2015 NBCA 24, 2015 NBCA 24

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 66-14-CA DONALD HOVEY APPELLANT DONALD HOVEY APPELANT - and - - et - REGISTRAR GENERAL OF LAND TITLES, 643589 NB LTD., K.W. POND LIMITED and DOREEN POND RESPONDENTS REGISTRATEUR GÉNÉRAL DES TITRES DE BIENS-FONDS, 643589 NB LTD., K.W. POND LIMITED et DOREEN POND INTIMÉS Hovey v. Pond et al., 2015 NBCA 24 Hovey c.

Pond et autres, 2015 NBCA 24 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: May 7, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 7 mai 2014 History of Case: Historique de la cause : Decision under appeal: 2014 NBQB 118 Décision frappée d’appel : 2014 NBBR 118 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 24, 2015 Appel entendu : le 24 février 2015 Judgment rendered: April 23, 2015 Jugement rendu : le 23 avril 2015

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Deschênes The Honourable Justice Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Richard Counsel at hearing: For the appellant: Joseph W.J. FitzPatrick III For the respondent Registrar General of Land Titles: David D. Eidt For the respondent 643589 NB Ltd.: David T. Hashey, Q.C. and Aaron McKinley Savage K.W. Pond Limited and Doreen Pond did not appear Avocats à l’audience : Pour l’appelant : Joseph W.J.

FitzPatrick III Pour l’intimé le registrateur général des titres de biens-fonds : David D. Eidt Pour l’intimée 643589 NB Ltd. : David T. Hashey, c.r., et Aaron McKinley Savage K.W. Pond Limited et Doreen Pond n’ont pas comparu THE COURT The appeal is allowed without costs. LA COUR L’appel est accueilli sans dépens. The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] This appeal raises issues concerning the registration, rectification and notation provisions of New Brunswick’s land titles system.

In a preceding action, the ownership of a peninsula tip of land along the southwest Miramichi River, located at Porter Cove in the Parish of Ludlow and County of Northumberland, was claimed by Doreen Pond and Donald Hovey, who were adjacent owners of lots of property. Mr. Hovey is the successor in title to the original grantee of Crown Grant #74, granted in 1809 (Lot 74), and Ms. Pond is the successor in title to the original grantee of Crown Grant #73, granted in 1916 (Lot 73). Ms. Pond

brought a trespass action in the Court of Queen’s Bench against Mr. Hovey, alleging he had trespassed on and damaged the peninsula land in dispute. Mr. Hovey responded by claiming ownership of the peninsula.

The problem arose because the boundary line between the two lots was not clear as between the two Grants, not shown as extended across the peninsula in the 1809 Grant of Lot 74, but clearly shown on the Grant of Lot 73 deed with a map attached to the description. [ 2 ] On April 15, 2009, a judge of the Court of Queen’s Bench determined the question of ownership in favour of the respondent, Doreen Pond ( Pond v. Hovey , 2009 NBQB 86 , 343 N.B.R. (2d) 390 ). She found the boundary line was as shown on the map with the 1916 Grant, which includes the peninsula with Lot 73. Mr.

Hovey appealed to the Court of Appeal and was successful. The Court found the 1809 Grant was clear and unambiguous as to Mr. Hovey’s ownership, and could not be derogated from by a later change in description ( Hovey v. Pond , 2010 NBCA 2 , 353 N.B.R. (2d) 388 ). [ 3 ] The formal judgment of the Court of Appeal was registered in the Northumberland County Registry Office on May 21, 2010. Mr. Hovey then successfully filed an Application for First Registration (AFR) of the peninsula under the Land Titles Act , S.N.B. 1981, c. L-1.1, s. 11.

On July 16, 2010, the respondent, 643589 NB Ltd., filed a caveat under the Act claiming an interest in 10 foot strips around the peninsula and the associated riparian and fishing rights. The same respondent subsequently brought a motion to this Court seeking an amendment of the 2010 formal judgment, arguing that its “ownership was effectively extinguished without the opportunity to be heard on the issue” (see the motion decision at 643589 N.B. Ltd. v. Hovey , 2010 NBCA 2 , 369 N.B.R. (2d) 394 , at para. 2 ).

On March 24, 2011, this Court added the numbered company as a party and allowed the motion, amending the formal judgment so as to not include a declaration of title. The numbered company’s claim to ownership was based on a transfer by K.W.

