Pond v. Hovey, (2014) 420 N.B.R.(2d) 201 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 07, 2014
• Jurisdiction: New Brunswick
• Citations: (2014), 420 N.B.R.(2d) 201 (TD);2014 NBQB 118

Pond v. Hovey (2014), 420 N.B.R.(2d) 201 (TD);

    420 R.N.-B.(2e) 201; 1091 A.P.R. 201

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. JN.020

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JN.020

Donald Hovey (applicant) v. Registrar General of Land Titles; 643589 N.B. Ltd.; K.W. Pond Limited; and Doreen Pond (respondents)

(N/M/137/13; 2014 NBQB 118; 2014 NBBR 118)

Indexed As: Pond v. Hovey

Répertorié: Pond v. Hovey

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Walsh, J.

May 7, 2014.

Summary:

Résumé:

The parties were adjacent property owners of two lots on the Miramichi River. Pond owned lot 73, which was granted in 1916. Hovey owned lot 74, which was granted in 1809. The Crown grant map attached to the 1916 Crown deed showed the borderline between the properties extending across a small peninsula, including the tip of the peninsula in Pond's lot 73. The extension of the borderline across the peninsula was not shown in the 1809 grant. After Hovey bulldozed vegetation on the peninsula, Pond brought an action, claiming that Hovey had trespassed, causing damage to her property.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2009), 343 N.B.R.(2d) 390; 881 A.P.R. 390, granted judgment for Pond. She was awarded nominal damages of $1,500. She was also entitled to special damages of $15,014.65 for a survey and $4,377.50 for a legal opinion. Hovey appealed.

The New Brunswick Court of Appeal, in a decision reported at (2010), 353 N.B.R.(2d) 388; 910 A.P.R. 388, allowed the appeal. Based on the 1809 grant, Hovey was the owner of the disputed land. Hovey successfully applied under the Land Titles Act for registration of the peninsula lands. Asserting that the formal judgment had effectively extinguished its ownership of a 10 foot strip of land around the peninsula, 643589 NB Ltd. sought an order to amend the judgment.

The New Brunswick Court of Appeal, in a decision reported at (2011), 369 N.B.R.(2d) 394; 952 A.P.R. 394, treating 643589 NB. Ltd. as a party to the action under rule 15.01(2) for the purposes of this motion, granted the motion and corrected its judgment, deleting the declaration of title. The Registrar General purported to correct the title register under s. 52 of the Act to show that 643589 was the title holder of the 10' strip with Hovey owning the remainder of the peninsula. Hovey applied to have his title registration restored.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application.

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - Pond and Hovey were adjacent property owners on the Miramichi River - They disputed the ownership of a small peninsula - Hovey's predecessor in title had deeded a 10' strip of land around the peninsula to Russell - The appeal court held that, based on an 1809 land grant, Hovey was the owner of the disputed peninsula - The formal judgment included a declaration as to title that did not reference the 10' strip that had subsequently been conveyed to 643589 NB Ltd. - Hovey successfully applied under the Land Titles Act for registration of the peninsula lands - 643589 entered a caveat - The Court of Appeal corrected its judgment, deleting the declaration of title - The Registrar General purported to correct the title register under s. 52 of the Act to show that 643589 owned the 10' strip with Hovey owning the remainder of the peninsula - Hovey applied to have his title registration restored - The New Brunswick Court of Queen's Bench, Trial Division, in dismissing the application, held that s. 52 was not the appropriate legal vehicle for rectification of the register - Section 52 was plainly intended to permit the filing of special documents or instruments that vested rights or interests in persons where no other provision of the Act provided for that registration - However, in order to invoke s. 52, the Registrar General had to be satisfied that the land and owner were properly identified in the judgment or order - The corrected judgment here did not do that - What the Registrar General had purported to do was actually a rectification of the register without a judgment or order that evidenced 643589's right to be registered as owner - Such a discretionary power was only exercisable under s. 68 of the Act, which explicitly required notice to all interested parties - While the court had jurisdiction under s. 70 to rectify the title, there was a complete absence of evidence that Hovey had title to the 10' strip - Under s. 70, the court directed the Registrar General to rectify the title register as intended and reflected by the rectification incorrectly made under s. 52 - See paragraphs 52 to 80.

Real Property - Topic 8043

Title - Registration of instruments, etc. - Land titles system - The registrar - Scope of powers - [See Real Property - Topic 8014.2 ].

Biens réels - Cote 8014.2

Titre - Enregistrement d'actes instrumentaires - Système d'enregistrement foncier - Enregistrement - Rectification - [Voir Real Property - Topic 8014.2 ].

Biens réels - Cote 8043

Titre - Enregistrement d'actes instrumentaires - Système d'enregistrement foncier - Le régistrateur - Portée des pouvoirs - [Voir Real Property - Topic 8043 ].

Cases Noticed:

Price, Re (2010), 368 N.B.R.(2d) 27; 949 A.P.R. 27; 2010 NBQB 428, refd to. [para. 1].

Quieting of Titles Act, Re - see/voir Price, Re.

FCT Insurance Co. v. Law Society of New Brunswick, 2009 NBCA 22, refd to. [para. 17].

McKinney v. Tobias (2006), 306 N.B.R.(2d) 282; 793 A.P.R. 282; 2006 NBQB 290 (T.D.), refd to. [para. 22].

Black v. Norris et al. (2012), 399 N.B.R.(2d) 1; 1035 A.P.R. 1; 2012 NBQB 346, refd to. [para. 25].

835637 Alberta Ltd. et al. v. Moonraker Realty Inc. (2010), 364 N.B.R.(2d) 148; 937 A.P.R. 148; 2010 NBCA 72, refd to. [para. 60].

Kennedy v. Executive Director of Assessment of Service New Brunswick (2004), 270 N.B.R.(2d) 196; 710 A.P.R. 196; 2004 NBCA 31, refd to. [para. 63].

Carter Brothers Ltd. v. Registrar of Motor Vehicles (N.B.) (2011), 377 N.B.R.(2d) 291; 972 A.P.R. 291; 2011 NBCA 81, refd to. [para. 63].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 63].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 63].

Minister of National Revenue v. Craig (2012), 433 N.R. 111; 2012 SCC 43, refd to. [para. 65].

Statutes Noticed:

Land Titles Act, S.N.B. 1981, c. L-1.1, sect. 52 [para. 55].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), generally [para. 22].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 56].

Counsel:

Avocats:

Joseph W.J. Fitzpatrick III, for the applicant;

David D. Eidt, for the Registrar General of Land Titles;

David T. Hashey, Q.C., and Aaron M. Savage, for 643589 N.B. Ltd.;

No appearance by K.W. Pond Limited and Doreen Pond.

This application was heard on April 7, 2014, by Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on May 7, 2014.