168 Summary Rejection Of Defective Application

PRACTICE

Conditional Applications

An applicant cannot apply for registration conditionally. For example, an applicant may not instruct the registrar to register the instrument only if the title is unencumbered. The registrar cannot act as an agent in establishing a good safe holding and marketable title.

Photocopies for Hardcopy Submissions

Applications prepared in whole or in part by photocopy are acceptable provided that:

1. all signatures are original and in dark ink;
2. the copy is clear and capable of being recopied;
3. the paper is durable; and
4. the document is capable of being scanned and stored electronically using the equipment in the land title office.

Common Law Presumptions regarding Alterations

Because of the need for the registrar to be satisfied of a good safe holding and marketable title, and because of the duty of the registrar to protect the assurance fund, the registrar has always strictly interpreted the common law presumptions regarding alterations to documents. See the case annotations below under “Case Law”.

Making Alterations

All parties should initial an alteration unless the registrar dispenses with this requirement. Special considerations may arise where the alteration has obliterated the original words. Depending on the circumstances, the registrar may call for evidence of what was obliterated. All affected parties must initial an alteration to an instrument made subsequent to its receipt by the registrar.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Original Documents

Electronic Submissions

See ss. 168.3 and 168.41 of the Act, which provide that an instrument submitted electronically is the original and must reflect all the same information found on the true copy of the electronic form except the actual signature. Supporting documents must be images of the originals.

Hardcopy Submissions

Hardcopy submissions are only accepted under the exemptions set out in E-filing Directions at ltsa.ca, or on an exception basis as permitted by the registrar in accordance with those Directions.

See s. 147 of the Act, which provides that an instrument tendered for registration or deposit must be the original.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, para. 229.

CASE LAW

Common Law Presumptions regarding Alterations

Notes on Case Law: The following case annotations are a sample of cases that addresses the presumptions arising at common law in relation to the alteration of documents.

There is a presumption at common law that an alteration appearing in a document was made before execution of the document. Nevertheless, the party who produces a written agreement which appears to have a material alteration bears the onus of explaining the alteration (Roan v. Quinn, 1922 CanLII 429 (AB CA)).

If a party fails to fulfil the onus of explaining a material alteration, the presumption that the alteration was made before execution is rebutted. Also, courts do not presume that the obligee (the person to whom another party to a contract owes a favour) consented to the alterations. The deed becomes void. Because fraud forms the basis of the common law rules here, accidental or honest alterations made mistakenly by the obligee are excluded from these rules (Roman Hotels Ltd. v. Desrochers Hotels Ltd., 1976 CanLII 987 (SK CA)).