Citation: Delport Realty Ltd. v. Nova Scotia (Service and Municipal Relations), 2012 NSSC 416
Date: 20121213
Docket: Hfx. No. 391405
Registry: Halifax
BETWEEN:
Delport Realty Limited and 1549433 Nova Scotia Limited
Applicant
- and -
Registrar General of Service Nova Scotia and
Municipal Relations
Respondent
D E C I S I O N
Judge: The Honourable Justice Suzanne M. Hood
Heard: August 22, 2012
Written Decision: December 13, 2012
Counsel: Matthew D. Moir and Theresa Graham for the Applicant
Darlene Willcott and Diane Zwicker for the Respondent
By the Court:
[1] The Applicants seek judicial review of a decision of the Registrar General of Service Nova Scotia and Municipal Relations under the Land Registration Act, S.N.S. 2001 which dismissed the Applicants’ appeal from rejection of a parcel description certification application by the Registrar.
ISSUES
1. Standard of review;
2. If correctness, was the decision within jurisdiction or, if reasonableness, was the decision reasonable?
FACTS
[2] Delport Realty Limited and 1549433 Nova Scotia Limited (hereinafter
“Delport”) bought Lot B-1 in West Jeddore, Halifax County at a tax sale on
March 20, 2001. The tax deed was issued in April 2001 (Tab 9 of the Record).
[3] Sub-section 156(2) of the Municipal Government Act, S.N.S. 1998, c. 18, provides that a tax deed vests the lands in fee simple to the grantee free of encumbrances. It states:
156(2) The deed has the effect of vesting the land in the grantee in fee simple, free and discharged from all encumbrances.
[4] Sub-section 6 (2) of the Marketable Titles Act, S.N.S. 1995-96, c. 9 provides that a tax deed conveys an absolute and indefeasible title in fee simple six years after the deed has been registered. That section is as follows:
6(2) A tax deed may not be set aside for any reason whatsoever except during the six years following registration of the tax deed, and thereafter the tax deed is binding and conclusive upon all persons and is not liable to be attacked or impeached at law by any person, and the tax deed conveys an absolute and indefeasible title in fee simple to the land described in the tax deed and is conclusive evidence, with respect to the purchaser and every person claiming through the purchaser, that every requirement for the proper assessment and sale of the land has been met.
The tax deed was registered on April 14, 2001.
[5] On October 17, 2011, Delport made a Parcel Description Certification Application (hereinafter “PCDA”) for PID 40057945 (Tab 11 of the Record). It was rejected on November 7, 2011. The Notification of Rejection (Tab 12 of the Record) stated “It appears there are conflicting chains of title affecting this parcel; therefore, we ask that you take the necessary steps to rectify the issue.” Delport’s lawyer, Matthew Moir, appealed the rejection on the same date (Tab 13 of the Record) and followed up on a number of occasions (see pages 2-4 of Tab 14).
[6] The Registrar General, Land Titles, Service Nova Scotia and Municipal Relations (hereinafter the Registrar General) subsequently on March 22, 2012 dismissed the appeal. He said, in part, in dismissing the appeal:
Your grounds of appeal are:
1. A mapper cannot reject a PDCA on the basis of perceived title issues;
2. No particulars of the conflicting title were given;
3. It is up to the authorized lawyer to determine title issues;
4. Your title is based on a tax deed which would have the effect of rectifying any prior title issues;
5. The issues perceived by the mapper are boundary issues, not title issues, and should not prevent you from migrating.
I have reviewed the Notification of Rejection, your e-mail, and the plans and the title documents referenced in the Property details for this PID in Property Online.
I disagree that the issue identified by the mapper is only a boundary or extent issue. It concerns conflicting survey information which may affect not only the extent and location of your client’s parcel but its very existence. The PDCA which you have submitted describes lands which the survey information in Plan No. 15966 indicates may not exist. (i.e. your parcel purports to be part of the lands of Grace Forsythe to the southwest of the West Jeddore Baptist church lands but plan 15966 indicates that the West Jeddore Baptist Church was the northeast boundary of the lands of Gladys Moses and, therefore, the southwest boundary of the Grace Forsythe lands meaning parcel B1 may never have existed.
