Delport Realty Ltd. v. Nova Scotia (Registrar General of Service Nova Scotia & Municipal Relations)

Delport Realty Ltd. v. Nova Scotia (Registrar General of Service Nova Scotia & Municipal Relations) Court Court of Appeal Date 2014-04-08 Citation 2014 NSCA 35 Docket CA 420706 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA); Bryson, Peter M.S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Delport Realty Ltd. v. Nova Scotia (Registrar General of Service Nova Scotia & Municipal Relations) - 2014 NSCA 35 - 2014-04-08 - Library Sheet Decision Content Nova Scotia Court of Appeal Citation: Delport Realty Ltd. v. Nova Scotia (Registrar General of Service Nova Scotia & Municipal Relations), 2014 NSCA 35 Date: 20140408 Docket: CA 420706 Registry: Halifax Between: Delport Realty Limited and 1549433 Nova Scotia Limited Appellants v. Registrar General of Service Nova Scotia and Municipal Relations Respondent Judges: Saunders, Fichaud and Bryson, JJ.A. Appeal Heard: March 24, 2014, in Halifax, Nova Scotia Held: Appeal dismissed with costs of $2,000, per reasons for judgment of Fichaud, J.A.; Saunders and Bryson, JJ.A. concurring Counsel: Matthew J. D. Moir, for the appellant Darlene Willcott, for the respondent Reasons for judgment: [1] The registrar of land titles rejected Delport Realty’s Parcel Description Certification Application under the Land Registration Act. The registrar’s information showed that existing parcels encompassed Delport’s parcel. As a result, the registrar determined that Delport’s parcel could not be mapped “in relation to neighbouring parcels with reasonable accuracy” as required by s. 37(7) of the Act. On appeal, the Registrar General upheld the rejection and suggested that, before re-offering its Application, Delport should obtain a judicial ruling under the Quieting Titles Act. A judge of the Supreme Court dismissed Delport’s motion for judicial review of the Registrar General’s decision. Delport submits that its Parcel Description Certification Application was acceptable and the Registrar General’s decision should be quashed. The issue turns on the interpretation of the Land Registration Act. Background [2] On March 20, 2001, at a tax sale, Delport Realty Limited and 1549433 Nova Scotia Limited (“Delport”) acquired lot B-1 in West Jeddore. The deed was registered on April 24, 2001 under the former Registry system. [3] The Municipal Government Act, S.N.S. 1998, c. 18, under the heading “Tax sale deeds”, says: 156(2) The deed has the effect of vesting the land in the grantee in fee simple, free and discharged from all encumbrances. [4] The Marketable Titles Act, S.N.S. 1995-96, c. 9 says: 6(2) A tax deed may not be set aside for any reason whatsoever except during the six years following registration of the tax deed, and thereafter the tax deed is binding and conclusive upon all persons … [5] The Land Registration Act, S.N.S. 2001, c. 6 [which came into force in 2003], as amended (“LRA”) says: Tax sales 31 (1) Where a registered parcel is sold for taxes pursuant to the Municipal Government Act or another enactment of the Province, a certificate that the parcel has been sold for taxes shall be recorded in the parcel register in the manner provided by the enactment pursuant to which the parcel was sold. (2) Where the parcel is redeemed before a tax deed is delivered to the purchaser at the tax sale, a certificate of discharge or redemption shall be recorded in the parcel register and the registrar shall cancel the recording of the certificate of sale. (3) On the application of the purchaser of a registered parcel at a tax sale and presentation of the tax deed, the registrar shall revise the registration of the parcel to show the purchaser as the owner of the parcel. [6] On October 17, 2011, Delport submitted a Parcel Description Certification Application (“PDCA”) further to Regulation 7 of the Land Registration Administration Regulations, N.S. Reg. 207/2009, as amended by N.S. Reg. 189/2010 (“Regulations”), under the LRA. The PDCA is the first step toward migration of a parcel to land titles under the LRA. [7] The Registrar General’s Decision under review described the impediment to acceptance of Delport’s PDCA: 2. Deeds and plans on file at the Halifax Land Registration Office indicate that the parcel described in the tax deed to the appellant is located in the same location as several other existing parcels. Based on the information on record, the boundaries of the parcel described in the tax deed appear to not just overlap the boundaries of other existing parcels, but the parcel appears to be located entirely within the boundaries of the other parcels. 