107 Dedication And Vesting

PRACTICE

Road Dedications on Crown Land

Section 102 of the Land Title Act allows the Crown to dedicate a road on registered Crown land. However, the Crown typically uses s. 107 of the Act for this purpose especially since the section was amended to permit the use of reference and explanatory plans. Formerly, s. 107 was confined to subdivision plans only.

With respect to unregistered land, the Crown is authorized to establish road under the Land Act. Specifically:

1. Section 80 of the Land Act authorizes the Surveyor General, if the minister considers it advisable, to establish a public road allowance across Crown land to provide access to other land being subdivided. In practice, this is done by a subdivision plan of registered land that is signed by the Surveyor General to certify that the Crown land portion of the road has been approved under the Land Act. See the Electronic Land Title Plan and Plan Application Requirements, available at https://ltsa.ca/wp-content/uploads/2020/10/Electronic_Land_Title_Plan_and_Plan_Application_Requirements.pdf.
2. Section 79 of the Land Act authorizes the Surveyor General to establish a road allowance through Crown Land.

Dedication of Portion of Parcel

Under this section, the registrar accepts for deposit a reference or subdivision plan, or may accept an explanatory plan dedicating a portion of a parcel for road only, provided the appropriate approving officer approves it (if required) and the owners of the parcel sign it. The registrar registers a new indefeasible title for the remainder under s. 189 of the Act. Where a road passes through a parcel, the road dedication in itself does not create two parcels.

Road Dedications under Section 121(8) of the Forest Act or Section 43 of the Transportation Act

Application of Section 107

Persons Designated to Prepare Plans under the Transportation Act

In the case of a Transportation Act highway dedication, a ministry employee designated by the Minister of Transportation and Infrastructure may prepare the plan. That person need not be a British Columbia land surveyor. However, the plan that person prepares must still meet the requirements of the Land Title Act as well as those of the Surveyor General. Evidence of the designation of the person must be endorsed on the plan.

Refusal to Accept Explanatory Plans

Section 121(8) of the Forest Act authorizes the registrar to accept a reference plan or an explanatory plan. Although s. 43 of the Transportation Act authorizes the registrar to accept an explanatory plan, it does not limit the registrar’s discretion to call for a reference plan. The registrar may refuse to accept an explanatory plan, calling instead for a reference plan, where:

1. there are known survey discrepancies in the registered plan of the land affected;
2. the new boundaries contain excessive curves or jogs or are tied to or are affected by a natural boundary; or
3. a survey is required to establish the location of the boundaries on the ground.

The registrar encourages applicants to contact the land title office for pre-clearance of explanatory plans.

Resumption of Land for Forest Service Roads

The Ministry of Forests may deposit a reference plan, signed only by the Crown, where:

1. an original Crown grant reserved a right to resume any part of the land for making roads (such right usually not to exceed 1/20th of the area);
2. the land being resumed for a forest service road does not exceed the 1/20th limitation; and
3. the taking occurred before the enactment of the Expropriation Act and the amendment of the Forest Act in 1987.

Only the Crown’s signature is required because the owner of the parent parcel retains no registered interest in the resumed land at the time of deposit.

The registrar will accept such a reference plan from the ministry as long as:

1. the title to the parent parcel has been previously endorsed with the legal notation formerly required under the Land Title Act Regulation, s. 20 (repealed by B.C. Reg. 451/87);
2. a Gazette notice regarding the taking has been filed; and
3. the ministry provides the registrar with a letter confirming that:
   1. the resumed land does not exceed the 1/20th limitation; and
   2. the registered owner of the parent parcel together with all registered encumbrances have been served with a notice advising of the resumption and the date it occurred (that is, the date of the Gazette notice publication).

Where the registered owner of the parcel has signed the reference plan, the registrar processes the application in the same manner as a highway dedication. In either case, the Ministry of Forests is simply defining, by reference plan, land already resumed. The approval of the approving officer is not required.

Electronic Plans

The Gazette notice and letter from the ministry are in the class of supporting documents designated by the director for electronic filing. On the declaration enter a description of the supporting documents sufficient to describe them and attach an image of the notice and letter.