Pond Limited and Doreen Pond of the strips of land and associated rights a few months after the initial decision on the trespass action. [ 4 ] On May 30, 2011, the respondent, the Registrar General of Land Titles, purported to correct the title register, a request having been made by the numbered company, based on the amended judgment of the Court of Appeal, to rectify the title for the peninsula registered by Mr. Hovey. The result was that the numbered company is reflected in the Land Titles system as the title holder to the three 10 foot strips and associated rights (by virtue of a registered Transfer), and Mr.

Hovey is reflected as the title holder to the remainder of the peninsula. Mr. Hovey had no notice of the rectifying registrations until after they were completed. [ 5 ] Mr. Hovey sought to have these registrations by the Registrar General recalled, and brought a Notice of Application in the Court of Queen’s Bench pursuant to Rule 16.04 of the Rules of Court , and ss. 68, 70 and 79 of the Act . Mr. Hovey argued that the land registrations were not warranted by the facts or authorized by the Act and he had no notice they were going to be made.

He sought to have the legal description in the P.I.D. databank restored to its form as it existed in 2010 following his own AFR. The Registrar General sought to have Mr. Hovey’s application dismissed, and the numbered company supported that position. The other respondents did not appear, no longer having an interest in the proceedings. [ 6 ] On May 7, 2014, the application judge rendered a decision, finding in favour of the Registrar General and the numbered company on the basis that Mr. Hovey had adduced no credible evidence of a real legal interest in the 10 foot strips ( 2014 NBQB 118 , 420 N.B.R. (2d) 201 ).

Though he found the Registrar General was not authorized under the Act to rectify title in the way he did, he concluded the Court had jurisdiction to rectify the title register, and proceeded to direct the Registrar General to do so. [ 7 ] Mr. Hovey appeals this decision. He relies on five grounds of appeal: that the application judge committed a palpable and overriding error: (1) in attempting to remedially cure and give effect to the actions of the Registrar General taken without jurisdiction by use of ss. 70 and 72 of the Act ; (2) by holding that Mr.

Hovey had failed to provide any evidence of his title on application and failed to properly adjudicate upon the evidence otherwise provided by 643589 NB Ltd. as to its basis of claim of ownership; (3) in concluding that there was no substantial dispute of fact warranting the application being set over for a trial; (4) by relieving 643589 NB Ltd. from compliance with the otherwise requirements of the Community Planning Act , R.S.N.B. 1973, c.

C-12, and Land Titles Act , as regards to subdivision of land and creation of a new parcel identifier in the P.I.D. databank; and (5) by not awarding costs against the Registrar General of Land Titles whose actions were found to have been taken without statutory authority and who opposed the application by Mr. Hovey. If the decision is not reversed, he seeks its setting aside to direct a trial on the application, pursuant to Rule 38.09 of the Rules of Court , on the issue of ownership to the land in question. [ 8 ] In Lemay v. Peters , 2014 NBCA 59 , [2014] N.B.J.

No. 244 , leave to appeal to SCC requested [2014] S.C.C.A. No. 495 (QL), Richard J.A. succinctly sets out the standard of review by which we assess an application judge’s decision: As with every case on appeal, the trial decision must be assessed through the lens of the standard of review that governs each question

raised. It has been stated time and again that the role of the appellate court is not to retry the case or to substitute its own findings for those of the trial judge.

These days, an overabundance of authority stands for the following propositions, which have now become trite law: (1) findings of law are to be assessed on a standard of correctness; (2) a finding of fact is entitled to deference and will only be reversed if the result of a palpable and overriding error; and, (3) findings of mixed fact and law, that is the application of a legal standard to a set of facts in order to arrive at an ultimate conclusion, are also entitled to deference and are reviewable on the same standard as findings of fact unless a legal error can be extricated. [para. 31] [ 9 ] The appellant’s arguments that the application judge misinterpreted pertinent statutory provisions of the Land Titles Act raise questions of law for which the standard of appellate review is correctness. [ 10 ] In his application, Mr.

Hovey sought the recall and cancellation of the Notation of the Title Register Rectification registered on May 30, 2011, in relation to P.I.D. 40501934 and P.I.D. 40506818, thereby restoring the legal description in the P.I.D. databank for P.I.D. 40501934 to reflect the state of title held by the parties in relation to this property on June 11, 2010. In other words, Mr. Hovey wanted to be placed in the position he was in when the caveat was filed. [ 11 ] The application judge reviewed the procedural history, the actions of the Registrar General of Land Titles, and the evidence of title.

