** HIGHLIGHTS **

  • The British Columbia Court of Appeal has summarized the law of British Columbia regarding fixtures in a case concerning blueberry bushes which had been planted by former tenants, and which had been allegedly converted by a landlord contrary to the provisions of a lease which had been surrendered. The Court concluded the subjective intentions of the parties as expressed in the lease was not relevant. In determining whether property is a fixture, the intention of the parties must be considered objectively. The blueberry bushes were clearly affixed with the land with the objective intent that the plants could yield marketable crops. Notwithstanding the terms of the Lease, they were fixtures. The former tenants did not have a claim for breach of the lease as their lease had been surrendered and their rights had been transferred to a new tenant who entered into the new lease with the landlord. Only the new tenant could sue for damages. (Scott (c.o.b. Oldfield Orchard) v. Filipovic, CALN/2015-022, [2015] B.C.J. No. 2074, British Columbia Court of Appeal)
  • A Justice of the British Columbia Court of Appeal dismissed an application for the stay of proceedings to pay a judgment for party and party legal costs on the grounds that the Farm Debt Mediation Act had not been complied with. The Justice did so on the grounds that the applicant had not pled or argued the applicability of the Act before the Court below; that the applicant had not established he was an insolvent farmer within the meaning of the Act; and that the applicant had made no attempt to initiate the process contemplated under the Act through an application to an administrator for mediation. The Justice observed that the Act could only be engaged where the creditor was a secured creditor, but did not dismiss the application on this ground because it was not fully argued before her. [Editor's note: This decision is the latest of a number of recent British Columbia decisions which have not declared void proceedings which have not complied with the Act, if farmers do not promptly raise arguments concerning non-compliance, and do not promptly take proceedings to seek mediation. It is unlikely that the Act would have applied in this case, in any event, as a claim for taxable costs is not a claim made by a secured creditor.]. (Denman Island Local Trust Committee v. Ellis, CALN/2015-023, [2015] B.C.J. No. 2054, British Columbia Court of Appeal)

To read this NetLetter in full, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.