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College Quarterly
Fall 2010 - Volume 13 Number 4
Property Relationships: A Guide to Canada’s Property Law (2nd edition)
Marjorie L. Benson, Marie-Ann Bowden, & Dwight Newman
Toronto: Thomson Carswell, 2008
Reviewed by Robert Tanha

While this legal text has been reviewed before, it has not yet (to my knowledge) been reviewed from a college instructor’s perspective. Having been required to utilize this text twice recently in teaching a real and personal property law course at the community college level, I can offer such a perspective.

As a starting point, the book, as it sets out to do in its preface, succeeds brilliantly in distilling “foundational understandings [of Canadian property law] with fidelity to history, doctrine, and principle” save for Quebec’s property regime (which the authors explicitly note is beyond the scope of the book). In each chapter, the historical underpinning of the relevant law is elucidated, and the old law is canvassed to the extent necessary for a student to come to a sufficient appreciation of the current law. For example, in Chapter 6, titled Bailment, the standard of care owed by a bailee in a bailment is traced from Roman law to English law to Canadian common law, and the categorical approach to standards of care set out in Coggs v. Bernard (1703), 91 E.R. 25 (Eng. K.B.) (the old law) is reviewed before the authors turn to present law, namely the modern approach which essentially does away with the aforementioned approach, adopting a contextual and flexible standard of “reasonable care in the circumstances.”

The book is remarkable in its ability to flesh out most of the relevant and important common law rules governing this area of the law in a highly concise, yet refreshing fashion. A great number of judicial decisions whose chief virtue lie in their capacity to illustrate the starting principles of Canadian property law, are reviewed inside of 208 pages – no easy feat. The small book (specifically in Part IV) also manages to provide a wealth of information on aboriginal property rights, including aboriginal title, a fast-growing and increasingly important area of Canadian property law.

The text accurately and candidly positions itself at the outset, as a “starting point” as opposed to an “end point of research” as it is not intended to be a comprehensive treatise on the subject. As an admission of this, and as an added value, the book provides a list of further reading which includes titles such as Bruce Ziff’s magisterial work on Canadian property law, Principles of Property Law.
Notwithstanding its numerous strengths, the book falls short of fully achieving one of its primary goals, namely ensuring “clarity and cohesiveness in understanding of Canadian property law”. This is because at too many points throughout the text it leaves too much unsaid and puts forward statements that lack the necessary supporting-organizational-structure.

Let’s consider a couple of examples.

In Chapter 11, “Tenures and Estates,” the authors identify four kinds of fee simple estates: the fee simple absolute, the fee simple determinable, the fee simple subject to a condition subsequent, and the fee simple subject to an executory limitation. While the authors correctly identify the fee simple subject to an executory limitation as a “qualified fee simple” estate, nowhere in the chapter do they actually define or explain this specific property interest which in no way can be said to be self-explanatory. Instead, the text merely introduces the estate, before stating that qualified fee simples (as a general matter) are “defeasible” in that the holder of such an estate may lose his or her interest upon the happening of some event.” The latter statement is somewhat misleading because it obfuscates the legal reality that not all qualified fee simple estates are “defeasible” in nature (Ziff, 2006, p. 225). In this regard, a brief discussion of property interests subject to a condition precedent would have been helpful.

In Chapter 3, “The Doctrine of Possession,” the authors end their discussion of possession with the bald statement that a party who becomes the involuntary custodian of someone’s goods, and who cannot demonstrate abandonment of property, is not without legal recourse in that he or she can “protect the chattel and employ self help to abate a trespass or nuisance, providing adequate notice has been given.” While this statement is “technically” a precise and succinct representation of the relevant law, and is accompanied by a case reference allowing for further exploration, the total absence of further explanation and illustration no doubt leaves many novice readers of the law scratching their heads.

If the time that has elapsed between the publication of the first two editions is any indication (eleven years), the text is also susceptible to the criticism that it lacks currency.  In fact, the state of the case law in some of the specific topical areas addressed may already be somewhat dated. For example, in the recent case of Tercon Contractors Ltd. v. British Columbia, 2010 SCC 4, 1 S.C.R. 69 the Supreme Court revisits the doctrine of fundamental breach of contract, a topic reviewed in Chapter 6 of the text albeit within the context of bailment law.

If the book wishes to be a resource which optimally facilitates the learning of Canadian property law amongst college students, revisions in line with my comments above are recommended.

Reference

Ziff, Bruce. (2006). Principles of Property Law (4th ed.). Toronto, ON: Thomson Canada Limited.


Robert Tanha teaches in the Law Clerk programs at Centennial College and at Seneca College in Toronto. He can be reached at robert.tanha@senecac.on.ca

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