He reached the following conclusions: • he was unable to detect anything in the factual circumstances or in the Act that would have prevented 643589 NB Ltd. from registering the Transfer to it from K.W. Pond Limited and Doreen Pond and, on the approval of the Registrar General, obtaining a Certificate of Registered Ownership (CRO); • notice to Mr.

Hovey of the registration of that transaction was not required; • it was necessary under the circumstances for the Registrar General to correct the title register fully so as to not only remove the earlier caveat, but also to accurately describe the effect of the CRO issued to 643589 NB Ltd with respect to the CRO earlier issued to Mr. Hovey; • s. 52 of the Act , on which the Registrar General relied, was not the appropriate

section with which to accomplish rectification; • the Court does have jurisdiction to entertain rectification of the title register; and • there was a complete absence of evidence that Mr. Hovey had title or any other legal interest in the 10 foot strips of land and the associated rights. [ 12 ] He concludes the Registrar General of Land Titles came to the right conclusion despite the fact he relied on the wrong statutory provision of the Act : During oral argument co-counsel for 643589 N.B. Ltd. rhetorically stated: “How do you rectify something that is correct”? The answer in the unique circumstances here is by resort to the Court’s power under

Section 70 of the Land Titles Act . I do so even though I agree that the result achieved by the Registrar General was the just result. This is because, as the applicant points out, the Registrar General is “a creature of statute and derives [his] authority exclusively from the statutory enactments that [are his] enabling legislation”. Since, in my opinion, the Registrar General did not have the authority under the specific statutory enactment of

Section 52 to correct the title register as he did, but I am of the further opinion that the right result was achieved,

Section 70 should be employed to add jurisdictional imprimatur . The Registrar General of Land Titles is directed to rectify the title register in accordance with Section 72 (1) to remove the caveat, to amend the PID Data Bank description and to issue a new Certificate of Registered Ownership to Donald Hovey, as intended and reflected by the registrations of the two Notations of Title Register Rectifications (Forms 52) on May 30, 2011 and the CRO (Form 47) on May 31, 2011.

If the Registrar General considers it necessary so as to complete the rectifications intended by the Court, this direction also extends to the Certificate of Registered Ownership (Form 47) issued to 643589 N.B. Ltd. and registered on May 31, 2011. By operation

of Section 72 (2) (

a) of the Act the rectifications once made “shall be deemed to be and to have been rectified from the time of the original entry or memorandum being rectified first appeared in the title register”. [paras. 79-80] [ 13 ] The parties to the application agreed that if the application judge reached the stage that certain of the registrations to accomplish rectification were made by the Registrar General pursuant to the wrong sections of the Act , the Court had the authority to make the rectifications it determined necessary. The appellant insisted such action be taken only after a trial.

The application judge acknowledges this: Counsel for the parties all agreed during the hearing that if the Court reached this stage and did not grant the rectifications sought by the applicant, the Court's authority extended under

Section 70 to making any rectifications the Court determined were necessary by the circumstances. However, the applicant also argued that, if the Court reached this point, before any rectifications were ordered the Court should convert the Application to an Action on the grounds of a substantial dispute of fact.

For the reasons given above I cannot discern any such “substantial dispute of fact”. [para. 74] [ 14 ] I am of the view that the application judge made an error in rectifying the title under s. 70 of the Act based on a “complete absence of evidence that [Mr.] Hovey has title or any other genuine legal interest in the 10 foot strips of land and rights pertaining thereto” (para. 73). In fact, Mr. Hovey was not given the opportunity to present his evidence as to title since the application judge did not convert the application to a trial.

The judge states: Leaving aside this Court's finding that certain of the registrations put in question by the applicant were made by the Registrar General under the wrong statutory provision of the Land Titles Act , I am not at all satisfied that any of those requirements are otherwise met by the applicant in the circumstances here. I agree with the positions of both the Registrar General and 643589 N.B. Ltd. that there is a complete absence of evidence that Donald Hovey has title or any other genuine legal interest in the 10 foot strips of land and the rights pertaining thereto.

