Post by
undervalue on Nov 26, 2021 12:10pm
A win in Kanata
For the reasons that follow, I agree with ClubLink that the application judge erred in his analysis of ss. 5(4) and 9 of the 1981 Agreement. Specifically, the application judge erred in his determination that because the parties never intended the rights to the conveyances to “crystallize”, there was no intention to create an interest in land. In my view, when the correct legal principles are applied, in the context of all the Agreements, the plain language of ss. 5(4) and 9 creates a contingent interest in land. Sections 5(4) and 9 are therefore void and unenforceable as being contrary to the rule against perpetuities because the City’s right to call upon a conveyance of the golf course lands did not vest during the perpetuity period. I would therefore allow the appeal.
Comment by
undervalue on Nov 26, 2021 12:16pm
ClubLink submits that the application judge made several reversible errors. In my view, ClubLink’s first argument that the application judge erred in finding that ss. 5(4) and 9 of the 1981 Agreement are not void for perpetuities disposes of the appeal. It is therefore not necessary to consider the other issues.
Comment by
BlueHorseshoe90 on Nov 26, 2021 12:36pm
Nice win for us. On close reading I see that the appeal judge agreed that Sections 5 and 9 (which created the City's interest in the land) were invalid, but did not agree that those clauses were necessarily integral to the contract, as Clublink had argued. Therefore he declined to rule on the validity of the contract as a whole. So... maybe not a completely clean win?
Comment by
undervalue on Nov 26, 2021 12:51pm
Yes, I will wait to see what the legal experts think. The appeal court did not hand a clean win. They are going to have to either negotiate or further litigate. But, the odds were stacked against winning an appeal, and they are still in the game.