COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
British Columbia (Minister of Transportation and Infrastructure) v. Registrar, Victoria Land Title Office, |
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2018 BCCA 288 |
Date: 20180716
Docket: CA44931
Between:
Her Majesty the Queen in Right of the Province of British Columbia,
As Represented by the Minister of Transportation and Infrastructure
Appellant
(Appellant)
And
Registrar, Victoria Land Title Office
Respondent
(Respondent)
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Before: |
The Honourable Mr. Justice Lowry The Honourable Madam Justice Garson The Honourable Mr. Justice Harris |
On appeal from: An order of the Supreme Court of British Columbia, dated November 6th, 2017 (British Columbia (Minister of Transportation and Infrastructure) v. Registrar, Victoria Land Title Office, 2017 BCSC 1999, Victoria Docket S173054).
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Counsel for the Appellant: |
K. Horsman, Q.C. A. Brace |
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Counsel for the Respondent: |
J. Langlois K. Crabtree |
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Place and Date of Hearing: |
Vancouver, British Columbia April 25, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia July 16, 2018 |
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Written Reasons by: |
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The Honourable Madam Justice Garson |
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Concurred in by: |
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The Honourable Mr. Justice Lowry The Honourable Mr. Justice Harris |
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Summary:
The Province appeals the dismissal of its statutory appeal from a decision of the Registrar of the Land Title Office. The Registrar refused to register a plan submitted by the Minister of Transportation and Infrastructure. Registration of the plan would have effected a dedication of common property of a strata corporation for use as a highway under the Land Title Act. The strata owners approved the disposition in a ¾ vote, but the Registrar determined that the plan needed to be signed by all the owners. The Registrar relied on the Strata Property Act, which states that a disposition of common property must comply with Part 7 of the Land Title Act if the disposition is a “transfer of a freehold estate”. Part 7 includes a requirement for all owners to sign a subdivision plan. On appeal, the Minister says the Registrar’s decision was incorrect and unreasonable because a highway dedication is not a “transfer of a freehold estate”.
Held: Appeal dismissed. The applicable standard of review is reasonableness. The Registrar’s decision fell within the range of reasonable outcomes.
Reasons for Judgment of the Honourable Madam Justice Garson:
[1] This appeal concerns a decision of the Registrar of the Victoria Land Title Office to decline to register a reference plan submitted for deposit by the Minister of Transportation and Infrastructure in order to dedicate land as a highway. The Minister appealed the Registrar’s decision to the Supreme Court pursuant to s. 309 of the Land Title Act, R.S.B.C. 1996, c. 250 [LTA]. Justice Masuhara dismissed the Minister’s statutory appeal.
[2] The land shown in the reference plan was the common property of a strata corporation. The Minister sought to dedicate the land under s. 107 of the LTA for an improvement project on the Malahat highway. The Minister submitted a certificate to the Registrar showing that the strata owners had passed a resolution approving the disposition of common property by a ¾ vote. The Registrar rejected the plan on the basis that it required the signatures of all the strata owners, citing s. 253(1) of the Strata Property Act, S.B.C. 1998, c. 43 [SPA], as authority. Section 253(1) incorporates a requirement from the LTA for the signature of all owners if a disposition of common property is a “transfer of a freehold estate”. On appeal, the Minister submits that the disposition of common strata property to the Province for dedication as a highway under s. 107 of the LTA is not a “transfer of a freehold estate” within the meaning of s. 253 of the SPA. The Minister says the Registrar’s interpretation of the relevant statutory provisions was incorrect and unreasonable.
[3] For the reasons that follow, I would dismiss the appeal.
[4] In 2017, construction began on a project to improve safety along a section of the Trans-Canada Highway on Vancouver Island. The project required the use of common property of Strata Plan VIS1006, District Lot 51, Malahat District, for a highway stabilization slope.
[5] In November 2016, the Minister entered into an agreement of purchase and sale with the owners of Strata Plan VIS1006. Under the agreement, the owners agreed to dedicate land as a highway for valuable consideration. In December 2016, the owners held a general meeting and, in a ¾ vote, approved the execution of an application to deposit a reference plan in the Land Title Office indicating the dedication of land for the highway.
[6] On May 19, 2017, the Minister submitted the application to deposit the reference plan to the Land Title Office. The application included a certificate showing the ¾ vote. If accepted for deposit by the Registrar, the reference plan would have effected a dedication of land as a highway pursuant to s. 107 of the LTA.