The tax deed doesn’t resolve this problem as it cannot create a parcel that may not exist.
I agree with the mapper that these boundary/extent/title issues need to be resolved before this parcel (or any of the other lands noted as ‘unresolved parcels’) can be migrated.
I am dismissing your appeal.
Land Registration Act and Regulations
[7] The Land Registration Act, S.N.S. 2001, c. 6 sets out its purpose in s. 2:
Purpose of the Act
2 The Purpose of this Act is to
(a) provide certainty in ownership of interests in land;
(b) simplify proof of ownership of interests in land;
(c) facilitate the economic and efficient execution of transactions affecting interests in land; and
(d) provide compensation for persons who sustain loss in accordance with this Act. 2001, c. 6, s. 2; 2008, c. 19.s.1.
[8] The relevant provisions of the Act for the purposes of this judicial review are the following:
3 (c) ‘document’ means a writing, a plan, a map or any information in a form that can be converted into a writing, a plan or a map by a machine or a device, and includes information
(I) on microfilm
(ii) in electronic, mechanical or magnetic storage, or
(iii) in electronic data signals;
(q) ‘qualified lawyer’ means a member of the Nova Scotia Barristers’ Society entitled to practise law, but does not include a member who is subject to any limitation or restriction on practice imposed pursuant to the Legal Profession Act that precludes the member from certifying title to land;
8 (3) The Registrar General shall
(a) supervise and direct the operation of the land registration offices and the land registration system established pursuant to this Act;
...
18 (1) A document submitted for registration, other than a plan of subdivision or a notice of subdivision, shall be accompanied by a certificate of legal effect certifying the legal effect of the document.
(3) A registrar is entitled to rely upon a certificate of legal effect and such other information as prescribed in the regulations.
(4) The qualified lawyer who signed the certificate of legal effect is liable to the Registrar General with respect to any negligent error or omission in the certificate of legal effect if the Registrar General has been required to pay compensation pursuant to this Act as a result of the negligent error or omission in the certificate within ten years after the date of the certificate.
19 Where a document is submitted for registration or recording pursuant to this Act, the legal description for the parcel shall be referred to in the manner prescribed in the regulations. 2008, c. 19, s. 10.
20 A parcel register is a complete statement of all interests affecting the parcel, as are required to be shown in the qualified lawyer’s opinion of title pursuant to Section 37, subject to any subsequent qualifications, revisions of registrations, recordings or cancellation of recordings in accordance with this Act. 2008.c. 19, s. 11.
21 (1) The legal description of a parcel in a register is not conclusive as to the location, boundaries or extent of the parcel.
(3) A registration may not be rejected only because the location, boundaries or extent of the parcel appear to overlap the location, boundaries or extent of another parcel.
33 (1) The Registrar General may correct errors and omissions in a parcel register in the circumstances and in the manner prescribed in regulations made by the Minister.
Application for registration
37 (1) Any person claiming to own a parcel that is not registered pursuant to this Act may apply to the registrar of the district in which the parcel is situated to have the title to the parcel registered pursuant to this Act.
(4) An application shall be in the prescribed form and shall be accompanied by
(a) the prescribed fee;
(b) an opinion of title certified by a qualified lawyer; ...
(5) Where the application is complete, the registrar shall accept the application for registration and shall index the registered interests in the parcel, together with and subject to any encumbrances, liens, estates, qualifications or other interests against or in respect of the parcel as are specified in the opinion of the qualified lawyer.
(6) Where the application is not complete, the registrar shall reject the application and return it to the applicant.
(7) An application shall include sufficient information concerning the size and location of the parcel as will permit the registrar to assign the parcel identification number for the parcel and create a geographical representation of the parcel in Provincial mapping, showing it in relation to neighbouring parcels with reasonable accuracy.
