0640453 B.C. Ltd. v. Tristar Communities Ltd.

2018 BCCA 460 0640453 B.C. Ltd. v. Tristar Communities Ltd.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: 0640453 B.C. Ltd. v. Tristar Communities Ltd., 2018 BCCA 460 Date: 20181204 Docket: CA45176 Between: 0640453 B.C. Ltd. Appellant (Plaintiff) And Tristar Communities Ltd. Respondent (Defendant) Before: The Honourable Madam Justice Garson The Honourable Madam Justice Dickson The Honourable Mr. Justice Hunter On appeal from: An order of the Supreme Court of British Columbia, dated March 12th, 2018 (0640453 B.C. Ltd. v. Tristar Communities, 2018 BCSC 384, Vancouver Docket S13693). Counsel for the Appellant: P.D. Le Dressay P.E. Waldkirch Counsel for the Respondent: S. Hern Place and Date of Hearing: Vancouver, British Columbia October 9, 2018 Place and Date of Judgment: Vancouver, British Columbia December 4, 2018 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Madam Justice Dickson The Honourable Mr. Justice Hunter Summary: The appellant appeals from an order dismissing its claim following a summary trial. The parties entered into a contract for the transfer of shares in a company which owned riverside land on which a mobile home park was situated. The appellant later discovered that part of that land had accreted as a result of the river changing its course. The accreted land was not shown on the reference plan held by the Land Title Office. The appellant commenced an action for breach of

contract. Before the trial, the appellant successfully applied under the Land Title Act, R.S.B.C. 1996, c. 250, to update the reference plan to include the accreted land. The respondent then successfully applied to have the claim dismissed. On appeal, the appellant says the summary trial judge erred in finding that the respondent did not breach the contract. Held: appeal dismissed. The accreted land belonged to the riparian owner at the effective date of the contract pursuant to the common law doctrine of accretion. The scheme for updating the reference plan under the Land Title Act did not replace the common law doctrine. The respondent did not breach the contract. Reasons for Judgment of the Honourable Madam Justice Garson: Introduction [1] In this appeal, the respondent, Tristar Communities Ltd. ("Tristar"), the vendor of shares in Whispering Pines Ventures Ltd. ("Whispering Pines"), is said to have breached a contract to sell shares to the appellant/plaintiff, 0640453 B.C. Ltd. ("0640"). 0640 says Whispering Pines did not have good and marketable title to all of the land Tristar represented it owned. After the sale was concluded, 0640 learned that some of the land was not included on the reference plan deposited in the Land Title Office. The land bordered the Columbia River and over time the natural boundary of the river had changed, exposing new land. Eventually the

Surveyor General confirmed that the new land had accreted and updated the reference plan. 0640 nevertheless says Tristar breached the contract and it has suffered loss. The judge dismissed the claim at a summary trial. Background [2] In 2007, Tristar listed for sale a property upon which a mobile home park was situated. The Columbia River formed the southeast boundary of the property. 0640 and Tristar, both represented by counsel, entered into negotiations for the purchase and sale of the property. They agreed to proceed by way of a share purchase agreement. Tristar transferred its legal and beneficial interest in the property to a subsidiary company, Whispering Pines. Effective October 31, 2007, Tristar sold to 0640 all the shares of Whispering Pines for approximately $2.7 million. [3] The contract included the following representations concerning the ownership of the shares and property in turn owned by Whispering Pines: A. The Vendor is the registered and beneficial owner of all the issued and outstanding shares in the capital of Whispering Pines Ventures Ltd., a registered British Columbia company incorporated under no. BC0665807 (the "Company"). B. The Company owns property (the "Property") municipally known as: 500 - 16th Avenue, Genelle, BC, V0G 1G0 and having a legal description as follows: [legal description omitted] E. The Vendor has agreed to sell to the Purchaser

and the Purchaser has agreed to purchase from the Vendor all of the Vendor's respective legal and beneficial interests in the shares in the capital of the Company (the "Shares") and the Vendor's Shareholders Loan on the terms and conditions contained in this Agreement. [4] Clause 3.3 contained Tristar's representations concerning the property. The term "Property" used in Clause 3.3 was defined in Clause B: 3.3 Property Representations (a) The Company has good and marketable title to all its assets, subject to no mortgage, pledge, deed of trust, lien, claim, encumbrance or charge, and all of such assets are in good order and repair except the Mortgage LB58986, Assignment of Rents LB58987 and PPSA Security Interest Base Registration 696098 all to be discharged by the Vendor on Closing. (b) The Property consists of 104 manufactured home pads (the "Pads"), of which 85 are rented out and the gross monthly rental income from the Pads in October of 2007 was $21,016.18. (c) Effective Oct. 31, 2007, the beneficial interest in the Property, the Pads, the Manufactured Homes and the 1999 GMC Sierra Pickup VIN 1GTGK24R4XF051523 will have been transferred to the Company by the Vendor at the fair market value of $2,775,000.00. (d) The Company is the legal and beneficial owner of the Property, subject to no mortgage, pledge, deed to trust, lien, claim, encumbrance, or charge that is not

