Dukart v. Corp. of the District of Surrey and Registrar of the New Westminster Land Registration District, (1978) 21 N.R. 471 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 01, 1978
• Jurisdiction: Canada (Federal)
• Citations: (1978), 21 N.R. 471 (SCC);21 NR 471;[1978] 2 SCR 1039;86 DLR (3d) 609;4 RPR 15;[1978] 4 WWR 1;1978 CanLII 214 (SCC)

Dukart v. Corp. of District of Surrey (1978), 21 N.R. 471 (SCC)

MLB headnote and full text

Dukart v. Corporation of the District of Surrey and the Registrar of the New Westminster Land Registration District

Indexed As: Dukart v. Corp. of the District of Surrey and Registrar of the New Westminster Land Registration District

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

May 1, 1978.

Summary:

This case arose out of the plaintiff's claim against a municipality for an injunction to restrain a municipality from erecting a building on the land over which the plaintiff claimed an easement. The plaintiff was an owner of a home fronting on a beach in the City of Vancouver. The plaintiff's lot was part of a subdivision established in 1912. At that time the developer of the subdivision reserved the shore property of the subdivision for common use by the purchasers of lots. Each deed to a purchaser contained a recital that "the foreshore reserves are to be held by the Grantee for the purpose of giving free access to the waters . . . to" the purchaser of lots. After some of the lots were sold the developer conveyed the balance of the subdivision to a trustee, specifically providing that subsequent conveyances were to be subject to the same conveyants and conditions as were prior conveyances. The trust deed was filed, a memorandum of the trust was entered on the register of the Land Registry Office and on the certificate of title pursuant to what is now s. 149(1) of the Land Registry Act, R.S.B.C. 1960, c. 208. Subsequently the municipality acquired the reserved shore lots at a tax sale and a new certificate of title was issued. The municipality claimed to hold the shore lots free from the easement of the purchasers of lots in the subdivision, relying on its new certificate of title. The municipality began to erect a building on the shore lot in front of the plaintiff's property. The plaintiff brought an action for an injunction to restrain construction of the building. The British Columbia Supreme Court in a judgment reported (1974), 45 D.L.R.(3d) 280, allowed the plaintiff's action. The municipality appealed. The British Columbia Court of Appeal in a judgment reported (1975), 54 D.L.R.(3d) 250, allowed the appeal and held that the municipality held the shore lots free from the easement. The plaintiff appealed.

The Supreme Court of Canada allowed the appeal and restored the judgment of the trial judge. The Supreme Court of Canada held that the purchasers of lots in the subdivision, including the plaintiff's lot, were granted an easement over the reserved shore lots, which entitled them to wander over the lots for recreational and leisure purposes. See paragraphs 18 to 25 and 72.

The Supreme Court of Canada held that the easement to the shore property was registered within the meaning of s. 25(a)(i) of the Land Registry Act, R.S.B.C. 1960, c. 208 and survived the tax sale under s. 407 of the Municipal Act, R.S.B.C. 1960, c. 255. See paragraphs 40 to 62.

The Supreme Court of Canada held that the easement registered under the trust deed and the memoranda thereof on the register and the certificate of title were required to be reflected in any subsequent certificate of title, including the new certificate of title issued upon the tax sale. See paragraphs 63 to 72.

Deeds and Documents - Topic 2564

Interpretation - Recital - Effect of - The Supreme Court of Canada held that a recital in a deed has the effect of a formal covenant in the deed - See paragraphs 31 to 38.

Deeds and Documents - Topic 2626

Interpretation - Interest conveyed - Habendum clause - Interpretation of - The owner of a subdivision sold lots subject to various restrictive covenants and easements for the benefit of all - The owner conveyed the balance of the unsold lots in trust for the trustee "to have and to hold . . . upon the trust . . . [that] all conveyances shall be made by the Trustee subject to the restrictive covenants and conditions used in the sale of the properties already sold" - The Supreme Court of Canada held that the habendum clause indicated an intention to pass on to the trustee the rights and obligations already existing respecting the lots in the subdivision - See paragraphs 35 to 38.