(9) The qualified lawyer’s opinion of title required in clause (4)(b) shall be prepared in accordance with the relevant Nova Scotia Barristers’ Society practice standards in effect at the time of the opinion and
(a) shall set out
(I) the interests being registered in the parcel and, subject to Section 40, all encumbrances, liens, estates, qualifications and other interests affecting the parcel, and
(ii) the direct or indirect right of access to the parcel, if any, from a public street, highway or navigable waterway to the parcel,
as appear on the records at the land registration office in the county where the parcel is situated; and
(b) shall be based upon a title search, as evidenced in an abstract of title, that shows a chain of title to the standard required to demonstrate a marketable title pursuant to the Marketable Titles Act or the standard required pursuant to the Limitation of Actions Act or any other enactment or the common law, or to such lesser standard as the Register General may approve.
(11) A qualified lawyer is liable to the Registrar General with respect to any negligent error or omission in an opinion furnished pursuant to this Section if the Registrar General has, within ten years after the opinion was furnished to the Registrar General, been required to pay compensation pursuant to this Act as a result of the negligent error or omission.
Land acquired by certificate of title
41 (1) Where a person acquires title or confirmation of title to an interest in an unregistered parcel by the order of a court, a certificate of title pursuant to the Land Titles Clarification Act or the Quieting Titles Act or by an enactment, and a certified copy of the order, certificate or enactment is filed with the registrar, the registrar shall register the interest in the parcel upon payment of the prescribed fee.
56 (1) A registrar shall refuse to register or record a document if
(a) the prescribed fees are not paid;
(b) the document does not comply with this Act or the regulations;
(c) the registrar has reasonable and probable grounds to believe the registration or recording might result in a registration or recording that is not in accordance with law;
(d) the Registrar General has ordered that no further registrations or recordings be made with respect to the parcel or with respect to a party to the document or a person attempting to register or record the document; or
(e) any of the requirements of this Act have not been met.
85(1) Subject to subsection (4), subsection 35(7) and Section 86, a person is entitled to compensation if the person sustains a loss
(a) due to an error or omission in a parcel register;
(b) because the person has an interest referred to in Section 40 and the parcel in which the interest is held has been registered pursuant to this Act free of that interest; or
(c) for which the person has obtained an order for compensation pursuant to Section 35.
(4) Notwithstanding the Limitations of Actions Act, a person loses the right to compensation if, within six years after the person learns that a loss may have been sustained, or within such additional time as the Registrar General may agree, that person does not either enter into an agreement with the Registrar General providing for compensation or commence an action for compensation. 2001, c. 6, s. 85; 2008, c. 19, s. 28.
90 (1) A person who objects to and is aggrieved by the decision of a registrar respecting the administration of tis Act may appeal in writing to the Registrar General.
(5) A decision of the Registrar General pursuant to this Section is final. 2008, c. 19, s. 32.
92 (1) Subject to this Act, in any proceeding with respect to a parcel registered pursuant to this Act, the court may order a registrar to
(a) record an interest;
(b) cancel a recording;
(c) revise the priority of recordings;
(d) revise a registration;
(e) take any other action that the court thinks just.
[9] The Land Registration Administration Regulations made pursuant to s. 94 of the Act contain provisions with respect to applications for registration and PCDAs. Relevant provisions are as follows:
2 (1) In these regulations,
‘AFR’ means an application for registration in accordance with Section 37of the Act;
‘parcel description certification application’ or ‘PDCA’ means an application in accordance with Section 7 to confirm the legal description of a parcel and other related information and to provide evidence and certification that the parcel was created by a subdivision that complies with, is exempt from or is not subject to the subdivision provisions of Part IX of the Municipal Government Act;
7 (4) Except as provided in subsection (5), a PDCA must be submitted by one of the following who is authorized in writing by the parcel owner, or another person permitted under subsection (6), or as required in Sections 14, 15, 16 & 18:
(a) an authorized lawyer;
(b) an authorized surveyor.