disclosed in Schedule 2. [5] A few months after the sale, 0640 commissioned a survey of the property for rezoning purposes. It wished to convert the property to a bare land strata development. The surveyor, Mr. Hango, informed 0640 that a portion of the property was Crown land. According to him, about 15 of the most valuable waterfront trailer pads either encroached on, or were built entirely on Crown land. [6] The discrepancy between the old and new surveys resulted from the Columbia River having changed its course since the original survey had been registered in the Land Title Office in 1893. The change in course created new land along the foreshore. Over the years Tristar used this accreted land for the mobile home park. [7] On January 30, 2008, Mr. Hango opined: I think the natural boundary of the river has [changed] over the years, mostly since the early 60's when the Keenleyside Dam was built, but also prior over the years on the Kootenay River, the many dams on it and whatever dams there are in the USA. The flow has been regulated and the yearly flooding that kept the natural boundary line quite a bit higher than the normal high water line. Surveys since the original crown grant have taken the natural boundary as it existed, and created title to that line, even though it was substantially lower than the original survey line. That was the normal practice in those times,

but in more recent times, and especially in the last 20 years, the Crown, through the Surveyor General Branch and the Land Title Office Registrars have become much more aware of the natural boundary locations on existing titles and that Land Title Act legislation prevents Land Surveyors from arbitrarily extending a boundary beyond an existing title definition, onto the Crown Land that forms the bed of any body of water or water course. As a river erodes a bank, that land is lost to the landowner, and your title area is reduced. If a river deposits material on the inside of a curve, and over time your natural boundary extends beyond that defined by your title, it is still crown land until you apply for accretion, and consolidate it with your land. I don't think there is any chance to apply for an accretion on the river boundary of your land because the process must be natural, on an undisturbed bank; this is absolutely required. The bank along your property has been changed extensively by road construction and pad construction and is no longer in its natural state. I think you will need to apply to the Integrated Land Management Bureau (ILMB) to purchase crown land in order to acquire the land you need in order to contain what will be the strata road, and all of the parts of strata lots that are below the title boundary. You may need to apply for sufficient area beyond the road

in order to maintain the required setback from water boundary that might be specified. Elevations and setbacks might be critical as we are adjacent to [the] river, and 9.1.2 of the RDKB mobile home park bylaw no. 97 [specifies] what is permissible. That can be studied closer if we are to make an application to ILMB to purchase crown land. Once approved, the portion of the river bed needed would be crown granted. We would survey a district lot comprised of the area required, then consolidate it with your existing land into one new lot that could then be subdivided by a bare land strata plan. [8] Relying on Mr. Hango's advice, 0640 applied to lease the accreted land from the Crown. In October 2012, Whispering Pines entered into a ten-year licence of occupation with the Crown. The rent for the first year was to be $11,628.31, with the rent for future years to be determined by the Crown. [9] 0640 commenced this action on May 21, 2013, against Tristar and a number of other defendants. By the time the summary trial began, the only remaining defendant was Tristar. [10] In late 2013, Tristar obtained an opinion from another surveyor, Mr. Ringwood. Mr. Ringwood disagreed with Mr. Hango as to the effect of the natural alteration of the boundary. He opined that the new land had accreted to the property under the common law and was not Crown land. All that was necessary was for 0640 to

apply to the Surveyor General to update the reference plan. He stated, in reference to Mr. Hango's opinion: I have read this email and note that, in my opinion, the advice given in it contains some errors. The first error is in the third paragraph where Mr. Hango states "If a river deposits material on the inside of a curve, and over time your natural boundary extends that defined by your title, it is still crown (sic) land until you apply for accretion, and consolidate it with your land". In my opinion, when lawful accretion occurs, the owner of the upland owns the accreted land under the Common Law and that the accretion application process is to determine that it is lawful accretion (as opposed to avulsion) and that the accretion is being properly apportioned among adjacent owners. Mr. Hango labelled the dotted waterward boundary as the "Present Natural Boundary". If that is the location of the then present natural boundary, then I cannot understand why Mr. Hango did not carefully investigate the possibility that accretion had actually occurred prior to construction of the Mobile Home Park before advising his client that it was Crown land. Accreted land issues have been around for many years. Prior to the introduction of the provisions in the Land Title Act dealing with applications for accreted land and adjustments to natural boundaries due to errors on plans or lack of