The electronic Declaration is submitted immediately following the electronic plan in the electronic filing system and is appended automatically to the plan application during the electronic processing.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Section 108

Read s. 107 of this Act in conjunction with s. 108. See particularly the practice discussion under s. 108 regarding the application of ss. 107 and 108 and the differences between them.

Expropriation Act

Where a road dedication is to be accomplished under the terms of the Expropriation Act, the dedication must be effected by the deposit of a reference plan or, where authorized, an explanatory plan, in the land title office. On deposit, the plan operates as an immediate and conclusive dedication of the land shown as road or highway to the public and a vesting of land in the Crown. For further information on the relationship between the Expropriation Act and the Land Title Act, see the discussion of the Expropriation Act in chapter 41 (Expropriation Act, R.S.B.C. 1996, c. 125), and particularly the practice discussion under s. 3 of that Act.

Vesting in Cities of Vancouver and New Westminster

Section 289(3) of the Vancouver Charter provides for vesting in the municipality pursuant to this section in place of vesting in the Crown in right of the Province. The New Westminster Act, 1888, S.B.C. 1888, c. 42, also provides for vesting in the municipality.

Vesting in Other Municipalities

Section 35(1) of the Community Charter, S.B.C. 2003, c. 26 provides for vesting in the municipality of every highway in a municipality, subject to the exceptions in Section 35(1).

Closure of Highways and Removal of Dedication by Other Municipalities

See the Practice Notes under s. 120 of the Land Title Act in chapter 7 (Land Title Act Part 7 (ss. 58 to 120)—Descriptions and Plans)) and s. 40 of the Community Charter at chapter 52 (Local Government Legislation).

Discontinuance, Closure and Disposal of Highways by the Ministry of Transportation and Infrastructure

The Ministry of Transportation and Infrastructure makes application to close a road under s. 60 of the Transportation Act in order to dispose of the road under s. 13(2) of that Act.

1. Section 13(2) of the Transportation Act authorizes the Minister of Transportation and Infrastructure to dispose of a public highway that has been discontinued and closed. The Act provides no mechanism for such dispositions. In practice, the ministry’s policy is to make application for title to the land on behalf of the British Columbia Transportation Financing Authority (“BCTFA”), which then handles the disposition.
2. The plan title should refer to the method by which the road was originally established, for example:

   Statutory Right of Way Plan of Section ____, _____ District, closing road dedicated by (specify how road was dedicated), pursuant to Section 113 Land Title Act.

   Note: The plan used to define the area being closed may be a statutory right of way plan pursuant to s. 113 of the Land Title Act or a reference plan. If a reference plan is used, there is no applicable section number. Therefore, a section number is not required in the heading. Use of either type of plan is acceptable.

3. The examiner creates an unsubdivided parcel, for example:
   • That part of Section [specify], [specify] District, shown as closed [may enter road name] road on plan [specify].
4. The registrar issues an indefeasible title in the name of BCTFA.
5. BCTFA may then dispose of the highway by way of a Form A Freehold Transfer.

PRACTICE

Electronic Plans

For an electronic plan, the applicant attaches an image of the Gazette notice discontinuing and closing a highway to an electronic Declaration. The Declaration is submitted immediately following the electronic Application to Deposit the Plan at Land Title Office. The electronic filing system automatically appends the Declaration to the plan application during the submission process. The Survey Plan Certification form with the attached plan images containing the pre-assigned plan number is submitted immediately after the Declaration.

The electronic plan contains a pre-assigned plan number.

The Director has prescribed the use of Form 17 Fee Simple for the application for Title to Closed Road on behalf of BCTFA. Form 17 follows the Survey Plan Certification. A Property Transfer Tax Return is not required.

BCTFA may then dispose of the highway by way of a Form A Freehold Transfer.

For the electronic form: To dispose of a closed road from BCTFA to the owner of the adjacent land, select NO PID NMBR in Item 2 of the Form A and complete the Related Plan Number field using the pre-assigned plan number of the subdivision or reference plan that consolidates the closed road with the adjacent land.