(7) Subject to subsection (8), before an AFR in final form is submitted, the PDCA submitter must assist the parcel owner or authorizing person under subsection (6) in identifying the parcel’s PID and take reasonable steps to identify the parcel, including all of the following:
(a) reviewing the legal description;
(b) reviewing Provincial mapping of the parcel;
(c) placing a comment in the comments field if errors in the Provincial mapping of the parcel are identified.
(9) If a PID has not been assigned to a parcel in Provincial mapping, the parcel owner must make a request for PID assignment in Form 1 and provide such information as will enable the preparation of a geographical representation of the parcel in Provincial mapping before submitting a PDCA.
(10) Unless the description is for a unit as defined in the Condominium Act, every legal description submitted to a registrar must be accurate and complete and must contain
(a) a description of the location, boundaries and extent of the parcel
. . .
(b) a description of all benefits, burdens and all parcels excepted
. . .
(c) all information pertinent to the use of easements
. . .
(d) a statement that the parcel was created by a subdivision that complies with, is exempt from, or is not subject to the subdivision provisions of Part IX of the Municipal Government Act and, as applicable,
(i) the registration and other relevant details of how the parcel complies,
(ii) the exemption relied upon and the facts supporting the exemption, or
(iii) an explanation of why the parcel is not subject to the subdivision provision.
(19) If a registrar determines that a PCDA is accurate, complete and in compliance with the Act and the regulations, the registrar must approve the PDCA.
[10] Regulation 32 deals with appeals and states as follows:
32 (1) To appeal a decision of a registrar under Section 90 of the Act, a person must submit an appeal in writing to the Registrar General in paper format or electronically, following the instructions in Property Online, together with all of the following:
(a) the fee prescribed under the Land Registration General Regulations, if any;
(b) a copy of the registrar’s decision that is being appealed;
(c) a copy of the documents that are the subject matter of the appeal;
(d) a clear statement of the reasons why the registrar’s decision is incorrect and any other explanatory information.
ANALYSIS
Standard of Review
[11] The parties do not agree on the standard of review. Delport says it is an issue of the Registrar General’s jurisdiction and, therefore, the standard is correctness. The Registrar General says the standard is reasonableness.
[12] Delport says the registrar must accept an application for registration that is complete (s. 37(5) and (6) of the Act). It says the registrar must accept a PCDA if it is “accurate, complete and in compliance with the Act and the regulations (sub-regulation 7(19)). Delport says that, because this was not done by the registrar and his decision was upheld by the Registrar General, this was beyond the jurisdiction granted by the Act. Accordingly, Delport says “this is a true question of jurisdiction”.
[13] Delport cites para. 59 of New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 as authority for this:
59 Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. ‘Jurisdiction’ is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other works, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf ed.), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19 (S.C.C.). In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licenses (para. 5, Bastarache J.). That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires. These questions will be narrow. We reiterate the caution of Dickson J. In CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.
[14] The Registrar General says he acted within his jurisdiction in considering the issue and that his decision must be reviewed on the reasonableness standard.
[15] In Dunsmuir, supra, the Court said, in para. 62, there is a two step process in determining the standard of review.
62 In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.
[16] In this case, there was a previous decision considering the standard of review of decisions made pursuant to the Land Registration Act. In Silver Sands Realty Ltd. v. Nova Scotia (Attorney General), 2007 NSSC 291, Moir, J. concluded the standard was correctness based on the wording of s. 90 of the Act at that time. The section has since been amended. Delport agrees that, if the jurisdiction issue is found against it that the standard is reasonableness.
[17] That leads me to step two of the two step process referred to by the majority in Dunsmuir, supra, which is to consider the factors to identify the proper standard of review. In Dunsmuir, supra, the Court said in para. 29:
29 Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to hm or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. ...
[18] The Court continued in para. 30:
30 In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy. As noted by Justice Thomas Cromwell, ‘the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law.’ ...