[7] The Registrar issued a notice declining to register the plan on June 2, 2017. The pertinent part of the notice stated:
A plan dedicating land from the common property must be signed by all of the registered owners in fee simple and all financial charge holders on all of the strata lots in the strata plan …
[8] The notice indicated that the Registrar relied on s. 253 of the SPA in declining to register the plan. Section 253(1) provides that a disposition of common property by way of a transfer of a freehold estate is a subdivision of land to which Part 7 of the LTA applies. Under s. 97 of Part 7 of the LTA, a subdivision plan must be signed by each owner of the land subdivided.
[9] The Minister appealed the Registrar’s decision to the Supreme Court pursuant to s. 309 of the LTA. The chambers judge dismissed the appeal in reasons indexed as 2017 BCSC 1999.
[10] The Minister says the question raised on this appeal is of importance to the Province because many strata corporations have large numbers of owners and obtaining the signatures of all owners for highway dedications may be impractical.
[11] Section 107 of the LTA provides for the dedication of land as a highway:
107 (1) The deposit of a subdivision, reference or explanatory plan showing a portion of the land
(a) as a highway, park or public square, that is not designated on the plan to be of a private nature, …
…
operates
(c) as an immediate and conclusive dedication by the owner to the public of that portion of land shown as a highway, park or public square, or to be returned to the government, for the purpose indicated on or to be inferred from the words or markings on the plan,
(d) to vest in the Crown in right of the Province, subject to any other enactment, title to the highway, park or public square, or to the portion to be returned to the government …
(e) to extinguish the owner's common law property, if any, in the portion of land referred to in subsection (1) (a) or (b).
(3) An indefeasible title must not be registered for a highway, park or public square dedicated and vested under this section.
…
[12] Section 97(1) of the LTA, found in Part 7, provides that a “subdivision plan must be signed by each owner of the land subdivided.”
[13] Section 3 of the LTA provides:
Application to Strata Property Act
3 (1) This Act, except Parts 7 and 8, applies to the Strata Property Act, unless inconsistent with that Act.
(1.1) Despite subsection (1), provisions of Parts 7 and 8 of this Act apply to the Strata Property Act if stated to apply by the Strata Property Act.
[14] Section 80 of the SPA governs dispositions of common property of a strata corporation:
Disposal of common property
80 (1) To dispose of common property in a way set out in section 253 (1), the strata corporation must ensure that the requirements of Part 7 of the Land Title Act are met.
(2) To dispose of common property in a way not set out in section 253 (1), the strata corporation must ensure that the following requirements are met:
(a) a resolution approving the disposition must be passed by a 3/4 vote at an annual or special general meeting;
…
[15] Section 253(1) of the SPA sets out three categories of dispositions that are deemed to be subdivisions:
Subdivision of common property
253 (1) A disposition of common property by way of any of the following is a subdivision of land and Part 7 of the Land Title Act applies to that subdivision:
(a) a transfer of a freehold estate;
(b) a lease for a term exceeding 3 years;
(c) an interest that confers or may confer a right to acquire a freehold estate or a lease exceeding 3 years.
...
[16] Finally, ss. 57 and 58 of the Transportation Act, S.B.C. 2004, c. 44, provide as follows:
Soil and freehold of provincial public highways vested in government
57 Unless otherwise provided for in this Act, the soil and freehold of every provincial public highway is vested in the government.
Transfers of highways and other land
58 …
(2) Subject to subsection (5), the [BC Transportation Financing Authority]
(a) holds all of the government's right and title in and to the soil and freehold of every provincial public highway in British Columbia, and
(b) acquires all of the government's right and title in and to the soil and freehold of every provincial public highway that comes into being.
…
(5) The authority may transfer to the government the authority's right and title in and to the soil and freehold of any provincial public highway ...
[17] The chambers judge noted that the parties agreed on the applicability of a reasonableness standard of review to the Registrar’s decision. The chambers judge observed that the SPA, though not the Registrar’s home statute, is “closely related to the functions of the Registrar”: para. 17.
[18] The chambers judge then set out the Minister’s position. The Minister argued that a highway dedication is not a “transfer of a free hold estate” under s. 253(1)(a) of the SPA. In support of this position, the Minister pointed out that dedication of land for a highway under s. 107 of the LTA falls outside the definition of a “taxable transaction” under property transfer tax legislation. The Minister also noted that the prescribed form for a transfer of a freehold estate under s. 185 of the LTA is not required for a s. 107 highway dedication.
