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The Ontario Court of Appeal held that s. 103(6)(c) of the Courts of Justice Act can permit discharge of a CPL at a mortgagee’s request to allow a proper power of sale to close.
The court cancelled a certificate of pending litigation under s. 252 of the Land Titles Act after finding no step had been taken in the family law case for over four years.
The Court of Appeal allowed the appeal, held the motion judge erred by not considering that the appellant was a subsequent purchaser and by ordering specific performance on the existing record because there was no evidence whether the appellant had actual notice or whether the transfer was arm’s length; the order for specific performance was set aside and the matter remitted for trial on whether the appellant was a bona fide purchaser for value without notice entitled to protection under s.78(4) of the Land Titles Act or provisions of the Mortgages Act, with interim rent directions.
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The Court held that LTCQ notations on first registration do not permanently oust the Planning Act; s.44(1) preserves Planning Act liabilities and does not prevent ss.50 and 50.1 from applying to transfers after conversion, so the application judge properly declared the subsequent transfers subject to the Planning Act and made the requested orders.
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Registration of the 2006 Application deleting the entries BB43907 and RO530098 had the legal effect under s.78(4) of the Land Titles Act of extinguishing the pool and beach easements by express release; the application judge erred in concluding the deletion was a registrar error and in ordering rectification; the appeal is allowed and the application to restore the easement is dismissed.
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The Court of Appeal lacked jurisdiction because the application arose under the Land Titles Act and s.27 directs appeals to Divisional Court; the appeal was transferred to Divisional Court under s.110 of the Courts of Justice Act.
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The Court of Appeal dismissed an appeal challenging cancellation of a registered easement, holding the grant was invalid and unenforceable and no landlocked necessity was proven.
The mortgage is not a "fraudulent instrument" under s.78(4.1) of the Land Titles Act because neither the corporation nor Lafontaine met the Act's narrow definitions of a "fraudulent person" (no forgery, no fictitious person, and the "holding out" provision does not apply where the registered owner is in fact the corporation acting through an apparent officer); the indoor management and curtain principles protect the innocent third party lender, and deferred indefeasibility does not invalidate the mortgage under the statutory scheme; accordingly the summary judgment enforcing the mortgage was…
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The Court allowed the appeal, holding that the discharge order registered on title before the contractual deadline satisfied the VTB Mortgage requirement; outstanding appeal rights did not negate the effect of registration absent a stay, and the Divisional Court erred in disturbing the Application Judge's findings without demonstrating palpable and overriding error.
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The court extended the time to appeal and declared that MGC has an appeal as of right under s.193(c) of the BIA because the order under appeal finally determined MGC’s economic interest in the receivership proceeds (resulting in a loss exceeding $10,000), and the decision was not a mere priorities ruling; the failure to register the assignment and the adverse inference about lack of consideration meant MGC was not proven to be the owner entitled to distribution.
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