detail, they were dealt with under the Quieting Titles Act and its successors. [11] 0640 received Mr. Ringwood's report, but maintained the action. [12] In July 2014, Tristar applied in Supreme Court to dismiss the action on the basis that there was no breach of the contract. [13] The Crown took no position on the application. BC Hydro filed an application response in which it sought standing to make submissions and opposed the granting of the declaration. Tristar objected to BC Hydro's standing and the merits of its position. [14] Shortly before the scheduled hearing date, 0640 applied to the Surveyor General to endorse a new reference plan for the property. The Supreme Court hearing was adjourned and In February 2017, the Surveyor General granted the application. The updated reference plan was filed, confirming that the property included the accreted land. [15] In June 2017, Tristar applied again to have the action dismissed. It submitted that the Surveyor General had confirmed that the property included the accreted land and there was therefore no basis to 0640's claim that Tristar had breached the contract. [16] At the rescheduled summary trial, counsel for BC Hydro advised that in view of the Surveyor General's acceptance of the reference plan, it had no further instructions to oppose the application. BC Hydro did not file a response to the second summary trial application

or appear at the hearing. [17] 0640 opposed Tristar's application to strike its claim, arguing that the Surveyor General's decision to update the reference plan did not dispose of the issue. It contended that Tristar may have had a common law claim to the accreted land, but it did not convey a marketable title to the accreted land, nor did it convey the land in accordance with the agreement so as to give 0640 quiet possession. Reasons of the Summary Trial Judge [18] The summary trial judge identified two issues: whether the case was suitable for determination by summary trial, and if so, whether Tristar breached the contract. Suitability for Summary Trial [19] The judge decided that the case was suitable for summary trial. 0640 does not challenge this finding in its factum. (At the hearing of the appeal 0640 did contend the application was not suitable for summary trial. It did not pursue the argument with any vigour. As the application turned on a question of law, I am of the view that the application was clearly suitable for disposition by summary trial.) Breach of Contract [20] 0640 submitted that Tristar breached clauses 3.3(a) and (d) of the contract because Whispering Pines did not have "good and marketable title" to the property and was not the "legal and beneficial owner" of the whole of the property. [21] Tristar argued that Whispering Pines owned the accreted land at

the effective date of the contract because at common law, a riparian owner owns land that forms by accretion. [22] The judge agreed with Tristar's submission. She concluded that 0640 had not proven that Tristar breached the contract. Although she considered it unnecessary to consider 0640's arguments based on the wording of the contract, she proceeded to do so. Good and Marketable Title [23] The judge decided that clause 3.3(a), which contained the representation regarding "good and marketable title" to the "assets," did not apply to the real property. She considered that "assets" as used in the contract did not include real property. She went on to find that in any event, Tristar did have good and marketable title to the property, including the accreted land. She accepted Tristar's submission that having "title" to the property meant that the sale of the property could be forced upon an unwilling purchaser, even if the title was technically defective (which the title in this case was not): Smith v. Graham, 2009 BCCA 192 at para. 19; Barclays Bank PLC v. Weeks Legg & Dean, [1998] 3 W.L.R. 656 (U.K.C.A.) at 667-68. [24] She held that a warranty that the vendor has good and marketable title is a warranty on the title alone, and not as to the suitability of the land for a particular use: Cinram Ltd. v. Armadale Enterprises Ltd. (1996), 140 D.L.R. (4th) 380 (Ont. C.A.). In this

case, 0640 needed to update the reference plan only because it wished to change the use of the land by converting it to a bare strata lot. [25] The judge emphasized that no record in the Land Title Office had ever shown that the accreted land belonged to anyone other than Whispering Pines. She found this fact to be determinative of the issue of whether title to the property was deficient at the time of sale. She agreed that there is a difference between the legal effects of title and the location of property lines: Phillips v. Keefe, 2012 BCCA 123 at para.

