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Real Property - Registry Act

. Gold v Chronas

In Gold v Chronas (Ont CA, 2018) the Court of Appeal explores a partial history of the Registry Act:
[12] Section 113(5)(a)(iv) is included in Part III of the Registry Act. Part III contains the investigation of titles provisions. The appellants rely on the investigation of titles provisions to assert that the respondents’ claim to the right of way has expired. According to the appellants, that is because the respondents did not register a notice of claim against the title to 7 Cunningham Avenue within 40 years after the right of way was created – which they say was required under the investigation of titles provisions contained in Part III.

[13] Section 113(5) of the Registry Act sets out certain exceptions to the application of Part III. Section 113(5)(a)(iv), on which the trial judge relied, stipulates that Part III does not apply to a claim “of a person to an unregistered right of way … that the person is openly enjoying and using”. The application judge found that the respondents are openly using the laneway and that the appellants were aware of that use when they purchased their property.

....

F. Legislative history of Part iii of the Registry Act

[48] As I will explain, the 40-year title search period and the 40-year expiry period provisions of Part III have been amended on several occasions. The legislative history of these provisions is important because they are the provisions to which s. 113(5) provides exceptions. The amendments demonstrate a consistent intention on the part of the Legislature, from at least 1981 onward, to attempt to confine, as far as is reasonably possible, the 40-year search period to 40 years, and to attempt to limit the manner in which a claim can be renewed to the registration of a notice of claim.

[49] Unlike the 40-year title search period and the 40-year expiry period provisions, the language of the exception now contained in s. 113(5)(a)(iv) has remained relatively unchanged. Notably, however, the opening words of the exception provision have been amended so that the exceptions it contains, which originally applied only to the 40-year expiry period, now apply to Part III of the Registry Act. Section 113(5)(a)(iv) is therefore an exception, not only to the 40-year expiry period, but also to the 40-year title search period. Where s. 113(5)(a)(iv) applies, a right will not expire after 40 years. And an instrument registered outside the 40-year title search period will continue to affect the chain of title.[7]

[50] In 1387881 Ontario Inc. v. Ramsay (2005), 2005 CanLII 23211 (ON CA), 77 O.R. (3d) 666, Lang J.A. reviewed the legislative and jurisprudential history of Part III of the Registry Act that was relevant to that case up to 2005.

[51] Like this case, Ramsay presented an issue concerning how rights of way can be preserved under Part III of the Registry Act. Unlike this case, in Ramsay, after the right of way was created, each conveyance of the servient tenement stated that the new owner of the servient tenement took title subject to a right of way in favour of the owners of the dominant tenements. After the 40-year expiry period ended, the then-owner of the servient tenement sought a declaration that the dominant tenement owners’ claims to a right of way had expired.

[52] In Ramsay, Lang J.A. observed that the Investigation of Titles Act, 1929, S.O. 1929, c. 41 (the “1929 Act”), was enacted to codify[8] the common law on title searches. In addition, she noted that the 1929 Act became Part III of the Registry Act by virtue of the Registry Amendment Act, 1966, S.O. 1966, c. 136 (the “1966 Act”). Further, she said Part III remained relatively unchanged until the Registry Amendment Act, 1981, S.O. 1981, c. 17 (the “1981 Amendments”).

[53] The 1981 Amendments addressed both the 40-year title search period and the 40-year expiry period.

[54] Concerning the title search period, Lang J.A. observed that, although both the 1929 Act and the 1966 Act purported to confine that period to 40 years, cautious practitioners continued to search for a root of title before that period: Ramsay, at para. 16, citing Ontario Hydro v. Tkach (1992), 1992 CanLII 7733 (ON CA), 10 O.R. (3d) 257 (C.A.). Lang J.A. concluded that by using very specific language to replace the former s. 105 of the 1980 Act,[9] the 1981 Amendments established that it was unnecessary to search for an earlier root of title:[10] Ramsay, at para. 16.