Indeed, the abstract and supplementary abstract of titles put before the Court by the numbered company and the affidavit filed by the Registrar General makes it more probable than not that the very opposite is true. [para. 73] This latter sentence is an observation; it is not a conclusive finding of fact. [ 15 ] The appellant argues the application judge committed a palpable and overriding error in concluding there was no substantial dispute of fact warranting the application being converted to an action. I agree. There is evidence the facts in this case are in dispute.

For example, the application judge made three conclusions with which the appellant takes issue: • Mr. Hovey, in his AFR of the peninsula, “purported to include the 10 foot strips” otherwise previously conveyed by a predecessor in title (para. 11); • Mr. Hovey’s affidavit in support of the AFR submitted with respect to the peninsula, in which he was required to depose that any adverse interests were specified in the application, “…did not mention the 10 [foot] strips of land and the rights pertaining thereto; the description actually encompassed them” (para. 21); and • “the …(CRO) was issued to Mr.

Hovey unaltered by any reference to those 10 foot strips of land and the “riparian and fishing rights” that purported to go with them” (para. 27). [ 16 ] Mr. Hovey submits he has never disputed the claim of ownership of K.W. Pond Limited and its successor in title, 643589 NB Ltd., to any of the lands contained within P.I.D.s 40091852, 40091860 and 40091845 (the 10 foot strips of the peninsula being disputed). Mr.

Hovey argues the legal description submitted with his AFR did not include any of the area of the three 10 foot wide strips described in the Russell deed (a deed registered in 1937 granting the strips from Everett Ernest and Alice May Hovey, predecessors in title to Mr. Hovey, to a Cora Adelaide Russell), and that the location of the strips was never depicted as being within the area of the peninsula tip until the creation and registration by the numbered company of such a description on May 30, 2011.

He further argues that description does not depict three 10 foot strips which extend into the area of and go around the perimeter of the peninsula tip, but in fact depicts for the first time a fourth P.I.D. extending around the perimeter of the peninsula tip. This argument in and of itself, in my view, gives rise to a substantial dispute of fact requiring the conversion of the application to an action: 835637 Alberta Ltd. v. Moonraker Realty Inc. , 2010 NBCA 72 , 364 N.B.R. (2d) 148 , at para. 3 .

[ 17 ] If the application judge wanted to undertake a rectification under ss. 70-71 of the Act , he should have done a proper analysis of the title that would have left no doubt as to the ownership of the lands in question: Black v. Norris and Registrar General of Land Titles , 2012 NBQB 346 , 399 N.B.R. (2d) 1 , varied in

part 2013 NBCA 62 , 410 N.B.R. (2d) 337 . The application judge made no proper findings of fact as to title. His following comment reinforces the fact that sufficient evidence was not before him: Mr. Hovey advanced no evidence of his title to PID 40506818. Furthermore, his counsel's argument that the survey plan registered in the Land Titles system in 2011, describing the lands transferred to the numbered company, "does not reflect the 1937 description" is unsupported by any evidence. In any event, as mentioned before, the New Brunswick Land Titles Act does not guarantee boundaries.

As well, any rectifications made by this Court would not preclude a separate action by Mr. Hovey for a declaration in the courts in the normal course. The fact that he has not taken any action since the registrations in 2011, other than this application for rectification without an abstract of title or competing survey in support, perhaps speaks volumes about that prospect. [para. 75] [ 18 ] Furthermore, what actions Mr. Hovey took or did not take are not evidence of lack of title. And it is questionable that the application judge’s decision would not preclude Mr.

Hovey from taking “a separate action…for a declaration in the courts in the normal course”. Once the application judge found that the Registrar General was without jurisdiction to do as he did, if there was not sufficient evidence before him to determine title, such as an abstract of title from Mr. Hovey or a competing survey, he should not have made the rectification he did, but should have converted the matter to an action to give Mr. Hovey the opportunity to produce evidence of title.

I would therefore make the order he ought to have made: an order should issue directing the application to proceed to a trial as required by Rule 38.09(b). [ 19 ] In conclusion, I would allow the appeal, set aside the application judge’s decision and his order of costs, and order the application be converted to a trial. I would make no award as to costs on the appeal. The judge who hears the matter at trial can consider all relevant costs. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: _______________________________ ALEXANDRE DESCHÊNES, J.A. _______________________________ J.C.

MARC RICHARD, J.A.