Calgary (City) v Teulon, 2021 ABQB 388

Court of Queen’s Bench of Alberta Citation: Calgary (City) v Teulon, 2021 ABQB 388 Date: 20210518 Docket: 2001 10009 Registry: Calgary Between: The City of Calgary Applicant - and - Ashton Teulon Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice EJ Sidnell _______________________________________________________ [ 1 ] The applicant, The City of Calgary (the “City”), claims ownership of the northern 5.182 m portion (the “Disputed Portion”) of a residential parcel of land (the “Parcel”), located in the community of Bowness, owned by the respondent, Ms.

Teulon. The City registered a plan of survey relating to the Disputed Portion (the “Road Plan”) on January 10, 1989. [ 2 ] Ms. Teulon’s certificate of title for the Parcel (the “Current Parcel Title”) makes no reference to the Road Plan or the Disputed Portion being owned by the City. If the City is successful, it will be the owner of almost all of Ms. Teulon’s front yard. [ 3 ] Ms. Teulon claims she is a bona fide purchaser for value and that she appropriately relied on the certificate of title for the Parcel when purchasing it in January 2020. Ms.

Teulon’s evidence is that she would not have purchased the Parcel had she been aware that the Road Plan would deprive her of almost all of her front yard. The City acknowledges in its Brief that it “is not aware of any information that indicates that [Ms.

Teulon] was aware that the Road Plan affected the [Parcel] at any time prior to her purchase of the [Parcel].” [ 4 ] The City relies on several historical statutes for its submissions, but at the hearing the City conceded that, with regard to indefeasibility of title and the remedy sought, the relevant legislation is the Land Titles Act , RSA 2000, c L-4 (the “ LTA ”).

1988 to 1989 Background [ 5 ] In April 1988, the City granted permission to the then current owners of a residential parcel of land (the “ Predecessor Owners ”) to subdivide their parcel (“Predecessor Parcel”) into two new parcels of land: the Parcel and the parcel adjacent to the Parcel (the “Adjacent Parcel”). [ 6 ] On September 19, 1988, the City entered into an agreement (the “Agreement”) with the Predecessor Owners whereby they agreed to dedicate to the City the Disputed Portion and the north 5.182 m portion of the Adjacent Parcel, once the Parcel and Adjacent Parcel were created.

The Agreement is clear that this dedication was a condition of the City’s grant of subdivision. By paragraph 2 of the Agreement, the City was entitled to register a caveat against the Parcel and the Adjacent Parcel, once created, which caveat was to be withdrawn upon the registration of a road plan. [ 7 ] The City filed the affidavit of Caylee Dyck, a Project Manager with the City’s Urban Initiative business unit, sworn August 13, 2020. Attached is a caveat (the “Caveat”), which includes a copy of the Agreement, and which references the legal description of the Parcel.

The City points to the number stamped on the Caveat by the Registrar of Land Titles in the Land Titles Office (collectively referred to as the “LTO”), and the LTO instrument number shown on the first page of the document produced by the LTO, to assert that the Caveat was registered against the certificate of title to the Parcel. Similarly, the City takes the position that the Caveat was registered on October 4, 1988, as that date is stamped on the Caveat. [ 8 ] There is no evidence showing that the Caveat was registered against the certificate of title for the Parcel or the date on which it was registered.

Just because the Caveat has the legal description of the Parcel on its face, this does not prove that it was actually registered on the certificate of title for the Parcel, and does not prove date of registration. This case arises from a registration omission and, to prove registration of the Caveat, the historical title showing registration of the Caveat should have been produced. [ 9 ] The City produced an historical title, but it was for the Parcel after the subdivision and not for the Predecessor Parcel.

Further, the City provided no evidence regarding any discharge of the Caveat. [ 10 ] After the 1988 subdivision and the execution of the Agreement, the first certificate of title for the Parcel (“1988 Parcel Title”) was issued by the LTO on November 16, 1988. [ 11 ] The Disputed Portion and the northern 5.182 m portion of the Adjacent Parcel are shown on the Road Plan, which includes a surveyor affidavit from November, 1988, and which Ms.

Dyck says was registered with the LTO on January 10, 1989 and given an instrument number by the LTO. [ 12 ] In accordance with Agreement, the Road Plan was made an exception to the Adjacent Parcel certificate of title, which includes, after reference to the plan, block and width of lot, the following exception: EXCEPTING THEREOUT PLAN NUMBER AREA ROAD 8910003 PTN [ 13 ] However, due to an “oversight” by the LTO, the Road Plan was not noted as an exception to the 1988 Parcel Title, or any future certificate of title for the Parcel, including the Current Parcel Title. [ 14 ] The affidavit of Ms.

Dyck exhibited a historical certificate of title for the Parcel showing an initial registration date of November 16, 1988, with the last encumbrance registered on July 12, 1994. There is no reference to the Road Plan in the legal description, or any caveat registered by the City, on that historical certificate of title. 2020 to 2021 Background [ 15 ] The City is undertaking a project it calls the “ Streetscape Master Plan ” and, in connection with that project, Ms. Teulon contacted the City, by email on May 27, 2020, to find out how the project would affect the Parcel.

