Q.B.G. A.D. 1999 No. 36 J.C.B IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: MAUREEN JANETTE RODH and MICHELLE NADINE SARAUER Respondent D.W. Clements for the Applicant M.H. DeMong for the Respondent FIAT KRUEGER J. February 18, 1999 [1] Maureen Janette Rodh (Rodh) seeks an order pursuant to ss.87 and 251 of The Land Titles Act R.S.S. 1978 c.L-15 as amended, cancelling the existing Certificate of Title in the name of John Roman Sarauer (Sarauer) and herself as tenants in common and directing the Registrar of Land Titles at Battleford to issue a new title in their joint names with right of survivorship. [2] On July 14, 1997, Rodh and Sarauer, who were then living together, but not married, purchased residential property for $100,000.00. They retained lawyer in Lloydminster, Saskatchewan, who prepared written agreement and attended to having it signed by both the sellers and the purchasers. In that agreement Rodh and Sarauer were described as joint tenants. The same lawyer also acted for them in preparing mortgage, in which they were again described as joint tenants. [3] The sellers were not represented by legal counsel. They prepared, on their own, transfer of the property and sent it to the Land Titles Office in Battleford for registration. On August 20, 1997, title issued in the name of Rodh and Sarauer without the words “as joint tenants” appearing thereon. The mortgage was registered by the lawyer on August 21, 1997. The error describing the purchasers on the title went unnoticed by the lawyer. [4] On February 15, 1998, Sarauer died in motor vehicle accident. He was married to the respondent, Michelle Nadine Sarauer, and died intestate. [5] Michelle Nadine Sarauer did not present any evidence disputing the facts as set out on behalf of Rodh. She did, however, oppose the requested order. [6] It is accepted by counsel that if title to the property had issued in the names of Rodh and Sarauer as joint tenants, Rodh would have, as the joint survivor, become the sole owner. As the title presently stands an undivided one-half interest is owned by the Sarauer estate and pursuant to The Intestate Succession Act devolves to the respondent, Michelle Nadine Sarauer. [7] The relevant portions of The Land Titles Act are: s.87 judge of the Court of Queen’s Bench may, upon such notice as he deems fit or, where in his opinion the circumstances warrant without notice: (a) make vesting order and may direct the registrar to cancel the certificate of title to the lands affected and to issue new certificate of title in the name of the person in whom by the order the lands are vested; (b) direct the registrar to cancel any instrument or any memorandum or entry relating thereto or to amend any instrument or any memorandum or entry relating thereto in such manner as the judge deems necessary or property. s.251 No petition, order, affidavit, certificate, registration or other proceeding under this Act shall be invalid by reason of any informality or technical irregularity therein, or of any mistake not affecting the substantial justice of the proceedings. [8] Goldenberg J. in Bank of Nova Scotia v. Rochon et al (1985), 1985 CanLII 2497 (SK QB), 48 Sask. R. 232 (Q.B.) stated at page 234: It is well settled law that applications for vesting orders under s.87(a) of the Act should be made when (i) the facts are not in dispute, (ii) there is no question as to the right of the applicant to the relief sought, and (iii) there is no other available or reasonably convenient remedy or procedure for giving relief to the applicant. In Re Ralph Estate (1954), 1954 CanLII 152 (SK QB), 12 W.W.R. (N.S.) 40, affirmed at 245; In Re Weber Estate (1951), W.W.R. (N.S.) 41; and Re Yanow Estate (1956), 1956 CanLII 171 (SK QB), 20 W.W.R. (N.S.) 81. consider those principles to apply to an application under s.87(b) as well. [9] In McFee Cole Hotels Ltd. v. 604076 Saskatchewan Ltd. (1997), 1997 CanLII 11196 (SK QB), 154 Sask.R. 145 (Q.B.), McLellan J. summarized the position of the court when he stated in paragraph 26: It is clear that the authorities dealing with s.87 and s.251 have narrowly construed the discretion to amend or alter or cancel registrations under The Land Titles Act. The courts when applying the provisions must be mindful of the integrity of the Torrens Land Titles System. There must be an obvious mistake which requires rectification. [10] Is Rodh entitled to an order directing the registrar to cancel the existing title and to issue new one in the name of Rodh and Sarauer as joint tenants? [11] am satisfied that all of the relevant facts which are available are now before me. Based on those facts, I am also satisfied that Rodh and Sarauer intended to purchase the property as joint tenants and instructed their lawyer accordingly. Those instructions were confirmed by the lawyer in his affidavit. All of the documents prepared by the lawyer and signed by the parties describe the purchasers as joint tenants. The lawyer acknowledged that it was a mistake that the title issued as it did and that the mistake was not noticed by him when he reviewed the documents. Had the mistake been discovered before Sarauer’s accidental death, am satisfied, it would have been corrected. [12] Rodh has an alternate remedy. Not a remedy that would correct the mistake, but could provide compensation in the form of damages from the lawyer for any loss suffered as a result of the mistake. Damages in the circumstances of this case are not, in my opinion, a reasonably convenient remedy or procedure for giving relief. The title would remain registered in the names of strangers, neither of whom could be compelled to sell to the other. [13] The requirements set out in Bank of Nova Scotia v. Rochon, (supra) have been satisfied. On the facts of this case there has been an obvious mistake which requires rectification. The confidence of the public in the administration of justice and the Land Titles system would be in danger of being undermined if such obvious mistakes were not cured by the courts. [14] There will be an order that the Registrar of the Battleford Land Titles Office amend existing Certificate of Title #97B13424 containing a portion of SE¼ 27-47-26-W3M by inserting after the names of the registered owners, John Roman Sarauer and Maureen Janette Rodh the words, “as joint tenants”.
FIAT. The applicant sought an order pursuant to s.87 and s.251 of the Land Titles Act cancelling the existing certificate of Title in the names of the deceased and herself as tenants in common and directing the Land Titles Registrar to issue a new title in their joint names with right of survivorship. The deceased and applicant who had been living together purchased residential property in 1997. Their lawyer prepared a written agreement for the sellers and purchasers as well as the mortgage describing the purchasers as joint tenants. The sellers, unrepresented by legal counsel, prepared the transfer of the property and title issued without the words 'joint tenants'. The error describing the purchasers went unnoticed by their lawyer. The respondent had been married to the deceased when he died intestate in 1998. As the title stood an undivided one-half interest was owned by the estate and would devolve to the respondent pursuant to the Intestate Succession Act. HELD: The Land Titles Office Registrar was to amend the existing certificate of title by inserting 'joint tenants' after the names of the registered owners. 1)The requirements set out in Bank of Nova Scotia v. Rochon were satisfied. There was an obvious mistake which required rectification. The deceased and the applicant intended to purchase the property as joint tenants and instructed their lawyer accordingly. The lawyer acknowledged that it was a mistake that the title issued as it did. 2)Although the applicant had an alternate remedy of seeking damages for any loss from her conveyance lawyer, damages were not a reasonably convenient remedy in this case as title would remain registered in the names of strangers, neither of whom could be compelled to sell to the other.