Docket: CACV2114 Ronald Kenneth Olney Appellant (Applicant) - v. -, 2014 SKCA 47

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 201 4 SKCA 47 Date: 2014-04-25 Between: Docket: CACV2114 Ronald Kenneth Olney Appellant (Applicant) - and - Great West Life Assurance Company Respondent (Respondent) - and - The Registrar of Land Titles Non-Party (Respondent) Coram: Cameron, Jackson and Caldwell JJ.A. Counsel:

Paul Elash, for the appellant Jordan Hardy, for the respondent Great West Life Assurance Company No one appearing for the respondent Registrar of Land Titles Appeal: From: 2011 SKQB 186 Heard: April 18, 2013 Disposition: Dismissed Written Reasons: April 25, 2014 By: The Honourable Mr. Justice Cameron Concurring Reasons: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Jackson Cameron J.A I. Introduction [ 1 ] In 1947 Great West Life Assurance Company sold a

section of Saskatchewan farm land to Kenneth Olney. The transfer reserved the mines and minerals in the southwest quarter of the

section to Great West Life. However, the Registrar of the Land Titles Office, when registering the transfer, overlooked the reservation and issued a certificate of title to Mr Olney covering both the surface of the southwest quarter and the mines and minerals. In the ensuing years Mr Olney conveyed all but a one-fourth interest in the mines and minerals to purchasers for value acting in good faith.

Then in 1973 the Registrar discovered the error and placed a caveat on Mr Olney’s certificate of title to the remaining one-fourth interest, warning of the error and its potential consequences. [ 2 ] There the matter lay until 2009, by which time Mr Olney had died and his son, Ronald, had been appointed his executor. As the executor of his father’s estate, Ronald Olney sought to have the caveat removed in March of 2009. This prompted Great West Life, a month later, to commence an action in the Court of Queen’s Bench to recover title to the one-fourth interest in the mines and minerals.

Mr Olney then moved, unsuccessfully, to have the action dismissed on the ground it was barred by The Limitation of Actions Act , R.S.S. 1978, c. L.-15, or by the common law doctrine of laches. This was the central issue in the Court of Queen’s Bench and remains the central issue on appeal. II. The Proceedings in the Court of Queen’s Bench [ 3 ] The case was heard by Madam Justice Wilson. At the outset of the hearing Mr Olney asked her to dismiss Great West Life’s action on the ground it had not been commenced within the ten year period prescribed by

section 18 of The Limitation of Actions Act . This section, and

section 17 which precedes it, are contained in

Part III of the Act , entitled “Land-Right to take Proceedings”. The two sections read thus: 17. This

Part is subject to The Land Titles Act . 18. No person shall take proceedings to recover any land but within ten years next after the time at which the right to do so first accrued to some person through whom he claims, hereinafter called “predecessor”, or if the right did not accrue to a predecessor then within ten years next after the time at which the right first accrued to the person taking the proceedings, hereinafter called “the claimant”. Alternatively, Mr Olney sought to have the action dismissed on the ground it was barred by the doctrine of laches. [ 4 ] In response to the positions taken by Mr Olney, Great West Life contended that

section 18 of The Limitation of Actions Act did not apply because the action was not one “to recover any land” within the meaning of this section. It was not so, in the submission of the company, because the action sought only declaratory relief, or declaratory relief without a claim for possession. Alternatively, it submitted that the action was not barred by the doctrine of laches because the company knew nothing of the error of the Registrar until Mr Olney sought to have the caveat removed.

[ 5 ] Justice Wilson agreed with the submissions of Great West Life, finding that the action was not one to recover land within the contemplation of

section 18 of The Limitation of Actions Act and was not, therefore, barred by this Act . Nor was it barred by laches. She then turned to the case on its merits and went on to grant judgment in favour of Great West Life. In doing so, she directed the Registrar to cancel the Olney certificate of title to the one-fourth interest in the mines and minerals and issue in its place a certificate of title in the name of Great West Life. With that, Mr Olney brought this appeal. III. The Appeal [ 6 ] Mr Olney founded his appeal on subsection 7(2) (

a) of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1, alleging that Justice Wilson erred in declining to dismiss Great West Life’s action as being statute-barred. Either that or she erred in declining to dismiss it on the basis of delay within the contemplation of the doctrine of laches. [ 7 ] The first question on the appeal, then, is whether

section 18 of The Limitation of Actions Act operates as a bar to the action. The argument in this regard centred on whether or not the action constituted an action to recover land within the contemplation of

section 18. Much of the argument played out along the lines of whether or not Mr Olney was in possession of the mines and minerals, and whether or not Great West Life was seeking to obtain possession, as though its action was one of ejectment, or its equivalent (which is perforce an action for possession), and as though no other form of action to recover or obtain land constituted an action “to recover any land” within the meaning of

section 18. [ 8 ] With respect, I think this business of possession is irrelevant. I am also inclined to think that, based on a contextual

interpretation and an uncluttered application of

section 18, the action amounts to an action to recover any land, for the object of the action is to recover or obtain title to the interest in the mines and minerals in issue in the case. But be that as it may, and to put the case for Mr Olney at its highest, I shall assume this to be so. [ 9 ] Even at that, I am of the view Mr Olney’s appeal must fail. It seems to me that Great West Life’s action, even if it be one for the recovery of land, cannot be seen to be barred by

section 18 of The Limitation of Actions Act . I say this in light of the nature of the action, the combined operation of sections 17 and 18 of The Limitation of Actions Act, and the relationship between these provisions and the provisions of The Land Titles Act, 2000 , S.S. 2000, c. L-5.1, upon which the action is founded. (For ease of reference I shall refer to the latter as simply The Land Titles Act . ) [ 10 ] I begin with the nature of the action. Great West Life initiated its action in April of 2009 by way of Originating Notice of Motion in the Court of Queen’s Bench. The Motion was founded on

section 107 of The Land Titles Act . This

section allows any person to apply to the Court of Queen’s Bench for an order in respect of the operation of the land titles registry, of any decision by the Registrar pertaining to something the Registrar is required or authorized to do (including corrections to a certificate of title), and of any application in relation to land or an interest in land. [ 11 ] The Motion cited the error made by the Registrar in 1947 and claimed relief in the nature, first, of a declaration declaring Great West Life to be the rightful owner of the one-fourth interest in the mines and minerals and, second, of an order of the court directing the Registrar to cancel the Olney certificate of title and replace it with a certificate of title in the name of Great West Life.