The City reviewed the Current Parcel Title and realised that the Road Plan is not noted as an exception on the Current Parcel Title. On June 7, 2020, Ms. Dyck sent an email to Ms. Teulon noting this discrepancy. Ms. Teulon’s evidence is that, until receiving Ms. Dyck’s email, she was not aware of the existence of the Road Plan. [ 16 ] In a letter to Ms. Teulon, dated June 8, 2020, the LTO confirmed that the Parcel “was not selected as a reference title” during the registration of the Road Plan and “as a result of this oversight, the road exception does not show on your title”. The LTO inquired whether Ms.

Teulon would consent to an amendment of the Current Parcel Title. Ms. Teulon declined. [ 17 ] On June 16, 2020, Ms. Dyck sent Ms. Teulon an email which stated in part: There has been some back and forth internally with other departments to clarify the situation but no direct outcome yet. I want to assure you that our team and project had no intention of trying to obtain the 5.12m setback on your property. [ 18 ] I note that Ms. Dyck used the term “setback” in her email and that counsel for Ms. Teulon also used this term. I find this term confusing.

A setback is typically used to restrict development in the setback area, but ownership of the land comprising of the setback area remains with the homeowner. In this case, the City seeks to have Road Plan shown as an exception to the Current Parcel Title resulting in the Disputed Portion being owned by the City and not by Ms. Teulon. This case does not relate to a setback, it relates to

disputed ownership. [ 19 ] Ms. Dyck’s email of June 16, 2020 also broached the possibility of the City building a retaining wall on City property in front of Ms. Teulon’s home to permit the planned raising of the sidewalk. This proposed retaining wall would require the removal and rebuilding of Ms. Teulon’s fence, which the City proposed it would undertake. Ms. Teulon was open to this solution. [ 20 ] On July 14, 2020, the City’s in-house lawyer advised Ms. Teulon that the City would be bringing this application and that the City’s counsel on this application, Mr. Schott, would be the legal contact. It is Ms.

Teulon’s evidence that after speaking with Mr. Schott, she again contacted Ms. Dyck about the Streetscape Master Plan and whether the Disputed Portion was required to implement the City’s plans. On July 16, 2020, Ms. Dyck replied: I just spoke with [Mr. Schott]. I think there was just some confusion around what the project was proposing; and the difference between “using” the property and “working” on the property. We are not proposing to encroach on the property with public infrastructure. As discussed previously, the sidewalk will be widened to the property line and that is all.

However, we will require access to your property to tie in grading, rebuild your fence and add the landing step - this is all work that has been discussed with you. I have sent to him the design drawings that were sent to you earlier this week so we are all on the same page. In addition, you have been very clear that you will not allow any work on the property until the property line issue has been resolved. The project team understands that and is not proposing any work along the property until the issue has been resolved - so we are on the same page in that regard as well. [ 21 ] In her affidavit, Ms.

Dyck confirms that the Streetscape Master Plan work includes widening the sidewalk on City land in front of Ms. Teulon’s Parcel, replacing Ms. Teulon’s fence and installing a step in the walkway to accommodate agreed grade changes. Ms. Dyck further states that to complete this work, the City will have to enter onto the Parcel in the Disputed Portion. Notwithstanding Ms. Dyck’s assurances in her emails of June 16 and July 16, 2020, the City did bring this application and supported it with Ms. Dyck’s affidavit sworn August 13, 2020. [ 22 ] Ms.

Teulon’s evidence is that she has no issue with the City accessing her Parcel to complete the necessary work to accommodate the proposed Streetscape Master Plan work and she has advised the City that she is prepared to accommodate temporary access to her Parcel to complete such necessary work. Preliminary Discussion [ 23 ] The City frames the issues as whether the City had an interest in Disputed Portion because it registered the Road Plan and, asserting that it does, whether that interest is “defeated by the provisions of the Land Titles Act concerning indefeasibility of title”.

I disagree with this approach. [ 24 ] The City has shown that the Road Plan was registered in the LTO in 1989. However, since the Current Parcel Title does not except-out the Road Plan from the legal description, the question must be whether the Current Parcel Title can be defeated by the City’s claim based on the Road Plan and not the other way around.

Considering the indefeasibility of the Current Parcel Title accords with statutory regime created by the combination of ss. 60 and 203 of the LTA , which creates indefeasibility of title, subject to the “incidents implied by virtue of this Act” and the encumbrances, liens and interests registered on title. Here, the incidents implied by virtue of the LTA are those contained in ss. 60 , 61 and 62 . [ 25 ] The City submits that: (

a) the Land Titles Act , RSA 1980, c.L-4 , as amended by the Land Titles Amendment Act, 1982 , c. 23 (collectively the “ 1982 Land Titles Act ”) was in force when the Agreement was entered into and “is the legislation that applies in relation to the City’s filing of” the Caveat; and (

b) the Land Titles Act , RSA 1980, c.L-4 , as amended by the Land Titles Amendment Act, 1982 , c. 23 and the Land Titles Amendment Act , 1988, c. 27 (collectively the “ 1988 Land Titles Act ”) was in force when the 1988 Parcel Title was issued and when the Road Plan was registered. [ 26 ] I note that, in addition to the Land Titles Act , RSA 1980 amendment legislation referred to by the City, there were also other consequential amendments to the Land Titles Act , RSA 1980, as a result of amendments to other legislation, however none of those other amendments were raised as being relevant to this application. [ 27 ] The City refers to the definition of “instrument” under the 1982 Land Titles Act , which includes a document in writing that affects the transfer of land, to assert that the Agreement is an instrument.

