Delport Realty Ltd. v. Service Nova Scotia, 2013 NSSC 287

SUPREME COURT OF NOVA SCOTIA Citation: Delport Realty Ltd. v. Service Nova Scotia, 2013 NSSC 287 Date: 20130918 Docket: Hfx. 413912 Registry: Halifax Between: Delport Realty Limited and 1549433 Nova Scotia Limited Plaintiff v. Registrar General of Service Nova Scotia and Municipal Relations Defendant DECISION Judge: The Honourable Justice J. E. Scanlan Heard: June 26, 2013, in Halifax, Nova Scotia Counsel: Matthew Moir, Solicitor for the Applicant Darlene Willcott, Solicitor for the Respondent By the Court :

[ 1 ] The present matter involves a request for a judicial review of a decision of the Registrar General of Service Nova Scotia and Municipal relations dated March 22, 2013. The Applicant argues the Registrar improperly rejected the Applicant ’ s Parcel Description Certification Application (PDCA) and that the Registrar did not have authority to reject the application.

Alternatively, the Applicant submits that even if the Registrar had jurisdiction to review the Applicant ’ s legal opinion, the conclusion arrived at was unreasonable. [ 2 ] The Applicant seeks an order setting aside the decision of the Registrar General and requiring the Registrar to accept the Applicant ’ s PDCA for registration. BACKGROUND [ 3 ] The history of this application perhaps is best explained by quoting in part from the “ Background ” as set out in the decision under review: 1. The appellant, together with 1549433 Nova Scotia Limited, bought Lot B-1 in West Jeddore at a tax sale on March 20, 2011. 2.

Deeds and plans on file at the Halifax Land Registration office indicate that the parcel described in the tax deed to the appellant is located in the same location as several other existing parcels. Based on the information on record, the boundaries of the parcel described in the tax deed appear to not just overlap the boundaries of other existing parcels, but the parcel appears to be located entirely within the boundaries of the other parcels. 3. For this reason the area in which the Appellant contends its parcel is located were designated by the provincial property mappers as “Unresolved Title”. 4.

The property mapper who considered the Appellant’s Parcel Description Certification Application rejected it on this basis. [ 4 ] The Applicant argues that a PDCA could not be rejected on the basis of perceived title issues. The Applicant suggests title issues are for the migrating lawyers to determine.

In addition, the argument is made that the parcel description is not conclusive as to the location, boundaries, or extent of a parcel of land, and that a PDCA should not be rejected by a mapper on the basis of an apparent overlap. [ 5 ] This is not the first time the parties have been before the Court in relation to the subject property. The Respondent initially rejected the PDCA made by Delport on October 17, 2011 with respect to the subject property PID 40057945.

The Notice of Objection referred to conflicting claims of title affecting the lands and requested the Applicant: ...take the necessary steps to rectify this issue. [ 6 ] The initial rejection was then appealed to the Registrar who dismissed the appeal on March 22, 2012. [ 7 ] That dismissal was quashed by Justice Hood by decision dated December 13, 2012. The matter was remitted back to the Registrar for reconsideration. The Registrar rendered a decision dated March 22, 2013 which is the decision this Court has now been asked to review.

ANALYSIS What is the appropriate standard of review? [ 8 ] As noted in Dunsmuir v. New Brunswick, 2008 SCC 9 (Paragraph 63), the Supreme Court of Canada had adopted two standards of review; correctness and reasonableness. Where existing jurisprudence has not satisfactorily determined the degree of deference, there must be an analysis using a contextual approach considering a number of factors including: 1) the presence or absence of a privative clause; 2) the purpose of the tribunal as determined by

interpretation of enabling legislation; 3) the nature of the question at issue, and; 4) the expertise of the tribunal. [ 9 ] The issue of standard of review has already been decided in the present matter by Justice Hood (Delport Realty Limited v. Registrar General Service Nova Scotia 2012 NSSC 416 .) Justice Hood considered and applied the approach as set out in Dunsmuir . Although I am not bound to accept the decision of Justice Hood, I accept and adopt the reasons and analysis set out in that decision as being correct. I am satisfied the appropriate standard of review is one of reasonableness.