[19] In para. 59 quoted above, the Court returned to a consideration of the standard of correctness. In addition, in para. 60, the court said the standard of correctness applies:
60. ...where the question at issue is one of general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’ ...
That issue is not raised in this matter.
[20] I now consider the four factors from para. 64 of Dunsmuir:
... (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.
Privative Clause
[21] Section 90 of the Land Registration Act, supra, contains a privative clause. This is the section that was amended to delete any reference to a further application to the courts. This factor weighs heavily towards the reasonableness standard.
Purpose
[22] I must next consider the purpose of the tribunal or, in this case, the purpose for the role of the Registrar General. Delport says the Registrar General did not have the jurisdiction to embark on the exercise because the requirements for approval are mandatory.
[23] However, jurisdiction must be construed narrowly. The question is whether the Act allowed the Registrar General to make the decision he did. In a case of doubt, I am not to determine the issue as a jurisdictional one.
[24] The Registrar General has the power to consider appeals from the decisions of a registrar. The registrar refused to approve the PCDA on the basis that there appeared to be conflicting chains of title. Section 37 of the Act deals with registration of a parcel. The first step in that procedure is the PCDA. It is dealt with in the regulations in Regulation 7. Sub-regulation 7(10) sets out the requirements for a description. Sub-regulation 7(19) provides for approval of a PCDA if the registrar determines it is “accurate, complete and in accordance with the Act and the regulations.”
[25] The Land Registration Act was considered in Brill v. Nova Scotia (Attorney General), 2010 NSCA 69. In para. 72, Fichaud, J.A. said:
72 The heart of the LRA is s. 20 [as replaced by S.N.S. 2008, c. 19, s. 11]:
20 A parcel register is a complete statement of all interests affecting the parcel, as are required to be shown in the qualified lawyer’s opinion of title pursuant to Section 37, subject to any subsequent qualifications, revisions of registrations, recordings or cancellation of recordings in accordance with this Act.
This achieves the ‘certainty of ownership’ in s. 2(a)’s statement of purposes. The parcel register is a root of title
[26] He continued in paras. 162 and 163:
162 By s. 20, ‘a parcel register is a complete statement of all interests affecting the parcel’. ...
163 The LRA involves the mirror, curtain and insurance principles of land title systems. These mean, respectively, that the register should accurately reflect the title, the register is the only source of title information, and there is indemnity to those who suffer a loss because of a flaw in the land registration system. ...
[27] The Registrar General, according to s. 8 of the Act, is to “supervise and direct ... the land registration system ... .” He is specifically given the power to decide appeals from decisions of registrars. In my view, this is a factor favouring the reasonableness standard.
The Nature of the Question
[28] The question at issue is whether the PCDA met the requirements of the Act and Regulations. This question calls for an interpretation of the Act and Regulations and applying that interpretation to the PCDA. The registrar, and on appeal, the Registrar General, must determine if the PCDA is complete and accurate and complies with the Act and Regulations. Determining if a PCDA should be approved is an action undertaken by the registrar on a regular basis since it is the first step in migrating a property into the new system. In my view, this factor favours the reasonableness standard.
Expertise
[29] The Registrar General is responsible for the overall operation of the Land Registration System. The Act has been in effect since 2003 (although some sections took effect later).
[30] The approval of a PCDA is a core function under the Act and Regulations.
[31] In my view, the expertise of the Registrar General in dealing with these core functions gives him an expertise which favours the reasonableness standard.
Correctness or Reasonableness
[32] Delport cites 407 ETR Concession Co. v. Ontario (Registrar of Motor Vehicles) 2005 CarswellOnt. 6707 (S.C.J. (Divisional Court)). It says this is authority for applying the standard of correctness. However, it predates Dunsmuir, supra, which cautions against finding a question of jurisdiction too readily. In any event, the facts in 407 ETR are quite different from the present case.