The City says that, under s. 57 of the 1982 Land Titles Act , as soon as an instrument is registered, it becomes operative. That

section said: So soon as registered every instrument becomes operative according to the tenor and intent thereof, and thereupon creates, transfers, surrenders, charges or discharges, as the case may be, the land or the estate or interest therein mentioned in the instrument. [ 28 ] The City asserts that its interest in the Agreement was protected by way of registration of the Caveat. As noted above, there is no direct evidence of the Caveat being registered against the certificate of title for the Predecessor Parcel. There is no reference to the Caveat on the historical title for the Parcel from 1988 to 1994.

The Caveat does not appear on the Current Parcel Title. Even if the Agreement became operative on October 4, 1988, such that it transferred the Disputed Portion to the City, such transfer had to be either registered against the certificate of title for the Predecessor Parcel and transferred to the 1998 Parcel Title, or fall into one of the exceptions to indefeasibility of title, to create a transfer of the Disputed Portion to the City that is enforceable against a bona fide purchaser for value, such as Ms. Teulon. [ 29 ] The City also relies the Municipal Government Act , RSA 1980, c.

M-26 , as amended and in force in 1989 when the Road Plan

was registered in the LTO (the “ 1989 MGA ”), for the proposition that, through the Agreement, the City acquired land for the purpose of a road and based on s. 136(1), title in the Disputed Portion vested in the City:

(1) When through agreement with the owner, a municipality acquires land for the purpose of a highway, road, street, lane, bridge, culvert, ditch or drain, title to the land may be vested in the city ... by filing in the proper land titles office (

a) plans of survey in accordance with

section 135, and (

b) an affidavit of the municipal secretary setting forth a description of the land, and stating that agreement has been reached with all the owners thereof as to the land to be acquired and the price to be paid, and it is not necessary to register a transfer to that land. [ 30 ] The process set out in s. 136(1) of the 1989 MGA included the filing of a plan of survey, “in accordance with

section 135” and an affidavit. The Road Plan is a plan of survey which has on its face an affidavit of the City Clerk, the contents of which are difficult to discern because of the size of the reproduction. According to the uncontroverted evidence of Ms. Dyck, the Road Plan was filed in the LTO.

Section 135 of the 1989 MGA provided: If the land to be taken is required for the opening, extending or widening of a highway, the municipality shall also deposit copies of the plan of survey in the office of the Registrar of Land Titles, and the Registrar shall receive and preserve the plan in like manner as railway plans are received and preserved under the Railway Act . [ 31 ] There is no evidence that the Disputed Portion was “required for the opening, extending or widening of a highway”, so there is no evidence that the Road Plan was filed in accordance with s. 135 of the 1989 MGA . [ 32 ] Furthermore, even if s. 135 was complied with, s. 136(1) of the 1989 MGA states that “title to the land may be vested” [italics added] in the City upon the filing the plan of survey and the required affidavit.

The City’s

interpretation would require the word “may” to be read as “shall”. [ 33 ] Subsection 172(2) of 1989 MGA is also relied on by the City: The title to all public highways, roads, streets, lanes, alleys and bridges in a city is, except as far as is excluded by a special Act or an agreement, vested in the city. [ 34 ] There was no public highway, road, street, lane, alley or bridge on the Disputed Portion at the time of the registration of the Road Plan, or at any time thereafter. The City has registered a Road Plan, but there is no improvement on the Disputed Portion, other than improvements for use as Ms.

Teulon’s front yard. This subsection does not assist the City because there was no public highway, road, street, lane, alley or bridge to which it could apply. [ 35 ] The City’s submissions, described above, are in furtherance of its position set out in its Brief that: “once [LTO] registered the Road Plan on January 10, 1989, the title to the [Disputed Portion] vested in the City.” However, this is not enough. The Current Parcel Title does not recognize the Road Plan. To succeed, the City must fit into one of the exceptions to indefeasibility set out in the LTA , in this case in ss. 60 , 61 or 62 .

Issues [ 36 ] The overarching issue in this litigation is the applicability of the principle of infeasibility of title in the Torrens land titles registration system in Alberta under the LTA . The Torrens system is intended to save persons from having to go behind the registered title to investigate the predecessor’s title and satisfy themselves of its validity: Bank of Montreal v 1323606 Alberta Ltd , 2013 ABQB 596 , at para 23 , referring to Gibbs v Messer , [1891] AC 248 . [ 37 ] This case raises the following issues: (

a) Is the Current Parcel Title subject to the Road Plan because: (

i) the Current Parcel Title is subject to the estate or interest of the City claiming the same land under a prior certificate of title pursuant to s. 60 of the LTA ? (ii) the Road Plan is a “public highway” for the purposes of s. 61(1)(

c) of the LTA and the Current Parcel is subject to the Road Plan? (iii) the failure to register the Road Plan against the 1988 Parcel Title or the Current Parcel Title amounted to a “wrong description of boundaries or parcels included in the certificate of title” which is an exception to indefeasibility in s. 62 of the LTA ? (

b) If the Current Certificate of Title is subject to the Road Plan, is it appropriate for this Court to exercise its discretion and direct the LTO to cancel, correct and re-issue the Current Parcel Title under s. 190 of the LTA ? Is the Current Parcel Title subject to the Road Plan because: the Current Parcel Title is subject to the estate or interest of the City claiming the same land under a prior certificate of title

pursuant to s. 60 of the LTA ? [ 38 ]

Section 60 of the LTA provides as follows: 60(1) The owner of land in whose name a certificate of title has been granted shall, except in case of fraud in which the owner has participated or colluded, hold it, subject (in addition to the incidents implied by virtue of this Act) to the encumbrances, liens, estates and interests that are endorsed on the certificate of title, absolutely free from all other encumbrances, liens, estates or interests whatsoever except the estate or interest of an owner claiming the same land under a prior certificate of title granted under this Act or granted under any law heretofore in force and relating to title to real property .

