Those principles were turned upside down by a court decision in January, and stakeholders are anxiously waiting to see if the Court of Appeal will reverse the decision.
Some years ago, the owner of a large tract of land in Northern Ontario legally divided it into three parcels. At the time of the severance, a gravel road ran from the main highway across the first parcel, then the second parcel, and into the third.
In order to convert this gravel road into a registered right-of-way, the owner instructed his surveyor to prepare a reference plan of survey showing that the registered access was in the same location as the existing gravel path.
On the ground, the path takes a detour around a large rock outcrop. Unfortunately, the surveyor prepared and registered a plan describing the gravel drive with two straight lines going directly through the outcrop rather than around it.
Access to two of the three lots using the registered right-of-way would be impossible without blasting through the rock at considerable cost and inconvenience.
For many years, the owners of the three lots peacefully used the actual roadway on the assumption that it was located as described on the reference plan. Eventually, Kimberly MacIsaac, one of the owners, became aware that the registered road went through the rock rather than around it.
A dispute among the neighbours arose when construction equipment began to use the roadway. For several months in 2007 and 2008, Peggy and Gordon Salo barricaded the road with the result that there were numerous altercations, one of which involved a chain saw. The OPP was called.
With the road blocked, MacIsaac and her neighbours, the Johansens, had no means of access to their properties except over (or through) the rock outcrop.
Eventually, MacIsaac and the Johansens sued the Salos claiming rectification of the land registry by reason of the surveyor’s error. The surveyor, also named a defendant, agreed with the plaintiffs that the plan should be amended to show the road going around the rock.
The issue for the court to decide was whether it had the power to amend the registration records over the objections of the Salos.
Last January, on an application by the plaintiffs, the Superior Court decided that it did not have the power to rectify the reference plan and title abstract.
The only alternative for the plaintiffs in light of this decision would be to dynamite a new road through the rock outcrop.
Speaking to hundreds of lawyers at a Law Society program last month, Toronto real estate lawyer Craig Carter said that members of the real property section of the Ontario Bar Association were “virtually unanimous in their condemnation of the decision.”
“The MacIsaac case,” he wrote in his case commentary, “threatens in a fundamental way the integrity of the (land registration) system and prevents the Director (of Titles) and even courts from fixing mistakes that occurred. Once registration occurs, according to (the) MacIsaac (decision), it is uncorrectable even if it is fair to do so, or unfair not to do so.”
Carter noted that the court’s decision is seen as “a fundamental attack on the system of title recording in Ontario that we rely upon to do our jobs and protect our clients.”
In light of the court’s ruling that the Director of Titles — and even the courts — have no power to rectify mistakes, the Ontario Bar Association asked for and received status to intervene and present its position when the case was argued at the Ontario Court of Appeal in September.
At press time, the court’s ruling had not been released. It could be a dynamite decision.
Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at firstname.lastname@example.org, phone 416-364-9366 or fax 416-364-3818.
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