If the transfer is not related to a subsequent consolidation plan, the Form A cannot be submitted electronically until the land title office has assigned a PID number and issued a title to the closed road or it is submitted in the same package as the Form 17 application for Title to Closed Road.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, §6:11, §6:13, §6:45, and §7:31 to §7:33, and vol. 3, §18:21.

CASE LAWS

“Highways”

Lands that are dedicated for a road allowance are “highways” open to public use even though not improved for that purpose (Einhorn v. Maple Ridge (District), 1991 CanLII 479 (BC SC), reversed 1993 CanLII 1432 (BC CA); see also the annotations for this decision under s. 40 and s. 1 in the Schedule to the Community Charter in chapter 52 (Local Government Legislation).

The plaintiff purchased land from a railway company and then alleged that, at the time of the purchase, the plaintiff did not know that a paved road traversed the property. The plaintiff filed a notice of motion seeking declarations that the paved road was not a public highway under s. 4 of the Highway Act and that it had not been dedicated as a public highway under s. 107 of the Land Title Act by deposit of a subdivision plan. With respect to the Highway Act (now the Transportation Act), the court was satisfied that, at least since 1896, the road existed as a public road and was travelled freely by the public without restriction of access. Further, the road had been regularly maintained and upgraded at public expense since the late 1890s. With respect to the Land Title Act, one of the plaintiff’s predecessors in title transferred the property to the railway company for a right of way in 1912. The court found that, at that time, the deposited plan was clearly a “subdivision, reference or explanatory plan” within the meaning of the Land Title Act and that the road in question was illustrated on the plan but not designated as private in nature. In dismissing the plaintiff’s claim, the court found that the road was a public highway before 1912, that the plaintiff’s predecessor in title knew of the existence of the public road when it became the owner of the land, and that plans filed after 1912 were also subdivision plans clearly illustrating that the road in question was a public highway (Dunromin Investments Ltd. v. Spallumcheen (Township), 2000 BCSC 383).

The defendants owned a quarter-section of land (the “Q Quarter Section”) at the outskirts of Pouce Coupe. They lived on the property in a house situated at its western edge about halfway between the northern and southern boundaries of the property. They bought the property in 1991. Access to the property was by way of Riverside Road, a two-lane gravel road that passed generally along the southern boundary of the quarter section to the south of the defendants’ property and then turned north, eventually running along the eastern boundary of the Q Quarter Section to the northeast corner. From the northeast corner of the Q Quarter Section, the plaintiff (the Province) claimed Riverside Road then turned back to the west and ran just inside the northern boundary of the Q Quarter Section to its terminus at the northwest corner of the defendants’ property. The defendants said that segment of the road (the “Disputed Roadway”) was part of their driveway and private property. Just past the intersection with the defendants’ driveway, the Disputed Roadway intersected with a second driveway leading to a house on the quarter section to the west of the Q Quarter Section. This neighbouring property (the “C Quarter Section”) was owned by a couple (the “Cs”). The Disputed Roadway provided the main road access to their home. They built the home in 1995 based on their understanding that the Disputed Roadway was a public highway that would provide access to their residence. Since 1995, when they began living on the property, the Cs used the Disputed Roadway each day to get to and from work in Dawson Creek. The defendants agreed in cross-examination that the Cs were free to use the Disputed Roadway for 20 years or more. A dispute first arose in 2015 but came to a head in 2017. In 2015, the defendants learned the Cs were planning to subdivide their property: to sell a portion and keep the rest. They did not want their property to serve as a public thoroughfare to the subdivided lots. The Cs, however, maintained that the Disputed Roadway was public. The defendants began asserting ownership rights over the Disputed Roadway by posting “Keep Out” or “Private Drive” signs. In 2017, matters escalated when they put concrete lock blocks across the Disputed Roadway west of their own driveway and just before the Cs’ driveway. Those blocked the Cs from getting to or from their driveway but maintained the defendants’ access. The Province became involved, commenced the action, and obtained an interlocutory injunction to keep the road clear pending trial. At trial, the Province sought a declaration that the road was a public highway under s. 42(1) of the Transportation Act, S.B.C. 2004, c. 44, and thus owned by the Province. Held, for plaintiff. A road situated within private property can become a public highway under s. 42(1) of the Transportation Act if the roadway is a “travelled road,” and the Province expended public money on it. Here, the defendants said that s. 42(1) was not triggered by public expenditures on a trail, even if to make it into a road. While several witnesses who used the Disputed Roadway in the 1970s variously described it as a trail, a “goat trail”, a “homestead trail”, and a “cutline”, several witnesses testified that they could drive a vehicle down the road before the Ministry of Highways’ (as it then was) improvements. The vehicular use of the road in the 1970s as described showed that it was a road and not just a trail at the time. Whether it was a road sufficiently used by members of the public to make it a travelled road was a different question. The Province had met the burden of proving that the Disputed Roadway was a public highway. Any public use of it prior to 1994 was not sufficient to establish that it was a travelled road before then, but the use after 1994 rose to and exceeded the standard apparent from the case law. That conclusion was based substantially on the fact that the Cs had used the Disputed Roadway almost daily for more than 20 years to access their driveway and home with no objection or interference from the defendants until 2017. Their family members, guests, and other invitees (such as contractors and service providers) had also accessed their property by way of the Disputed Roadway without interference. While the public use since 1995 was close to the margin of what satisfied the requirements for a travelled road, that use met the standard for s. 42(1) largely because the nature and frequency of the public use exceeded that which was found to meet the case law standard. The court was also satisfied that the public expenditures on the maintenance of the Disputed Roadway since 1995 were sufficiently significant in the context of the road and the area in which it was located to meet the public expenditure requirement of s. 42(1) (British Columbia v. Querin, 2023 BCSC 1994).