[19] The Minister argued that the dedication of land for a highway is a unique construct in the land title system, separate and distinct from the subdivision of land. The filing of a plan for a highway dedication under s. 107 of the LTA removes that land from the land title system. By contrast, a subdivision of land creates a new parcel in the land title system.
[20] The Minister submitted that the Registrar misapplied principles of statutory interpretation by either conflating a s. 107 dedication with a transfer of a freehold estate or adding dedication to the exhaustive list of methods of subdivision in s. 253(1) of the SPA. In the Minister’s submission, the Registrar ignored related legislation that distinguishes between a s. 107 dedication and a transfer of freehold estate (such as tax legislation and the Expropriation Act, R.S.B.C. 1996, c. 125). The Minister also argued that the LTA is a complete code, meaning s. 107 dedications should not be subject to s. 253 of the SPA absent clear legislative language.
[21] The chambers judge concluded that the Registrar’s interpretation of the relevant provisions of the SPA and LTA fell within the range of reasonable outcomes. The chambers judge viewed the Minister’s position as flawed because it focused on characterizing what the Ministry obtained (a dedication) rather than the nature of the disposition of common property. A s. 107 dedication vests title to the highway in the Crown (pursuant to s. 107(d)). The chambers judge held that the Crown’s title to the highway depends on eliminating the strata owners’ freehold title. He held that this requires a transfer of a freehold estate within the meaning of s. 253(1).
[22] The chambers judge concluded that the disposition constituted a subdivision and therefore required the signatures of all owners pursuant to Part 7 of the LTA.
[23] The issues on appeal are as follows:
a) Which standard of review applies to the Registrar’s decision?
b) Was the Registrar’s interpretation of the relevant statutory provisions reasonable?
[24] As a preliminary matter, I note that the question of the applicable standard of review on judicial review or on a statutory appeal is a question of law: Communications, Energy & Paperworkers’ Union of Canada (Local 298) v. Eurocan Pulp & Paper Co., 2012 BCCA 354 at para. 21. Accordingly, the chambers judge’s decision to apply a reasonableness standard of review to the Registrar’s determination is reviewable for correctness on appeal. The chambers judge’s decision on standard of review must be correct, regardless of any concessions or agreement between the parties in the court below.
[25] A presumption of deference arises where an administrative decision maker interprets its home statute or statutes closely connected to its function: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 27 [Matson]; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30 [Alberta Teachers]; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54. This presumption recognizes the legislature’s choice to delegate the administration of a statutory scheme to a specialized tribunal: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para. 33 [Edmonton East]. It also recognizes the expertise that flows from the tribunal’s day-to-day experience administering frequently complex statutory regimes: Edmonton East at para. 33.
[26] The presumption of deference may be rebutted if the question decided by the tribunal falls into one of the following four categories: (a) questions on the constitutional division of powers; (b) true questions of vires; (c) questions concerning competing jurisdiction between tribunals; and (d) questions of central importance to the legal system and outside the decision maker’s expertise: Matson at para. 28; Edmonton East at para. 24; McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para. 22.
[27] Exceptionally, the presumption of deference may also be rebutted “where a contextual inquiry shows a clear legislative intent that the correctness standard be applied”: Matson at para. 28; Edmonton East at para. 32. A relevant factor in this contextual inquiry is whether the courts and the tribunal share concurrent and non-exclusive jurisdiction over a legal issue at first instance: Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 at para 46.
[28] In Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, the majority of the Court established that the existence of concurrent jurisdiction may rebut the presumption of deference applicable to a tribunal’s interpretation of its home statute. The Court in Rogers reviewed the Copyright Board’s decision to establish a tariff for the communication of musical works over the Internet. The imposition of the tariff depended on the Board’s finding that a “stream” of music constitutes a communication “to the public” under s. 3(1) of the Copyright Act. This finding was challenged on judicial review. The Copyright Act is the Board’s home statute and, as a result, the Board’s decision engaged the presumption of deference.
[29] The majority, however, found the presumption was rebutted because both the Board and the courts determine the scope of rights under the Copyright Act at first instance. In setting tariffs, the Board must frequently ascertain the scope of rights underlying the proposed tariff. The courts must make the same determination at first instance in copyright infringement actions. As a result, “[t]he court will examine the same legal issues the Board may be required to address in carrying out its mandate”: para. 13. Justice Rothstein explained that applying a reasonableness standard of review to the Board’s decisions on these legal issues could produce inconsistency:
[14] It would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance. It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.