The claim for relief was based on

section 109 of The Land Titles Act . This is a curative provision that empowers the Court of Queen’s Bench, in proceedings taken pursuant to

section 107 , to make any order the court considers appropriate, including orders directing or authorizing the Registrar to transfer title, vest title, or make changes to a title as the circumstances of the case suggest and the Act allows. [ 12 ] Thus the action invited the court, on the facts of the case, to exercise these curative powers and direct the Registrar to cancel the Olney certificate of title and issue a replacement certificate of title in the name of the company. Seen in this light, the question is whether the limitation period prescribed by

section 18 of The Limitation of Actions Act stands in the way of the action and serves to preclude the Court of Queen’s Bench from exercising these powers to this end. [ 13 ] In my opinion

section 18 does no such thing. I say this for a number of reasons having to do with the operation of sections 17 and 18 of The Limitation of Actions Act relative to the curative provisions of

section 109 of The Land Titles Act . [ 14 ] To begin with,

section 18 of The Limitation of Actions Act does not stand alone, isolated from the remainder of the statutory provisions of which it forms part, though this seems to have been overlooked along the way. As I explained earlier,

section 18 is contained in

Part III of the Act (addressed in general to the right to take proceedings pertaining to land), and is preceded by

section 17, which is also contained in

Part III of the Act . Indeed,

section 17 is the first of the sections found in this Part of the Act and states: “This

Part is subject to The Land Titles Act ”. Hence, the provisions of

section 18 of The Limitation of Actions Act are undoubtedly subject to The Land Titles Act. [ 15 ] With this in mind, and putting aside for now the passage of time, I observe that The Land Titles Act clearly empowered the Court of Queen’s Bench, in

section 109 , to overcome the errors made by the Registrar in this instance. Of this there can no doubt, given the fact the certificate of title to the interest in the mines and minerals at issue stood in the name of Mr Olney’s executor, that no one else had acquired an interest therein in good faith and for value, and that Great West Life had been deprived of its certificate of title through error of the Registrar. In other words the Olney title, though fully operative over the years in relation to persons dealing in good faith and for value, remained voidable as against Great West Life. [ 16 ] Having regard for the foregoing, I am of the view the remedial object of

section 109 of The Land Titles Act would be defeated if, in circumstances such as these, the limitation period prescribed by

section 18 of The Limitation of Actions Act should be taken to preclude the Court of Queen’s Bench from exercising the curative powers committed to it by

section 109 of The Land Titles Act. Defeated, that is, notwithstanding

section 17 of The Limitation of Actions Act . I cannot think this is what the Legislature intended in enacting these provisions. Indeed, I think it intended otherwise. [ 17 ] That said, we heard a fair bit of argument addressed to the concept of the “indefeasibility” of title contemplated by The Land Titles

Act, and of the importance of preserving this concept. The subject is rooted in what is known as the Torrens system of land registrationand is grounded in

section 13 of The Land Titles Act. This section, including subsection 13(1)(b), provides that where the Registrar issuesa title pursuant to the Act, the title is conclusive proof that the registered owner is entitled to the ownership interest for which the titleissued and is not subject to alteration or revocation or removal from the registered owner, nor subject to an action of ejectment or anyaction to recover or obtain land. This provision is of critical value to the statutory scheme of which it forms part, based as it is on theTorrens system.

Nevertheless, this provision is subject to certain exceptions geared in significant part to maintaining the integrity of thescheme. [18] The exceptions germane to the case in hand are found in

section 15, to which

section 13 is expressly made subject. Among otherthings,

section 15 states that title is not conclusive in all circumstances but is open to alteration and revocation or removal by court orderin an action authorized by the Act. [19] This merits more precise elaboration. Subsections 15(2) and (3) of The Land Titles Act provide in material part as follows:

(2) Every title is subject to alteration or revocation or removal from the registered owner by: (

a) a correction made in accordance with

section 97; (

b) a Registrar’s order made pursuant to

section 101; (

c) a court order; or (

d) any procedure authorized by this Act or any other Act.

(3) An action of ejectment from land or other action to obtain or recover land may only be instituted against the registered owner: …. (

c) where there is authority for the action pursuant to this Act or any other Act. (The sections referred to in subsection 15(2)(

a) and (b), namely sections 97 and 101, have to do, in turn, with the powers of the Registrarto correct errors or omissions made in the land registry without prejudicing rights obtained in good faith and for value, and the powers ofthe Registrar on a reference pertaining to the operation of the registry, the Act, or the regulations.) [20] To recap, subsection 15(2) states in effect that every title is subject to alteration, revocation, or removal from the registered ownerby correction made by the Registrar in accordance with the Act, or by court order, or by any procedure authorized by the Act.

Subsection15(3) goes on to state in effect that an action of ejectment or other action to recover or obtain land may be instituted against the registeredowner where, in the words of subsection (3)(c), “there is authority for the action pursuant to this Act…”. [21] At the risk of belabouring the matter, the point is this. The Great West Life action was instituted on the authority of

section 107The Land Titles Act and sought a court order pursuant to the authority entrusted to the court by

section 109 of the Act. Hence the actionis one authorized by the Act within the contemplation of

section 15, bearing mind the action is aimed at overcoming the error of theRegistrar by means of an order of the Court of Queen’s Bench directing the Registrar to cancel the Olney certificate of title and issue inits place a certificate of title in the name of Great West Life, all without prejudicing any rights acquired for value and in good faith. [22] To suppose that

section 18 of The Limitation of Actions Act, subject as it is to The Land Titles Act by reason of

section 17, mightbar the action in circumstances such as these is to suppose more than the legislation can support, which is to say more, in my judgment,than the Legislature may be taken to have intended in enacting this legislation. [23] I might add that

section 17 of The Limitation of Actions Act plays a similar role in relation to other provisions of The Land TitlesAct. The latter provides, in

section 21, that once land is brought under the Act no one can acquire an interest therein by adversepossession. This provision, combined with that of