Standard of Review of Registrar’s Decision

In June 2017, the registrar of the Victoria Land Title Office made a decision declining to register a plan filed by the Ministry of Transportation and Infrastructure. The plan related to common property transferred by the owners of a strata property to the ministry for a highway stabilization slope. To effect the deposit of the plan, the ministry included in its materials a certificate of the strata corporation evidencing that the owners passed a resolution by 3/4 vote approving the disposition of the common property. The registrar required the signature of all owners holding an interest in the common property on the submitted plan. The plan submitted by the ministry did not contain the signatures. The ministry was of the view that the registrar’s interpretation of the statutory provisions requiring all signatures was unreasonable. The ministry appealed to the Supreme Court pursuant to s. 309 of the Land Title Act, where the parties agreed on the applicability of a reasonableness standard of review to the registrar’s decision. The court dismissed the ministry’s appeal. The interpretative question at the heart of the appeal was whether a highway dedication under s. 107 of the Land Title Act was a “transfer of a freehold estate” under s. 253(1) of the Strata Property Act. The ministry’s position was flawed because it focused on characterizing what the ministry obtained (a dedication) rather than the nature of the disposition. A s. 107 dedication vests title to the highway in the Crown. The Crown’s title to the highway depends on eliminating the strata owners’ freehold title. This requires a transfer of a freehold estate within the meaning of s. 253(1). The registrar’s interpretation of the relevant provisions of the Land Title Act (the registrar’s home statute) and the Strata Property Act fell within the range of reasonable outcomes. The ministry appealed to the Court of Appeal, where it argued that the standard of review applicable to the registrar’s decisions was the more stringent standard of correctness, rather than the standard of reasonableness. The Court of Appeal dismissed the appeal. The standard of review was that of reasonableness, and the registrar’s decision was reasonable. A presumption of deference arises where an administrative decision-maker interprets its home statute or statutes closely connected to its function. Concurrent jurisdiction between the courts and the registrar did not rebut the presumption of deference owed to the registrar in this case. The question before the registrar did not lend itself to a single answer; the question also engaged the registrar’s superior expertise in understanding interests in land, the intricacies of the Land Title Act, and the complex interaction between the Act and other statutes. Though sparse, the registrar’s reasons sufficiently satisfied the standard of transparency and intelligibility; the reasons revealed the path he took in rejecting the plan submitted by the minister (British Columbia (Minister of Transportation and Infrastructure) v. Registrar Victoria Land Title Office, 2018 BCCA 288, affirming 2017 BCSC 1999).