Real Property - Topic 7003

Easements - Uses which may constitute an easement - The developer of a subdivision reserved shore property for common use by the purchasers of lots and each deed to a purchaser contained a recital that "the foreshore reserves are to be held by the Grantee for the purpose of giving free access to the waters . . . to" the purchasers of lots - The Supreme Court of Canada held that the lot owners had an easement over the foreshore reserved lots which entitled him to wander over the lots for recreational and leisure purposes - See paragraphs 18 to 25 and 72.

Real Property - Topic 7023

Easements - Creation by express grant - Requirements or form of grant - The developer of a subdivision reserved shore property for common use by the purchasers of lots and each deed to a purchaser contained a recital that "the foreshore reserves are to be held by the Grantee for the purpose of giving free access to the waters . . . to" the purchaser of lots - The Supreme Court of Canada held that the recital constituted the grant of an easement to the purchasers of lots over the foreshore reserve lots - See paragraphs 26 to 39 and 72.

Real Property - Topic 8013

Title - Registration of instruments - Land titles system - Registration of easements - The developer of a subdivision reserved shore property for common use of the purchasers of lots - Each deed to a purchaser contained a recital that "the foreshore reserves are to be held by the Grantee for the purpose of giving free access to the waters . . . to" the purchaser of lots - After some lots were sold the developer conveyed the balance of subdivision to a trustee, specifically providing that subsequent conveyances were to be subject to the same covenants and conditions as were prior conveyances - The trust deed was filed, a memorandum of the trust was entered on the register of the Land Registry Office and on the certificate of title under s. 149(1) of the Land Registry Act, R.S.B.C. 1960, c. 208 - The Supreme Court of Canada held that the easement to the shore property was registered within the meaning of s. 25(a)(i) of the Land Registry Act, R.S.B.C. 1960, c. 208 and survived a tax sale under s. 407 of the Municipal Act - See paragraphs 40 to 62.

Real Property - Topic 8015

Title - Registration of instruments - Land titles system - Certificate of title - The developer of a subdivision reserved shore property for common use of the purchasers of lots - Each deed to a purchaser contained a recital that "the foreshore reserves are to be held by the Grantee for the purpose of giving free access to the waters . . . to" the purchaser of lots - After some lots were sold the developer conveyed the balance of subdivision to a trustee, specifically providing that subsequent conveyances were to be subject to the same covenants and conditions as were prior conveyances - The trust deed was filed, a memorandum of the trust was entered on the register of the Land Registry Office and on the certificate of title under s. 149(1) of the Land Registry Act, R.S.B.C. 1960, c. 208 - Subsequently the shore property was sold to a municipality at a tax sale and a new certificate of title was issued - The municipality claimed to hold the shore property free from the easement under its new certificate of title - The Supreme Court of Canada held that the easement to the shore property was registered within the meaning of s. 25(a)(i) of the Land Registry Act, R.S.B.C. 1960, c. 255, and survived a tax sale under s. 407 of the Municipal Act - The Supreme Court of Canada held that the easement registered under the trust deed and the memoranda thereof were required to be reflected in any subsequent certificate of title, including a new certificate of title resulting from tax sale - See paragraphs 63 to 72.

Statutes - Topic 514

Interpretation - General principles - Meaningless and superfluous language - The Supreme Court of Canada held that the court should attribute meaning to a direction in a statute if at all possible - See paragraph 64.

Cases Noticed:

Re Ellenborough Park; Re Davies Powell and Others v. Maddison and Another, [1955] 3 All E.R. 667, appld. [para. 21].

Wells v. Mitchell and Brown, [1939] 3 D.L.R. 126, refd to. [para. 24].

Carpenter et al. v. Smith, [1951] 2 D.L.R. 609, refd to. [para. 24].

Aspdin v. Austin (1844), 5 Q.B. 657; 114 E.R. 1402, appld. [para. 31].

Mackenzie v. Childers (1889), 43 Ch.D. 265, appld. [para. 32].

Gregg v. Richards, [1926] Ch.D. 521, appld. [para. 36].

Re Massey and Gibson (1890-1), 7 Man. R. 172, consd. [para. 48].

Re The Land Titles Act and Allan and O'Connor, [1918] 1 W.W.R. 440, consd. [para. 49].