section 17 of The Limitation of Actions Act, serves to explicitly ensure that no one cando so by a combination of adverse possession and the expiration of the limitation period, prescribed by

section 18 of the Act, for bringingan action to recover any land. [24] In a very real sense this is all of a piece, and having regard for the whole I have come to the conclusion the action initiated byGreat West Life is not barred by

section 18 of The Limitation of Actions Act even if the action constitutes one to recover or obtain land asappears to be the case. [25] That being said, I should like to explain why I earlier discarded the business of possession as irrelevant to the question of whetherthe Great West Life action is statute-barred. [26] As I said at the outset, Great West Life contended that its action was not one “to recover any land” within the meaning of thisexpression in

section 18 of The Limitation of Actions Act. It was not so, in the submission of the company, because the action sought onlydeclaratory relief, or declaratory relief without a claim for possession, adding that the action sought only to expunge erroneous entriesmade by the Registrar and thus to remove a cloud from the company’s title. Mr Olney contended otherwise. The arguments in this regardwere grounded in two cases decided by the Supreme Court Canada, namely Canadian Pacific Railway Co. v. Turta, (SCC), [1954] S.C.R. 427 and Kaup v.

Imperial Oil Ltd., (SCC), [1962] S.C.R. 170. [27] These two cases originated in Alberta and, as such, engaged Alberta law, which is not the same as Saskatchewan law when itcomes to the question of whether the Great West Life action is statute-barred. I say this because each of the Alberta Limitation of Actions

Act and Land Titles Act differ from their Saskatchewan counterparts in a number of fundamental respects material to the analysis of this question. At least this was so at the time each of Turta and Kaup was decided. This may still be so—I do not know—but that is neither here nor there. [ 28 ] Each of Turta and Kaup concerned actions stemming from errors of one kind or another made by the Registrar in relation to certificates of title to mines and minerals.

In each of the two cases, the actions were alleged to have been barred by the Alberta Limitation of Actions Act but were found not to have been so barred for one reason or another. It is unnecessary to explore these reasons, except to note that these cases, so far as they turned on the expiration of a limitation period for the bringing of an action for the recovery of land in Alberta, were preoccupied with a very different set of issues than that to which the present case gives rise.

This is especially true of Kaup . [ 29 ] The reason for this lies in the differences, at least at the relevant times, between the Alberta and Saskatchewan versions of each of The Limitation of Actions Act and The Land Titles Act . The Alberta Limitation of Actions Act did not contain the equivalent of 17 of the Saskatchewan Limitation of Actions Act . Hence, the Alberta limitation period pertaining to an action to recover land was not subject to its Land Titles Act , as is the case in Saskatchewan.

This, in itself, may seem a bit innocuous but is not, for it is inextricably linked to a feature of the Alberta Land Titles Act that is entirely foreign to the Saskatchewan Land Titles Act. [ 30 ] What I have in mind here is this: That when Turta and Kaup were decided it was possible in Alberta to acquire title to land by adverse possession. More precisely it was possible to acquire title by a combination of adverse possession and the expiration of the limitation period for bringing an action for the recovery of land.

Indeed, the Alberta Limitation of Actions Act served, in the case of adverse possession throughout the limitation period, to extinguish the title of the registered owner. (See, Sandra Peterssen, Something for Nothing: The Law of Adverse Possession in Alberta ( Alberta Law Review (1992), 30 Alta. L. Rev. 1291). [ 31 ] This is not possible in Saskatchewan, and never has been.

Section 21 of the Saskatchewan Land Titles Act expressly provides (as did all its predecessors), that once land has been brought under this Act no interest in that land can be acquired by adverse possession or, having regard for

section 17 of the Saskatchewan Limitation of Actions Act, by a combination of adverse possession and the expiration of a limitation period for commencing an action to recover or obtain land. [ 32 ] These differences between Alberta and Saskatchewan law account for the preoccupation in each of Turta and Kaup (and a number of other Alberta cases) with the difficult business, conceptually and otherwise, of possession, including adverse possession, when it comes to land in the form of mines and minerals, or in the form of a partial interest in mines and minerals.

This business is all the more difficult in relation to adverse possession of mines and minerals, or a partial interest in mines and mineral, in the context of whether, as in these Alberta cases, the combination of adverse possession and the expiration of a limitation period in relation to an action for the recovery of land serves to extinguish the title of the rightful owner.

Hence, there was a very different dynamic at work in those cases than there is in the present case, including a substantially different contextual framework for interpreting the enactments at work in those cases. [ 33 ] More might surely be said of all of this, but this is sufficient to explain why I earlier discarded the business of possession as irrelevant to the question of whether Great West Life’s action is or is not an action to recover any land depending on this business of possession, especially adverse possession.

This is equally sufficient to explain why, in considering whether the Great West Life action is statute-barred, I have chosen to analyse the question in the context of the Saskatchewan enactments bearing upon the matter.

Indeed, the question is not nearly as complex under Saskatchewan law as under Alberta law, and lends itself to a more definitive response of more general application, free as it is of issues of possession, either conceptually or as a matter of fact on a case by case basis. [ 34 ] As I said earlier, even if the Great West Life action were to be taken to constitute an action to “recover any land” within the meaning of

section 18 of The Limitation of Actions Act , I am of the opinion the action is not barred by

section 18, having regard in particular for

section 17 of this Act and for the provisions of The Land Titles Act upon which the action is founded, namely those of sections 107 and 109. [ 35 ] With that, I turn to whether the common law doctrine of laches operates as a bar to Great West Life’s action. I am of the opinion it does not do so because there is no basis in the evidence for supposing that Great West Life in fact knew of the Registrar’s error, or the caveat placed on the title by the Registrar, before Mr Olney moved to have the caveat removed. Indeed, there is nothing in the evidence that would support such a finding. [ 36 ] One question remains.