63. She stated at para. 75: "The natural boundary of the Property changed over time by accretion; the title to the Property never did, despite Mr. Hango's opinion." Legal and Beneficial Ownership [26] The judge then considered clause 3.3(d), which contained the representation that Whispering Pines was the legal and beneficial owner of the property. She held that there was no ambiguity in the representation. She stated at para. 77: "[Whispering Pines] had title to the New Land by accretion; it owned the New Land." [27] The judge concluded that 0640's main complaint was that, for a number of years, it had paid rent to the Crown for land that it itself owned. The judge noted that this issue was the subject of a different action. On Appeal Position of the Appellant [28] 0640 contends that it did not receive an unencumbered good and marketable title to the whole of the property as promised in the contract. It says that in British Columbia, title to land does not automatically shift to include accreted land without following the procedure in ss. 94-96 of the Land Title Act. Therefore, it says, all it received was the right to apply to the Surveyor General or the court for title to the accreted lands. The outcome of the application to the Surveyor General was uncertain because of the Surveyor General's obligation to consider the public interest, and opposition from BC Hydro and

possibly from the Province. It notes that the Surveyor General's preliminary opinion on the facts of a similar case, Bryan's Transfer Ltd. v. Trail (City), 2010 BCCA 531, was that land along the Columbia River was not accreted land. [29] 0640 asks that the order dismissing its action be set aside and that the action be returned to the Supreme Court for the assessment of damages, or alternatively, that the entire action be remitted to the Supreme Court for trial. Position of the Respondent [30] Tristar frames the issues as follows: a) The judge did not make a palpable and overriding error in finding that on the effective date of the agreement: i. The term "assets" in clause 3.3(a) did not include the property; ii. In any event, Whispering Pines had good marketable title to the property; and iii. Whispering Pines was the "legal and beneficial owner" of the property. b) In any event, 0640 has not advanced any head of damages for which liability could reasonably be affixed to Tristar. [31] Tristar says in its factum: 50. First, title to accreted lands does not have to be "perfected" with the filing of a plan in accordance with sections 94-96 of the Land Title Act, or by having a court declare title to the accreted lands. Absent a desire to subdivide, obtain a building permit or some other step regarding the use of accreted land, there is no need for accreted land to be reflected in

an updated survey on file in the Land Title Office. As the Chambers Judge observed at paragraphs 49-51 of the Reasons, the process of accretion does not create new land that is then transferred to the upland owner on application. Instead, as sediment slowly and imperceptibly adheres to the riparian land, it simply becomes part of the upland property. Banks of rivers and creeks accrete and erode all the time, and for most riparian owners, it is inconsequential whether there is an updated plan on title reflecting the changes. If the land has accreted on a boundary that is the natural boundary of a water body, then the accreted land is part of the upland title and is conveyed with it. If it has eroded, the upland title denotes a smaller piece of land. Absent a desire to use the land for a particular development purpose, nothing has to be done to "perfect" title by showing the absence of the eroded land or the presence of accreted land.

51. Second, it is not correct that an application to the Surveyor General to register a plan showing an accretion is fraught with uncertainty as a result of the "public interest" consideration in the Surveyor General's responsibilities. That question was settled in Bryan's Transfer v. Trail (City), 2010 BCCA 531, wherein at paragraphs 34-35 and 68, this Court took a narrow view of what the relevant public interest considerations were for the Surveyor General Analysis Issues on Appeal [32] This appeal turns on the question of whether Whispering Pines had good and marketable title to, or legal and beneficial ownership of, the accreted land. I find it did. It is therefore unnecessary to consider the issues of the construction of the word "assets" in clause 3.3(a) or whether the judge erred in not considering extrinsic evidence when interpreting the contract, because of my conclusion as to the ownership of accreted land. The essence of 0640's argument is that Whispering Pines did not own or have title to the accreted land. The judge found that a riparian owner owns the land that forms by accretion: para.

49. In my view, for the reasons that follow, she was correct in her conclusion on this point. Standard of Review [33] The question of the ownership of and title to accreted land is an extricable question of law. Accordingly, the standard of correctness applies. Legal Principles [34] The common law doctrine of accretion was considered by the Supreme Court of Canada in Clarke v. Canada (Attorney General), [1930] S.C.R. 137 at 144, cited with approval in Bryan's Transfer at para. 44: The term "accretion" denotes the increase which land bordering on a river or on the sea undergoes through the silting up of soil, sand or other substance, or the permanent retiral of the waters. This increase must be formed by a process so slow and gradual as to be, in a practical sense, imperceptible, by which is meant that the addition cannot be observed in its actual progress from moment to moment or from hour to hour, although, after a certain period, it can be observed that there has been a fresh addition to the shore line. The increase must also result from the action of the water in the ordinary course of the operations of nature and not from some unusual or unnatural action by which a considerable quantity of soil is suddenly swept from the land of one man and deposited on, or annexed to, the land of another. The fact that the increase is brought about in whole or in part by the water, as the