Gordon v. Hipwell and Attorney-General of British Columbia (1952), 5 W.W.R.(N.S.) 433, appld. [para. 55].

Clark v. Barrick, [1949] 2 W.W.R. 1009, revd. [1951] S.C.R. 177, appld. [para. 55].

McKillop & Benjafield v. Alexander (1912), 45 S.C.R. 551, appld. [para. 55].

The Western Trust Company v. Olsen et al., [1918] 3 W.W.R. 811, consd. [para. 59].

Close v. McMeans et al., [1931] 3 W.W.R. 550, consd. [para. 59].

St. Germain v. Reneault (1908-09), 2 Alta. L.R. 371, consd. [para. 59].

Re Estate of Roneche (1908), 1 Alta. L.R. 255, consd. [para. 59].

Ficke v. Spence and Olsen, [1922] 1 W.W.R. 1271, consd. [para. 59].

National Trust Co. v. Proulx (1910), 15 L.R. 349, consd. [para. 59].

Sorenson v. Young, [1920] 1 W.W.R. 189, refd to. [para. 61].

Registrar of Titles v. Vancouver, [1945] 3 D.L.R. 304, refd to. [para. 61].

Rystephaniuk v. Prosken (1951), 3 W.W.R.(N.S.) 76, consd. [para. 61].

Gibbs v. Messer, [1891] A.C. 248, consd. [para. 63].

Canadian Pacific Railway Co. Ltd. and Imperial Oil Limited v. Turta et al., [1954] S.C.R. 427, consd. [para. 64].

Re Svenska Aktiebolaget Gasaccumulator's Application, [1962] 1 W.W.R. 657, refd to. [para. 64].

Grand Trunk Pacific Railway Company and Bithulitic and Contracting Limited v. Dearborn (1919), 58 S.C.R. 315, refd to. [para. 64].

Fels v. Knowles (1906), 26 N.Z.L.R. 604, folld. [para. 67].

Grasett v. Carter (1883), 10 S.C.R. 105, folld. [para. 67].

Re Goldstone's Mortgage, [1916] N.Z.L.R. 19, folld. [para. 67].

Re Zeller's (Western) Ltd. and Calford Properties Ltd. (1973), 29 D.L.R.(3d) 16, consd. [para. 69].

Ruptash and Lumsden v. Zawick, [1956] S.C.R. 347, appld. [para. 71].

Statutes Noticed:

Land Registry Act, R.S.B.C. 1960, c. 208, sect. 2(1) [para. 57]; sect. 25(a) [para. 41]; sect. 38(1)(g), sect. 38(1)(h) [para. 56]; sect. 42 [para. 65]; sect. 149(1),(2) [para. 45]; sect. 150, sect. 165 [para. 61]; sect. 209 [paras. 55 and 70]; sect. 215 [para. 70].

Land Titles Act, R.S.A. 1970, c. 198, sect. 2.21, sect. 25 [para. 58]; sect. 51, sect. 136 [para. 49].

Land Titles Act, R.S.S. 1964, c. 155, sect. 2(r), sect. 57 [para. 58].

Municipal Act, R.S.B.C. 1960, c. 255, sect. 407(2) [para. 41].

Real Property Act, R.S.M. 1970, c. R-30, sect. 2(1)(o) [para. 58]; sect. 77, sect. 78 [para. 48].

Authors and Works Noticed:

Cheshire, Modern Law of Real Property (12th Ed. 1976), pp. 416-86 [para. 20]; 521 [para. 25].

Di Castri, Thom's Canadian Torrens System (2nd Ed. 1962), pp. 190 [para. 43]; 191 [para. 44]; 310 [paras. 50 and 68]; 311 [para. 50].

Hogg, Registration Title to Land Throughout the Empire (1920), pp. 155, 161 [paras. 52 and 68]; 163 [para. 52].

Hodgers, Construction of Deeds and Statutes (5th Ed. 1967), p. 159 [para. 34].

Counsel:

R.R. Dodd, for the appellant;

A.K. Thompson, for the respondents.

This case was heard on November 16, 1977, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., of the Supreme Court of Canada.

On May 1, 1978, ESTEY, J., delivered the following judgment for the Supreme Court of Canada: