If necessary, the court said that it would apply the exceptions to the rule prohibiting third party enforcement of a contract and allow the Browns to enforce the drainage agreement when they so clearly fell within the category of persons who were intended to have its benefit.
The Court of Appeal considered one further objection of Belleville, namely, that the Browns were using the 1953 agreement as a sword – to bring an action and positively enforce rights – rather than as a shield – or as a defence.
The language of the enurement clause unequivocally confirms that the contracting parties intended and agreed that the benefit of the Agreement would extend to an aggregation or class of persons that includes successor landowner of Mr. On the admitted findings of the motion judge, the Browns are Mr. In this sense, the Browns are not strangers or ‘third parties’ to the Agreement.
Rather, …given the intention of the contracting parties stipulated in the Agreement under the enurement clause, I conclude that ‘relaxing’ the doctrine of privity in this case does not frustrate the reasonable expectations of the parties at the time the Agreement was formed.
To the contrary, it gives effect to them.” Belleville relied upon a 1980 decision of the Supreme Court of Canada in Greenwood Shopping Plaza.
It said that that decision precluded the Browns from relying on the 1953 agreement to which they were not a party.Nonetheless, it is my view that the Browns’ status as the successors of the original covenantee under the Agreement affords them the right to seek to enforce the original covenantor’s contractual obligations, as against the original covenantor. Sills’s successors, the Browns stood ready to comply with the activity required of them under the Agreement- the provision of access to their lands.In all these circumstances, the application of the principled exception to the privity rule advances the interests of justice.” (emphasis added Analysis The Brown v.In the modern cases in the Supreme Court recognizing the rights of third parties to rely on contract they had not signed, those third parties were asserting the contract as a defence.The Court of Appeal held that this distinction made no difference in the presence of the enurement clause: “I recognize that London Drugs and Fraser River were cases where the third-party beneficiaries sought to rely, by way of defence, on the benefit of the contractual provisions at issue to resist claims brought against them – they were not seeking to enforce the affirmative benefit of the relevant contractual provisions…..The Court of Appeal held that, in light of more recent decisions of the Supreme Court, the Greenwood case had been largely over-ruled.In any event, having regard to the enurement clause, the prohibition against third party enforcement of the agreement had little or no application.The court stated it this way: “…the broad and unqualified language of the enurement clause constitutes an express stipulation by the contracting parties that they intended the benefit of the Agreement to be shared by future owners of Mr.Sills’s lands, as his successors or assigns or by way of inheritance.Six years later, the municipality stopped maintaining and repairing the drainage system.Over the next 50 years, the original municipality and successor municipality clearly and repeatedly repudiated the agreement.