result of the employment of artificial means, does not prevent it from being a true accretion, provided the artificial means are employed lawfully and not with the intention of producing an accretion, for the doctrine of accretion applies to the result and not to the manner of its production. [Citations omitted.] [35] The Court held at 146 that accreted land "becomes the property of the owner to whose land it attaches as it is formed; it is vested in him de die in diem [from day to day] ". The Court held at 150 that all accretions become the property of the riparian owner, and that the right to accretion is one of the riparian rights incident to all land bordering on water. [36] The Supreme Court considered the nature of ownership of accreted land again in Chuckry v. R., [1973] S.C.R. 694, rev'g Chuckry v. R., [1972] 3 W.W.R. 561 (Man. C.A). The case concerned a farmer's claim for compensation for expropriated land bordering the Assiniboine River. The land included 59 acres of accreted land for which the farmer said he was entitled to compensation. The Crown asserted that it did not have to pay compensation because the accreted land already belonged to it. In a dissenting judgment at the Manitoba Court of Appeal, upheld at the Supreme Court, Justice Dickson, as he then was, found that the farmer owned the accreted land. At 574-75, he rejected the argument that the doctrine of

accretion could not apply where the former boundaries of the land were related to a defined line on a plan and the acreage of the property was stated on the plan: At one time it was doubtful whether the doctrine of accretion applied when the former boundaries of the land concerned were defined or ascertainable. The law now seems clear however that, so long as the change is gradual and imperceptible, the doctrine applies. The test is whether the land in fact comes to the water's edge under the grant and not upon the manner of land description within the grant. [37] He then considered whether the common law doctrine of accretion was part of the law of Manitoba and found that it was. He concluded at 578: I would hold therefore that the allegedly accreted land is accreted land, that it belonged to the appellant and he is entitled to receive compensation in respect thereof from the Crown. Although the land is not shown as having been expropriated on the plan of expropriation filed in the Land Titles Office, the Crown has nevertheless effectively taken the land and therefore must pay for it. If the land has not been taken by the Crown it is undoubtedly being injuriously affected by the Crown. In either case the appellant is entitled to compensation. [38] A similar result was reached in Wolfe v. British Columbia Electric Railway (1949), 3 D.L.R. 319 (B.C.S.C.), a case very similar on

its facts to this appeal. In Wolfe, land along Seymour Creek in North Vancouver had accreted to the plaintiff's land before she took title. The plaintiff sued the defendant in trespass for constructing a transmission line on the accreted land. The defendant said the accreted land did not pass to the plaintiff when she took title because the conveyances to her were of the lots according to a plan filed in the Land Registry Office which did not include the accreted land. The judge in that case held that the accreted land had passed to the plaintiff. Relying on Clarke v. Canada (Attorney General), Justice Wood stated at 322: If the right to accretion is one of the riparian rights incidental to all land bordering on water as is the plaintiff's property, I conclude that this right passed with the conveyance of that property to her. [39] I agree with his formulation of the law on this point. [40] I draw from these authorities that at common law, the riparian owner, not the Crown, owns land that forms by accretion. The land vests in the riparian owner by operation of law. When property is conveyed, title to any lawfully accreted land is conveyed with it. [41] The question, then, is whether the scheme for applying to the Surveyor General to certify an updated reference plan ousts or modifies these common law principles. 0640 says that it does. The relevant provisions of the Land Title

Act are ss. 67, 94, 95, and 96: 67 A plan tendered for deposit, other than an explanatory plan or sketch plan, must comply with the following requirements: (a) the plan must be based on a survey made by a British Columbia land surveyor; (b) the plan must comply with the rules respecting surveys and plans made under section 385(5) for the purposes of this section; (c) the plan must have a title that includes the legal description, in accordance with the register, of the land subdivided and indicate whether all or part of that land is being subdivided; (d) to (r) [Repealed 2003-66-37.] (s) unless otherwise provided by regulation, the plan must be accompanied by a machine made transparent copy of a type approved by the Surveyor General, together with the number of white prints that may be necessary for the purpose of taxing authorities, the Surveyor General, the Ministry of Transportation and the regional board of the regional district in which the land is located; (t) the correctness of the survey and plan must be verified by the surveyor by his or her statement in the form approved by the director. 94 (1) Despite the Land Act, if a plan to be tendered for deposit in the land title office (a) includes land that adjoins Crown land and that had lawfully accreted to the land being subdivided, or (b) shows a water boundary that differs from the water boundary shown on the plan

