383 Registrar To Cancel Or Correct Instruments, Etc.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See s. 106 of the Act regarding the correction of errors, defects, or omissions in a deposited plan.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, paras. 110 and 112, and vol. 2, paras. 767, 769, 770, 772, and 773.

CASE LAW

Scope of Registrar’s Authority

Registrar Not to Adjudicate Rights of Parties

The power conferred on the registrar under s. 383 to cancel or correct errors in the register is one that the registrar is authorized to exercise with discretion. These powers are limited by the words “so far as practicable, without prejudicing rights conferred for value”. It is not the function of the registrar under this section to adjudicate on contested rights of parties because it would then be necessary for the registrar to hear, receive, and weigh evidence. The registrar may only act on the material in the records. In this case, the party who had executed and delivered a conveyance but who failed to deliver up the duplicate certificate of title was in no position to complain of the registrar’s conduct as to registration of that conveyance without proof of further facts. The issues arising could only be determined by an action in court and not by the registrar (Heller v. Registrar, Vancouver Land Registration District and Heller, 1963 CanLII 39 (SCC)).

Rights Acquired in Good Faith and for Value

A railway company transferred a portion of its land to a purchaser, reserving the coal and petroleum. The registrar issued a certificate of title to the purchaser, reserving only the coal, and endorsed on the railway company’s certificate a memorandum that it was cancelled as to the land transferred. About 10 years later, the registrar issued a new certificate of title. Some 20 years after that, the registrar detected the errors and made entries on the cancelled certificate reserving the petroleum to the railway company. The registrar could not make these corrections without prejudicing the rights of a purchaser who had already acquired the property without a reservation of petroleum, as his rights were determined by the certificate of title issued to him. The registrar exceeded his jurisdiction. Whatever the words “so far as practicable” mean, they do not limit the words immediately following: “without prejudicing rights conferred for value” (Canadian Pacific Railway Co. v. Turta, 1954 CanLII 58 (SCC)). In this case, the court considered, among other sections, s. 160(2) of the Land Titles Act, R.S.A. 122, c. 133, which is similar in wording to s. 383 of the Land Title Act.

While computerizing its records, the land title office deleted a first mortgage from title. The mortgagor then fraudulently misrepresented to the bank, which held second and third mortgages, that the first mortgage had been discharged. The bank agreed to take title by order absolute in satisfaction of its second and third mortgages. The first mortgagee then lodged a caveat and the registrar corrected the register under s. 383. The registrar was not entitled to do this. His correction resulted in prejudice to the bank which had acquired title bona fide for value (Royal Bank of Canada v. British Columbia (Registrar, Land Titles Office, Kamloops), 1989 CanLII 2757 (BC CA)).

The bank, as the petitioner in foreclosure proceedings, sought a declaration that a mortgage between the bank and the respondent, T, charged four properties owned by T. At the time the mortgage was granted, the bank erred in completing its security documentation and the mortgage was registered only against one of the lots. Before the error was discovered in the foreclosure proceedings, the respondent, K, the former common-law spouse of T, had commenced proceedings in family court and had filed certificates of pending litigation against all four lots. The court found that, while K did not have a mortgage or a proven interest in the land, he had reserved a priority spot on title by filing the certificates and he was entitled to that priority if successful in proving his interest in the land. With respect to the mortgage, the court confirmed that the mortgage registered against the one lot had priority over all other charges and ordered that the registrar extend the registration of the mortgage to the remaining three lots in subsequent priority to K’s certificates (Bank of Nova Scotia v. Titanich, 2014 BCSC 1129 (Master)).

See the annotation for MacKay v. Ellis, Acting Registrar of Title (1989), 5 R.P.R. (2d) 113 (B.C.S.C.), under s. 309 of the Act.

Appeal to Court

The appellant improvement district entered into an agreement with previous owners of a property with respect to a statutory right of way. Although the right of way was never registered against the title, the current owners acquired the property knowing there was a right of way in the appellant’s favour. In response to a request from the appellant to correct the title and register the right of way, the registrar refused on the basis that, under s. 383(1) of the Act, the correction could not be made without prejudicing rights acquired in good faith. The appellant appealed the registrar’s decision to the court under s. 309 of the Act. The registrar then applied to have the appeal dismissed. In finding that it did not have jurisdiction to hear the appeal, the court held that there is no appeal from a registrar’s refusal to exercise discretion under s. 383. This is a discretion that is not exercisable on application by any party but a limited power to correct errors without prejudicing rights acquired in good faith and for value (Basque (Improvement District) v. British Columbia (Registrar of Land Titles), 2003 BCSC 117).

Knowledge of Circumstances Requiring Correction

The petitioners owned Lot G and the respondents owned Lot H. An easement in favour of Lot G, which ought to have been registered as a charge over part of Lot H, was in fact registered as a charge over Lot G. The correction to the register which the petitioners sought would not prejudice any right of the respondents. They knew of the easement in favour of Lot G before they acquired title to Lot H, though they were ignorant of its extent and its boundaries. A correction now would not change any rights which they acquired when they took title (Mitchell v. Pines, [1987] B.C.J. No. 1589 (QL) (S.C.)).

Misdescription Does not Constitute Failure to Comply with Builders Lien Act

The respondent’s solicitors submitted a claim of lien against the petitioner under the Builders Lien Act. The claim showed the respondent’s company name plus its Canada corporation number. The solicitors received a notice from the land title office declining to register the claim as proof of federal registration and existence, although required, had not been provided. In subsequently obtaining the required proof, the solicitors learned that, between the time the material was supplied and the time the project reached substantial completion, the respondent had changed its company name but not its corporation number. After learning from the land title office that they could amend the claim by adding the new company name, the solicitors made the amendment and the claim was accepted for filing as of the original date of application. The petitioner said that the error in name on the original application was fatal and that the change of name created a new lien that was filed out of time. The court found that, under s. 383 of the Act, the registrar had discretion to correct errors. The registrar, on being satisfied the company was an existing federally incorporated company, was of the view that the misdescription did not constitute a failure to comply with the Builders Lien Act, S.B.C. 1997, c. 45. He exercised his discretion and allowed the amendment in order to perfect the lien and complete the registration. In dismissing the petition, the court confirmed that it could not interfere with the registrar’s exercise of discretion (Centaur Products Inc. v. SRI Sports Canada Inc., 2004 BCSC 308).