Executive Summary: Key Legal and Evidentiary Issues

• Montaigne Group Ltd. claims a contingent equitable interest in the fourth-floor "Montaigne Amenity Space" under a joint venture agreement with St. Alcuin College, which was terminated by the College over alleged breaches.

• Specific performance was ruled unavailable by the Court of Appeal because it would impose obligations on Alcuin not contemplated in the contract and require unsupervisable court involvement in stratification preconditions.

• The College's repeated applications to cancel the certificate of pending litigation on hardship grounds were denied across three separate hearings, as the evidence of financial hardship remained insufficient or was undermined by Alcuin's own litigation strategy contributing to construction delays.

• Conflicting evidence exists regarding the scope and cost of remaining construction needed before stratification can occur, with estimates ranging from $300,000–$400,000 (Montaigne) to over $9.5 million (the College).

• Under the JVA's termination clause (Section 5.3.1), Montaigne retains its right to the Amenity Space post-termination given that more than 180 days elapsed since execution; however, it remains uncertain whether Alcuin was entitled to terminate and whether the termination was "as a result of reputational risk."

• An incremental security for costs order of $50,000 was granted against Montaigne in the second decision, while the third decision declined to require Montaigne to post security for damages, finding its proprietary claim arguable and not frivolous.

The joint venture and the proposed new campus
In or about 2017, St. Alcuin College for the Liberal Arts Society ("Alcuin"), an independent school in North Vancouver, owned lands at 300 W. Esplanade St. and 63 Mahon Avenue and had conditional approval from the City of North Vancouver to construct a three-storey school. Ryan Deakin, the principal of Montaigne Group Ltd. ("Montaigne") and a parent of students at the College, became aware that the College was seeking a builder. The lands were zoned for "assembly use," which could support an event space — an opportunity that interested Mr. Deakin. He proposed that the parties collaborate to secure approval for a four-storey building that would serve both parties' interests.
In December 2020, Montaigne and Alcuin entered into a joint venture agreement (the "JVA"), under which Montaigne would construct a four-storey building on the lands. The building would be stratified so that the first three storeys belonged to the College for school use, and the fourth storey — the "Montaigne Amenity Space" — would belong to Montaigne. Both parties' counsel acknowledged the JVA was "interesting," "unusual," and "unique."

Key contractual provisions
The JVA contained several provisions central to the dispute. Under Section 4.1, Montaigne's sole remuneration as managing venturer was to be the right, title, and interest associated with the Montaigne Amenity Space, if approved by the City, subject to any other terms in the JVA. Recital F described the Amenity Space as "consideration for [Montaigne's] highly competitive build cost." Multiple sections — including Sections 3.1, 3.4, 3.11, 3.15.2, 9.2, and 9.5 — imposed mutual cooperation obligations, requiring the parties to "do all things necessary proper or advisable" to pursue the aims of the JVA and "to do all things necessary to permit Montaigne to stratify the Montaigne Amenity Space."
Of particular importance was Section 5.3.1, the termination clause. It provided that if Montaigne was in material breach and Alcuin terminated the JVA, Montaigne would have no recourse to the Amenity Space if termination occurred within 180 days of execution. However, if termination occurred after 180 days, Montaigne would retain its right to the Amenity Space, subject to Alcuin's right of first refusal. A separate provision addressed termination for "reputational risk," under which Alcuin could refuse to subdivide the Amenity Space, retain possession, and complete the build-out at Montaigne's cost. The JVA also contemplated that Alcuin would pay Montaigne $6.8 million for construction. The project suffered cost overruns — Alcuin attributed these to Montaigne's breaches, while Montaigne contended they resulted from extra-contractual demands by Alcuin.