[30] At para. 15, the majority tied its decision on standard of review to legislative intent and to the Court’s decision in Dunsmuir:
[15] Because of the unusual statutory scheme under which the Board and the court may each have to consider the same legal question at first instance, it must be inferred that the legislative intent was not to recognize superior expertise of the Board relative to the court with respect to such legal questions. This concurrent jurisdiction of the Board and the court at first instance in interpreting the Copyright Act rebuts the presumption of reasonableness review of the Board’s decisions on questions of law under its home statute. This is consistent with Dunsmuir, which directed that “[a] discrete and special administrative regime in which the decision maker has special expertise” was a “facto[r that] will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied” (para. 55 (emphasis added)). Because of the jurisdiction at first instance that it shares with the courts, the Board cannot be said to operate in such a “discrete . . . administrative regime”. Therefore, I cannot agree with Abella J. that the fact that courts routinely carry out the same interpretive tasks as the board at first instance “does not detract from the Board’s particular familiarity and expertise with the provisions of the Copyright Act” (para. 68). In these circumstances, courts must be assumed to have the same familiarity and expertise with the statute as the board. …
[Emphasis in original.]
[31] The majority confirmed that the presumptively deferential approach stemming from Dunsmuir continues to apply:
[19] I wish to be clear that the statutory scheme under which both a tribunal and a court may decide the same legal question at first instance is quite unlike the scheme under which the vast majority of judicial reviews arises. Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts. However, I leave the determination of the appropriate standard of review of a tribunal decision under other intellectual property statutes for a case in which it arises. Nothing in these reasons should be taken as departing from Dunsmuir and its progeny as to the presumptively deferential approach to the review of questions of law decided by tribunals involving their home statute or statutes closely connected to their function.
[32] Concurrent jurisdiction was one factor supporting the application of a correctness standard of review in Mouvement laïque. In that case, a human rights tribunal considered a complaint regarding the Saguenay municipal council’s practice of conducting a prayer at the commencement of council meetings. The legal question before the tribunal concerned the scope of the state’s duty of neutrality. The tribunal’s decision involved interpretation of the Quebec Charter, its home statute, but the majority found that the presumption of deference was rebutted. The majority relied in part on the legislature’s decision to confer non-exclusive jurisdiction on the tribunal in discrimination cases. The statutory scheme allowed complainants to pursue a remedy for discrimination through either the courts or the tribunal. The majority noted, however, that this concurrent jurisdiction was not determinative of the applicable standard of review (at para. 43). Other factors favouring correctness were the importance of the question to the legal system, its broad and general scope, and the need to decide it in a uniform consistent manner (at para. 47).
[33] Similarly, in Canada (Attorney General) v. Johnstone, 2014 FCA 110, the Court cited concurrent jurisdiction as one factor among several justifying the rebuttal of the presumption of deference. The decision under review, made by a human rights tribunal, concerned the refusal of an employer to accommodate an employee’s childcare needs through scheduling arrangements. The questions of law before the tribunal involved the scope of family status as a prohibited ground of discrimination and the applicable legal test for finding discrimination on grounds of family status. The Court noted that “a multiplicity of courts and tribunals are called upon to interpret and apply human rights legislation”: para. 47. Further, the courts “have been called upon in the past and will be called upon in the future to examine the same legal issues the Tribunal is required to address in these proceedings”: para. 47. In finding that the presumption of deference was rebutted, the Court also relied on other factors such as the quasi-constitutional nature of the rights in question and the central importance of the questions before the tribunal to the legal system as a whole.
[34] In Poonian v. British Columbia Securities Commission, 2017 BCCA 207, this Court relied on Rogers in applying a correctness standard to the Securities Commission’s decision to impose a disgorgement order under a provision of the Securities Act, R.S.B.C. 1996, c. 418. A separate provision of the Act conferred jurisdiction on the courts to make disgorgement orders. The language in the two provisions was similar, though not identical, leading the Court to conclude that a correctness standard of review was necessary to ensure consistency of interpretation.
