303 Limitation Of Liability Of Assurance Fund

In This Volume

303 The assurance fund or the minister as nominal defendant is not under any circumstances liable for compensation for loss, damage or deprivation

(a)
occasioned to or suffered by
- (i) the owner of undersurface rights, or
- (ii) an equitable mortgagee by deposit of the duplicate indefeasible title, whether or not accompanied by a memorandum of deposit,
(b)
occasioned by
- (i) the breach by a registered owner of a trust, whether express, implied, constructive or statutory,
- (ii) land being included under an indefeasible title with other land through misdescription of boundaries or parcels of land,
- (iii) the improper use of the seal of a corporation or by an act of an authorized signatory of a corporation who exceeds the signatory’s authority,
- (iv) the dissolution of a corporation, or its lack of capacity to hold and dispose of land, or
- (v) the issue of a provisional certificate of title,
(c) if the land in question may have been included in 2 or more grants from the Crown,
(d) because of an error or shortage in area of a lot, block or subdivision or in volume of an air space parcel, according to a plan filed or deposited in the land title office,
(e)
if the plaintiff, or the person through or under whom the plaintiff claims,
- (i) was served with notice in any manner permitted by this Act, or
- (ii) not being served with notice, had knowledge that the registrar or a person under the registrar’s direction was about to commit the act through which the plaintiff claims to have suffered damages,

unless the person so served or having knowledge took and maintained the proper proceedings to establish the person’s claim to the land, or to prevent that act on the part of the registrar or the person under the registrant’s direction for service of a notice,

(f) in respect of the proportion of the loss, damage or deprivation caused or contributed to by the act, neglect or default of the plaintiff,
(g) if the loss, damage or deprivation arises out of a matter in respect of which the registrar is by any Act or law not required, either expressly or by necessary implication, to inquire, or
(h)
occasioned by an act or omission of the government, or an agent or employee of the government, in relation to the general index that is referred to in section 250 of the Strata Property Act including, without limitation,
- (i) making an endorsement on the general index,
- (ii) failing or delaying to file a document or to make an endorsement on the general index,
- (iii) making an error in an endorsement on the general index, or
- (iv) giving or omitting to give advice concerning the general index.

1979-219-283; 1982-60-76, proclaimed effective August 1, 1983; 1989-69-30, effective April 1, 1990 (B.C. Reg. 53/90); 1993-28-12, effective April 28, 1994 (B.C. 128/94); 1998-43-309, effective July 1, 2000 (B.C. Reg. 43/2000); 2003-66-35; 2004-66-121 and 2004-66-122, effective January 20, 2005 (B.C. Reg. 16/2005); 2005-35-20; 2023-10-472.

PRACTICE

Section 303(e) Notice Required

The registrar must send s. 303(e) notices in the following situations:

When the registrar is going to act on an application which might involve an action against the assurance fund, the registrar issues a s. 303(e) notice to any person who may be affected by the registration to provide the person with time in which to prevent completion of the application. A person who receives such notice must take proceedings to establish the claim and file a certificate of pending litigation.
Where an applicant requests that judgments in favour of the Director of Employment Standards, the Workers’ Compensation Board, and the Labour Relations Board be cancelled on foreclosure or forced sale, and where the applicant has not joined the Crown body in the foreclosure proceedings, the registrar must issue a s. 303(e) notice to the Crown body and obtain its consent to drop the lien. Where the applicant has joined the Crown body, the registrar does not need to obtain its consent but still sends a letter to the Crown body.

Circumstances in Which Registrar May Issue Section 303(e) Notice

The registrar may issue a s. 303(e) notice in the following situations:

When the registrar receives an application to cancel a charge by effluxion of time under s. 246 of the Act. For example, if an owner applies for cancellation of a right of first refusal or option to purchase through non-exercise of the right or option, and provides a statutory declaration, the registrar may issue a s. 303(e) notice.
When an instrument refers to an unregistered interest, the registrar may notify the owners of that unregistered interest so that they may register it.

Corrections to Register under Section 383

When a correction is made to the register under s. 383 of the Act, the registrar does not send a s. 303(e) notice in the following instances:

When the correction involves a typographical error on the indefeasible title, such as a transposition of numbers.
When the correction involves the deletion of an endorsement which the registrar should have cancelled at the time of the transfer but which was inadvertently carried forward on the new title. For example, a priority agreement that no longer applies.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Limitations on Liability of the Fund

Some Acts provide that the assurance fund is not liable for the omissions, mistakes, or misfeasance of the registrar in making a note of a filing under those Acts. See, for example:

Community Charter, S.B.C. 2003, c. 26, s. 57
Heritage Conservation Act, R.S.B.C. 1996, c. 187, s. 32
Local Government Act, R.S.B.C. 2015, c. 1, ss. 298, 503, 594, and 677
Resort Associations Act, R.S.B.C. 1996, c. 320, s. 9
Vancouver Charter, S.B.C. 1953, c. 55, ss. 336D, 565.2, and 601.

Limitations of Liability Associated with First Nations

See s. 365.2 of the Land Title Act for limitations of liability associated with First Nations.

Service of Notice

See Part 22 of the Act regarding the requirements for service of notice.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, §3:25, §6:5, §8:49, and §8:72, and vol. 2, §13:8 and §16:5, and vol. 3, §18:12, §22:6, and §22:26.

CASE LAW

Section 303(a)(ii): Loss Suffered by Equitable Mortgagee

A person holding a duplicate certificate of title as security for advancing money is not protected by the assurance fund from the omission of the registrar to recall the duplicate certificate of title before registering a subsequent mortgage. The registrar owes a duty only to those persons seeking to use the services of the registrar and land title office staff in accordance with the provisions of the Act. To compensate the holder of a duplicate certificate of title would be to give, indirectly, the protection afforded by registration to a person who has not availed himself of the safeguards provided under the Act. In this case, the loss did not flow naturally and directly from the registrar’s error (Royal Bank of Canada v. British Columbia (Attorney General), 1979 CanLII 464 (BC SC)).

Section 303(b)(ii): Misdescription of Boundaries

See the annotation for Rieger v. Vancouver (City), [1989] B.C.J. No. 711 (QL) (S.C.), under s. 298 of the Act.

Section 303(d): Errors in Registered Surveys

See the annotation for Lee Mong Kow v. Registrar-General of Titles, [1923] 2 W.W.R. 545 (B.C.C.A.), under s. 298 of the Act.

Section 303(f): Neglect or Default of the Plaintiff

See the annotation for Gill v. Bucholtz, 2009 BCCA 137, under s. 297 of the Act.