Her Majesty the Queen in right of the Province of British Columbia, as represented by the Minister of Transportation v. Infrastructure, 2017 BCSC 1999

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia (Minister of Transportation and Infrastructure) v. Registrar, Victoria Land Title Office , 2017 BCSC 1999 Date: 20171106 Docket: 173054 Registry: Victoria Between: Her Majesty the Queen in right of the Province of British Columbia, as represented by the Minister of Transportation and Infrastructure Appellant And: Registrar, Victoria Land Title Office Respondent Before: The Honourable Mr. Justice D.M.

Masuhara On appeal from: A Notice Declining to Register by the Registrar of Land Titles, dated June 2, 2017 Reasons for Judgment Counsel for Appellant: F. Crowhurst Counsel for Respondent: J. Langlois K. Crabtree Place and Date of Appeal: Victoria, B.C. October 30, 2017 Place and Date of Judgment: Victoria, B.C. November 6, 2017 Introduction [ 1 ] This appeal concerns the decision of the Registrar of the Victoria Land Title Office dated June 2, 2017 declining to register a plan filed by the Ministry of Transportation and Infrastructure.

The plan relates to common property transferred by the owners of a strata property to the Ministry for a highway stabilization slope. To effect the deposit of plan, the Ministry included in its materials a certificate of the strata corporation evidencing that the owners passed a resolution by 3/4 vote approving the disposition of the common property. The Registrar required the signature of all owners holding an interest in the common property on the submitted plan. The plan submitted by the Ministry did not contain the signatures. The appellant is of the view that the Registrar’s

interpretation of the statutory provisions requiring all signatures is unreasonable. [ 2 ] The appeal is pursuant to

section 309 of the Land Title Act , R.S.B.C. c. 250 (the “ LTA ”). [ 3 ] The facts are not in dispute. The respondent adopts the statement of facts as set out in the appellant’s written submissions and which are set out below. [ 4 ] I am told that the problem in this case has arisen in the past and a determination here would clarify the requirements for the future. [ 5 ] At present the Minister is occupying the subject lands under a licence. Facts [ 6 ] The Minister of Transportation and Infrastructure (“Minister”) began construction on a project to improve safety along an 11- kilometre

section of the Trans-Canada Highway at the Malahat Summit on Vancouver Island (the “Project”) in the spring of 2017. The Project includes widening of portions of the existing highway, and installation of a new median barrier, frontage roads, turnaround and improved overhead lighting.

[ 7 ] The Minister requires a portion of the common property of Strata Plan VIS1006, District Lot 51, Malahat District for purposes of a highway stabilization slope that is part of the Project.

This portion of the common property is shown on Plan EPP69388 as “Dedicated as Arterial Highway”. [ 8 ] The Minister entered into an agreement of purchase and sale with the Owners Strata Plan VIS1006 (the “Owners”) on November 9, 2016, in which the Owners agreed to dedicate the land shown on Plan EPP69388 to the public as highway for valuable consideration. [ 9 ] The Owners held an annual or special general meeting on December 1, 2016, at which meeting a 3/4 vote approved the execution of the Application to Deposit Plan EPP69388. [ 10 ] The Minister submitted the required electronic documents and a true copy of the certificate regarding the 3/4 vote to the Land Title Office on May 19, 2017 in order to effect deposit of Plan EPP69388.

When accepted by the Land Title Office, the effect would be to dedicate the land shown on this plan as arterial highway pursuant to

section 107 of the Land Title Act , and

section 44.1 of the Transportation Act , SBC 2004, c. 44. [ 11 ] The respondent issued a “Notice Declining to Register –

Section 308 - Land Title Act” with respect to the Minister’s Application to Deposit Plan on June 2, 2017, stating the following: A plan dedicating land from the common property must be signed by all of the registered owners in fee simple and all financial charge holders on all of the strata lots in the strata plan; And in reliance on the following reference:

Section 253 , Strata Property Act . Legislative Provisions [ 12 ] The following provisions are relevant to this appeal. [ 13 ]

Section 253 of the Strata Property Act , S.B.C. 1998, c. 43 (the “ SPA ”): Subdivision of common property 253(1) A disposition of common property by way of any of the following is a subdivision of land and

Part 7 of the Land Title Act applies to that subdivision: (

a) a transfer of a freehold estate; (

b) a lease for a term exceeding 3 years; (

c) an interest that confers or may confer a right to acquire a freehold estate or a lease exceeding 3 years.

(2) Unless a contrary intention is shown, the signatures required under

section 97 of the Land Title Act operate as a release of the interests of owners and registered charge holders in the common property to be subdivided, but do not operate to release a charge or interest that exclusively affects that common property.

(3) Despite the Land Title Act , the registrar may permit the signatures required under

section 97 of that Act to appear on an accompanying instrument.