(2) Such priority shall, in favour of any person in possession of land, be computed with reference to the grant or earliest certificate of title under which the person claiming priority or any person through whom that person derives title has held possession. [emphasis added] [ 39 ] The exception to indefeasibility in s. 60(1) relates to “an owner claiming the same land under a prior certificate of title”. The City’s evidence is that the Road Plan was registered in the LTO, but no certificate of title was ever granted to the City for the Disputed Portion.

Without a certificate of title, the City cannot be an owner claiming the same land “under a prior certificate of title” and therefore the Road Plan is not an exception to the indefeasibly of the Current Parcel Title under s. 60(1). Is the Current Parcel Title subject to the Road Plan because: the Road Plan is a “public highway” for the purposes of s. 61(1) (

c) of the LTA and the Current Parcel is subject to the Road Plan? [ 40 ] The relevant portion of

section 61 of the LTA is as follows: 61(1) The land mentioned in any certificate of title granted under this Act is, by implication and without any special mention in the certificate of title, subject to . . . (

c) any public highway ... howsoever created, on, over or in respect of the land, [ 41 ] The City asserts that the term “public highway” should be interpreted to include the Road Plan. As noted by the City, there is no definition of “public highway” in the LTA , and the City submits that other historical statutes have a broad definition of “public highway”. However, having concluded that the LTA applies to the issue of indefeasibility, I do not find the historical statute references to be of any assistance. [ 42 ] The term “public highway” appears in the LTA three times: (

a) as quoted above, in s. 60(1) as an implied exception to title, where “public highway” is used without reference to “road, street or lane”; (

b) in s. 82(3)(

a) in relation to when a plan of survey is submitted for registration and a certificate of title would normally be issued, there is an exception to the issuance of a certificate of title for when the “area taken consists of a public highway, road, street or lane”; and (

c) in s. 82(5)(

c) where in the context of a plan of survey for a subdivision, the LTO shall “not issue a certificate of title in respect of land that is shown on the plan as a public highway, road, street or lane”. [ 43 ] The use of the term “public highway” in s. 60(1) of the LTA is not synonymous with “road, street or lane” as those later terms are specifically added in ss. 82(3) (

a) and 82(5) (c). In any event, it is clear that the Disputed Portion is not currently being used as any type of public highway, road, street or lane. The Disputed Portion’s current use is Ms. Teulon’s front yard. It is also clear that the City has no intention to use the Disputed Portion for any type of public highway, road, street or lane. [ 44 ] The implied exception set out in s. 61 of the LTA refers to a public highway “on, over or in respect of the land”. In Nelson v 1153696 Alberta Ltd , 2009 ABQB 732 , reversed on other grounds, 2011 ABCA 203 , leave to the SCC denied [2011] SCCA No 423, Moen J, at para 30, described when a purchaser should be alert to a s. 61(1)(

c) exception to indefeasibility: Therefore, a person purchasing land with an obvious roadway across the land, could, according to the law, anticipate that [such] publicly travelled road is a public highway which, though not shown on the certificate of title, would nevertheless be public land. [ 45 ] In Twogee Developments Ltd v Felger Farming Co Ltd , 2017 ABCA 138 , the majority said, at para 19, that to “establish a public highway by dedication the owner must have the actual intention to dedicate, and it must appear that the intention was carried out by the road being thrown open to the public and accepted by the public.” Here, there is no current or future intention to use the Disputed Portion for any type of public highway, road, street or lane.

[46] I agree with Moen J in Nelson that the reference to “public highway” in s. 61(1)(

c) is a reference to something physicalbecause it must be “created, on, over or in respect of the land”. Regardless of whether the interest referred to in the Road Plan could beused a public highway, road, street or lane, there is no physical public highway, road, street or lane of any kind on the Disputed Portionand I find that the Road Plan is not an implied exception to indefeasibility of the Current Parcel Title pursuant to s. 61(1)(c).

Is the Current Parcel Title subject to the Road Plan because:the failure to register the Road Plan against the 1988 ParcelTitle or the Current Parcel Title amounted to a “wrongdescription of boundaries or parcels included in the certificateof title” which is an exception to indefeasibility in s. 62 of theLTA? [47]

Section 62 of the LTA has a similar structure to s. 61 of the LTA and provides as follows: 62(1) Every certificate of title granted under this Act (except in case of fraud in which the owner has participated or colluded), so longas it remains in force and uncancelled under this Act, is conclusive proof in all courts as against Her Majesty and all persons whomsoeverthat the person named in the certificate is entitled to the land included in the certificate for the estate or interest specified in thecertificate, subject to the exceptions and reservations mentioned in

section 61, except so far as regards any portion of land by wrongdescription of boundaries or parcels included in the certificate of title and except as against any person claiming under a prior certificateof title granted under this Act or granted under any law heretofore in force relating to titles to real property in respect of the same land.