Termination and litigation
Montaigne obtained consent from the City to upzone the lands for the fourth floor. On April 17, 2023, Alcuin terminated the JVA on the basis of alleged breaches by Montaigne. The termination occurred more than 180 days after the JVA was executed, meaning that under Section 5.3.1, Montaigne maintained it retained rights to the Amenity Space. Montaigne commenced an action seeking a mandatory injunction or, in the alternative, specific performance requiring Alcuin to take all necessary steps to stratify the Amenity Space and transfer title. On April 26, 2023, Montaigne filed a notice of civil claim and registered a certificate of pending litigation ("CPL") against title to the lands. The CPL was subsequently replaced by a new one on May 15, 2023, registered on the strength of amended pleadings.

The first CPL cancellation application (2023 BCSC 1257)
Alcuin first applied to cancel the CPL before Justice Majawa, arguing that Montaigne did not have a viable claim for an interest in the lands and, alternatively, that the CPL should be cancelled on the basis of hardship and inconvenience. Majawa J. dismissed both arguments, finding that it was not plain and obvious that Montaigne's specific performance claim would fail at trial. He accepted the uniqueness of the Montaigne Amenity Space and found a triable issue as to whether damages would provide an adequate remedy. Majawa J. also found the College's evidence of financial hardship — particularly regarding Vancity Savings Credit Union's reluctance to advance further funds — to be vague and conclusory, with no supporting letters from the bank appended. He ordered Montaigne to provide an undertaking as to damages, which Montaigne had not furnished as of the time of the second application.

The second decision — Justice Gottardi (2025 BCSC 68)
Alcuin brought a second application before Justice Gottardi, seeking summary judgment under Rule 9-6(4), cancellation of the CPL under sections 254, 256, and 257 of the Land Title Act, and security for costs under section 236 of the Business Corporations Act. This application represented the College's second attempt to remove the CPL.
On the summary judgment application, the College argued that specific performance could never be ordered where further construction was required, relying on the CareVest and bcIMC line of cases. Montaigne countered with the Supreme Court of Canada's decision in Dynamic Transport, arguing that a contract for a portion of land not yet subdivided is enforceable and that a CPL is properly registered over the whole of the subject land pending creation of distinct title. Justice Gottardi agreed with Montaigne that the CareVest and bcIMC cases were factually and legally distinct from the JVA. The JVA's extensive cooperation clauses and the parties' express intention that Montaigne hold a proprietary interest in the Amenity Space post-termination created a materially distinct factual matrix that required determination at trial. The court also found conflicting evidence on the extent of construction needed for stratification: the College's expert estimated several million dollars, while one of Montaigne's principals, Daniel Duval, estimated only $300,000 to $400,000. Summary judgment was therefore dismissed.
On the hardship application, the College provided additional evidence including affidavit testimony from Vancity's account manager, Ricardo Saenz-Saldana, confirming that the bank would not advance further funds while the CPL remained on title, and from Stella Ablett, head of school, regarding difficulties retaining and recruiting students. Justice Gottardi acknowledged that the evidentiary record was more developed than before Majawa J. but still found it fell "markedly short." The lender's own evidence indicated comfort with rolling over the existing financing every three months. The College's financial statements showed an annual profit of $1.5 million, and the court found insufficient evidence that the College could not self-finance a smaller amount of construction to reach the stratification threshold. Claims regarding lost student revenue were deemed vague and speculative. The court also considered that the College's own strategic litigation choices — including a delay of over a year — contributed to the alleged hardship. The hardship application was dismissed.
On the security for costs application, the court found that Montaigne owned no real property in British Columbia, had no registered security interests, and had failed to pay numerous contractors. The College established a prima facie case that Montaigne would be unable to pay costs if unsuccessful. Montaigne failed to present evidence of its financial capacity or argue hardship. However, the court took into account the significant overlap between Montaigne's claim and the College's recently filed counterclaim, reducing the requested amount. Justice Gottardi ordered Montaigne to post incremental security for costs totalling $50,000 — an initial $25,000 to be paid into court with the action stayed until posted, and a further $25,000 payable four weeks before any scheduled trial date. As success in the hearing was divided, each party was ordered to bear its own costs.