Mr Olney submitted that, since the Great West Life action was initiated by means of Originating Motion rather than Statement of Claim, it was not open to Justice Wilson to have granted the relief she did. The action, he said, sought declaratory relief declaring Great West Life to be the rightful owner of the one-fourth interest in the mines and minerals at issue, adding that such declaratory relief is not available on an application made by Originating Motion under

section 107 of The Land Titles Act . [ 37 ] With respect, I can see no tenable basis for this submission. Without putting too fine a point on the matter, the ultimate relief sought by Great West Life in consequence of the error made by the Registrar consisted of an order directing the Registrar to restore the company’s certificate of title to the interest in the mines and minerals. The company was certainly entitled to lay claim to relief of this nature in the context of an application made pursuant to sections 107 and 109 of The Land Titles Act .

The fact the company coupled this claim for relief with a claim for declaratory relief is neither here nor there. [ 38 ] I say this because the object of the claim for declaratory relief was to establish the error of the Registrar and the lack of prejudice to rights of others acquired in good faith and for value, thus enabling the court to order the cancelation of the Olney certificate of title and the issuance of a replacement certificate of title in the name of Great West Life.

It is the substance of all this that matters, not its form, and there is nothing of substance here to support the idea that the company (so far as it was seeking a declaration to the effect it was the rightful owner of the land in question), was required to pursue its action by way of Statement of Claim rather than Originating Motion.

[ 39 ] For the whole of these reasons, then, I would dismiss the appeal, and would do so with costs to Great West to be taxed as usual in accordance with our Tariff of Costs. Dated at the City of Regina this 25 th day of April 2014 “Cameron J.A.” Cameron J.A. Caldwell J.A. [ 40 ] The appellant executor, on behalf of the estate of George Benson Kenneth Olney, appeals from the decision of the Court of Queen’s Bench chambers judge which (

i) dismissed the appellant’s application for an order directing the Registrar of Land Titles to discharge a caveat filed by the Registrar against a title to certain mines and mineral rights erroneously noted on the appellant’s title, and (ii) allowed the respondent company’s application for declaratory relief and ordered the Registrar to correct the registry and cancel and issue titles accordingly. In the result, I would dismiss the appeal for the reasons that follow. I have had the benefit of reading the reasons of Mr.

Justice Cameron. [ 41 ] A short narration of the facts and the procedural background to this matter follows. If required, the factual background is more fully set forth in paras. 3 to 13 of the chambers judge’s decision (indexed as: 2011 SKQB 186 ). It is of passing note that the Registrar took no position either before the chambers judge or this Court. [ 42 ] In 1947 the respondent sold

Section 5, Township 2, Range 31, West of the First Meridian to Mr. Olney. The transfer reserved the mines and mineral rights in the southwest quarter

section to the respondent but, when registering the transfer, the local Land Titles Office mistakenly transferred the mines and mineral rights along with the surface parcel. In the ensuing years Mr. Olney conveyed all but a one- quarter interest in the mines and minerals to purchasers for value who were acting in good faith. Then, in 1973, the Registrar discovered its error and placed a caveat on Mr. Olney’s certificate of title so as to warn of the error and to forbid registration of any transfer or other instrument affecting the mines and mineral rights except subject to the caveat.

The Registrar notified various parties of this registration but the chambers judge found no evidence to suggest the respondent had been so notified in 1973. [ 43 ] In 1986, Mr. Olney transferred the mines and mineral rights in question to one of his sons and his son’s wife but they transferred the rights back to him less than three months later. Mr. Olney died in 1999 and another son, Ronald Olney, became executor of his estate. In September of that year, Mr. Olney’s estate asked the Master of Titles’ Office to remove the caveat from the title it held.

The Office replied to advise of “numerous errors” regarding the mineral notation and to confirm the Registrar’s caveat would not be removed without a court order. The appellant did not pursue the matter at that time. [ 44 ] In November 2006, the Master of Titles’ Office wrote to the appellant regarding the errors in the mineral notation and stated the appellant was not the correct owner of the mineral rights. The Office advised it wished to correct the errors pursuant to s. 97 of The Land Titles Act, 2000 , S.S. 2000, c. L-5.1, but would not proceed without the appellant’s written consent.

The appellant declined to consent and the matter again fell into abeyance. [ 45 ] In June 2008, the appellant and the respondent exchanged correspondence but the appellant still declined to consent to a correction of the error in the registry, chiefly, it seems at this time, because the appellant viewed the respondent’s claim as being statute-barred. [ 46 ] Then, in March 2009, the appellant brought a motion in the Court of Queen’s Bench seeking to have the Registrar’s caveat discharged from its title.

This prompted the respondent to commence an action in the Court of Queen’s Bench to have the certificate of title pertaining to the one-quarter interest in the mines and minerals restored to it pursuant to

Part XIV of The Land Titles Act, 2000 , and ss. 107 and 109 in particular. The appellant then moved to have the respondent’s action dismissed on the ground that it was barred by The Limitations of Actions Act , R.S.S. 1978, c. L-15, s. 18 (now repealed), or, alternatively, by the common law doctrine of laches.

Section 18 read thus: General Principle 18 No person shall take proceedings to recover any land but within ten years next after the time at which the right to do so first accrued to some person through whom he claims, hereinafter called “predecessor”, or if the right did not accrue to a predecessor then within ten years next after the time at which the right first accrued to the person taking the proceedings, hereinafter called “claimant”. [Emphasis added] [ 47 ] The appellant submitted the respondent’s action was a proceeding “to recover any land” within the meaning of s. 18 of The

Limitations of Actions Act , or a predecessor provision, [1] and was therefore barred because the respondent’s action had been commenced more than “ten years next after the time at which the right to do so first accrued” to the respondent. [ 48 ] This then became the central issue for the Court of Queen’s Bench and is now the central issue before us: Is the respondent’s action statute-barred or barred by laches? [ 49 ] In chambers, the respondent submitted that s. 18 of The Limitations of Actions Act did not apply in the circumstances because its action was not one “to recover any land” within the meaning of that section.

In its submission its action was not one “to recover any land” because the action sought only declaratory relief or, more pointedly, declaratory relief without a claim for possession.

Further, the respondent submitted that its action was not barred by the doctrine of laches because the respondent knew nothing of the error of the Registrar until the appellant had sought to have the caveat removed. [ 50 ] The chambers judge agreed with the respondent, finding that its action was not one “to recover any land” within the meaning of s. 18 of The Limitation of Actions Act and was not, therefore, statute-barred, nor was it barred by laches.