[33] In that case, the Registrar of Motor Vehicles did not refuse motor vehicle permits to those who owed debts for payments of tolls and fees for a toll road. The Registrar alleged he had to be satisfied of the debt before he refused the permits. The Divisional Court concluded, based upon the wording of the Highway 407 Act, 1998 S.O. 1998, c. 28, that the mandatory language in the Act did not give the Registrar the discretion he alleged he had. As the Court said in para. 33:
33 ... The Act prescribes a limited and strictly administrative role for the Registrar. ...
[34] The Court continued in para. 54:
54 The question of whether pre-conditions exist before a public official must carry out an action directed by a statute is not governed by ‘findings of fact’ made by that official. A public body’s discretion does not extend to defining the limits of its own power. It is the court’s function to ensure the public body does not make decisions based on a misapprehension of jurisdiction.
[35] In this case, the Registrar General is given specific authority to consider appeals from the decisions of registrars. He is mandated to consider the merits of the decision.
[36] In Elmsdale Landscaping Ltd. v. Nova Scotia (Environment), 2009 NSSC 358, Duncan, J. referred to Dunsmuir, supra, in paras. 18 and 19. He referred to the nature of the Environment Act, S.N.S. 1994-95, c. 1, in paras. 28 and 29:
[28] The Environment Act is a public interest statute which contains a discrete administrative regime. The words of Justice Couglan [sic] in Fairmount Developments Inc., v. Nova Scotia (Min of Environment) 2004 NSSC 126, at para 45 are, in my view, pertinent:
The purpose of the Environment Act is to support and promote the protection, enhancement and prudent use of the environment, while recognizing certain specific goals. It is a polycentric issue involving a balancing of various contingencies and factors to achieve its purpose. It is more political than legal in nature. Thus, the appropriateness of the court’s supervision diminishes suggesting great deference.
[29] The Minister, in the context of this application, is provided all necessary powers to review applications and can approve or refuse approval, or vary, or set terms and conditions for approval. In doing so, he is charged with balancing a number of interests identified in the purposes of the Act. There is a large measure of policy that must enter into the decision making process.
[37] He concluded, based on the four Dunsmuir factors, that policy issues, the expertise of the Minister of the Environment and his or her department and the fact that pure issues of law were not raised all led to the conclusion that the standard of review was reasonableness. This was in spite of the fact that there was no privative clause in the Environment Act.
[38] In Parker Mountain Aggregates Ltd v. Nova Scotia (Environment), 2011 NSSC 134, Robertson, J. referred to both Dunsmuir and Elmsdale in concluding the standard of review of a decision made pursuant to the Environment Act was reasonableness.
[39] In Boddy v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2012 NSCA 73, the Court dealt with a question of jurisdiction. As the Court said in para. 10:
[10] ... The real question is whether WCAT had jurisdiction to entertain the issue raised by Xerium. ...
[40] The Court said in para. 11:
[11] Whether or not the Act authorizes WCAT to remit the case to a hearing officer is a question of law. But questions of law touching and concerning the expertise of a tribunal usually engage a reasonableness standard of review. In Smith v. Alliance Pipeline Ltd., 2011 SCC 7, the Supreme Court summarized the principles:
[26] Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals, and (4) a “true question of jurisdiction or vires”(paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which It will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54).
[41] In para. 12, the Court referred to Alberta (Information and Privacy Commission) v. Alberta Teachers’ Association, 2011 SCC 61, where Rothstein, J. said:
[42] ... The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, should the occasion arise, to address in a future case whether such a category is indeed helpful or necessary.
[42] The Court again quoted from his decision in para. 14:
[39] ... True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness. [Emphasis in original]
[43] The Nova Scotia Court of Appeal said that, although the other justices did not agree with Rothstein’s presumption, they “... nevertheless agreed that reasonableness applied in that case where the tribunal was interpreting its home statute.” (para. 15)
[44] The Nova Scotia Court of Appeal then said in para. 17:
[17] ... With respect to both issues on appeal, WCAT construed its ‘home’ statute and made procedural decisions. These are questions that should be reviewed on a reasonableness basis.