(2) For the purpose of this section, that person is deemed to claim under a prior certificate of title who is holder of or whose claim isderived directly or indirectly from the person who was the holder of the earliest certificate of title granted, notwithstanding that thecertificate of title has been surrendered and a new certificate of title has been granted on any transfer or other instrument. [emphasis added] [48] The City relies on the first exception in s. 62(1) of the LTA and asserts that the Current Parcel Title contains the “wrongdescription of boundaries or parcels included in the certificate of title”. [49] The City relies on the LTO process for dealing with plans of survey set out in s. 83 of the 1988 Land Titles Act and, in itssupplementary submission, states: Section 83(1) ... provides that when a plan of survey is prepared in relation to a public work pursuant to the Municipal Government Actand submitted for registration, the Registrar shall register the plan of survey and make the necessary cancellations of the appropriatecertificates of title.

Pursuant to subsection 83(2), where the area taken pursuant to the plan of survey consists of a public highway, road,street or land, a certificate of title shall not be issued with respect to that area.

Pursuant to subsection 83(3), where an instrument isregistered pursuant to subsection 83(1), that registration vests the interest taken in the municipality. [50] The City further asserts in its supplementary submission, footnotes omitted, that because the process set out in s. 83 of the1988 Land Titles Act was not followed by the LTO, the Current Parcel Title: ... contains a wrong description of boundaries or parcels, the City holds title to the land comprising the Road Plan pursuant to the [1988Land Titles Act] as well as the Municipal Government Act, and that an exception to indefeasibility of title exists in these circumstances. [51] There is no evidence that the City “holds title” to the Disputed Portion.

The Road Plan was registered in the LTO, but there isno certificate of title in the City’s name for the Disputed Portion. I have dealt above, in paras 25 to 35, with the City’s submissions on theapplicability of the 1988 Land Titles Act and the 1989 Municipal Government Act, and will not repeat them here.

I have also found thatto succeed, the City must fit into one of the exceptions to indefeasibility of title set out in the LTA. [52] In the City’s Brief, it explains how, in its view, the wrong description came to exist: Because the [LTO] failed to cancel the [1988 Parcel Title] when the Road Plan was registered, the certificate of title that subsequentlypassed to [Ms. Teulon] contains a wrong description of boundaries or parcels. [53] Ms.

Teulon relies on Turta v Canadian Pacific Railway, (SCC), [1954] SCR 427, where the Supreme Courtof Canada addressed the ownership of petroleum rights which had been erroneously omitted when title was transferred to a bona fidepurchaser for value. The Canadian Pacific Railway (“CPR”) sold certain lands to Mike Podgorny in 1908, reserving out of that transferthe rights to the coal and petroleum. However, due to a clerical error made by the LTO, the certificate of title was issued with areservation of only coal, and not petroleum rights. The lands were sold by Mr.

Podgorny to two parties: Andrew Sitko and Anton Turta.The transfer agreements did not contain any reservations, but when registered, both new titles reserved coal to the CPR. Mr. Turta laterpurchased Mr. Sitko’s lands and, again, Mr. Turta’s title to the lands only reserved coal to the CPR. The error was detected in 1943 andthe LTO made “corrections” the titles: Mr. Turta’s then current title, and the historical titles going back to when the error was made in1903. [54] In 1946, the CPR gave an option to Imperial Oil Limited to petroleum and natural gas rights on the lands, which Imperialexercised in 1951.

The Montreal Trust Company and William Sereda entered into an agreement for petroleum rights with Mr. Turta and

registered a caveat on the title. [55] The trial judge, and a majority of the judges in the Appellate Division of the Supreme Court of Alberta, found that Mr. Turtawas entitled to rely on his title. The Supreme Court of Canada was divided, and 6 of 9 judges upheld the courts below, with Estey Jwriting the judgment of the majority. [56] The facts in Turta, and in this case, arose from a clerical error made by the LTO whereby a reservation, or exception, wasomitted from a certificate of title which was later transferred to a bona fide purchase for value.

In Turta, the majority found in favour ofthe bona fide purchaser for value, Mr. Turta. In arriving at this conclusion, Estey J said, at pages 443 and 444: ... 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 inan 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 dealwith confidence, relying upon the information there disclosed. ... [57] Estey J also explored the use of the term “misdescription” in s. 104(

e) of the Land Titles Act, 1906 ch 24, and other sections inthat legislation. The same subsection still exists in the LTA, in a near identical form. Section 183(1)(

e) of the LTA states as follows: No action of ejectment or other action for the recovery of any land for which a certificate of title has been granted lies or shall besustained against the owner under this Act in respect of it, except in any of the following cases: . . . (

e) the case of a person deprived of or claiming any land included in a grant or certificate of title to other land by misdescription ofthe other land or of its boundaries, as against the owner of the other land; ... [58] In Turta, the fact that the interest being asserted related to petroleum and not land was integral to the analysis of the majority:see page 447. After making the point that the omission of a reservation of petroleum could not be considered a “misdescription of suchother land or its boundaries”, Estey J said, also at page 447: ...

That this phrase should receive a limited or restricted construction finds support, not only in the fact that it appears as an exception in s.104(e) [now s. 183(1)(e)] and as it is imported into s. 106 [now s. 170], but also in the provisions of s. 108 [now s. 168(1)(b)].