3. For this reason the area in which the appellant contends its parcel is located were designated by provincial property mappers as “Unresolved Title”. [8] Accordingly, on November 7, 2011, the Provincial mapper and local registrar rejected Delport’s PDCA. [9] On November 7, 2011, Delport appealed to the Registrar General under s. 90 of the LRA. [10] On March 22, 2012, the Registrar General dismissed Delport’s appeal. His emailed reasons included: I disagree that the issue identified by the mapper is only a boundary or extent issue. It concerns conflicting survey information which may affect not only the extent and location of your client’s parcel but its very existence. The PDCA which you have submitted describes lands which the survey information in Plan No. 15966 indicates may not exist. (ie. your parcel purports to be part of the lands of Grace Forsythe to the southwest of the West Jeddore Baptist Church lands but plan 15966 indicates that the southwest boundary of the West Jeddore Baptist Church lands was the northeast boundary of the lands of Gladys Moses and, therefore, the southwest boundary of the Grace Forsythe lands meaning parcel B1 may never have existed. The tax deed doesn’t resolve this problem as it cannot create a parcel that may not exist. I agree with the mapper that these boundary/extent/title issues need to be resolved before this parcel (or any of the other lands noted as “unresolved parcels”) can be migrated. [11] Delport applied to the Supreme Court of Nova Scotia for judicial review. On December 13, 2012, Justice Hood quashed the Registrar General’s decision (2012 NSSC 416). The judge applied a reasonableness standard, and held that the decision was unreasonable. [12] The matter returned to the Registrar General for reconsideration. On March 22, 2013, the Registrar General issued another decision that again upheld the rejection of Delport’s PDCA. The Registrar General’s reasons, more fulsomely worded this time, included: A Registrar must approve a PDCA if it is “accurate, complete and in accordance with the Act and the regulations. (LRA Reg. s. 7(19)) If it is not complete the Registrar must reject it. (LRA s. 37(6)) … One of the requirements for completeness and accord with the Act is contained in s. 37(7) which requires that the application include “sufficient information concerning the size and location of the parcel as will permit the registrar to … create a geographical representation of the parcel in Provincial mapping, showing it in relation to neighbouring parcels with reasonable accuracy”. In this instance it would be impossible for a registrar to “create a geographical representation” of the lot or depict it “in relation to neighbouring parcels” as it appears not to exist at all being described as being bounded by lands of Gladys Moses to the south and the West Jeddore Baptist Church on the North. Other information on record shows that the boundaries of the lands of Gladys Moses and the West Jeddore Baptist Church abut such that there is no land located between them. Thus the application was not complete and the Registrar was obliged by s. 37(6) of the Act to reject it. While I agree with the appellant that a mere apparent overlap with a neighbouring property is not a basis for rejection of a registration (LRA s. 21(3)) I draw a distinction between an “overlap”, generally defined as “extending over and covering a part of” (dictionary.com, Webster’s), and a situation such as this where the parcel appears not to exist at all. [Registrar General’s italics] There is a difference between a parcel which may be slightly smaller or larger depending on where an overlapping boundary with a neighbour may fall and one that does not exist at all according to the information before the Registrar. The former can be mapped with “reasonable accuracy,” the latter cannot be mapped at all. One of the stated purposes of the Land Registration Act is to “provide certainty in ownership [of] interests in land” (LRA s. 2(a)). This purpose would be entirely defeated if a registrar was obliged to allow the registration of a non-existent parcel. It would be an absurd result indeed if a party such as the applicant could insist, citing s. 37(7) of the Act, that a registrar has no choice but to accept his PDCA for a non-existent parcel even though the result of the ensuing registration of that parcel would be that innocent parties could be adversely affected by the registration and the province may have to compensate a party aggrieved by that registration. A Parcel Description Certification Application is the first step in the process of registering a parcel pursuant to s. 37 of the Act and is the only stage at which the process can be stopped on the basis that the parcel cannot be mapped (s. 37(7)). If the Registrar fails to reject an application such as this one that is not “complete” as it doesn’t provide sufficient information to allow it to be geographically represented, a registration of a non-existent parcel could ensue. I would suggest that such a registration would not be in “accordance with law” as intended by s. 56(1)(c) and would not “comply with [the] Act or the regulations” (s. 56(1)(b)) and a registrar would be obliged to refuse it. Thus even if the PDCA were approved, the Application for Registration would have to be refused. If it was not I would be