Spencer et al. v. Salo et al.,

• Jurisdiction: Ontario
• Judge: Cunningham,LaForme,Winkler
• Neutral Citation: 2013 ONCA 98
• Citation: (2013), 303 O.A.C. 374 (CA),2013 ONCA 98,303 OAC 374,(2013), 303 OAC 374 (CA),303 O.A.C. 374
• Date: 14 September 2012
• Court: Court of Appeal (Ontario)

Spencer v. Salo (2013), 303 O.A.C. 374 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MR.001

Hugh Spencer MacIsaac, Kimberly Ann MacIsaac, Christina Johansen and Karsten Johansen (plaintiffs/respondents) v. Peggy Charlene Salo, Gordon Salo, S.J. Gossling and D.S. Dorland Limited (defendants/appellants/respondents)

(C55050; 2013 ONCA 98)

Indexed As: Spencer et al. v. Salo et al.

Ontario Court of Appeal

Winkler, C.J.O. LaForme, J.A. and Cunningham, A.C.J.S.C.(ad hoc)*

February 19, 2013.

Summary:

Three landlocked adjoining landowners discovered that part of a road used to access their waterfront properties lay outside of the right of way shown on a reference plan. The surveyor and the surveying firm (the surveyor) who had prepared the plan for the original owner of the three properties moved for rectification of the plan, admitting that, contrary to the original owner's instruction, the plan incorrectly portrayed the right of way as running in a straight line and failed to include the curved portion of the road that circumvented a large rock outcrop.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 337, dismissed the motion, holding that the interests shown in the title register had to prevail and the court lacked jurisdiction to rectify title or balance the parties' interests. The surveyor appealed.

The Ontario Court of Appeal allowed the appeal.

*Editor's Note: Cunningham, A.C.J.S.C., did not take part in the judgment.

Real Property - Topic 8006

Title - Registration of instruments, etc. - Land titles system - Effect of actual notice of an unregistered encumbrance - The MacIsaacs, Johansens and Salos were landlocked adjoining landowners who accessed their waterfront properties using a right of way (a road) over the MacIsaac and Salo properties - They discovered that part of the road on the Salo property lay outside of the right of way shown on a reference plan - The surveyor who had prepared the plan for the original owner of the three properties moved for rectification of the plan, admitting that, contrary to the original owner's instruction, the plan incorrectly portrayed the right of way - The motions judge held that the interests shown in the title register had to prevail and the court lacked jurisdiction to rectify title or balance the parties' interests - The Ontario Court of Appeal allowed the surveyor's appeal - The court's powers of rectification under ss. 159 and 160 of the Land Titles Act were qualified by reference to the indefeasibility of title that followed from registration - Only a bona fide purchaser for value without notice obtained the benefit of indefeasible title - However, here the question of whether the Salos had actual notice of an interest in land that varied from the registered interest before they purchased the property did not have to be answered to determine if the court could invoke ss. 159 or 160 - The rectification request concerned an admitted surveying error in showing the location of a right of way on a reference plan - Unlike a registered instrument, the deposit on title of a reference plan did not itself create an interest in land triggering s. 78(4) of the Act - Section 140(2) provided that the description of registered land was not conclusive as to the boundaries or the extent of land - The deposit of the plan and the reference to a portion of the right of way in question in the legal description in the registered transfers did not create an interest in land precluding the statutory remedy of rectification - See paragraphs 36 to 56.

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - [See Real Property - Topic 8006 ].

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - The surveyor who had prepared a reference plan moved for rectification of the plan, admitting that, contrary to the original owner's instruction, the plan incorrectly portrayed a right of way - The motions judge held that the interests shown in the title register had to prevail and the court lacked jurisdiction to rectify title or balance the parties' interests - The Ontario Court of Appeal allowed the surveyor's appeal - The court noted that it had not been specified whether the remedy should be ordered pursuant to s. 159 or s. 160 of the Land Titles Act - Section 159 contemplated an order for rectification of the register as a consequence of a court deciding that a person was entitled to an estate, right or interest in registered land - Section 160 provided for a right to apply to rectify the register where a person was aggrieved by an entry thereon - Here, s. 160 was more pertinent given that the issue concerned the court's jurisdiction to rectify a deposited reference plan - See paragraphs 58 and 159.

Cases Noticed:

Durrani v. Augier et al., [2000] O.T.C. 607; 50 O.R.(3d) 353 (Sup. Ct.), refd to. [para. 29].

United Trust Co. v. Dominion Stores Ltd., [1977] 2 S.C.R. 915; 11 N.R. 97, refd to. [para. 39].

719083 Ontario Ltd. v. 2174112 Ontario Inc., [2012] O.T.C. Uned. 3815; 2012 ONSC 381, affd. [2013] O.A.C. Uned. 8; 2013 ONCA 11, refd to. [para. 39].

Lumme v. Eagle Point LLC, [2011] O.A.C. Uned. 263; 2011 ONCA 291, refd to. [para. 45].

Statutes Noticed:

Land Titles Act, R.S.O. 1990, c. L-5, sect. 78(4) [para. 26]; sect. 159, sect. 160 [para. 27].

Authors and Works Noticed:

Lambden, David W., and de Rijcke, Izaak, Boundaries in Survey Law in Canada (1989), §4.01 [para. 50].

Lamont, Donald H.L., Lamont on Real Estate Conveyancing (2nd Ed.) (2011 Looseleaf Update, Release 7), vol. 2, p. 28-19 [para. 44].

Moore, Marguerite E., Title Searching & Conveyancing in Ontario (6th Ed. 2010), pp. 56 [para. 48, footnote 4]; 182 [para. 48].

Petzold, Lorraine, The Survey and the Real Estate Transaction (Sept. 1993), generally [para. 47, footnote 3].

Counsel:

Frank E.P. Bowman and Muriel Moscovich, for the appellants, S.J. Gossling and D.S. Dorland Limited;

Edward Babin and Tim Hudek, for the respondents, Peggy Charlene Salo and Gordon Salo;

Richard R.F. Nolin, for the respondents, Hugh Spencer MacIsaac, Kimberly Ann MacIsaac, Christina Johansen and Karsten Johansen;

Arnie Herschorn and Craig Carter, for the intervener, Ontario Bar Association.

This appeal was heard on September 14, 2012, by Winkler, C.J.O., LaForme, J.A., and Cunningham, A.C.J.S.C.(ad hoc), of the Ontario Court of Appeal. Winkler, C.J.O., released the following judgment for the court on February 19, 2013. Cunningham, A.C.J.S.C. did not participate in the judgment.