The chambers judge then went on to grant judgment in the action in favour of the respondent, directing the Registrar to cancel the certificate of title in the name of the appellant to the one-quarter interest in the mines and minerals and to issue a certificate of title thereto in the name of the respondent. The appellant now appeals from this result. [ 51 ] In short, I am of the opinion the appeal must be dismissed.

Having regard for the nature of the action and the relationship between s. 18 of The Limitation of Actions Act and The Land Titles Act, 2000 , the respondent’s action is not statute-barred and, furthermore, is not barred by the doctrine of laches. I reach the former conclusion irrespective of whether the respondent’s action may be properly considered to be a proceeding “to recover any land”. Let me explain. [ 52 ] As to the nature of the action, the respondent commenced its action by way of an originating notice of motion brought in the Court of Queen’s Bench. The respondent founded its motion on s. 107(1) of

Part XIV of The Land Titles Act, 2000 , which allows for someone in the respondent’s position to apply to the Court of Queen’s Bench for relief: Application to court 107

(1) Any person may apply to the court for an order with respect to: (

a) the operation of: (

i) the land titles registry; or (ii) this Act or the regulations; (

b) any decision of the Registrar with respect to any action that the Registrar is required or authorized to take pursuant to this Act; (

c) any order, decision or correction of the Registrar pursuant to

section 101, 101.1, 169 or 202; (

d) any application respecting land or an interest in land; or (

e) any application respecting a transaction or contract relating to land or to an interest in land. [ 53 ] As the basis for its motion, the respondent cited the error made by the Registrar in 1947 and claimed relief, first, in the nature of a declaration declaring the respondent to be the rightful owner of the one-quarter interest in mines and minerals and, second, in the nature of an order of the court cancelling the appellant’s certificate of title to the one-quarter interest and replacing it with a certificate of title in the name of the respondent. This claim for relief was based on s. 109 of The Land Titles Act, 2000 .

Section 109 is also found in

Part XIV of the Act and is a curative provision that empowers the Court of Queen’s Bench in proceedings taken under s. 107 to correct the register to overcome errors of the kind made by the Registrar in this case. And, in the circumstances of this case, s. 109 empowered the chambers judge to direct the Registrar to transfer title, to make changes to a title, to vest a title in a person, and so on: General jurisdiction of court 109

(1) In any proceeding pursuant to this Part, the court may make any order the court considers appropriate, and in so doing may direct the Registrar to, or authorize any person to apply to the Registrar to: (

a) register, discharge, amend, postpone or assign an interest; or (

b) transfer title or make changes to a title.

(2) The court may seek assistance from the Registrar in any proceeding pursuant to this Part.

(3) On an application to the court pursuant to this Part, if the judge hearing the application considers it appropriate to do so, the judge may make an order: (

a) directing that a title be vested in any person; and (

b) either: (

i) directing the Registrar to transfer title or to make changes to a title; or (ii) authorizing any person to apply to the Registrar to transfer title or to have changes made to a title.

(4) An application for an order pursuant to subsection (3) may be made: (

a) on any notice that the court considers appropriate; or (

b) without notice if, in the court’s opinion, the circumstances warrant it. [ 54 ] In other words, together ss. 107 and 109 of The Land Titles Act, 2000 contemplate a party bringing the very action that was brought by the respondent for the very relief that was sought by the respondent. [ 55 ] I also note that s. 13 of The Land Titles Act, 2000 provides for conclusive title to land subject, inter alia , to certain exceptions set forth in s. 15 of that Act : Effect of title 13

(1) Where the Registrar issues a title pursuant to this Act: (

a) subject to

section 14, the registered owner holds the title free from all interests, exceptions and reservations; and (

b) subject to

section 15: (

i) the title is conclusive proof that the registered owner is entitled to the ownership share in the surface parcel, mineral commodity or condominium unit for which the title has issued; (ii) the title may not be altered or revoked or removed from the registered owner; and (iii) no action of ejectment from land or other action to recover or obtain land lies or shall be instituted against the registered owner. … Exceptions to conclusive title 15

(1) In the following cases, title is not conclusive proof that the registered owner is entitled to the ownership share in the surface parcel, mineral commodity or condominium unit for which the title has issued: (

a) where the registered owner has acquired the title by participating or colluding in fraud; (

b) in the case of a registered owner who obtains title, directly or indirectly, from a registered owner described in clause (a), where no value has been given for acquisition of the title since the registered owner described in clause (

a) acquired the title; (b.1) where: (

i) the title is with respect to a surface parcel or condominium unit; (ii) a person who was a registered owner to the title mentioned in subclause (

i) was wrongfully deprived of the title; and (iii) the person mentioned in subclause (ii) immediately before and continuously after being wrongfully deprived of the title: (

A) was in actual and continuous occupation of the surface parcel or the condominium unit; and (

B) used the surface parcel or condominium unit as the person’s principal residence; (

c) where competing titles, within the meaning of

section 16, exist with respect to all or a portion of the same surface parcel, mineral commodity or condominium unit.

(2) Every title is subject to alteration or revocation or removal from the registered owner by: (

a) a correction made in accordance with

section 97; (

b) a Registrar’s order made pursuant to

section 101; (

c) a court order; or (

d) any procedure authorized by this Act or any other Act.

(3) An action of ejectment from land or other action to obtain or recover land may only be instituted against the registered owner: (

a) in a case mentioned in subsection (1); (

b) in the case of a person enforcing any interest or right mentioned in

section 14; or (

c) where there is authority for the action pursuant to this Act or any other Act.

[56] With that basis, I turn to consider the application of s. 18 of The Limitation of Actions Act in the circumstances. The provision isvery nearly identical to an Alberta limitation of action provision which the Supreme Court of Canada considered in the leading cases ofCanadian Pacific Railway Co. v. Turta, (SCC), [1954] S.C.R. 427, and Kaup v. Imperial Oil Ltd., (SCC), [1962] S.C.R. 170. Under that Court’s

interpretation of the Alberta provision, a plaintiff’s claim for a correction to the registry isnot an action for the recovery of land within the meaning of s. 18 of The Limitation of Actions Act. In both cases, the Supreme Court ofCanada considered the role that possession plays in making such a determination; however, in my judgment, neither case is, in thisrespect, relevant to the issue of whether The Limitation of Actions Act stands in the way of the respondent’s action.