[35] In Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 at para. 49, the Court distinguished Rogers, warning that a “theoretical” possibility that a legal question might arise before the courts at first instance is insufficient to justify a departure from the presumption of deference when a tribunal interprets its home statute. Although it was theoretically conceivable that the question before the Copyright Board in Re:Sound could arise at first instance in an action before the courts, this potential for concurrent jurisdiction was not the result of statutorily created shared primary jurisdiction under the Copyright Act. Further, the Copyright Act imposed a requirement for ministerial consent before a party could bring such an action in the courts, indicating that the legislature intended the Board to have primary jurisdiction over the issue.
[36] The Minister says the applicable standard of review is correctness for two reasons. First, the Minister says the presumption of deference is inapplicable in this case because the Registrar’s decision did not turn on the interpretation of his home statute, the LTA, but rather on an interpretation of the SPA. The Minister says it would be wrong to characterize the SPA as a statute closely connected to the Registrar’s functions. The Minister points out that many provincial statutes, including the SPA, provide for the registration of interests in the land title registry. To apply the presumption of deference on the basis that the SPA deals with the registration of interests in land would presumptively entitle the Registrar to deference in relation to a vast range of statutes involving a wide range of subject matters.
[37] Second, the Minister says that, even if the presumption of deference applies, it is rebutted because the courts exercise concurrent jurisdiction over the proper interpretation of the provisions of the SPA. The Minister relies on Rogers in support of this position.
[38] The Registrar submits that the presumption of deference arises in this case because the relevant provisions of the SPA are closely connected to the Registrar’s core function of maintaining the land title register. The Registrar points out that ss. 80 and 253 of the SPA both expressly refer to the LTA, which is the Registrar’s home statute. The Registrar says the issue in this case engaged the Registrar’s expertise on the interaction between the LTA and the SPA and “in understanding the nature of interests in land that are routinely registered and modified through the function of the land title system.”
[39] The Registrar submits that the presumption of deference is not rebutted on the basis of concurrent jurisdiction. The Registrar says applying Rogers on these facts would create an unacceptably broad exception to the presumptively deferent approach in Dunsmuir. The Registrar submits that the issue in this case is much more likely to arise at first instance before the Registrar than the courts, making the possibility of concurrent jurisdiction too remote.
[40] In my view, the presumption of deference set out in Alberta Teachers applies in this case. The nature of the question before the Registrar necessarily leads to this conclusion. As discussed, s. 107 of the LTA provides that the deposit of a plan showing a portion of land as a highway operates to dedicate that land to the public. In this case, the Province sought land that was the common property of a strata corporation for dedication as a highway under s. 107. Dispositions of common property are governed by s. 80 of the SPA. Section 80 sets out two paths. If the disposition falls under one of the categories listed in s. 253(1), including a “transfer of a freehold estate”, the disposition is deemed to be a subdivision and s. 80(1) applies. Sections 80(1) and 253(1) bring in the requirements of Part 7 of the LTA, including the requirement that a subdivision plan be signed by all owners of the land subdivided. If the disposition of common property falls outside the categories listed in s. 253(1), s. 80(2) applies. Section 80(2) requires only a ¾ vote to dispose of common property.
[41] Accordingly, the interpretive question at the heart of the appeal is whether a highway dedication under s. 107 of the LTA is a “transfer of a freehold estate” under s. 253(1) of the SPA. This question required the Registrar to interpret s. 107 of LTA, his home statute. The Province itself relies on a constellation of provisions from the LTA in support of its interpretation of s. 253(1) of the SPA. In other words, the interpretive exercise in this case engaged analysis of provisions of the Registrar’s home statute.
[42] I also conclude that ss. 80 and 253 of the SPA are closely connected to the Registrar’s core function of registering interests in land. Before accepting a plan that subdivides common property of a strata corporation, the Registrar must ensure the requirements of s. 80 of the SPA are satisfied. To determine whether those requirements are met, the Registrar must determine whether the disposition of common property falls under s. 253(1). In this sense, the Registrar must deal with ss. 80 and 253(1) of the SPA in the usual course of his or her duties in relation to the maintenance of the land title register. In addition, ss. 80 and 253 of the SPA reference the LTA, which further supports the position that these provisions are closely connected to the Registrar’s home statute.
[43] I emphasize that the Registrar was not called on to consider the SPA in isolation. Rather, the Registrar’s decision involved interpretation of the LTA and the relationship between the LTA and the SPA.