The appeal (2025 BCCA 370)
Alcuin appealed Justice Gottardi's decision. The Court of Appeal upheld the conclusion that the CPL should not be cancelled but disagreed with the lower court's finding that specific performance remained an available remedy. The Court of Appeal held that specific performance was not available because any such order would impose obligations on Alcuin not contemplated in the contract, and the court would be unable to supervise and force agreement on the rules contemplated as a precondition to stratification. However, the Court of Appeal recognized that Montaigne held a contingent equitable interest in the Montaigne Amenity Space — contingent upon construction reaching the point of subdivision and upon Alcuin actually subdividing and stratifying the property. It concluded that it was not manifestly clear the claim was bound to fail. The appeal was allowed only to a very limited extent, granting Alcuin liberty to apply again in the Supreme Court on fresh materials.

The third decision — Justice Walker (2026 BCSC 499)
Alcuin brought a third application before Justice Walker, armed with fresh evidence of worsening hardship. By this time, despite the CPL, Alcuin had managed to proceed with construction to the extent its finances allowed. From June 2024 to June 2025, the College spent over $1,000,000 on concrete remediation. In May 2025, it obtained a $3,700,000 quote for Phase 1 construction — work to complete the building's structure and envelope — which commenced in August 2025 and was expected to be completed by May 2026. To finance this work, Alcuin exhausted all available cash, obtained $1,300,000 in private unsecured loans from parents and family members, and cashed out investments held on account of repayable debentures. A parent committed to fund any shortfalls. The College was also incurring $47,000 per month in interest payments. Further construction beyond Phase 1 was expected to cost at least $5,000,000, which Alcuin could not fund with the CPL in place.
Alcuin argued that the legal and factual landscape had fundamentally changed. Specific performance had been ruled unavailable by the Court of Appeal, so the heightened "plain and obvious" standard should no longer apply. Instead, Alcuin need only show more than "trifling" hardship. Montaigne countered that even though the claim was no longer framed as one for specific performance, cancellation of the CPL would effectively predetermine its proprietary claim, warranting continued application of the heightened standard.
Justice Walker found that Montaigne's claim to the Amenity Space remained strong. Under the JVA's provisions, even if Alcuin's termination was lawful, Montaigne appeared entitled to the Amenity Space because more than 180 days had elapsed since execution and it was uncertain whether the termination was "as a result of reputational risk." The court noted that Phase 1 completion — expected by May 2026 — would bring the building to the point of stratification, at which point the contingency identified by the Court of Appeal would be realized and the obstacles to specific performance would no longer exist. The court was not satisfied that damages would provide an adequate remedy, accepting evidence of the Amenity Space's uniqueness and noting that if the CPL were removed, Alcuin would encumber the entire property with further financing, effectively foreclosing Montaigne's ability to realize its contractual rights.
On the hardship issue, Justice Walker acknowledged that Alcuin had provided better evidence than in previous applications but concluded that, in the unique circumstances of the case, the financing obtained was sufficient to construct the building to the point of stratification. The court also accepted that Alcuin's own litigation strategy — particularly the erroneous position that Montaigne's amended notice of civil claim had not been served, which forced Montaigne to bring a successful application before Justice Warren in June 2024 — contributed to the construction delays. The hardship application was dismissed. On the question of Montaigne posting security for damages, Justice Walker declined to require it, reaching the same conclusion as Justices Majawa and Gottardi: security need not be posted where the claim is arguable and not frivolous on its face.

Ruling and outcome
Across all three decisions and the intervening appeal, Montaigne successfully defended the CPL against every challenge. Alcuin's application to remove the CPL was dismissed for the third time by Justice Walker, and Montaigne was awarded its costs of the third application in the cause. The trial of the action is set to be heard in January 2027, along with a separate action against Montaigne and Concost Consultants. The only monetary order made against Montaigne across all proceedings was the incremental security for costs of $50,000 ordered by Justice Gottardi in the second decision. No exact monetary award was made in favour of either party on the merits of the underlying dispute, as the matter remains to be determined at trial.