASEMENTS

(a) Introduction…………………………………………………………………………………………129

(b) Characteristics of Easements ........................................................................................................130

In Re Ellenborough Park, [1956] 1 Ch. 131 (C.A.) .........PLEASURE GARDEN.....................131

Notes ...........................................................................................................................................................163

Positive and Negative Easements ......................................................................................................164

Phipps v. Pears, [1965] 1 Q.B. 76 (C.A.) ......WEATHER PROTECTION................................165

−iv−

(c) Creation by Express or Implied Grant

Express Grants and Reservations ...................................................................................................... 174

Implied Grants and Reservations ....................................................................................................... 174

Exceptions to the General Rules ........................................................................................................ 177

Wong v. Beaumont Property Trust, [1965] 1 Q.B. 173 (C.A.) ..CHINESE RESTAURANT..180

Sandom v. Webb, [1951] 1 Ch. 808 (C.A.) .....................BILLBOARDS....................................... 193

Barton v. Raine (1980), 114 D.L.R. (3d) 702 (Ont. C.A.) ..SHARED DRIVEWAY................ 219

Toronto-Dominion Bank v. Wise, 2016 ONCA 629……WATER ACCESS............………....224

Problems .................................................................................................................................................... 228

(d) Creation by Presumed Grant ........................................................................................................ 230

User as of Right ...................................................................................................................................... 232

Garfinkel v. Kleinberg, [1955] 2 D.L.R. 844 (Ont. C.A.) ......SHARED CHIMNEY.............. 234

(e) The Scope of Easements and Termination ............................................................................... 237

CHAPTER EIGHT: LANDLORD AND TENANT LAW – COMMERCIAL

Introduction to the Leasehold……………………………………………………………239

Leases and Licences………..……………………………………………………………239

Metro-Matic Services Ltd v Hulmann (1973), D.L.R. (3d) 326 (Ont. C.A.)..WASHING MACHINES...241

The Independence of Covenants…………………………………………………………246

From Property to Contract? Abandonment………………………………………………247

Goldhar v. Universal Sections and Mouldings Ltd. (1962), 36 D.L.R. (2d) 450 (Ont. C.A.)……………MAPLE LEAF PLASTICS.……………………………….......………...248

Highway Properties Ltd. v. Kelly, Douglas & Co Ltd. [1971] SCR 562………………...253

Notes………………………………SUPERMARKET.……………………….....………..259

−v−

A Tenant’s Obligation to Pay Rent and Landlord Remedies…………………………….263

Country Kitchen Ltd. v. Wabush Enterprises Ltd. et al. (1981), 120 D.L.R. (3d) 358 (Nfld. C.A.)……………………LOCK CHANGE.……………………………….....…………...266

Relief Against Forfeiture…………………………………………………………………271

Re Jeans West Unisex Ltd and Hung et al. (1975), 60 D.L.R. (3d) 446 (Ont. H.C.)..BAD TENANT..273

CHAPTER NINE: LANDLORD AND TENANT LAW - RESIDENTIAL TENANCIES

Introduction………………………………………………………………………………276

Security of Tenure………………………………………………………………………..278

Termination of Tenancies: Landlords’ Rights…………………………………………....279

Jaffer v. Sachdev (1989), 6 R.P.R. (2d) 86 (Ont. Dist. Ct.)………………………………280

Notes…………MISSISSAUGA SPACIOUS LIVING...……………………………………...282

Termination of Tenancies: Tenant Fault………………………………………………….285

Walmer Developments v Wolch (2003), 67 O.R. (3d) 246 (Div. Ct)……………………..290

Notes……………DISABLED TENANT…………………………………………………...292

Problem…………………………………………………………………………………...294

The Residential Tenancies Act, S.O. 2006, c. 17

Part I – Introduction………………………………………………………………………295

Part II – Tenancy Agreements …………………………………………………………...299

Part III – Responsibilities of Landlords………………………………………..…………301

Part IV – Responsibilities of Tenants……….……………………………………………304

Part V – Security of Tenure and Termination of Tenancies ……..………………………304

Part VII – Rules Relating to Rent………………………… ……..………………………323

Part XI – The Landlord and Tenant Board ……..……………………………..…………324

Part XII – Board Proceedings ……..………………………………………..……………324

−vi−

CHAPTER TEN: APPROPRIATION OF PERSONALITY

Krouse v. Chrysler Canada Ltd. (1973) 1 O.R. (2d) 225 ......"SUPERSTAR"......................... 326

Athans v. Canadian Adventure Camps Ltd. (1977) 80 D.L.R. (3d) 583 ...WATERSKI...... 334

Gould Estate v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (G.D.) ...PIANIST....... 343

Notes ........................................................................................................................................................... 347

CHAPTER ELEVEN: COPYRIGHT

Walter v. Lane, [1900] A.C. 539 (H.L.) ..............VERBATIM REPORT................................... ...349

CCH Canadian Ltd. and Others v. The Law Society of Upper Canada, [2004] 1 S.C.R.339 .........................................................PHOTOCOPY................................................................................. ...373

CHAPTER TWELVE: TRADEMARKS

Mattel, Inc. v. 3894207 Canada Inc., [2006] 1 S.C.R. 772 ...........BARBIE ............................. ...398

CHAPTER THIRTEEN: PATENTS

Diversified Products Corp. v. Tye-Sil Corp. (1991), 35 C.P.R. (3d) 350 (F.C.A.)….......................................................EXERCISE MACHINE….........................................................…....421

−vii−

university of toronto faculty of law page 1 of 5

Documents