already on deposit on which the present title is based, the Surveyor General may, if in the Surveyor General's opinion it is in the public interest to do so, endorse on the plan a certificate (c) that the land in question is lawfully accreted land, or (d) that the water boundary is the natural boundary as defined in the Land Act. (2) The Surveyor General must not certify a plan under subsection (1) unless the Surveyor General is satisfied that (a) the land in question has lawfully accreted to the registered land of the subdivider, or (b) the water boundary shown on the plan is in fact the correct water boundary, and the water boundary as shown on the plan already on deposit on which the present title is based was incorrectly shown on that plan due to lack of detail or sufficient detail, or other good reason. (3) An application to the Surveyor General for endorsement under subsection (1) must be accompanied by the fees payable under this Act. 95 (1) If a subdivision or reference plan is tendered for deposit, and endorsed on it is a certificate of the Surveyor General certifying that all or part of land intended to be dealt with by the plan is lawfully accreted land adjoining Crown land, the certificate is deemed to be proof satisfactory to the registrar that (a) the registered owner, purporting to include in the plan the accreted land, has established to it a good safe holding

and marketable title in fee simple, and (b) the subdivider's infeasible title to the land included in the boundaries of the plan and affected by the accretion is the registered title to the accreted land. (2) If the indefeasible title is endorsed with a registered charge, the charge is extended to include the accreted land. 96 (1) If a subdivision or reference plan is tendered for deposit, and endorsed on it is a certificate of the Surveyor General certifying that the water boundary shown on the plan is the natural boundary, as defined in the Land Act, of the land shown outlined in accordance with the rules made under section 385(5) of, if the plan is in electronic format, outlined in the manner established by the director, then, on the deposit of the plan, and even though the water boundary does not agree with the natural boundary shown on a plan already on deposit in the land title office due to a lack of sufficient detail on the deposited plan or other good reason, the certificate is deemed to be proof satisfactory to the registrar that (a) the registered owner, purporting to include the plan tendered for deposit the area comprising the subject matter of the discrepancy, has established to the area a good safe holding and marketable title in fee simple, and (b) the subdivider's indefeasible title to the land adjoining the area and included in the boundaries of the plan

tendered for deposit is the registered title to the area. (2) If the indefeasible title is endorsed with a registered charge, the charge is extended to include in it the area referred to in subsection (1). [42] This Court considered the effect of ss. 94-96 of the Land Title Act on the common law doctrine of accretion in Bryan's Transfer. The respondent, "Bryans", owned land along the Columbia River, not far from the land at issue in this appeal. Bryans' land was bounded by the foreshore of the river, which over the years had altered its course. In 1982 the City of Trail applied for a statutory right of way for the installation of a water main along the foreshore adjacent to Bryans' property. As Justice Kirkpatrick explained: [10] Bryans evidently considered that the boundary of its lands had been altered by the flow of the Columbia River such that the right of way crossed Bryans' lands without its knowledge or permission. [43] Bryans filed a natural boundary adjustment application pursuant to s. 94(1)(b) of the Land Title Act, then a revised application. The Surveyor General granted preliminary approval subject to certain conditions, including the submission of a final plan. Bryans did not submit a final plan or an accretion application under s. 94(1)(c). The Surveyor General had expressed to Bryans a preliminary and informal opinion that there was no evidence of lawful

accretion to Bryans' property. Instead, Bryans applied for declaratory relief in the Supreme Court seeking, inter alia, an order as to the nature, extent, and location of the boundary of its property along the river. [44] The Province applied to dismiss Bryans' action on the basis that the Surveyor General had exclusive jurisdiction to determine accretion disputes pursuant to ss. 94-96 of the Land Title Act. It argued that these provisions modified the common law of accretion by requiring landowners to apply under the Act to amend their registered title so as to include accreted land owned by the Crown. Bryans argued that the provisions did not constitute an exhaustive code that prevented it from seeking a declaration of ownership in the courts. [45] Justice Kirkpatrick noted that the legislature is presumed not to intend to alter the common law by its enactments. She concluded that the presumption had not been rebutted in this case: [55] In my opinion, the language of ss. 94-96 is not sufficiently clear in its intention, if indeed it was the intention, to modify, alter or abrogate the common law doctrine of accretion to preclude resort to the common law courts to determine the issue. It is well within the legislature's competence, as it did with respect to the ad medium filum aquae rule, to explicitly declare that the common law doctrine of accretion no longer applies. [46]

(The ad medium filum aquae rule was the rule that a landowner was deemed to own the soil of an adjoining stream or river to the middle of the stream or river. As Justice Kirkpatrick explained, the rule has been held to have been extinguished by statute: para. 54.) [47] She then considered the nature of the Surveyor General's jurisdiction. Importantly, she concluded that the Surveyor General's jurisdiction is directed to the rectification of boundaries, not the determination of title: [65] The Province's argument that the Land Title Act has modified or abrogated the common law of accretion rests on its interpretation of s.