In thelatter it is contemplated that a "person deprived of any land … by any error, omission or misdescription in any certificate of title …" maybe barred from recovery of either the land or damages from parties involved and thereafter, and in that event only, may he "bring anaction against the registrar as nominal defendant" for damages. [59] Estey J considered all of these sections in conjunction with s. 44 of the Land Titles Act, 1906 ch 24, which also contained thesame exception as now found in s. 62 of the LTA: “except so far as regards any portion of land by wrong description of boundaries orparcels included in such certificate of title”.

Estey J also linked this exception in s. 44 directedly to the exception set out in s. 104(

e) ofthe Land Titles Act, 1906 ch 24: see page 445.

Using the current sections of the LTA, the link was made directly between the exceptionsin s. 62(1) and s. 183(1)(e). [60] At pages 447 and 448, Estey J explained that it was not the intention of the legislature that an error on the part of the LTOwould render a certificate of title a nullity and, further, that the validity of the bona fide purchaser for value’s certificate of title derivedfrom the statute and not the erroneous transfer: Nowhere throughout the statute is it provided that failure upon the part of the registrar to comply with these provisions, or that anyomission, mistake or misfeasance on his part, in the preparation of a certificate of title, shall render that certificate a nullity.

That suchwas not the intention of the legislature is evidenced by the provisions under which a certificate of title may be corrected and damagesclaimed in the event of omission, mistake or misfeasance on the part of the registrar, his officers or clerks. There are also thoseprovisions which contemplate the correction of the registrar's omissions in a certificate such as that issued to Podgorny while it remainedoutstanding and those other provisions under which the position is entirely changed when Podgorny's certificate is cancelled and a newcertificate of title issued to one in the position of Anton Turta.

Once the certificate is issued to Turta it derives its force and validity, notfrom the transfer of the C.P.R. to Podgorny, but by virtue of the provisions of the statute. [61] Notwithstanding that the majority of the Supreme Court of Canada found in favour of the bona fide purchaser for value inTurta, Ms. Teulon places reliance on the dissenting opinion of Cartwright J in Turta for his reliance on Hamilton v Iredale (1903), 3S.R. (N.S.W.) 535 (SCNSW), and that court’s explanation of misdescription.

The same quotation was referred in the concurring reasonsof Locke JA in Hawkes Estate v Silver Campsites Ltd (1991), (BC CA), 79 DLR (4th) 677 (BCCA), at para 72: There are a number of examples of misdescription given in the cases: they have been recited by Gibbs J.A. In my opinion what we havehere is not a misdescription. In Turta Cartwright J., in dissent, referred to the case of Hamilton v. Iredale ... Walker J. in the Court ofAppeal gave, I think, the classic discussion of "misdescription": As I understand it the law is to this effect.

If I apply to bring Blackacre (to which I am entitled) under the Act, and in my application, orin the certificate, Blackacre is misdescribed so that a certificate is issued to me of the adjoining Whiteacre, or of Blackacre plus a strip ofWhiteacre, there is plainly a misdescription of parcels or boundaries, which can be rectified as against me or any volunteer claimingunder me. If, however, I apply to have land to which, in fact, I have no title, brought under the Act, and a certificate is issued to me ofthat land, it is not a case of misdescription of parcels or boundaries.

Misdescription is where, intending to describe A, I describe B, or sodescribe A as to make it include B; but it is no misdescription if I describe correctly the land I am applying for, though the land is notmine. It is then a case, not of misdescription, but of no title, and the position depends on my conduct in the matter. If I tried to get acertificate of land to which I knew I had no title, that would be fraud on my part, and in such case, under the express terms of the Act,neither myself, nor volunteers claiming under me, can claim to be protected by the certificate.

If, however, I acted bona fide, believing,however mistakenly, that I had a title to the land applied for, then the case does not fall within any of the exceptions to the efficacy of the

certificate, and ss. 40 and 42 give me an absolute title, which no Court can take away or review. I see nothing in the cases which isopposed to this view of the law. In Turta Cartwright J., in dissent, commented on Walker J.'s view with apparent approval, but distinguished the case on the facts. Asalways, these principles must be applied to what is in front of the court. [62] This case does not arise from a mistake made by a person seeking a certificate of title and misdescribing the lands. It arisesfrom the LTO making a clerical error and failing to include an exception from the legal description of the Parcel.

The facts of this casedo not align with the characterisation in Hamilton v Iredale of a misdescription occurring when a land owner, intending to describe A,instead describes B, or a land owner describes A, and inadvertently includes B. Here, it was not the land owner who misdescribedanything and, furthermore, the error did not describe some other parcel or include another parcel, the error was an omission of anexception to the legal description. [63] The City relies on s. 62(1) which employs the phase “any portion of land by wrong description of boundaries or parcelsincluded in the certificate of title”.

Interestingly, the word “misdescription” is not used and no other

section in the LTA uses the phrase“wrong description”. [64] In Edwards v Duborg (1982), (AB KB), 22 Alta LR (2d) 63 (ABQB), Forsyth J referred to the sections ofthe Land Titles Act, RSA 1980, which used “misdescription” and “wrong description” without distinction when finding that there hadbeen a misdescription resulting from the 1893 survey, referred to in the description of the lands on the certificate of title, stating that apeninsula of land was located entirely in LSD[1] 7 when it was, in fact, in both LSD 7 and 8. [65] In the trial decision of Hawkes Estate v Silver Campsites Ltd, (1988) (BC SC), 52 DLR (4th) 183 (BCSC),reversed in part and quoted above, MacKinnon J referred to decisions in which a misdescription ad been found and said, at para 33: The defendant cited several other decisions where it was held that there had been a misdescription: Pleasance v.

