Heritage Capital Corporation v. Equitable Trust Company, et al.

(Alberta) (Civil) (By Leave)


Property - Personal property security, Real property, Covenants, Contracts, Interpretation.


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Municipal law - Historical resource designation - Personal property security - Real property - Covenants - Contracts - Interpretation - Standard of review - City adopting by-law designating building as historical resource - City entering into agreement with owner providing for rehabilitation work and for yearly payments to owner over several years - Building sold - Whether the Court of Appeal incorrectly distinguished Creston Moly Corp v. Sattva Capital Corp., 2014 SCC 53, and improperly applied a correctness standard of review to the lower court’s interpretation of the incentive agreement and the judicial sale agreement - Whether s. 29 of the Historical Resources Act, R.S.A. 2000, c. H-9 abolishes the common law rule that positive covenants do not run with the land so that the City’s positive covenant to pay the incentive payments runs with the land, and that the subsequent owner of the building can enforce that positive covenant against the City and take the compensation away from the former owner, the party contractually and statutorily entitled to it - Whether the subsequent owner can defeat the appellant’s priority position as the first to register its assignment under the Personal Property Security Act, R.S.A. 2000, c. P-7.

In July 2004, the City of Calgary adopted a by-law designating the Lougheed Block, an older building of historical interest in downtown Calgary, as a municipal historical resource. The owner of the building entered into an agreement with the City setting out the parameters for rehabilitation work and providing for compensation from the City in the form of yearly payments over 15 years. The agreement was registered on title by caveat, which referred to the agreement and attached a copy of it. In 2010, the Lougheed Block was sold through judicial sale, the owner having defaulted on loan payments. In the course of the closing of the transaction, a dispute arose in respect of the payments from the City under the agreement. The owner applied to a Master in Chambers for a declaration to the effect that its right to the City’s payments was not included in the sale of the Lougheed Block to the purchaser. The Master allowed the application and granted the requested declaration. On appeal by the purchaser, the chambers judge agreed with the Master’s conclusion. The majority of the Court of Appeal allowed the appeal, holding that the purchaser was entitled to the payments due under the agreement from and after the date of the sale to it of the Lougheed Block.