Is the Registrar ’ s Decision within the Registrar ’ s jurisdiction and is it Reasonable? [ 10 ] The Applicant takes the position that a Registrar must approve a PDCA if it is “ accurate, complete and in accordance with the Act and regulations ” . The Applicant argues that this appeal is not about refusal to register, or record, a document under s.56 of the Act, although the Applicant does acknowledge a PDCA is a document that is “ registered or recorded ” as intended by s. 56 (1) as it is part of the process of an Application for Registration which confers the registered interests therein. [ 11 ]

Section 56 of the Act provides as follows: Duty to Refuse

(1) A registrar shall refuse to register or record a document if: (

a) the prescribed fees are not paid; (

b) the document does not comply with this Act or the regulations; (

c) the registrar has reasonable and probable grounds to believe that the registration or recording might result in a registration or recording that is not in accordance with the law;

(

d) the Registrar General has ordered that no further registrations or recordings be made with respect to the parcel or with respect to a party to the document or a person attempting to register or record the document; or (

e) any of the requirements of this Act have not been met.

(2) Where the Registrar General determines that an error has been made in a registration or a recording, or that there is risk of an improper or fraudulent registration or recording being made, the Registrar General may order that: (

a) no further registration or recordings be made with respect to a parcel; (

b) no further registrations or recordings be made with respect to documents to which a named person is a party; or (

c) no further registrations or recordings be made with respect to documents presented by, prepared by or certified by a named person, and, thereupon, no further registration or recording shall be made contrary to the order and no certificate of registered ownership shall be issued with respect to any parcel identified in the order until the order has been rescinded.

(3) An order pursuant to subsection (2) shall be recorded in the registrar of each parcel identified in the order and shall be removed from the registrar when rescinded. [ 12 ] The Registrar submitted during the hearing that the integrity of the entire land transfer system is at stake if this Court were to order the registration of the PDCA at issue.

At page 2-3 of the March 23, 2013 decision, the Registrar states: One of the requirements for completeness and accord with the Act is contained in s.37(7) which requires that the application include “sufficient information concerning the size and location of the parcel as will permit the registrar to...create a geographical representation of the parcel in Provincial mapping, showing it in relation to neighbouring parcels with reasonable accuracy.” In this instance it would be impossible for a registrar to “create a geographical representation” of the lot or depict it “in relation to neighbouring parcels” as it appears not to exist at all being described as being bounded by lands of Gladys Moses to the south and the West Jeddore Baptist Church on the North.

Other information on record shows that the boundaries of the lands of Gladys Moses and the West Jeddore Baptist Church abut such that there is no land located between them.

Thus the application was not complete and the Registrar was obliged by s.37(6) of the Act to reject it. [ 13 ] The Registrar goes on to note at page 3 that there is a distinction between overlapping boundaries of a lot and one that does not exist at all according to the information before the Registrar: The former can be mapped with “reasonable accuracy”, “ the latter cannot be mapped at all.” The argument is that in terms of the boundaries as set out in the tax deed that the lot cannot be mapped without it being completely overlapped by existing lots.

The Registrar is suggesting that a quieting of titles application is required so as to clarify the issues resulting from the overlapping of boundaries.

Section 2 of the Act, suggests that one of the purposes of the Act is to:

a) provide certainty in ownership of interests in land; [ 14 ] There are an number of safeguards and procedures in place to ensure that fraudulent or questionable titles are not passed off as the basis of providing certainty of ownership. In the present case it is clear the Registrar is concerned that the tax deed purports to convey land which may be in fact owned or claimed by others.

Section 21 of the Act specifically contemplates that situation. It provides as follows: Location and boundaries 21

(1) The legal description of a parcel in a register is not conclusive as to the location, boundaries or extent of the parcel.

(2) Provincial mapping is not conclusive as to the location, boundaries or extent of a parcel.

(3) A registration may not be rejected only because the location, boundaries or extent of the parcel appear to overlap the location, boundaries or extent of another parcel. (4) repealed 2004, c. 38, s.7 . [ 15 ] The Applicant is not arguing that the tax deed that is included in part of the root of title gives certainty as to the location of the lands in issue in a way that it supercedes s. 21 of the Act. In other words the legal description is not conclusive as to the location, boundaries, or extent of the parcel, nor is provincial mapping conclusive on those issues. Section 21 (1) and (2) make that clear.