I will explain. [57] In Turta, Estey J. (who wrote for a plurality of four judges, with Rand and Kellock JJ. concurring for different reasons) reviewedthe jurisprudence and considered a submission which is mirrored by that made by the appellant under this ground of appeal. He wrote (atpp. 449-450): The appellants’ submission that, as this action was not brought within a period of six years, it is barred by the provisions of s. 5(1)(

j) ofthe Statute of Limitations (R.S. Alta. 1942, c. 133) cannot be maintained. In support of this contention the appellants rely upon [casesomitted]. In these cases an action for a declaration of title without a claim for possession was held to be not an action for recovery ofland. A reference to the pleadings in this case discloses that respondent Anton Turta asks for a declaration that he has “been in lawfulpossession” of the petroleum. The appellant C.P.R. denies Turta’s possession and pleads, inter alia, that it has at all material times beenboth the owner and in possession of the petroleum.

Moreover, the appellant Imperial Oil Limited alleges that Turta never was inpossession of the petroleum. It will, therefore, be observed that in this action both the ownership and the possession of the petroleum in the said quarter

section wasin issue. This is, therefore, an action for the recovery of land and is brought within the period of ten years permitted by s. 18 of the saidStatute of Limitations. [Emphasis added] This passage from Turta implies that an action pertaining to the title to land is not an action for recovery of land unless it also entails aclaim for possession. Similar comments appear in Kaup. [58] In Kaup, Kaup had received a certificate of title which included some minerals despite the fact the transfer from Lafleur hadexcluded minerals.

Kaup later transferred her title to herself and her husband, but this was found not to be a bona fide purchase for valuewhich would attract the protection of the register. The registrar then realized the error and corrected the title in favour of Lafleur and hissuccessors. The Kaups’ successors sought a declaration that they were the true owners of the minerals. In contrast to the situation inTurta (as it had been assessed by Estey J.), the Kaups and their successors had never been in possession of the minerals.

Martland J., forthe Court in Kaup, explicitly adopted and applied the following passage from the concurring reasons of Rand J. in Turta (at pp. 184-185): The remaining question is whether the action is barred by the Limitation of Actions Act, c. 133, R.S.A. 1942. On the view which I havetaken that the petroleum rights were acquired by Turta and the Pacific Company deprived of them, the possession, in the absence ofphysical workings and so far as such incorporeal rights can be the subject of possession, must be taken to be an incident of ownership.

Inthese circumstances there has been no legal or physical disturbance of that possession; at the most, certain entries have been made onthe certificate claiming rights which do not exist. The action is not, then, one to recover the land but to have those entries expunged andfor a declaration of the plaintiff’s interest. Since there has been no trespass and since the steps taken have, at the most, raised only acloud upon the title, the question is whether an owner can be deprived of his land by the mere assertion on the register of unfoundedclaims.

I know of no provision of law which, by the passage of time, raises any right based on that mode of protesting an interest; itwould be a novel form of prescription which the law does not recognize. Its true

interpretation is that of a continuing assertion againstwhich proceedings of the nature here can be taken at any time, and no question of limitation arises. [Emphasis added] [59] At first blush then, the chambers judge’s finding in this case that Mr. Olney had never taken possession of the mines and mineralsin question would seem determinative of the appeal, in the respondent’s favour.

However, the issue of possession is, in fact, irrelevant tothe question before the Court, as I will continue to explain. [60] It is critical to an understanding of how Turta and Kaup apply in the Saskatchewan context to recognize the Alberta law underwhich these decisions were decided permits a person in adverse possession of land to assert a claim to that land in certain circumstances.This is not the case in Saskatchewan. Since December 19, 1913, our Land Titles Acts have provided that no title to land may be acquiredby adverse possession.

Section 21 of The Land Titles Act, 2000 embodies the modern day expression of this principle of our land titlesregime: No title by adverse possession 21(1) After the issuance of first title pursuant to a Crown grant: (

a) no person acquires by way of possession any right, title or interest adverse to or in derogation of the registered owner’s title orright to possess the land for which the title has issued; and (

b) the right of the registered owner to enter or to bring an action to recover the land for which the title has issued is not impaired oraffected by the possession of the land by any other person.

(2) Notwithstanding subsection (1), every title is void as against the claim, right, estate or interest of any other person who is adverselyin actual occupation and rightly entitled to the land mentioned in subsection (1) at the time first title to the land is issued. [61] In reliance on a predecessor to s. 21 of The Land Titles Act, 2000,[2] in A.H. Oosterhoff and W.B. Rayner, Anger and Honsberger Law of Real Property, 2nd ed. (Aurora, Ont.: Canada Law Book, 1985), at para. 3106.20, the authors said this:

In Saskatchewan, every certificate of title is void as against the title of any person adversely in actual occupation of and rightly entitled tothe land at the time when such land was brought under the Act.

However, once land is brought under the Act, no right, title or interestadverse to or in derogation of the title or of the right to possession of the registered owner could be acquired since December 19, 1913,by the possession of another, and the right of the registered owner to make entry or to bring an action or suit to recover the land of whichhe is such registered owner shall not be held to be or to have been impaired or affected by any such possession since the said date.

See also: Graeme Mew, The Law of Limitations, 2nd ed. (Markham, Ont.: LexisNexis Canada Inc., 2004), at p. 208. [62] As such, on the basis of this fundamental difference in the law as it relates to the two provincial land titles regimes, I conclude thatan examination or consideration of the issue of possession, as occurred in Turta and Kaup, is irrelevant to the analysis required in theinstant appeal. [63] Next I observe that s. 18 of The Limitation of Actions Act does not stand alone; rather, it is contained within

Part III of TheLimitations of Actions Act, a Part which is entitled “Right to take Proceedings”. The first provision under

Part III is s. 17, whichprovides: “This

Part is subject to The Land Titles Act.” The limitations provision in s. 18 of The Limitations of Actions Act is thereforeexpressly subject to The Land Titles Act, 2000, which is the successor legislation to The Land Titles Act. [64] In addition, in Montreal Trust Company v. Murphy (1966), (SK CA), 58 W.W.R. 430 (Sask.

