Boxrud v. Canada
T-1162-93
Joyal J.
4/12/96
13 pp.
Affixation-Reserve lands-Action against Crown for declaration plaintiffs owners of improvements to land (situated on Hustalen Indian Reserve No. 1, belonging to Adams Lake Indian Band) on which plaintiffs operate business, and that title to improvements do not revert to Crown on expiration of lease-In November 1968, Band surrendered parts of Reserve for purpose of developing and subdividing lands for sublease-Land leased for term of 20 years, subleased-Four-acre summer resort business, Indian Point Resort, set up thereon-Resort sold to Farquhars by way of assignment of sublease purporting to transfer all title to improvements to Farquhars-Farquhars sold Indian Point Resort to plaintiffs-Plaintiffs claim all title to improvements in turn transferred to plaintiffs-Assignment of sublease approved by Crown and registered-Plaintiffs made further improvements to land and continued using improvements and operating resort business after expiry of sublease-In 1993, rather than renegotiating sublease, parties agreed Crown would lease land directly to plaintiffs, with provision parties could seek declaration from Federal Court as to ownership of improvements (office/manager's residence complex, 11 rental cottages, "doll house", two docks and floating wharf, swimming pool-Plaintiffs claiming improvements chattels used for purpose of carrying on business, removable without injury to chattels or property, therefore not fixtures and property of plaintiffs-Crown contending improvements affixed in such way as to become property of Crown-Plaintiffs' claim allowed in part-Distinction between fixture and chattel extensively treated in British Columbia courts-Nature of property, position of parties, intent of improvements, various terms of lease, nature of venture must all be factored into equation-Economic considerations appropriate-Most buildings and structures constructed on property, except for office/ residence complex and inground swimming pool, easily removable and resulting in little residual disruption to land, therefore chattels and property of plaintiffs-Office/manager's residence and pool became part of land belonging to Band and surrendered to Crown-Plaintiffs entitled to 80% of taxed costs and disbursements.