Liquor Barn Income Fund v. Mather

Liquor Barn Income Fund v. Mather

The applicants failed to prove that the hardship and inconvenience they alleged was caused by the registration of the CPLs rather than by the litigation itself; because s.256's hardship requirement was not established, s.257 relief could not be granted and the application to cancel the CPLs was dismissed. The Court also found the plaintiffs' constructive trust claim could not be shown to be frivolous or hopeless so inherent jurisdiction relief was not available.

Citation
2009 BCSC 1092
Parties
Plaintiffs: Liquor Barn Income Fund; Liquor Barn Operating Trust; Liquor Barn Limited Partnership; Liquor Barn GP Inc.; Defendants: John Mather; Jeff Wong; Floyd Becker; John Robert Owen; Liquor Town Devco Ltd.; 0774998 B.C. Ltd.; R & G Hospitality Ltd.; 1286945 Alberta Ltd.; Jolly Hospitality Ltd.; Oak and Carriage Hospitality Ltd.; Ladysmith Hospitality Ltd.; Lantzville Hospitality Ltd.; F.J.P. Hospitality Ltd.; F.J.P. Jolly Hospitality Ltd.; F.J.P. Lantzville Hospitality Ltd.; F.J.P. Oak & Carriage Hospitality Ltd.; F.J.P. Gun Hospitality Ltd.; F.J.P. Ladysmith Hospitality Ltd.; Stewart Johnston Law Corporation; W. Stewart Johnston; Danielle Topliss
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 August 2009
Procedural Posture
Application to Cancel or Secure Certificates of Pending Litigation Under the Land Title Act / Chambers Application Decision (reasons for Judgment)
Outcome
Application dismissed for failure to establish hardship and inconvenience caused by the CPLs; s.256 threshold not met so s.257 relief denied
Legal Topics
Certificate of Pending Litigation, Constructive Trust, Security for Damages, Land Title Act Ss.256 257, Hardship and Inconvenience Threshold, Inherent Jurisdiction
Source Language
English
Property Law Equity Civil Procedure Certificate of Pending Litigation Constructive Trust Security for Damages Land Title Act Ss.256 257 Hardship and Inconvenience Threshold +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Liquor Barn Income Fund; Liquor Barn Operating Trust; Liquor Barn Limited Partnership; Liquor Barn GP Inc.

Plaintiffs

John Mather; Jeff Wong; Floyd Becker; John Robert Owen; Liquor Town Devco Ltd.; 0774998 B.C. Ltd.; R & G Hospitality Ltd.; 1286945 Alberta Ltd.; Jolly Hospitality Ltd.; Oak and Carriage Hospitality Ltd.; Ladysmith Hospitality Ltd.; Lantzville Hospitality Ltd.; F.J.P. Hospitality Ltd.; F.J.P. Jolly Hospitality Ltd.; F.J.P. Lantzville Hospitality Ltd.; F.J.P. Oak & Carriage Hospitality Ltd.; F.J.P. Gun Hospitality Ltd.; F.J.P. Ladysmith Hospitality Ltd.; Stewart Johnston Law Corporation; W. Stewart Johnston; Danielle Topliss

Defendants

Procedural Posture

Application to Cancel or Secure Certificates of Pending Litigation Under the Land Title Act / Chambers Application Decision (reasons for Judgment)

Legal Issues

  1. 1 Whether applicants (registered owners) established hardship and inconvenience caused by registration of CPLs under s.256(1)(b)
  2. 2 Whether s.257 relief (cancellation, undertaking or security) can be ordered absent a finding of hardship and inconvenience
  3. 3 Whether the Court's inherent jurisdiction permits discharge of CPLs where the plaintiff's claim has no chance of success

Ratio Decidendi

The applicants failed to prove that the hardship and inconvenience they alleged was caused by the registration of the CPLs rather than by the litigation itself; because s.256's hardship requirement was not established, s.257 relief could not be granted and the application to cancel the CPLs was dismissed. The Court also found the plaintiffs' constructive trust claim could not be shown to be frivolous or hopeless so inherent jurisdiction relief was not available.

Court Disposition

Application dismissed for failure to establish hardship and inconvenience caused by the CPLs; s.256 threshold not met so s.257 relief denied

Orders

  • Application to cancel Certificates of Pending Litigation dismissed
  • Applicants permitted to renew application on grounds of hardship and inconvenience if facts change