obliged to issue a “Stop Order” under subsection 56(2) to prevent any further registrations in relation to the parcel and to prevent any improper registrations from taking place. CONCLUSION Based on the above analysis, I have concluded that the Appellant’s PDCA must be rejected as it is not accurate, complete and in accordance with the Act and the regulations. The rejection of the Appellant’s PDCA pursuant to s. 37(6) by the registrar in this instance was supported by consideration of the requirements of the Act and Regulations and s. 37(7) in particular. I agree with the decision of the registrar and I am dismissing the appeal. This decision is, of course, without prejudice to the appellant’s right to resolve the underlying title and boundary issues by availing itself of the remedies available under the Quieting Titles Act or possibly by providing new survey or other information which would resolve the conflicting information on record and which would provide sufficient information for a registrar/mapper to locate the parcel in accordance with s. 37(7) of the Act. Once these issues are resolved a PDCA could be submitted which would comply with the Act. [13] The LRA’s provisions, cited by the Registrar General or pertinent to his decision, are: Purpose of Act 2 The purpose of this Act is to (a) provide certainty in ownership of interests in land; (b) simplify proof of ownership of interests in land; (c) facilitate the economic and efficient execution of transactions affecting interests in land; and (d) provide compensation for persons who sustain loss in accordance with this Act. Registered interests 20 A parcel register is a complete statement of all interests affecting the parcel, as are required to be shown in the qualified lawyer's opinion of title pursuant to Section 37, subject to any subsequent qualifications, revisions of registrations, recordings or cancellation of recordings in accordance with this Act. Location and boundaries 21 (1) The legal description of a parcel in a register is not conclusive as to the location, boundaries or extent of the parcel. (2) Provincial mapping is not conclusive as to the location, boundaries or extent of a parcel. (3) A registration may not be rejected only because the location, boundaries or extent of the parcel appear to overlap the location, boundaries or extent of another parcel. Application for registration 37 (1) Any person claiming to own a parcel that is not registered pursuant to this Act may apply to the registrar of the district in which the parcel is situated to have the title to the parcel registered pursuant to this Act. … (6) Where the application is not complete, the registrar shall reject the application and return it to the applicant. (7) An application shall include sufficient information concerning the size and location of the parcel as will permit the registrar to assign the parcel identification number for the parcel and create a geographical representation of the parcel in Provincial mapping, showing it in relation to neighbouring parcels with reasonable accuracy. … Duties of registrar 48 (1) A registrar shall register or record documents that comply with this Act, in so far as practicable, (a) promptly after submission for registration or recording; and (b) in the order in which they are submitted for registration or recording. … Duty to refuse 56 (1) A registrar shall refuse to register or record a document if … (b) the document does not comply with this Act or the regulations; (c) the registrar has reasonable and probable grounds to believe that the registration or recording might result in a registration or recording that is not in accordance with law; … (e) any of the requirements of this Act have not been met. (2) Where the Registrar General determines that an error has been made in a registration or a recording, or that there is risk of an improper or fraudulent registration or recording being made, the Registrar General may order that (a) no further registrations or recordings be made with respect to a parcel; … [14] Regulation 7(19) says: Parcel Description Certification Application (PDCA) … 7(19) If a registrar determines that a PDCA is accurate, complete and in compliance with the Act and the regulations, the registrar must approve the PDCA. [15] Delport again applied to the Supreme Court for judicial review. Justice Scanlan, then of the Supreme Court, heard the matter on June 26, 2013 and issued a written decision on September 18, 2013 (2013 NSSC 287). The judge dismissed Delport’s application. He held that the Registrar General’s decision satisfied the reasonableness standard of review. Justice Scanlan’s reasons included: [9] … Although I am not bound to accept the decision of Justice Hood, I accept and adopt the reasons and analysis set out in that decision as being correct. I am satisfied the appropriate standard of review is one of reasonableness. … [24] Quieting of titles was an option as suggested by the Registrar. I am satisfied the decision of