[45] There is a privative clause in the Act. The Registrar General is given the power to hear appeals from the decisions of registrars. The Registrar General is responsible for the overall operation of the land registry system.
[46] True questions of jurisdiction will not be common. Courts are not to find a question of jurisdiction too easily. Although there is no presumption the reasonableness standard applies when a tribunal interprets its “home” statute, this is an important factor.
[47] Having considered all these factors, I conclude the standard of review is the reasonableness standard.
Is the Registrar General’s Decision Reasonable?
[48] The Court said in Dunsmuir, in para. 47:
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 the law.
[49] I refer again to Boddy, supra, where the court said in para. 18:
[18] Review on a reasonableness basis involves examining a tribunal’s reasoning process as well as outcomes. The reviewing court is concerned with the ‘justification, transparency and intelligibility’ of the reviewed decision. It also requires the reviewing court to examine the tribunal’s result to see whether it falls within a range of possible, acceptable outcomes. The reasons should be read together with the outcome (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 14).
[50] I am to consider the justification, intelligibility and transparency of the decision of the Registrar General to determine if it falls within a range of possible outcomes. The two must be read together.
[51] The relevant portion of the Registrar General’s decision has been quoted above. It must be read in the context of the Registrar General’s powers and the powers of the registrar whose decision was under appeal.
[52] The registrar has the authority, pursuant to s. 56 of the Act, to refuse to register or approve a document, as defined, if certain conditions are not met. However, a parcel description is not a document as defined to be recorded but only the first step in the process of registering a parcel pursuant to s. 37of the Act. The property description approval process is dealt within the Regulations in Regulation 7. As quoted above, sub-regulation 7(10) sets out what the legal description of a parcel must contain. Sub-regulation 7(19) provides that, if the PCDA is “accurate, complete and in compliance with the Act and the regulations, the registrar must approve it.
[53] Accordingly, the decision of the Registrar General must determine if that is the case. The question for me is whether the decision does this and in a way that is justifiable, intelligible and transparent.
[54] The intent of the Act, as set out in s. 2, is to provide certainty of ownership of interests in land. The Land Registration Act provides in s. 21 that a legal description is not conclusive evidence of the location, boundaries or extent of the parcel. It also provides that registration of a parcel is not to be rejected because of an apparent overlap of one parcel with another.
[55] It is in the context of these provisions that the Registrar General’s decision must be considered. The decision does not refer to s. 21 of the Act or Regulation 7. It emphasizes the Registrar General’s conclusion that the parcel itself may not exist. He does not say that there is a failure to comply with the requirements of sub-regulation 7(10). He also refers to the tax deed saying it does not resolve the problem “as it cannot create a parcel that may not exist.”
[56] The Registrar General tries to justify his decision by referring to survey information and the legal effect of tax deeds. However, he does not tie these concerns to the authority he and the registrar have pursuant to the Act and Regulations.
[57] In argument, the Registrar General said that his decision was made in an effort to ensure that a registration will not occur that is “not in accordance with law”, referring to s. 56(1)(c) of the Act. However, it is not clear from his decision that that was the basis for his decision or with what law it fails to comply.
[58] The underlying basis for registration of a parcel is the certificate of a qualified lawyer. That step had not been arrived at with the submission of a PCDA. The Registrar General did not refer to that process in his decision.
[59] I conclude there is no line of reasoning related to the Registrar General’s authority pursuant to Act and Regulations which supports the conclusion the Registrar General reached.
[60] It is true that rejection of a PCDA is one of the range of possible outcomes but it must be a possible outcome supported by consideration of the requirements of the Act and Regulations giving authority to reject a PCDA.
[61] I therefore conclude that the decision of the Registrar General must be quashed.
[62] Delport is entitled to its costs and, if the parties cannot agree, I will accept written submissions within 30 days.
Hood, J.