94. Under s. 94, the Surveyor General must consider whether the land in question has "lawfully accreted". To give meaning to this language, one must assume that the legislature intended to incorporate the common law doctrine of accretion into the statute. Accordingly, before certifying a change to the boundary on a plan to include accreted land, the Surveyor General must be satisfied that the common law test for accretion has been met. However, such a determination is directed at the rectification of boundaries, not title. The Surveyor General is only given the power to determine whether land has accreted to a titled parcel as a step in determining whether a plan that depicts a new boundary ought to be certified. . [68] The public interest requirement outlined in s. 94 must also be read in this context. The "public interest" consideration in s. 94 is not the Surveyor General's assessment of whether it is generally in the public interest for title to "Crown land" to be transferred, as the Province suggests, but rather an assessment of whether it is in the public interest that a plan showing the current natural boundary be filed. This is consistent with the public interest considerations described by the Surveyor General in his Circular Letter No. 395, reproduced above. Moreover, such an interpretation is in keeping with the general expertise of the Surveyor General, which is not

directed at the public interest generally, but to the accuracy and utility of survey plans within the system of land management in the province. [71] The Land Title Act is the principal legislation establishing a Torrens System for land registration in the province. The objective of the Torrens system established by the Land Title Act was correctly stated by the chambers judge in her reasons at para. 27: "to ensure a simple, efficient and certain means of proving title." In C.P.R. v. Turta, [1954] S.C.R. 427 at 443, the Supreme Court described the objectives of the Torrens system as follows: The foregoing preamble and quotations, as well as others to similar effect, emphasize that the Torrens system is intended "to give certainty to the title" as it appears in the land titles office. That one who is named as owner in an uncancelled certificate of title possesses an "indefeasible title against all the world", subject to fraud and certain specified exceptions, while one who contemplates the acquisition of land may ascertain the particulars of its title at the appropriate land titles office and deal with confidence, relying upon the information there disclosed. Moreover, it contemplates that those who acquire a registerable interest in land will, without delay, effect registration thereof and avoid possible prejudice. That such a system may from time to time impose hardships is

obvious and, therefore, in addition to preserving actions against the wrongdoer, the legislature has provided an assurance fund out of which, in appropriate cases, compensation may be paid to those who suffer a loss. [72] The Surveyor General's role generally gives effect to these objectives by ensuring the integrity of the land survey system by having survey plans accurately delineate property boundaries and thus promoting confidence in the land registration system as a whole. [74] Viewed in the context of the purpose of the Land Title Act and the role and expertise of the Surveyor General, it seems that ss. 94-96 are not properly directed at determining title or the transfer of title, but rather are provisions directed at the accurate depiction of boundaries upon the deposit of survey plans in the Land Title Office. The issue is a surveying one, and not one going to the general public interest in having specific "Crown lands" incorporated into title, as the Province suggests. [Emphasis added.] [48] She concluded that the sections provided a mechanism for a riparian landowner to update the boundaries depicted on their survey plan, and not an exclusive code for determining title to accreted land: para 75. Therefore Bryans could seek a declaration in the Supreme Court that the disputed lands had accreted to its property. She found it unnecessary to consider the issue of whether

accreted land was, as the Province contended, Crown land, as that issue was not raised by the appeal: para. 80. [49] This case, unlike Bryan's Transfer, does raise the issue of whether accreted land is Crown land. [50] 0640 argues that in British Columbia, title to accreted lands must be perfected by an application to the Surveyor General. I do not consider the authorities it cites to stand for this proposition. In addition to Bryan's Transfer, which I have already discussed, it relies on Re Land Registry Act (1956), 19 W.W.R. 427 (B.C.C.A.), in which the court restored the order of the registrar under a different legislative scheme refusing to accept a plan of subdivision showing allegedly accreted land. The court observed at 429 that the ownership of the land and whether it formed part of the property in question "involve complex findings of fact and difficult points of law" which could not be decided in the appeal because of the narrow issue raised and the absence of the necessary parties. Thus, the court expressly did not decide the relevant issues. The other British Columbia cases relied on by 0640, Thomson v. Eadie, 2006 BCSC 868, aff'd 2007 BCCA 524, and Hawkes Estate v. Silver Campsites Ltd., [1991] 5 W.W.R. 34 (B.C.C.A.), do not discuss the doctrine of accretion and do not assist 0640. [51] 0640 also relies on Victor Di Castri's text, Registration of Title to Land (Toronto: Carswell, 1987) (loose-leaf revision 2016-2) at para.

