La Caille North Point Inc v, 2023 ABKB 319

Court of King’s Bench of Alberta Citation: La Caille North Point Inc v 2160806 Alberta Ltd, 2023 ABKB 319 Date: 20230529 Docket: 1901 15765 Registry: Calgary Between: La Caille North Point Inc. Plaintiff - and - 2160806 Alberta Ltd. and Harmandeep Arora Defendants _______________________________________________________ Reasons for Decision of the Honourable Justice M.H.

Bourque _______________________________________________________ [ 1 ] The Plaintiff appeals a decision of Applications Judge Prowse, who, upon the Defendants’ application, granted an order pursuant to subsection 85(4) of the Land Titles Act , RSA 2000 c L-4 , dispensing with the requirement for the Plaintiff’s signature on Form 3 – Consent to Register a Plan (the “ Condominium Plan ”). [ 2 ] By way of background, the parties were involved in a real estate transaction that contemplated the sale, by the Plaintiff to the Defendants, of two adjacent parcels of land on a contiguous property.

The sale of the first parcel (the “ Lot 45 ”) went through, but the second sale (the “ Lot 46 ”) did not. According to the Plaintiff, the corporate defendant intended to proceed with an integrated twelve building townhouse development spanning both parcels of land under a single development plan. Moreover, the approvals obtained from the City of Calgary were granted on the basis that both parcels of land would be jointly and comprehensively developed under one development permit application, and that it would be owned by one common legal owner.

[ 3 ] Applications Judge Prowse granted the Defendants’ application and dispensed with the Plaintiff’s signature. He reasoned that there was no evidence that the Plaintiff’s rights would be adversely affected by the Condominium Plan and that the corporate defendant would be enabled as the owner of Lot 45 to proceed with the plan after having received the approval of the relevant planning authorities and met any other requirements imposed by the Registrar of Land Titles.

Applications Judge Prowse emphasised: “what La Caille needs to have brought forward on this application is expert evidence of one or more of the following sorts”, such as expert opinion that the value of Lot 45 would be less subdivided than in its current unsubdivided state or that the value of Lot 46 would be impaired if the subdivision of Lot 45 was permitted. On the first point, Applications Judge Prowse, quite correctly, rejected the unqualified opinion evidence of the Plaintiff’s affiant to that effect, which he characterized as self-serving.

On the latter point, he declined the Plaintiff’s invitation to infer from the record before him that the value of Lot 46 would be impaired or affected if the subdivision of Lot 45 was permitted. [ 4 ] In its appeal before me, the Plaintiff relied on the materials that were before Applications Judge Prowse and, despite indicating in its Notice of Appeal that additional evidence would be relied on by the Appellant and that written argument would be made, the Plaintiff did not do so.

Instead, the Plaintiff relied on the record and its brief filed in opposition to the application before Applications Judge Prowse. [ 5 ] An appeal from an Applications Judge is a hearing de novo : Kadco Construction Inc v Sterling Bridge Mortgage Corp , 2021 ABCA 52 at para 11 .

The standard of review is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 .The question before me is whether Applications Judge Prowse was correct in allowing the Defendants’ application to dispense with the Plaintiff’s signature on the condominium plan which the Defendants sought to register under the Land Titles Act . [ 6 ]

Section 85 of the Land Titles Act provides as follows: 85

(1) A plan that has the effect of subdividing land shall be signed by each person shown on the certificate of title for the land included in the plan as having an interest pursuant to a registered instrument or caveat, other than (

a) a mortgage of a utility right of way, (

b) a restrictive covenant, (

c) a zoning restriction, or (

d) a writ of enforcement, if the interest is affected by the subdivision. (2) Subsection (1) does not apply to the following: (

a) a plan of subdivision prepared pursuant to a land boundary adjustment scheme for The Municipality of Crowsnest Pass under the Municipal Government Act ; (

b) a plan of subdivision, other than a condominium plan or strata space plan, in which there is no dedication of land for any public purposes.