the Registrar to refuse registration is within the jurisdiction of the Registrar in the narrow circumstances of the present case. To hold otherwise would force the Registrar to be complicit in the creation of uncertainty of title in lands in Nova Scotia. To approve and allow registration of the PDCA in this case would create confusion and uncertainty as to ownership. It would not facilitate inexpensive conveyance of the lands. On the contrary it would require of any or all the affected parties that they take steps to clarify the validity of the claim as asserted through the Applicant’s tax deed. This is all contrary to the stated purpose of the Act. The Court is not prepared to interfere with the Registrar’s decision. The Court is satisfied the decision of the Registrar was reasonable. [16] Delport appealed to the Court of Appeal. Issues [17] Delport says (1) the issue is jurisdictional and attracts a correctness standard to the Registrar General’s decision, and (2) under either correctness or reasonableness the Registrar General’s decision should be quashed. Standard of Review [18] Delport’s factum summarizes its reason for terming the issue as “jurisdictional”: 31. In this case the physical existence of the lot is proven. It is the legal existence which the registrar disputes. The registrar says that the lot does not legally exist whereas the qualified lawyer has formed a researched legal opinion that it does. The issue is within the jurisdiction [of] the qualified lawyer’s, not the registrar’s. [19] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] 3 S.C.R. 654, Justice Rothstein for the plurality discussed whether a tribunal’s interpretation of its home statute was “truly jurisdictional” for standard of review analysis: [33] … Experience has shown that the category of true questions of jurisdiction is narrow indeed. … [34] The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review. … [39] What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance [Smith v. Alliance Pipeline Ltd., [2011] 1 S.C.R. 160] (para 26). True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness. [20] In Coates v. Nova Scotia (Labour Board), 2013 NSCA 52, this Court said: [43] … In Dunsmuir (para 59) and Alberta Teachers’ Association, the Supreme Court of Canada rejected decisional jurisdiction – i.e. the notion that a judicially perceived “incorrect” ruling early in the chain of reasoning necessarily deprives the tribunal of “jurisdiction” to move to the next analytical link. [21] The Registrar General dismissed Delport’s appeal because Delport’s PDCA, in the words of s. 37(7), lacked “sufficient information … as will permit the registrar to … create a geographical representation of [lot B-1] in Provincial mapping, showing it in relation to neighbouring parcels with reasonable accuracy”. Section 37(7) says that “[a]n application shall include” that information. So, without it, Delport’s application is “not complete” within the meaning of s. 37(6). Section 37(6) directs that “[w]here the application is not complete, the registrar shall reject the application …”. [22] The issue pivots on s. 37(7). Section 37(7) assigns to the “registrar” the assessment of the sufficiency of information, to satisfy that provision’s standard of reasonable accuracy for Provincial mapping. Section 37(7) doesn’t mention a lawyer. I disagree with Delport that “[t]he issue is within the jurisdiction [of] the qualified lawyer’s, not the registrar’s”. [23] The registrar’s assessment of that information, and on appeal the Registrar General’s consideration of it, involve the interpretation of s. 37(7). What does “Provincial mapping” need for “reasonable accuracy” in the depiction of lot B-1 “in relation to neighbouring parcels”? How can a parcel “neighbour” an apparently non-existent parcel? Should a court resolve this title quandary before the registrar improvises on the map? This interpretation engages professional judgment and expertise that the Legislature has credited to the registrar and Registrar General. Applying Alberta Teachers’, these officials’ interpretation of the LRA - their home statute - is not jurisdictional and presumptively engages the reasonableness standard. [24] Like Justice Scanlan, I agree with Justice Hood’s detailed standard of review analysis from the initial judicial review (2012 NSSC 416, paras 11-47) and with her conclusion that the standard is reasonableness. [25] Reasonableness means the court respects the Legislature’s choice of decision maker by analyzing that tribunal’s reasons to determine whether the result, factually and legally, occupies the range of reasonable outcomes. The question for the court isn’t - What is correct or preferable? The question is - What is reasonable? If there are several reasonably permissible outcomes, the tribunal, not the court, chooses among them. If there is only one and the tribunal’s conclusion isn’t it, or several and the tribunal’s decision isn’t among them, the decision is set aside. Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, paras 50-51. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, paras 7-11. McLean v. British Columbia (Securities Commission), 2013 SCC 67, paras 20, 31-41. Coates v. Nova Scotia, supra, para 46. Is the Decision Unreasonable? [26] Delport’s factum puts its submission succinctly: 48. This is how the system is supposed to work. If there are competing chains of title to the same parcel, then the first owner to register gets title to the property and the second gets compensation. That may not be ideal but it is still preferable to not being able to tell which party owns the property. Compensation would emanate from ss. 85-88, and s. 35(1) of the LRA. Those provisions permit a person who suffers loss from an error in the parcel register to sue the Registrar General, i.e. the Province. [27] I respectfully disagree with Delport’s submission. [28] Delport presents a false dichotomy. The choice isn’t between only: (1) Delport gets title while deprived titleholders, who had no notice there was a title problem, are left to hire lawyers for a compensation claim; or (2) the void of “not being able to tell which party owns the property”. There is a third approach – i.e. the one cited by the Registrar General. Before Delport’s PDCA is accepted, a court would determine the title under the Quieting Titles Act, R.S.N.S. 1989, c. 382, as amended, after due notice to all interested parties. Then the court’s order or certificate of quieted title would be registered under the LRA, there would be no erroneous parcel register, a compensation claim wouldn’t be necessary, and everyone would know who owns the property. This approach avoids or mitigates a loss. Delport’s approach, on the other hand, jettisons mitigation, elevates the likelihood that someone suffers loss from an erroneous parcel register, and targets compensation as a first resort. [29] The Registrar General’s approach is reasonably permissible under the LRA’s wording, context, scheme and legislative objective. [30] As noted above (para 21), the Registrar General’s approach applied the plain wording of ss. 37(6) and (7). [31] Section 21(3) says that a registration “may not be rejected only because the location, boundaries or extent of the parcel appear to overlap the location, boundaries or extent of another parcel”. The issue here isn’t a mere overlap between existing parcels, for instance from a nomadic prescriptive boundary. It is the underlying legal existence of one of those parcels. The registrar concluded that this uncertainty prevented the reasonably accurate mapping of Delport’s lot B-1 “in relation to neighbouring parcels” under s. 37(7). The Registrar General said that, in this circumstance, s. 21(3) did not constrain the registrar’s authority under ss. 37(6) and (7). This is a reasonable interpretation of the correlation between s. 21(3) and ss. 37(6) and (7). [32] At the appeal hearing, Delport’s counsel said that the use of the Quieting Titles Act, as posited by the Registrar General, would offend the LRA, s. 2(c). Section 2(c) says that a purpose of the LRA is to “facilitate the economic and efficient execution of transactions affecting interests in land”. Delport’s counsel submits it is inefficient to suspend an LRA migration for a foray into the Quieting Titles Act. [33] Again I must disagree. The potential deprivation of existing interests, without notice to the existing titleholders, is not “efficient”. The likely result would be a correction proceeding under s. 35 of the LRA and a claim for compensation. It is more efficient to avoid those proceedings, if possible. Sections 2(a) and (b) of the LRA state that the “Purpose[s] of the Act” include “certainty in ownership” and to “simplify proof of ownership” of interests in land. The LRA, s. 122, amended the Quieting Titles Act to dovetail the operation of the two statues. Section 122(3) added s. 15(4) to the Quieting Titles Act: 15(4) Where land is situate in a county to which the Land Registration Act applies, a certificate of title [under s. 15(1) of the Quieting Titles Act] shall be registered pursuant to that Act without further proof and subsection (3) does not apply”. Section 32(1)(d) of the LRA prescribes the filing of an order or certificate issued under the Quieting Titles Act. Clearly the LRA contemplates the continued utility of the Quieting Titles Act’s process to achieve the LRA’s objectives of certainty, simplicity and efficiency. [34] The Registrar General is given broad powers under the LRA to administer the land registry system in Nova Scotia. The approval or rejection of a PDCA falls squarely within the core functions and expertise of his office. In my view, the Registrar General’s interpretation of the LRA satisfies the reasonableness standard of review. Conclusion [35] I would dismiss the appeal with costs of $2,000, all inclusive, payable by the Appellants, jointly and severally, to the Respondent. Fichaud, J.A. Concurred: Saunders, J.A. Bryson, J.A.