204. Mr. Di Castri acknowledges that a riparian owner has common law title to accreted land, though he doubts that the owner automatically acquires registered title. He describes the procedure set out in ss. 94-96 of the Land Title Act as "assisting the riparian owner in obtaining registration to an accreted area". He does not assert that it is necessary in British Columbia for a riparian landowner to follow that procedure in order to acquire common law title. [52] 0640 also refers to an older text by Mr. Di Castri, Thom's Canadian Torrens Systems, 2nd ed (Calgary: Burroughs & Company Ltd., 1962) at 151. In that text, the author does assert that in British Columbia, a riparian owner had to perfect their common law title by registering a declaration of title made by the court pursuant to the Quieting Titles Act, R.S.B.C. 1960, c. 327 [repealed]. The only BC case cited in support of that proposition is Re Land Registry Act, in which, as I have stated, the court declined to consider whether an accretion had taken place or what the effect of an accretion would be. In conclusion on this point, I do not accept 0640's argument that a riparian owner does not acquire common law title to accreted land without updating the reference plan. [53] Section 95(1) of the Land Title Act supports the conclusion that the riparian owner acquires title to land as it accretes, even before the

reference plan is updated. The section provides that a reference plan bearing the Surveyor General's certificate showing accreted land included in the boundaries of a property is sufficient proof for the registrar that the registered owner has established "a good safe holding and marketable title in fee simple" to the accreted land, and "the subdivider's indefeasible title to the land is the registered title to the accreted land." The Surveyor General's certificate does not bestow title to the land, but provides sufficient proof of it for the purposes of the Land Title Office. [54] As Justice Kirkpatrick stated at para. 65 of Bryan's Transfer, ss. 94-96 of the Land Title Act incorporate and do not displace the common law doctrine of accretion. On the basis of the authorities I have discussed, I am satisfied that at common law, the riparian owner has title to accreted land. Application to this Case [55] Both parties accept that the land in question was lawfully accreted land at the effective date of the contract, and there is no argument on appeal otherwise. 0640's main contention is that Whispering Pines did not have title to the accreted land prior to updating the reference plan. [56] 0640 asserts that while Whispering Pines may have had a common law claim to the accreted land, that was not the same as having title. However, even assuming that the representation in clause

3.3(a) applied to the real property, the representation was that Whispering Pines had "good and marketable title", not that it had registered title or that an updated reference plan for the property had been deposited in the Land Title Office. In my view, the summary trial judge did not err in her interpretation of the meaning of "good and marketable title" or in her determination that Whispering Pines did have good and marketable title. As established by the Ontario Court of Appeal in Cinram Ltd. v. Armadale Enterprises Ltd., a warranty as to "good and marketable title" is not a warranty that the land is suitable for a particular use. In this case, 0640 did not need to update the reference plan until it sought to develop the property, in other words, to change its use. Furthermore, as the summary trial judge noted, the Land Title Act speaks to title and not the location of boundaries on the ground: Phillips v. Keefe at paras. 58 and 63. The requirement of updating the reference plan is therefore not relevant to the issue of whether Whispering Pines had good and marketable title. [57] I conclude that the riparian owner becomes the owner of accreted land as of right. Therefore, when Tristar transferred the shares in Whispering Pines to 0640, Whispering Pines had good and marketable title to the accreted land even though it was not shown on the reference plan. [58] I do not

accept 0640's argument based on the alleged uncertainty of the outcome of its application to the Surveyor General. As I have stated, it was not necessary for the reference plan to be updated in order for Whispering Pines to have good and marketable title as promised in the contract. As regards the Surveyor General's obligation to consider the public interest, Bryan's Transfer established that the Surveyor General is limited to considering the accuracy and utility of the survey plan: para.

68. When the scope of the Surveyor General's consideration is understood in this narrow way, 0640's concerns regarding uncertainty are diminished. [59] 0640 also points to s. 111 of the Land Title Act for the proposition that it had a right to rescind the contract. The right of rescission in s. 111 applies to a buyer of subdivided land where no subdivision plan has been registered in the Land Title Office. That is not the situation here. Conclusion [60] In summary, I agree with the summary trial judge, that at the time of the contract, Whispering Pines had good and marketable title to the accreted land and was the legal and beneficial owner of the accreted land. Tristar did not breach either representation alleged by 0640. Disposition [61] I would dismiss the appeal. "The Honourable Madam Justice Garson" I Agree: "The Honourable Madam Justice Dickson" I Agree: "The Honourable Mr. Justice Hunter"