Additionally s. 21(3) of the Act provides that: A registration may not be rejected only because the location, boundaries or extent of the parcel appear to overlap the location, boundaries or extent of another parcel. [ 16 ] The Applicant is not suggesting there is not a problem in the mapping. I understand the Applicant to be acknowledging a boundary and location issue. It may well be that the tax deed conveyed an interest in a non existent lot.

The Applicant says that issue should be left for another day but for now the PDCA should be accepted. [ 17 ] The Court is satisfied that a solicitor is justified in relying on a tax deed as the basis for certifying a title for purposes of migration. The Municipal Government Act 1998,c.18, s.1. in

section 156 provides that:

(1) A deed to land sold for taxes is conclusive evidence that the provisions of this Act with reference to the sale of the land described in the deed have been fully complied with and each act and thing necessary for the legal perfection of the sale has been duly performed.

(2) The deed has the effect of vesting the land in the grantee in fee simple, free and discharged from all encumbrances. [ 18 ] Even though a solicitor would be entitled to rely on a tax deed for purposes of certification, that is not to suggest that a tax deed is conclusive as to the location, boundaries, or the extent of the property. In fact a tax deed is not even conclusive as to the existence of a lot. The Respondent suggested there are possibly hundreds of assessments in HRM alone for improperly described, or non-existent lots.

I find no fault in Applicant counsel relying on the tax deed for purposes of certification on the PDCA application. That, however, does not address the issue of whether the Registrar is obliged to accept the PDCA in the circumstances of the present case.

[ 19 ] The Court is satisfied that to accept the PDCA in the present circumstances would in fact adversely affect the title of the landowners of all lots as overlapped by the Applicants tax deed.

Section 37(7) of the Land Registration Act provides that : An application shall include sufficient information concerning the size and location of the parcel as will permit the registrar to assign the parcel identification number for the parcel and create a geographical representation of the parcel in Provincial mapping, showing it in relation to neighbouring parcels with reasonable accuracy. [ 20 ] Any mapping as proposed in the present case does not show the lands in relation to the neighbouring properties; it is comprised totally of the neighbouring properties.

When the lot is plotted on the ground it cannot be located in a way that it is not completely encompassed by adjacent properties. As pointed out by the Respondent, it would even include part of a cemetery. [ 21 ] As noted, one of the stated goals, or purposes, of the Act is to provide certainty as to ownership. Is it enough for a lawyer to simply say, ‘ I have a marketable title and therefore you must accept my PDCA? ’ To do so in the present case would simply ensure uncertainty as to ownership of the lands in question not only for the Applicant but also for those whose lands are overlapping.

That would of necessity mean that one or all of the other landowners in the area of uncertainty would no longer be able to convey their interest in the lands due to the uncertainty created. [ 22 ] As noted at page 3 of the Registrar ’ s Decision: ...Thus even if the PDCA were approved, the Application for Registration would have to be refused.

If it was not I would be obliged to issue a “Stop Order” under subsection 56(2) to prevent any further registrations in relation to the parcel and to prevent any improper registrations from taking place. [ 23 ] The Applicant suggests it is the Applicant who should be able to choose timing of proceedings such as quieting of titles, urging the Court to require acceptance by the Registrar of the PDCA . [ 24 ] Quieting of titles was an option as suggested by the Registrar.

I am satisfied the decision of the Registrar to refuse registration is within the jurisdiction of the Registrar in the narrow circumstances of the present case. To hold otherwise would force the Registrar to be complicit in the creation of uncertainty of title in lands in Nova Scotia. To approve and allow registration of the PDCA in this case would create confusion and uncertainty as to ownership. It would not facilitate inexpensive conveyance of the lands.

On the contrary it would require of any or all the affected parties that they take steps to clarify the validity of the claim as asserted through the Applicant ’ s tax deed. This is all contrary to the stated purpose of the Act . The Court is not prepared to interfere with the Registrar ’ s decision. The Court is satisfied the decision of the Registrar was reasonable. [ 25 ] I will hear from the parties if they cannot agree on the issue of costs. J. 09/18/2013