[55] Notably, the 1981 Amendments also introduced a new provision to address the 40-year expiry rule.

[56] The pre-1981 Amendments 40-year expiry rule was found in s. 106(1) of the 1980 Act. Section 106(1) of the 1980 Act provided that a claim that had been in existence for longer than 40 years would expire unless acknowledged, referred to, or contained in an instrument or notice of claim within 40 years from its creation:
106. (1) A claim that has been in existence for longer than forty years does not affect land to which this Act applies unless the claim has been acknowledged or specifically referred to or contained in an instrument or a notice under this Part or under The Investigation of Titles Act, being chapter 193 of the Revised Statutes of Ontario, 1960, or any predecessor thereof, registered against the land within the forty-year period. [Emphasis added.]
[57] Following the 1981 Amendments, the amended provision (which is now s. 113(1)) referred only to a notice of claim, and no longer referred to the claim being acknowledged, referred to or contained in an instrument:
106.(1) A claim that is still in existence on the last day of the notice period expires at the end of that day unless a notice of claim has been registered.
[58] As part of the 1981 Amendments, “notice of claim” and “notice period” were defined in s. 104 (now s.111):
“notice of claim” means a notice of claim registered under subsection 113(2) and includes a notice registered under a predecessor of this Part or under The Investigation of Titles Act [citation omitted], or a predecessor thereof;

“notice period” means the period ending on the day forty years after the day of the registration of an instrument or a notice of claim, as the case may be. [Emphasis added.]
[59] Ramsay was significant because this court held that, following the 1981 Amendments, a registered easement could still be preserved not only by registering on the servient tenement a notice of claim in the prescribed form but also by registering a deed referencing the right of way. This was largely because the definition of notice period referred to a period 40 years after the registration of an instrument or notice of claim. In the light of this conclusion, the court found it unnecessary to address the argument made in that case by the owner of the servient tenement that s. 113(5)(a)(iv) of the Registry Act would preserve an easement that was openly enjoyed and used.

[60] Concerning the latter issue, at para. 40, the court commented on the intent of s. 113(5)(a)(iv) and its requirements. The court also expressed concern whether the section could adequately alleviate the unfairness that would result from interpreting the 1981 Amendments to mean that a right of way would not be preserved even though it was referred to in deeds registered on the servient tenement:
The intent of [s. 113(5)(a)(iv)], however, is not clear. It appears that, first, to be excepted, the claim must be a right of way or other right. Second, if that requirement is satisfied, the claimant will be required to establish current usage. This combination of traditional easement law with current usage raises complex considerations. As a result, it is not obvious that this provision would alleviate potential unfairness. [Emphasis added.]
[61] Following the decision in Ramsay, the Ministry of Government Services Consumer Protection and Service Modernization Act, 2006, S.O. 2006, c. 34 (the “2006 Amendments”) amended the definitions of “notice of claim” and “notice period” in the Registry Act to read as they now do. The amended definitions confine a “notice of claim” to a notice of claim “in the prescribed form”. In addition, they confine the reference to an instrument in the definition of “notice period” to “an instrument that first creates a claim”.

[62] The interpretation and application[11] of the 2006 Amendments is not directly at issue on this appeal. Nonetheless, I observe that, on their face, the amended definitions I have referred to appear to be aimed at reversing the holding in Ramsay that a registered right of way could be preserved through the registration on the servient tenement of a deed referring to the right of way. That said, nothing in these reasons should be taken as determining the interpretation or application of the 2006 Amendments.

[63] Turning to s. 113(5), this exception provision was first introduced in the 1966 Act. However, the exceptions were to the 40-year expiry period rather than to Part III.[12] As part of the 1981 amendments, the opening language of the section was broadened so that the section creates exceptions to Part III rather than simply to the 40-year expiry period. Apart from that change, the wording of the actual exception in s. 113(5)(a)(iv) has remained essentially the same since 1966.[13]




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