Auld v. Scales

Auld v. Scales

The notice to quit was nugatory because it failed to state required circumstances under Order 108 s.16; s.24(2) preserves provincial remedies only to the extent provincial law provides a right to recover possession on the alleged breach, which was absent here; consequently the lease continued and the option to purchase remained exercisable and did not offend the Perpetuities Act because the owner could terminate the tenancy and destroy the option at law.

Citation
[1947] SCR 543
Parties
Appellant (defendant): Robert C. Auld; Respondent (plaintiff): Austin A. Scales
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 October 1947
Procedural Posture
Landlord and Tenant — Possession; Lease With Option to Purchase; Challenge Under Wartime Rental Regulation and Perpetuities Law / Appeal to the Supreme Court of Canada From the Supreme Court of Prince Edward Island (in Banco)
Outcome
Appeal allowed.
Legal Topics
Lease Interpretation, Option to Purchase, Wartime Prices and Trade Board Order No. 108, Notice to Quit, Rule Against Perpetuities, Perpetuities Act (p.e.i.)
Source Language
English
Property Landlord and Tenant Law Administrative Law Contract Law Equity Lease Interpretation Option to Purchase Wartime Prices and Trade Board Order No. 108 +3 more

Case Brief

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Parties

Robert C. Auld

Appellant (defendant)

Austin A. Scales

Respondent (plaintiff)

Procedural Posture

Landlord and Tenant — Possession; Lease With Option to Purchase; Challenge Under Wartime Rental Regulation and Perpetuities Law / Appeal to the Supreme Court of Canada From the Supreme Court of Prince Edward Island (in Banco)

Legal Issues

  1. 1 Whether notice to quit complied with Order 108 (s.16) and thus valid to terminate tenancy and option
  2. 2 Whether breach of covenant (assignment without leave) under s.24(2) of Order 108 removes the lease from the Order and allows provincial remedies
  3. 3 Whether an option to purchase exercisable during the continuance of a year-to-year tenancy offends the rule against perpetuities / Perpetuities Act

Ratio Decidendi

The notice to quit was nugatory because it failed to state required circumstances under Order 108 s.16; s.24(2) preserves provincial remedies only to the extent provincial law provides a right to recover possession on the alleged breach, which was absent here; consequently the lease continued and the option to purchase remained exercisable and did not offend the Perpetuities Act because the owner could terminate the tenancy and destroy the option at law.

Court Disposition

Appeal allowed.

Orders

  • Appeal allowed with costs to appellant (costs here and below)