C.A.), at p. 435,Hall J.A. said this of the relationship between that The Limitation of Actions Act, R.S.S. 1965, c. 84, and The Land Titles Act, R.S.S.1965, c. 115, in a context similar to the case at hand: The title of the registered owner must under our Land Titles Act remain intact and indefeasible. It, therefore, cannot beextinguished by effluxion of time. The Land Titles Act being a particular enactment dealing with land must override the generalenactment of the Limitations of Actions Act. This was made certain by Gatz v. Kiziw (SCC), [1959] SCR 10, reversing (ON CA), [1957] OWN 313.

The portions of the Ontario statutes considered in that action were similar to the sectionsconsidered in the instant case. … [65] The decision in Montreal Trust Company v. Murphy does not reference s. 17 of The Limitation of Actions Act, R.S.S. 1965, c. 84,but the reasons of the Court in Gatz v.

Kiziw, (SCC), [1959] S.C.R. 10, at pp. 12-15, make it clear that the paramountcyof the land titles legislation over limitations of actions provisions rests in principle on the express exemption of lands registered underland titles legislation from the operation of the law of limitations, which was effected by provisions equivalent to s. 17 of our Limitationof Actions Act. Therefore, under my

interpretation, s. 17 of The Limitation of Actions Act works to support s. 21 of The Land Titles Act,2000 by ensuring that no one can acquire title to or an interest in land subject to that Act by a combination of adverse possession and theeffluxion of time.[3] [66] At this point I would introduce the fact that Mr. Olney holds title to the one-quarter interest in the subject mines and minerals as avolunteer, having paid no consideration to the respondent for the transfer of that interest.

To the legal framework I would then add along-standing equitable principle: the title of a volunteer is defeasible at the behest of the rightful owner of the land (see: Imperial Bankof Canada v. Esakin, (SK CA), [1924] 2 W.W.R. 33, per Lamont J.A. and per Martin J.A., Fish v. Bryce (1909), 2 Sask.L.R. 111 (S.C.), Chomley v. Firebrace (1879), 5 V.L.R. 57 (Full Court), Neill v. Lindsay (1861), 13 S.A.L.R. 196 (S.C.), Solicitor-General v. Mere Tini (1899), 17 N.Z.L.R. 773 (C.A.), The Ontario Bank v. McMicken (1890), 1890 CanLII 141 (MB CA), 7 Man.

L.R.203 (Q.B., en Banc), aff’d (1892), 1892 CanLII 81 (SCC), 20 S.C.R. 548, Jellet v. Wilkie (1895), 1896 CanLII 49 (SCC), 2 Terr. L.R.133 (S.C., en Banc), and Gibbs v. Messer, [1891] A.C. 248; see also Kaup at pp. 179-184 and the reasons of Johnson J.A. of theAppellate Division of the Alberta Supreme Court in Kaup v.

Imperial Oil Ltd. (1961), (AB CA), 29 D.L.R. (2d) 38). [67] The differences I have noted in provincial land titles and limitations laws account for the preoccupation in each of Turta and Kaupwith the question of possession of the Alberta mines and minerals there in issue and particularly the adverse possession thereof in thecontext of whether the Alberta limitation period applied so as to extinguish the title of the rightful owner.

However, for the purposes ofSaskatchewan law and land, it may be said that since a volunteer does not acquire indefeasible title to land and since s. 21 of The LandTitles Act, 2000 prevents anyone from acquiring title by adverse possession, it is difficult to appreciate how the ten-year limitation periodin s. 18 could be used to defeat the claim of a rightful registered owner to the land. [68] Support for this may be found, when the clutter of considerations of adverse possession is eliminated, in Kaup at p. 184-185 whereMartland J. relied on the words of Rand J. from Turta: Having reached this conclusion [that the registration of transfer from Urbanie Kaup, who had no title to any minerals, to herself and herhusband made without consideration did not confer any title to mines and minerals in the transferees], I do not see how the provisions ofThe Limitation of Actions Act can be successfully invoked by the appellants to contend that the rights of the Lafleur Estate to mines andminerals had been extinguished.

The position is that the appellants never, at any time, acquired a title to mines and minerals which wasvalid as against the Lafleur Estate. … Under these circumstances I think the views expressed by Rand J. in this Court, in the Turta case at p. 456, properly should be applied: The remaining question is whether the action is barred by the Limitation of Actions Act, c. 133, R.S.A 1942. … In the circumstancesthere has been no legal … disturbance of [ownership – since possession is “an incident of ownership”]; at the most, certain entries havebeen made on the certificate claiming rights which do not exist.

The action is not, then, one to recover the land but to have those entriesexpunged and for a declaration of the plaintiff’s interest. … [T]he question is whether an owner can be deprived of his land by the mereassertion on the register of unfounded claims. I know of no provision of law which, by the passage of time, raises any right based on thatmode of protesting an interest; it would be a novel form of prescription which the law does not recognize. Its true

interpretation is that ofa continuing assertion against which proceedings of the nature here can be taken at any time, and no question of limitation arises. [Emphasis added] [69] Applied to the case at hand, this passage supports the conclusion that the respondent’s action is not one for the recovery of land

under Saskatchewan law but rather is one to declare the respondent’s interest in the land and correct the state of the title, to which nolimitation period applies. I could, therefore, dismiss this ground of appeal on this basis alone. [70] However, if I am wrong on this point, this much is certain: Even if the respondent’s action were one for the recovery of landwithin the meaning of s. 18 of The Limitation of Actions Act, the action is not thereby barred.

I say this because s. 18, as a limitation ofaction provision, cannot be said to operate so as to preclude the Court of Queen’s Bench from exercising the corrective powers conferredon it by the curative provisions of s. 109 of The Land Titles Act, 2000 in circumstances such as those at hand. As I have observed, s. 107entitles the respondent to bring an action seeking a remedy under s. 109 of The Land Titles Act, 2000 and s. 109 empowers the Court ofQueen’s Bench to correct the register to overcome errors of the kind made by the Registrar in this case.

