Hill v. Registrar of South Alberta Land Registration District, (1993) 135 A.R. 266 (CA)

• Judge: McClung, Irving and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 03, 1993
• Citations: (1993), 135 A.R. 266 (CA);1993 ABCA 75;100 DLR (4th) 331;[1993] 5 WWR 47;135 AR 266;8 Alta LR (3d) 379;[1993] CarswellAlta 307;30 RPR (2d) 186;33 WAC 266

Hill v. Land Registration District (1993), 135 A.R. 266 (CA);

    33 W.A.C. 266

MLB headnote and full text

Audrey Hill (plaintiff/respondent) v. The Registrar, South Alberta Land Registration District (defendant/appellant) and The Public Trustee of the Province of Alberta, as Administrator of the Ad Litem of the Estate of Jerry (Gerry) Lloyd Hill, deceased (defendant) (not a party to the appeal)

(Appeal No. 12589)

Indexed As: Hill v. Registrar of South Alberta Land Registration District

Alberta Court of Appeal

McClung, Irving and Côté, JJ.A.

March 3, 1993.

Summary:

Hill was the registered owner of property. In 1977, her husband forged a transfer to Laidlaw, mortgaged the property and retransferred the property to Hill, all without her knowledge. In 1981, Hill learned of the forged transfer and complained to the Law Society, which advised her to obtain legal advice. In 1982 the mortgagee commenced foreclosure proceedings. Hill counterclaimed. In 1983 the husband died.

In 1985, the Alberta Court of Queen's Bench, in a judgment reported 62 A.R. 180, held that the mortgage did not bind the land. The mortgagee appealed.

In 1986, the Alberta Court of Appeal, in a judgment reported 75 A.R. 249, allowed the appeal and held that the mortgage was a valid encumbrance. Hill commenced an action against the Registrar on April 26, 1988, claiming compensation from the As­surance Fund. The Registrar pleaded the six year limitation period.

The Alberta Court of Queen's Bench held that the limitation period had not expired. The Registrar appealed.

The Alberta Court of Appeal allowed the appeal and dismissed the action as being outside the limitation period.

Real Property - Topic 8104

Title - Registration of instruments - As­surance fund - Limitation period - Section 168(1) of the Land Titles Act provided a six year limitation period for claims against the Assurance Fund for an action respecting the "deprivation" of land - Hill was the registered owner of land - Hill's husband forged a transfer in 1977 to obtain a mortgage without Hill's knowledge - The land was retransferred, encumbered by the mortgage - Hill learned of the forged transfer and mortgage in 1981 - Hill com­menced her action on April 26, 1988 - The Alberta Court of Appeal held that the action was barred by the limitation period - The court found it unnecessary to deter­mine whether the discoverability rule applied (i.e., whether limitation period commenced upon registration of mortgage or when it was discovered), because Hill knew all of the relevant facts more than six years before commencing the action - The "deprivation" occurred when the mortgage was registered.

Cases Noticed:

Paramount Life Insurance Co. v. Hill, [1985] 6 W.W.R. 340; 62 A.R. 180; 39 Alta. L.R.(2d) 245 (Q.B.), refd to. [para. 2].

Paramount Life Insurance Co. v. Hill, [1987] 2 W.W.R. 368; 75 A.R. 249; 49 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 2].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 8].

Huston Estate v. Registrar of North Alberta Land Registration District (1989), 57 Alta. L.R.(2d) 118; 84 A.R. 214 (Q.B.), affd. 96 A.R. 300; 67 Alta. L.R.(2d) 71 (C.A.), refd to. [para. 16].

McWhorter v. Registrar of North Alberta Land Registration District - see Huston Estate v. Registrar of the North Alberta Land Registration District.

Statutes Noticed:

Land Titles Act, R.S.A. 1980, c. L-5, sect. 1(n) [para. 13]; sect. 158(b)(ii), sect. 158(b)(iii) [para. 15]; sect. 168(1) [para. 13].

Authors and Works Noticed:

Hurlburt, Case Comment: Hill v. Registrar of South Alberta Land Registration Dis­trict (1992), 30 Alta. L. Rev. 1371, p. 1373 [para. 5].

Counsel:

D. Kinlock, for the appellant;

M.J. McDonald, for the respondent.

This appeal was heard before McClung, Irving and Côté, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was delivered by Côté, J.A., on March 3, 1993.