Allen, [[1889] 15V.L.R. 601 (VSC)]; Overland v. Lenehan, [[1901] 11 Q.L.J. 59 (QSC)]; Lukiv v. Board of School Trustees of School District No. 34(Abbotsford), [(1958) (BC SC), 15 D.L.R. (2d) 257 (BCSC)] ... and Edwards v. Duborg ... The facts of all these casesincluded some form of “error” made in surveying or describing the property. In Pleasance v. Allen, five and a half inches of a store-frontproperty was erroneously included in the description of the adjoining property. In Overland v.

Lenehan, a plan of subdivision failed totake into account the loss of width of land to a roadway at one end of the plot of land to be subdivided. One lot, described as 2.5 chainswide, was in actuality narrower by the roadway allowance, due to error in measuring and drawing up the plan. The facts in Lukiv v.Board of School Trustees also contained an erroneous survey, as did the decision in Edwards v. Duborg.

These decisions are thusdistinguishable from the case at bar, where no such error occurred, and I am of the view that the facts here do not support the plaintiff’sclaim that there has been a “misdescription”. ... [66] Griffith, CJ’s decision in Overland v Lenehan, is clear that the error in that case, giving rise to the dispute between twoadjacent land owners, was made by the surveyor undertaking a subdivision plan. That plan created 10 lots of equal size, and they weremarked with pegs and sold to bona fide purchasers for value.

The last, somewhat larger, lot was the remaining width of the originalparcel, less the 10 subdivided lots. However, a new road was being built on one side of the original parcel and the owner had dedicated aportion of land for that new road. It appeared that, in calculating the width of that larger last lot, the surveyor forgot to deduct the newroad dedication. The contest was between the owner of lot 10 and the owner of the larger lot.

The court found that the surveyor erredwhen the lots were created and, in finding against the owner of the larger lot, said at pages 66 and 67: It follows that the defendant's certificate of title [for lot 10] correctly denotes the land actually in his occupation, and that it was theplaintiffs' certificates of title contain a misdescription of the land comprised in them, and intended to be described, inasmuch as theyerroneously describe the northern frontage as 2½ chains, whereas it is actually less than that by 37½ links. [67] In this case, the Parcel was transferred from the Predecessor Owners to another owner in 1994.

Historical titles were notprovided from the 1994 transfer to the transfer to Ms. Teulon in January 2020, but the vendor who sold the Parcel to Ms. Teulon is notthe same as the owner who took title from the Predecessor Owners. From this I can ascertain that there were at least two interveningowners of the Parcel between the Predecessor Owners and Ms. Teulon. There is no evidence that any of the owners of the Parcel, afterthe Predecessor Owners, were aware of the Agreement or the Road Plan until 2020 when Ms. Teulon made inquiries of the Cityregarding the Streetscape Master Plan.

From 1989 to 2020, a period of over 30 years, none of the subsequent owners were aware until theCity claimed its rights under the Agreement and the Road Plan and commenced this application in August 2020. [68] Turning back to s. 62(1), the LTA contains no definition of “boundary” or “parcel”. However, in the LTA, the terms“boundary” and “boundaries” is used to connote perimeter, border or the limit of a parcel.

One example of this usage is in s. 90: Every parcel of land described in a certificate of title consists only of the actual area within its legal boundaries and no more or less,notwithstanding that a certificate of title or other instrument that describes the parcel expresses an area that is more or less than the actualarea. [69] The terms “parcel” and “parcel of land” are used throughout the LTA. Those terms are used in the sense of whole unit of land,such as a lot, and not a portion or a road plan. An example of this usage is in s. 48(3) which deals with the registration of a restrictivecovenant:

(3) Notwithstanding subsection (2), before a memorandum of a condition or covenant may be entered on a certificate of title undersubsection (2), certificates of title must exist for all the parcels of land affected by the condition or covenant, including the parcel of landthat comprises the servient tenement and the parcel of land that comprises the dominant tenement. [70] This usage of the term “parcel of land” is similar in s. 51(1) creating the right of the LTO to use a numbering system toidentify parcels;

The Registrar may assign to a parcel of land a number for the purpose of facilitating the identification of the parcel in records, registers and instruments. [ 71 ] Under s. 75(1), the LTO can separate and consolidate parcels of land and issue certificates of title accordingly and again the term “parcel” is used in reference to land that can be subject to a certificate of title: On the application by or on behalf of the registered owner of land, the Registrar may separate or consolidate parcels or interests in land by cancelling the existing certificate of title for that parcel or interest and issuing in substitution for that certificate of title one or more new certificates of title. [ 72 ] In

summary, I find that the exception in s. 62(1) for “any portion of land by wrong description of boundaries or parcels included in the certificate of title” does not apply in this case for the following reasons: (

a) Although I find no substantive difference between the terms “misdescription” and “wrong description” as used in the LTA , as noted by Estey J in Turta , such a phrase should receive a limited or restricted construction. (

b) This case is not similar to the other cases of misdescription which are described in the caselaw. In Turta , both Kellock J and Cartwright J, who referred to the Hamilton v Iredale characterization of misdescription, distinguished it from the clerical error that occurred in the Turta case. In his reasons, concurring with the majority, Kellock J, at page 460, said: In my view, the "misdescription" (if that be the correct term) of which the appellants complain, arising as it did from an error on the part of the registrar, is not of the character dealt with by s. 104(1)(e) [now s. 183(1)(e)].

Accordingly, in the language of s-s (2) of that section, the certificate of title held by Turta is "an absolute bar and estoppel" to any such action as is here in question. (

c) In this case, I find that there is no wrong description of “boundaries”. I also find that the use of the term “boundaries” in s. 62(1) of the LTA is used in the context or perimeter, border or the limit of a parcel and that it not the issue in this case. (

d) In this case, I find that there is no wrong description of the “parcels included in the certificate of title”. I find that this phase in s. 62(1) of the LTA is used in the context of a whole unit of land, such as a lot, and not a road plan. Here, the clerical error arose from the omission of the road plan exception, not a parcel exception. (

e) There is a remedy in the LTA for LTO clerical errors as against the LTO, which failed to note the exception on the 1988 Parcel Title due to an “oversight”. I make no comment, however, on whether the City is able to make a claim against the LTO as that question is not before me. (

f) The City may have had the opportunity to have protected itself from the omission that it now seeks to correct by not discharging the Caveat without first ensuring that the Road Plan was excepted-out in the legal description of the Parcel. As I have noted, there is no evidence regarding the discharge of the Caveat before me. [ 73 ] I conclude that none of the exceptions relied on by the City apply. As a result, the Current Parcel Title is indefeasible under the LTA and is not subject to the Road Plan.

If the Current Certificate of Title is subject to the Road Plan, is it appropriate for this Court to exercise its discretion and direct the LTO to cancel, correct and re-issue the Current Parcel Title under s. 190 of the LTA ? [ 74 ] LTA ,

section 190 , states: In any proceeding respecting land or in respect of any transaction or contract relating to it, or in respect of any instrument, caveat, memorandum or entry affecting land, the judge by decree or order may direct the Registrar to cancel, correct, substitute or issue any certificate of title or make any memorandum or entry on it and otherwise to do every act necessary to give effect to the decree or order. [ 75 ] The City asserts that the Parcel is subject to one or more of the exceptions referred to in ss. 60 , 61 and 62 of the LTA .

Based on that position, and recognizing that s. 190 of the LTA requires an exercise of discretion, the City seeks an order directing the LTO to cancel the Parcel Title, to correct the Parcel Title by adding the Road Plan exception and to issue a new certificate of title to Ms. Teulon.

The City submits that it would be equitable to grant the relief sought because otherwise the City would not have the benefit of the Disputed Portion that it obtained in 1988. [ 76 ] I have found that none of the exceptions relied upon by the City apply and it is not entitled to have the Road Plan excepted-out of the Current Parcel Title. However, even if I am wrong about the application of the law to this case, I would not exercise my discretion to direct the LTO is correct the Current Parcel Title. [ 77 ] Ms.

Teulon relied, appropriately, on the certificate of title for the Parcel before it was transferred to her. She did not purchase the Parcel from the Predecessor Owners, but someone who held title without any exception of the Road Plan. There is no evidence that the vendor was aware of the Road Plan or that it should have been excepted-out from the Parcel’s legal description. [ 78 ] The evidence shows that, concurrently with purchasing the Parcel, Ms. Teulon placed a mortgage on the Parcel.

There was no indication as to whether the mortgagee, a third party who has an interest in the Parcel, was given notice of this application.

[ 79 ] Ms. Dyck’s evidence is that the Streetscape Master Plan work includes sidewalk widening, replacing Ms. Teulon’s fence and accommodating grade changes on the Disputed Portion. Ms. Teulon’s evidence is that she agreed to permit the City to undertake this work. There is no evidence that the Disputed Portion is intended to be used for a public highway or road and, in fact, the City does not have the requisite exceptions from surrounding parcels to use the Disputed Portion for this purpose. [ 80 ] If the City’s application is granted, Ms.

Teulon would lose ownership to most of her front yard, a 5.182 m portion which is approximately 14% of the Parcel. On the other hand, if the City’s application is denied, Ms.

Teulon said she is prepared to give access to the City so it could undertake its Streetscape Master Plan work, so there would be no negative impact to the City. [ 81 ] Lastly, there was no evidence before me regarding the discharge of the Caveat and whether the City could have ensured that the Road Plan was registered before it discharged its Caveat. [ 82 ] On balance, it would not be fair to exercise my discretion to direct LTO to correct the Current Parcel Title, even if the City fit into one of the exceptions in ss. 60 , 61 or 62 of the LTA .

Costs [ 83 ] At my request, the parties provided written submissions on costs. A hearing will be set to further address costs, unless the parties advise that they can agree to the same. Heard on the 7 th day of April, 2021, with further submissions received on April 16 and 23, 2021. Dated at the City of Calgary, Alberta this 18 th day of May, 2021. E.J. Sidnell J.C.Q.B.A. Appearances: Steven C. Schott for the Applicant Trevor R. McDonald and Mark D. MacAulay for the Respondent