Accordingly, in the absence of anintervening bona fide purchaser for value without notice, Mr. Olney’s title to the one-quarter interest in the mines and minerals inquestion should remain voidable as against the respondent under The Land Titles Act, 2000 regardless of the effluxion of time. This is sobecause the remedial object of s. 109 of The Land Titles Act, 2000 would be defeated if, in circumstances such as these, the limitationperiod prescribed by s. 18 of The Limitation of Actions Act were taken to preclude the Court of Queen’s Bench from exercising thecorrective power reposed in it by s. 109.

In straightforward terms, I find it difficult to conclude the Legislature could have intended s. 18of The Limitation of Actions Act to stand in the way of an action authorised under The Land Titles Act, 2000, which seeks to rectify thestate of the register where the Registrar has mistakenly issued a certificate of title and there has been no intervening bona fide purchaserfor value without notice of the error.

Indeed, it would be untenable in my judgment if s. 18 operated in this way given s. 17 of TheLimitation of Actions Act and what I have said earlier, namely, that no one can acquire title to or an interest in land subject to The LandTitles Act, 2000 by a combination of adverse possession and the effluxion of time. [71] In the end, I conclude s. 18 of The Limitation of Actions Act has no application to a claim for a correction to the Land TitlesRegistry, whether or not the claim is characterised as an action “to recover any land.” Therefore, although I would approach this matterdifferently, I find the chambers judge did not err when she found (at para. 36) that “no question of limitation arises” in the circumstancesof this case. [72] The second ground of appeal asks whether the chambers judge erred in law by failing to find that the respondent’s action wasbarred by the doctrine of laches.

There is no question the chambers judge correctly identified the elements of the doctrine of laches,which were set out by LaForest J. in K.M. v. H.M., (SCC), [1992] 3 S.C.R. 6 (at pp. 77-78), as follows: The rule developed in Lindsay [Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221] is certainly amorphous, perhapsadmirably so. However, some structure can be derived from the cases.

A good discussion of the rule and of laches in general is found inMeagher, Gummow and Lehane, [Equity Doctrines and Remedies (2nd ed. 1984)] supra, at pp. 755-65, where the authors distill thedoctrine in this manner, at p. 755: It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he candemonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (

a) acquiesced in the defendant's conductor (

b) caused the defendant to alter his position in reasonable reliance on the plaintiff's acceptance of the status quo, or otherwisepermitted a situation to arise which it would be unjust to disturb.... Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediatelyobvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches.

Rather, the doctrineconsiders whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the actionunreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitabledoctrine. [Emphasis added] [73] In her assessment of the applicability of the doctrine of laches on the evidence before her, the chambers judge said: [38] Ronald Olney says that Great-West has delayed bringing this action for a period of 61 years.

He argues that Kenneth Olney, nowdeceased, must have believed he was entitled to the minerals as he must have (although there is no evidence he did so) paid mineral taxeson the quarter-section of land over the years. He further argues that the onus is on Great-West to show why they failed to take any stepsat an earlier date to recover the minerals. [39] Great-West argues that as early as 1973, Kenneth Olney was made aware of the error on title regarding the minerals. However, itis clear on the evidence that Kenneth Olney took no steps to remove the Registrar’s caveat which was filed in 1973.

Although hetransferred the minerals to Donald and Carol Olney in 1986, the title to those minerals transferred subject to the Registrar’s caveat. Theland, with minerals, was subsequently transferred back by Donald and Carol Olney to Kenneth Olney, again subject to the Registrar’scaveat. There is no evidence that Great-West received notification of the registration of the caveat by the Registrar in 1973. Had itreceived notice in 1973, the doctrine of laches may apply.

However, Great-West has pursued this matter diligently from the time it firstbecame aware of the problem in 2008. [40] In reviewing the comments of the Supreme Court of Canada in the M.(K.) v. M.(H.) decision cited above, it is clear that the merepassage of time is insufficient to trigger laches. I have concluded that Great-West cannot be said to have acquiesced in this matter to Mr.Olney’s retention of the mineral rights. Further, there is no evidence before me that Mr. Olney altered his position regarding the mineralrights in reasonable reliance on Great-West’s failure to bring a proceeding in this matter.

I am not persuaded that the doctrine of lacheshas application in this matter. [Emphasis added] [74] On the law, the chambers judge’s finding as a matter of fact that the respondent had “pursued this matter diligently from the time itfirst became aware of the problem in 2008” would seem determinative of the appeal under this ground. I observe that the judge’s findingis wholly-supported by the evidence. Put another way, on my own assessment of the evidence, I would have reached the sameconclusion as the chambers judge because there is simply no basis in the evidence for finding the respondent had known of the

Registrar’s error, or of the caveat placed on title by the Registrar, before the appellant sought to have the caveat removed. [ 75 ] While the appellant submits the respondent must bear some onus to adduce evidence as to when it became aware of the error or the caveat, given the effluxion of time since 1947 and since 1973 it may well be that the respondent has no evidence to bring to bear on this point. It is important to point out that there is no evidence to suggest the Registrar was required, as a matter of practice in 1973, to notify the respondent of the registration of the Registrar’s caveat against Mr.

Olney’s title. Although it might have been convenient if the respondent had said it had no relevant evidence, the doctrine of laches is an equitable defence which must be made out on the evidence by the party who asserts it .

If the evidence adduced by the party relying on the doctrine makes out the availability of the defence, the onus shifts and the other party is logically and properly put to the burden of adducing evidence to dispel its application; however, the law does not require a party to make out the party opposite’s defence. [ 76 ] In short, the respondent’s action is not barred by the doctrine of laches. [ 77 ] As to the remaining grounds, I find no merit in the appellant’s contention that a judge of the Court of Queen’s Bench sitting in chambers lacks the authority to make declaratory orders in a

summary manner, see: The Queen’s Bench Act, 1998 , S.S. 1998, c. Q-1.01, s. 11. I also find no merit to the appellant’s alternate ground of appeal based on s. 31(6) of The Limitations Act , S.S. 2004, c. L-16.1. [ 78 ] On the whole of it, while my reasons may differ in some respects from those of the chambers judge, I find no basis upon which to overturn her in the result. I would dismiss the appeal with costs to the respondent in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 25 th day of April, A.D. 2014. “Caldwell J.A.” _________________ Caldwell J.A. I concur. “Jackson J.A.” Jackson J.A.