(4) When common property is subdivided, it ceases to be common property and becomes land held in the name of or on behalf of the strata corporation but not shown on the strata plan. [ 14 ]

Section 80 of the SPA : Disposal of common property 80(1) To dispose of common property in a way set out in section 253(1), the strata corporation must ensure that the requirements of

Part 7 of the Land Title Act are met.

(2) To dispose of common property in a way not set out in section 253(1), the strata corporation must ensure that the following requirements are met: (

a) a resolution approving the disposition must be passed by a 3/4 vote at an annual or special general meeting; (

b) holders of financial charges noted on the common property record must consent in writing to the proposed disposition unless in the registrar's opinion the interests of the persons who have not consented in writing are not adversely affected by the disposition; (

c) any document needed to effect the disposition must be executed by the strata corporation and delivered to the land title office accompanied by (

i) a Certificate of Strata Corporation in the prescribed form, stating that the resolution referred to in paragraph (

a) has been passed and that the document conforms to the resolution, and

(ii) the written consents referred to in paragraph (b). [ 15 ]

Part 7 of the LTA which contains sections 97,103 and 107: Signatures of owners to plan 97

(1) A subdivision plan must be signed by each owner of the land subdivided. … Execution of plan by owner 103 Unless the application of this

section is dispensed with by the registrar, a reference or an explanatory plan must be (

a) signed by each owner of the land dealt with by the plan, and (

b) witnessed in the same manner as is required by section 72(2). … Dedication and vesting 107(1) The deposit of a subdivision, reference or explanatory plan showing a portion of the land (

a) as a highway, park or public square, that is not designated on the plan to be of a private nature, or (

b) as covered by water and as lying immediately adjacent to a lake, river, stream or other body of water not within the land covered by the plan, and designated on the plan to be returned to the government, operates (

c) as an immediate and conclusive dedication by the owner to the public of that portion of land shown as a highway, park or public square, or to be returned to the government, for the purpose indicated on or to be inferred from the words or markings on the plan… [ 16 ] The dispensing of the need for signatures by the Registrar is not a matter raised in this appeal. Standard of Review [ 17 ] The Registrar’s decision to decline to register the appellant’s application involves the

interpretation and application of the LTA , the Registrar’s “home” statute and the SPA , which is

an act closely related to the functions of the Registrar. [ 18 ] The parties agree that the standard of review if that of reasonableness. [ 19 ] Both parties noted the deference to be afforded when reasonableness is the standard as set out in Dunsmuir v. New Brunswick , 2008 SCC 9 . As well, the parties referenced the more recent decision of British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia , 2014 BCCA 353 , where the court in applying the reasonableness standard to statutory

interpretation stated: [32] The parties also agree on the hallmarks of a review conducted on the reasonableness standard. The reviewing court must approach its task from a deferential stance, with respectful attention to the decision and an appreciation of the specialized expertise and experience of the adjudicative body in interpreting its own statute. The review is directed primarily at whether the decision-making process demonstrates justification, transparency, and intelligibility, and whether the result falls within a range of possible, acceptable outcomes that are factually and legally defensible.

It is an “organic exercise”, in which the reasons must be read together with the outcome to determine if the result falls within that range: Dunsmuir at para. 47 ; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para. 14 . [33] In McLean , the Supreme Court discussed the application of the reasonableness standard to issues of statutory

interpretation. At paras. 31-33, Justice Moldaver acknowledged that legislative provisions in the home statute of an administrative decision-maker can be susceptible to more than one reasonable

interpretation, and affirmed that the resolution of unclear statutory language is usually best left to that adjudicator rather than the courts, since the choice between competing

interpretations will often involve policy considerations that fall within the expertise of the administrative decision-maker. Discussion [ 20 ] At issue in this appeal is the reasonableness of the Registrar’s

interpretation of the provisions of both the LTA and SPA , in particular s. 253 , s. 107 and s. 80 of the SPA . [ 21 ] In short, does the decision of the Registrar fall within the zone of reasonableness? [ 22 ] In my view the Registrar’s determination requiring all signatures falls within the zone of reasonableness. [ 23 ] The appellant takes the position that the subject disposition is not a “transfer of a free hold estate” under s. 253(1) (

a) of the

SPA. It is submitted that the disposition, a dedication of land for highway purposes under s. 107 of the LTA, is not expressly addressedin s. 253 and as a result, s. 80(1) of the SPA does not apply; rather, s. 80(2) which specifies a resolution passed by 3/4 vote is theprovision that applies. [24] The appellant argues in support of its position that: (

a) a “dedication” is not defined in legislation and thus reliance on the common law is required. In this regard, the appellant refers toBritish Columbia (Attorney General) v. Bailey, (1920) (SCC), 60 SCR 38, where Brodeur J. states that: “No formalconveyance is required to affect a common-law dedication…Dedication means the setting apart by the owner of a land for the use of thepublic.” (

b) That neither property transfer tax nor goods and services tax is triggered upon a

section 107 dedication. Property transfer tax isexigible on any “taxable transaction”, which is defined in part by provincial taxation legislation as: a transaction…purporting to transfer or grant, by any method, including a disposition, an order of a court…or by the operation of anyenactment or law,…and estate in fee simple… Goods and services tax is exigible on a “supply” which is defined under the Excise Tax Act as: …the provision of property or a service in any manner, including sale, transfer, barter, exchange, licence, rental, lease, gift or disposition. (

c) Section 185 of the LTA provides for the use of a prescribed form of transfer for transfers of a freehold estate – which does notapply to a

section 107 dedication. (

d) The Registrar applied the requirements of

section 97 of the LTA.