(3) A person whose signature is required on a plan under subsection (1) may, instead of signing the plan, sign a consent in the prescribed form.

(4) If for any reason a signature required under this

section cannot be obtained, an application may be made to the court for an order dispensing with the signature on any terms and conditions that the court may impose. [ 7 ] Neither party provided any caselaw interpreting this provision.

I also did not find any. [ 8 ] Subsection 84(1) of the Land Titles Act operates to protect the interests of those parties shown on a certificate of title as having an interest pursuant to a registered instrument or caveat (for ease of reading, I will refer to such a party as a “ Caveator ”) by requiring its consent to the registration of a plan, if the Caveator’s interest is affected by the subdivision. The language used in subsection 84(1) makes clear that protection is afforded to the interests represented in the registered instruments.

It is not disputed that the Plaintiff is a Caveator as against Lot 45 and that the Plaintiff’s consent, subject to an order dispensing with its signature, is required. [ 9 ] Subsection 84(4) of the Land Titles Act operates to dispense with the need for a Caveator’s consent if the Court is satisfied that it is appropriate to do so. Granting the relief contemplated by subsection 84(4) involves an exercise in discretion and the way in which that discretion should be exercised is informed by the interests that subsection 84(1) seeks to protect.

As mentioned above, subsection 84(1) seeks to protect the Caveators’ interest as represented in the registered instrument.

Accordingly, when called upon to exercise discretion under subsection 84(4), the Court should turn its primary attention to considering what, if any, impact registration of a plan may have against a Caveator’s interest by reference to interests that are described in the instrument registered against that same parcel. [ 10 ] Counsel for the Plaintiff urges the Court to adopt a test pursuant to which a court should consider impacts more broadly in deciding whether to exercise its discretion to dispense with a signature under subsection 84(4).

In this case, the Plaintiff urges me to consider the impact that registration of a plan would have against the Plaintiff, not as a Caveator or in relation to its registered interest against Lot 45, but as the owner of the adjacent Lot 46.

Since subsection 84(1) protects a Caveator’s interests as represented in an instrument registered against title, in the absence of an impact against those interests, in my view, there is no need to look more broadly. [ 11 ] In this case, I agree with Applications Judge Prowse that the Plaintiff has not put before the Court evidence that the registration of the Condominium Plan would adversely impact the Plaintiff’s interests represented by the instruments registered against

Parcel 45. Applications Judge Prowse invited the Plaintiff to supplement the record if his decision was to be appealed, but the Plaintiffs have not done so. [ 12 ] Counsel for the Plaintiff also urges the Court to decline to dispense with the Plaintiff’s signature on the basis that no purpose is served by allowing registration of the Condominium Plan because of the impossibility of proceeding with the development plan as approved by the City of Calgary.

According to the Plaintiff, the pertinent development and subdivision approvals all contemplate the development of Lot 45 and Lot 46 together, mutual access roads, and that sequencing of phased construction and roads must follow approved conditions of the development permit. Since the Defendants failed to close on the purchase of Lot 46, the Plaintiff argues that the Defendants will never be able to advance the development because they will never be able to satisfy these conditions.

In my view, these are matters to be dealt with by the various planning or other municipal authorities and the only question before me is whether the Plaintiff’s interests represented by its registered instrument are affected by the registration of the Condominium Plan.

That Plaintiff believes that the Defendants will not be able to advance the development is of no consequence in the consideration of that question. [ 13 ] For these reasons, I dismiss the Plaintiff’s appeal and confirm Applications Judge Prowse’s decision to dispense with the Plaintiff’s signature pursuant to subsection 84(4) of the Land Titles Act . Heard on the 20 th day of January, 2023. Dated at the City of Calgary, Alberta this 29 th day of May, 2023. M.H. Bourque J.C.K.B.A. Appearances: B. W. Mescall, Parlee McLaws LLP for the Plaintiff M. Hundal and G. Lacourcière, Lacourcière LLP for the Defendants