[44] I disagree with the Minister’s contention that the presumption of deference is rebutted in this case. In my view, the contextual analysis described in Matson and Mouvement laïque confirms that the legislature intended a reasonableness standard of review to apply to the Registrar’s decision.
[45] In particular, I disagree with the Minister that concurrent jurisdiction between the courts and the Registrar rebuts the presumption of deference. Rogers and the other cases I have cited on this point are distinguishable from the case at bar. Rogers involved a statutory regime that created shared primary jurisdiction between the courts and the Board. The possibility of the Board and the courts addressing the same legal issue at first instance was real, not theoretical, as a result of the “unusual statutory scheme” in that case. Poonian concerned a statute that specifically conferred dual jurisdiction to make disgorgement orders on the courts and the tribunal. In Mouvement laïque, the legislation demonstrated clear intent to give the tribunal non-exclusive jurisdiction over discrimination cases. Johnstone concerned the interpretation of human rights legislation that was routinely interpreted by courts and other tribunals. In both Johnstone and Mouvement laïque, other contextual factors militated in favour of correctness review, including the general importance of the legal question decided by the tribunal.
[46] Turning to this case, the courts could, conceivably, be called on to determine at first instance the narrow and specific question of whether a s. 107 dedication is a “transfer of a freehold estate” under s. 253(1) of the SPA. For instance, if a strata corporation seeks to dispose of common property to the Province for dedication as a highway but lacks the support of all strata owners, a dissatisfied owner might apply under s. 165 of the SPA for an order requiring the strata corporation to comply with s. 80. In such a case, the court might need to decide the same issue that the Registrar decided in this case.
[47] However, in my view, the statutory scheme does not reveal clear legislative intent to grant shared primary jurisdiction over the legal question at issue to both the courts and the Registrar, as it did in Poonian and Mouvement laïque. Nor can one say that the legal issue considered by the Registrar is likely to arise before the courts. Similarly to Re:Sound, the potential for concurrent jurisdiction in this case is simply too remote to justify the application of a correctness standard of review. I cannot infer on the basis of concurrent jurisdiction “that the legislative intent was not to recognize superior expertise of the [Registrar] relative to the court”: Rogers at para. 15 (emphasis added). In my view, this case involves a “discrete and special administrative regime in which the decision maker has special expertise”, as described in Dunsmuir at para. 55, notwithstanding the theoretical possibility that the courts could consider the same question at first instance.
[48] In addition, unlike in Mouvement laïque and Johnstone, there are no other contextual factors pointing toward a correctness standard of review in this case. On the contrary, the Registrar’s expertise in dealing with interests in land and in administering the complex regime of land title registration suggests that a reasonableness standard of review is appropriate. On this point, I note that Registrars in British Columbia must be lawyers or have significant experience in the Land Title Office.
[49] In Rogers, Rothstein J. was cautious to narrowly circumscribe the scope of the majority’s holding on concurrent jurisdiction and its implications for standard of review. At para. 19, he emphasized the unusual nature of the statutory scheme in Rogers, describing it as “quite unlike the scheme under which the vast majority of judicial reviews arises”. He also warned that his reasons should not be viewed as departing from the presumptively deferential approach established in Dunsmuir in relation to a tribunal’s interpretation of its home statute or closely connected statutes.
[50] The Minister asks this Court to apply a correctness standard of review on the basis of a theoretical possibility of concurrent jurisdiction and in the absence of any other contextual factors tending to rebut the presumption of deference. To accede to the Province’s position would amount to a major departure from the presumptively deferent approach established in Dunsmuir. It would support the application of a correctness standard of review in a vast range of judicial review contexts. Such a result would be inconsistent with Rothstein J.’s cautious and narrow approach at para. 19 of Rogers.
[51] I conclude that the Registrar’s decision is reviewable on a standard of reasonableness.
[52] The Minister says the Registrar was unreasonable to conclude that a highway dedication fits within the category of a “transfer of a freehold estate” under s. 253(1) of the SPA. The Minister accepts that a disposition of common property to the Province for dedication as a highway eliminates the strata owners’ freehold estate in that property. However, the Minister disputes that the disposition is a “transfer of a freehold estate”.
[53] The Minister submits that the dedication of land under s. 107 of the LTA “is a unique construct within British Columbia’s land title system”. The Minister points to related statutory contexts in which the legislature has distinguished between a “dedication” and a “transfer”, such as s. 3 of the Expropriation Act. The Minister also points out that the procedural requirements applicable to transfers of freehold estates, found in Part 12 of the LTA, have no application to a highway dedication under s. 107. Further, the Minister says a highway dedication is not a “subdivision”. According to the Minister, a subdivision creates a new parcel in the land title system, while the effect of a dedication is to take land out of the land title system.
