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In This Volume

  • 309 (1) Within 21 days after a person described in section section 308(1)(a) or (b) receives a notice under section 308(1), the applicant who made the application or on whose behalf the application was made may make an application in the nature of an appeal to the Supreme Court, supported by the person’s affidavit and, if necessary, the affidavits of other persons, stating
  • (a) the material facts of the case, and
  • (b) that to the best of the information, knowledge and belief of the deponents, all facts and things material to the title have been fully and fairly disclosed.
  • (2) All parties affected or interested, including the registrar and a person directed to be served by the court, must be served with the court application, together with copies of all material and exhibits proposed to be used on the hearing.
  • (3) At least 10 days’ notice must be given of the time and place of hearing and at that time and place all interested parties, whether served with the court application or not, may appear and be heard.
  • (4) The place of hearing must be the city in which the land title office is located.
  • (5) The court may make any order it considers proper as to the notification of other parties, and on the hearing may make such order as the circumstances of the case require and such order as it considers proper as to costs in respect of the parties appearing.
  • (6) If the refusal of the registrar to effect registration in accordance with the application made to the registrar is stated to be on the ground that the applicant’s title must be declared under the Land Title Inquiry Act, the court may order that the proceedings under this section be governed by that Act.

1979-219-289; 2004-12-27.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, paras. 49, 117, and 119.

CASE LAW

Scope of Court’s Authority

The power of the Supreme Court on an appeal brought under s. 309 is limited to doing what the registrar ought to have done. The section empowers the court to cause to be registered an instrument or instruments that a registrar has refused erroneously to register. The registrar and the court sitting on appeal from him or her under s. 309 perform the functions, and only the functions, prescribed by the Act. In this case, the registrar had refused to register a subdivision plan because the applicants had failed to comply with a common law building scheme registered against the property which required a third party’s consent to the subdivision. The applicants sought to invoke s. 35 of the Property Law Act on appeal, alleging that the building scheme was obsolete. The registrar had no power under the Property Law Act and could not be said to have erred for failure to apply it. Accordingly, the court refused to apply it on the appeal of the registrar’s decision. An appeal under s. 309 was not an appropriate way to invoke the provisions of the Property Law Act (McKenzie v. British Columbia (Registrar, Vancouver Land Title Office), 1987 CanLII 2470 (BC SC)).

Section 309 of the Act permits the court to make such orders as the circumstances of the case require. In this case, the court directed counsel to obtain a mutually convenient date with the court registry for continuation of the appeal with viva voce evidence to be called as to those issues in dispute. The court also directed counsel to prepare an agreed statement of facts, to agree on the issues to be proceeded with on continuation of the appeal, and to do other things to expedite continuation of the appeal (Bank of Montreal v. Registrar, Vancouver Land Titles Office, 1988 CanLII 3045 (BC SC)).

Standard of Review

The applicant owned three of seven lots shown on a plan drawn in 1918. Later surveys showed discrepancies between the deposited plan and the ground evidence, while another surveyor’s evidence was that there were no discrepancies. The applicants applied to the registrar, under ss. 106 and 383 of the Act, to file a revised plan and to correct the 1918 plan. The registrar rejected the applicant’s request because the plan was not signed by two owners objecting to the application, and because the plan would prejudice them as bona fide purchasers for value. The court dismissed the appeal brought by the applicant under s. 311. It is not up to the court to review the evidence to determine what decision it would have made. The court is not to substitute its view of the evidence for that of the registrar unless the registrar makes some error in principle or some palpable error, or for some other legal reason. There was evidence before the registrar to support his decision and, in this regard, the court noted that the powers exercisable by the registrar are discretionary. The registrar did not err, nor was his decision unsupported by the evidence before him. The court refused the applicant’s request to offer some direction to the authorities to take steps to remedy or alleviate the alleged problem. This was not a proper function for the court and would be presumptuous (MacKay v. Ellis, Acting Registrar of Title (1989), 5 R.P.R. (2d) 113 (B.C.S.C.)).

Section 133 of the Land Title Act empowers a person who is dissatisfied with a decision of the registrar to require the registrar to furnish his or her reasons for the order. An appeal to the Supreme Court may be made from those reasons, but the appeal must be determined on the basis of the facts and materials that were before the registrar. The court should not interfere with the decision of the registrar unless it was (1) made in bad faith, (2) made with intention to discriminate against the individual, or (3) was based on a “specious or totally inadequate factual basis”. The registrar in this case heard and considered the interests of all parties concerned, in accordance with the criteria set out in Re Plans Cancellation Act; Simpson-Sears v. Registrar of New Westminster Land Registration District, 1955 CanLII 613 (BC CA), before exercising her discretionary power to cancel part of a road allowance. Accordingly, the appeal of her decision was dismissed (Silverton (Village) v. Kootenay (Registrar of Titles), 1992 CanLII 1152 (BC SC)). Note that the provisions of s. 133 referred to above were repealed in 1993, but s. 311 of the Land Title Act contains provisions to the same effect.

The registrar viewed a road allowance before deciding not to cancel it. Although, under Part 8 of the Land Title Act, the registrar did not refer to the view in her written reasons, the view was real evidence and constituted part of the record. A videotape and photographs taken of the site several months later were fresh evidence, but, in this case, they were an accurate and reliable replication of what the registrar saw and could be considered by an appellate court (Coniagas Ranches Ltd. v. O’Shea, [1993] B.C.J. No. 913 (QL) (S.C.)).

No Application to Decisions under Vancouver Charter

Section 309 does not confer any power on a court to review a decision of the Registrar of Land Titles under s. 289 of the Vancouver Charter. Such a power would have to be found in the Vancouver (City) v. Registration District (1963), 36 D.L.R. (2d) 204 (B.C.C.A.).