Section 97 deals with signatures required on a subdivisionplan. The plan in question is a reference plan. The appellant argues that the dedication of land as highway is a unique construct withinthis province’s land title system. It notes that upon the filing of a plan under

section 107, the subject land is removed from the land titlesystem, and the post-filing legal description excepts the land from title. This is to be contrasted to a subdivision of land, which creates anew parcel in the land title system, with a new legal description and title. It is this difference which is essence of the appellant’sargument. [25] The appellant submits that the Registrar conflated the

section 107 dedication with a transfer of a freehold estate, or adding it asa method of subdivision. By doing so it is submitted that the Registrar misapplied several tenets of statutory

interpretation: (

a) the enumeration of methods of subdivision in

section 253 is exhaustive, meaning that there is no latitude to add another methodinterpreted by the Respondent to be a subdivision; (

b) related legislation - tax statutes and the Expropriation Act - make it clear that a

section 107 dedication is not a transfer of afreehold estate; (

c) the Strata Property Act is special legislation enacted after the Land Title Act - and thus the former should be construed as acomplete code; had the legislature intended that

section 107 dedications be subject to

section 253 of the Strata Property Act, clearlegislative language would have been employed. [26] The flaw in the appellant’s position is its focus on the characterization of what it obtained, i.e. a dedication; rather than, whetherthe disposition of common property from the strata owners to the appellant is a “transfer of a freehold estate.” In other words, theappellant’s position does not account for how a dedication arises. [27] A key fact is that the appellant applied to deposit the reference plan under

section 107 of the LTA. The dedication sought is astatutory highway dedication, not a dedication based on the common law. The statutory dedication provides the Crown with a propertyinterest, the Crown is vested with the “title to the highway” under s. 107(d). That title depends, necessarily, on eliminating the freeholdtitle formerly held by the owners who transferred lands for highway purposes under s. 107. Thus, it follows that a freehold estate istransferred and therefore, the deposit of a plan under s. 107 requires compliance with

Part 7 of the LTA. The disposition, constitutes asubdivision and a subdivision plan requires the signature of all owners. The depositing of a reference plan which is the case here, doesnot permit avoidance of the requirement for the signature of all owners.

Section 103 requires the same signatures on reference plans. [28] The argument that the transfer of the common property cannot be a “transfer” because the “prescribed form of transfer fortransfers of a freehold estate” does not apply to s. 107 dedications is not persuasive as s. 185(2)(

b) makes clear that the Registrar mayaccept another form of transfer outside of the prescribed form. [29] Also, the reference to taxation statutes is not of assistance in the

interpretation question here. As pointed out by the respondent,the Property Transfer Tax Act’s definition of “taxable transaction” provides that the tax is only triggered by the transfer of “an estate infee simple referred to in section 23(2) of the Land Title Act.” The estate referenced in that

section is a registered indefeasible title. Though in the present case the Crown is vested with a freehold interest, by virtue of s. 107(3) it is not vested with an indefeasible title. [30] Though the agreement for purchase and sale was included in the Appeal Record and referred to in the appellant’s writtensubmission, it was not before the Registrar. While I do not consider the agreement as part of the review here, the agreement supports theview that a freehold estate was transferred. [31] The

preamble states that the BC Transportation Financing Authority “will acquire the right and title in and to the soil andfreehold of the Land.” [32]

Article 2.01 states that:

The Vendor agrees to sell and the Province agrees to purchase the Land in fee simple, free and clear of all liens, charges and encumbrances except the Statutory Charges, to bed dedicated to the public as a highway under

section 107 of the Land Title Act for the Purchase Price and on the terms and conditions set out in this Agreement. [ 33 ]

Article 4.01 states: The Province, at its expense, will cause the Reference Plan to be prepared and (

a) When requested by the Province, the Vendor will sign the Application to Deposit the Reference Plan and will obtain the signature of any financial Chargeholders to the Application to Deposit the Reference Plan. [ 34 ] It is clear that the determination made by the Registrar cannot be said to be unreasonable. In my view, it clearly falls within the zone of reasonableness. Conclusion [ 35 ] The appeal is dismissed. [ 36 ] As the respondent does not seek costs, no award as to costs is made. “The Honourable Mr. Justice Masuhara”