[54] The Minister also submits that the interest vested in the Crown following a s. 107 highway dedication “is fundamentally different from a freehold estate registered in the Land Title Office.” The Minister points out that the concept of a “freehold estate” comes from the feudal system of landholding in England. The King was lord paramount and could grant estates to subjects, the greatest of which was the estate in fee simple. In the Minister’s submission, this history reveals the incongruity of characterizing the Crown’s title in a highway as a “freehold estate”.
[55] The Registrar maintains that the deposit of a plan under s. 107 of the LTA results in a “transfer of freehold estate”. In the Registrar’s submission, a s. 107 dedication eliminates the owners’ freehold estate and vests that freehold estate in the Crown. Contrary to the Minister’s submission, the Registrar says the Province owns the freehold estate in lands dedicated as highways, albeit an unregistered freehold estate. The Registrar refers to Victor Di Castri’s Registration of Title to Land, vol. 1 (Carswell, 1987) (loose-leaf, 2013), ch. 6 at 19, which says s. 107 could be viewed as creating “a new statutory fee simple”. The Registrar also relies on ss. 57 and 58(2) of the Transportation Act. Section 57 provides that “the soil and freehold of every provincial public highway is vested in the government” unless otherwise provided in the Transportation Act.
[56] The Registrar disputes the Minister’s position that a “dedication” is distinct from a “transfer”, pointing to the broad definition of “transfer” in the LTA. The Registrar says a “dedication” is better viewed as the effect of a disposition, rather than a type of disposition in itself.
[57] In Dunsmuir, the majority described reasonableness review as follows:
[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
…
[49] Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
[Emphasis added.]
[58] The Registrar determined that the Minister needed the signatures of all strata owners in order to deposit a plan dedicating common property as a highway under s. 107 of the LTA. The Registrar cited s. 253 of the SPA in support of this decision. This indicates that he viewed the disposition in this case as a “transfer of a freehold estate” within the meaning of s. 253(1) of the SPA. As noted, a disposition of common property that falls under the categories listed in s. 253(1) is deemed to be a subdivision and is governed by s. 80(2) of the SPA, which incorporates the requirements of Part 7 of the LTA. Section 97(1) of the LTA, found in Part 7, requires a subdivision plan to be accompanied by the signatures of all owners of the land subdivided.
[59] Though sparse, the Registrar’s reasons reveal the path he took in rejecting the plan submitted by the Minister. Accordingly, I view the Registrar’s reasons as sufficient to satisfy the standard of transparency and intelligibility set out in Dunsmuir.
[60] In addition, the Registrar’s decision fell within a range of reasonable outcomes defensible in respect of the facts and law. It is reasonable to conclude that a “transfer of a freehold estate” occurs when strata owners relinquish their freehold interest in common property to the Province. It is also reasonable to conclude that the transaction in this case produced a subdivision. I note that “subdivision” is defined broadly in the LTA as the division of land into two or more parcels. The Province’s submissions on the unique character of a s. 107 dedication might be attractive from a conceptual point of view, but they do not make the Registrar’s decision unreasonable.
[61] The Minister contends that the Province’s interest in land dedicated for public use cannot be characterized as a “freehold estate”, but this conclusion is far from clear. For example, the Transportation Act states that the “freehold” of provincial public highways is vested in the government. Di Castri suggests that a s. 107 dedication could be viewed as creating a kind of statutory fee simple. The estate in fee simple is one of the freehold estates. In any event, even if the Province cannot be described as holding a “freehold estate” in land dedicated for use as a highway, I am unconvinced that this precludes the disposition of common property in this case from falling within the category of a “transfer of a freehold estate”.
[62] These uncertainties and complicating factors indicate that 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 LTA, and the complex interaction between the LTA and other statutes. I conclude that the Registrar’s decision is entitled to deference from the courts. Accordingly, I see no error in the judge’s decision to defer to the Registrar and dismiss the Minister’s statutory appeal.
I would dismiss the appeal.
“The Honourable Madam Justice Garson”
I agree:
“The Honourable Mr. Justice Lowry”
I agree:
“The Honourable Mr. Justice Harris”