COURT OF APPEAL FOR ONTARIO
Trust Company of Canada, 2015 ONCA 846
DATE: 20151204
DOCKET: C60056, C60057
Sharpe, Cronk and Miller JJ.A.
BETWEEN
CIBC Mortgages Inc., Trading as FirstLine Mortgages
Applicant (Appellant)
and
Computershare Trust Company of Canada
Respondent (Respondent)
AND BETWEEN
Computershare Trust Company of Canada
Applicant (Respondent)
and
CIBC Mortgages Inc., Trading as FirstLine Mortgages and the Director of Titles pursuant to s. 57(14) of the Land Titles Act
Respondent (Appellant)
Benjamin Frydenberg and Sam Rappos, for the appellant
Jeffrey Spiegelman and Christine Jonathan, for the respondent
Heard: December 1, 2015
On appeal from the judgment of Justice John C. Murray of the Superior Court of Justice, dated January 23, 2015, with reasons reported at 2015 ONSC 543.
By the Court:
[1] We agree with the respondent that this Court does not have jurisdiction to entertain these appeals. For the following reasons, we order that the appeals be transferred under s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to the Divisional Court, which has jurisdiction to entertain the appeals pursuant to the Land Titles Act, R.S.O. 1990, c. L-5, s. 27.
[2] The orders under appeal were made by a Superior Court judge on two applications brought to resolve a priority issue in relation to mortgages registered under the Land Titles Act. The application judge found that the owner of the property had fraudulently discharged the mortgage in favour of Computershare Trust Company of Canada (“Computershare”) and that the Computershare mortgage should be restored and given priority over the subsequently registered mortgage in favour of CIBC Mortgages Inc., trading as FirstLine Mortgages (“FirstLine”).
[3] Both applications were brought under the Land Titles Act. The FirstLine Notice of Application referred to ss. 72, 78, 159 and 160 and the Computershare Notice of Application referred to ss. 57(13), 57(14), 78(4.1), 159 and 160. The crucial provisions are s. 78(4) and (4.1) dealing with the effect of the registration of fraudulent instruments. Section 57(13) and (14) provides that a judge may order rectification of the register in the event of fraud and ss. 57(13), 57(14), 159 and 160 make general provision for rectification of the register to comply with determinations made by the court.
[4] Section 24(1) provides: “Any jurisdiction of the court under this Act, other than an appeal to which section 19 of the Courts of Justice Act applies, may be exercised by a judge of the court.” “Court” is defined in s. 1 as the Superior Court of Justice and s. 19 of the Courts of Justice Act provides for appeals from certain orders to the Divisional Court.
[5] The appeal provisions in the Land Titles Act are found in ss. 26 and 27 and read as follows:
Appeal to court
- A party to a hearing held under this Act may appeal the decision or order of the Director of Land Registration or the Director of Titles to the court within 30 days of the date of the decision or order, as the case may be, and the appeal shall be by way of a new trial.
Further appeal
- Any person affected by an order made under this Act by a judge of the court may appeal to the Divisional Court within 30 days of the date of the decision and, subject to the rules, in like manner as in the case of other appeals to that court.
[6] The issue to be resolved is whether these appeals fall within the reach of s. 27. If they do, the appeals lie to the Divisional Court and not this Court: Courts of Justice Act, s. 6(1)(b).
[7] The appellant’s first submission relies on the heading “Further appeal”. The appellant says that when s. 27 is read in the light of that heading and the provisions authorizing the Director of Land Registration or the Director of Titles to conduct hearings, it can only refer to orders made under s. 26, dealing with appeals from decisions of the Director.
[8] We disagree. While headings in statutes may be used as an interpretive aid, they are not determinative, especially where the language of the statute itself clearly points in a different direction: see Interpretation Act, R.S.O. 1990, C. I.11, s. 9; Canada (Attorney General) v. Jackson, 1946 CanLII 29 (SCC), [1946] S.C.R. 489, at pp. 495-96; R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167, at p. 179. Section 24 and the other provisions referred to above specifically contemplate applications coming directly to a Superior Court judge. The heading “Further appeal” fails to reflect that aspect of the statutory scheme and cannot deprive s. 27 of its ordinary meaning that “any person affected by an order made under this Act” (emphasis added) has an appeal to the Divisional Court.
[9] The appellant also argues that we should assume jurisdiction under s. 6(2) of the Courts of Justice Act, which gives this court jurisdiction to hear an appeal that lies to the Divisional Court “if an appeal in the same proceeding lies to and is taken to” this court. The appellant argues that its appeal against the application judge’s finding that Computershare did not have actual notice of the discharge of its mortgage is such an issue.
[10] We disagree. That factual finding was not a separate and discrete issue but rather part and parcel of the application judge’s overall consideration of which mortgage had priority under the Land Titles Act. No term of the orders under appeal deal with that finding as a separate matter or proceeding. It was simply a factual finding made in the course of the Land Titles Act applications and must be treated accordingly for the purposes of jurisdiction for the appeals.
[11] We recognize this court has previously entertained appeals from orders of the Superior Court made under the Land Titles Act: see e.g. R.A. & J Family Investment Corporation v. Orzech (1999), 1999 CanLII 3739 (ON CA), 44 O.R. (3d) 385 (C.A.); Household Realty Corp. Ltd. v. Liu (2005), 2005 CanLII 43402 (ON CA), 261 D.L.R. (4th) 679 (C.A.); Lawrence v. Wright, 2007 ONCA 74, 84 O.R. (3d) 94; Di Michele v. Di Michele, 2014 ONCA 261, 319 O.A.C. 72.
[12] While this court did entertain those appeals, the issue of jurisdiction was not raised or decided. Those decisions do not establish the jurisdiction of the court in a subsequent appeal: see Amaranth L.L.C. v. Counsel Corporation (2004), 2004 CanLII 10897 (ON CA), 71 O.R. (3d) 258 (C.A.), at paras. 13-15; Pruner v. Ottawa Hunt and Golf Club, Limited, 2015 ONCA 609, at para. 51.
[13] In the circumstances, the appropriate order is to transfer these appeals to the Divisional Court pursuant to s. 110 of the Courts of Justice Act.
[14] There will be no order as to costs.
Released: December 4, 2015
“Robert J. Sharpe J.A.”
“E.A. Cronk J.A.”
“B.W. Miller J.A.”