CITATION: Joubarne v. Land Registrar & Director of Titles (Ontario), 2019 ONSC 6709

DIVISIONAL COURT FILE NO.: 19-DC-2472

DATE: 20191121

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GRACE JOUBARNE, Appellant

AND:

LAND REGISTRAR & DIRECTOR OF TITLES FOR THE PROVINCE OF ONTARIO, Respondent

BEFORE: Swinton, Favreau and Copeland JJ.

COUNSEL: Grace Joubarne, representing herself

Glenn Frelick, for the Respondent

HEARD at Ottawa: November 18, 2019

ENDORSEMENT

Introduction

[1] The appellant, Grace Joubarne, seeks to appeal a decision of the Director of Titles (the "Director") made under section 171(1) of the Land Titles Act, R.S.O. 1990, c. L.5, that dismissed her application to transfer her property from the land titles system to the registry system.

[2] At the beginning of the hearing, we converted the hearing from an appeal to an application for judicial review with reasons to follow. At the conclusion of the hearing on the merits, we dismissed the application with reasons to follow. These reasons first address the preliminary issue of jurisdiction and then address the merits of the application.

Preliminary issue on jurisdiction

[3] Ms. Joubarne purported to bring the appeal pursuant to section 27 of the Land Titles Act.

[4] Sections 26 and 27 of the Act govern appeals under the Act. From those provisions, it is evident that appeals from hearings under the Act must first be brought to the Superior Court, after which parties can appeal to the Divisional Court:

26 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.

27 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.

[5] Section 1 of the Act defines "court" as the Superior Court of Justice.

[6] In this case, Ms. Joubarne was not seeking to appeal an order made by the Superior Court, but rather a decision made by the Director under section 171(1) of the Land Titles Act. Section 171(1) of the Land Titles Act provides that:

Where after land has been registered special circumstances appear or subsequently arise that make it inexpedient that the land should continue under this Act, the owner may apply in the prescribed manner to the land registrar for the withdrawal of the land from the Act.

[7] It is clear that this Court does not have jurisdiction to hear this appeal pursuant to section 27 of the Land Titles Act because Ms. Joubarne is not appealing an order of the Superior Court made pursuant to section 26 of the Act.

[8] In addition, it appears that section 26 of the Act does not give Ms. Joubarne a right of appeal to the Superior Court from the Director’s decision under section 171(1) of the Act. Section 26 states that a party to “a hearing held under this Act” may appeal to the Superior Court. However, section 171(1) of the Act does not provide for a hearing to be held when an owner applies to the Director for withdrawal from the land titles system. Given that there is no right of appeal from a decision under section 171(1), the only route for challenging such a decision is by way of an application for judicial review.

[9] In the circumstances of this case where the parties were ready to argue the issues and the Court had all of the necessary materials, we decided that it was appropriate to convert the appeal to an application for judicial review. Section 8 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, provides for the conversion of an action to an application for judicial review where the relief sought is available under the Act and where the matter can be decided summarily. Under the circumstances, the panel relied on Rules 1.04(1), 1.04(2) and 2.01(1) to convert Ms. Joubarne's appeal by analogy to an application for judicial review.

Standard of review

[10] In making his decision, the Director exercised a discretionary power conferred on him by the Land Titles Act. The standard of review is therefore reasonableness.

[11] In Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47, the Supreme Court emphasized that reasonableness is concerned with the intelligibility and transparency of a decision, and also with whether the decision falls within a range of reasonable outcomes.

Merits of the application

[12] The Director reasonably exercised his discretion pursuant to section 171(1) of the Land Titles Act not to grant Ms. Joubarne's application for withdrawal of her property from the land titles system.

[13] The property in question was converted from the registry system to the land titles system in December 2004. Therefore, when Ms. Joubarne bought her property in 2011, the property was already subject to the Land Titles Act.

[14] Ms. Joubarne does not identify any issues specific to her property to justify her request that the property be transferred back to the registry system. Rather, her quarrel is with the government policy decision to adopt a land titles system and with the corporation that administers the electronic registration system. She believes there is a problem with the electronic registration system and that there is a higher risk of fraud under the land titles system. She also believes that the land titles system prevents her from having "absolute title" to her property, whereas the land registry system would give her "absolute title" and would prevent the Crown or anyone else from having any right or interest over her property.

[15] In his decision, the Director stated that over 99.5% of properties in Ontario have been converted from the land registry system to the land titles system since 1989. He explained how the land registry system works and the advantages of the land titles system over the registry system. He also correctly stated that there is no “absolute title” under the Registry Act, R.S.O. 1990, c. R.20.

[16] The Director reasonably concluded that Ms. Joubarne did not identify special circumstances that apply to her or her land and that make it inexpedient for her property to remain in the land titles system. The issues raised by Ms. Joubarne are matters of general policy reflected in the relevant legislation. Even if her concerns were founded, they would apply to all land and all land owners.

[17] During the hearing, Ms. Joubarne acknowledged that the issues she raised were not specific to her land. However, she argued that there are special circumstances in her case because she is acutely concerned about these issues.

[18] It was reasonable for the Director to find that Ms. Joubarne's subjective views on the advantages of the land registry system over the land titles system are not special circumstances that make it inexpedient for her property to remain in the land titles system. We see no error in the Director's exercise of discretion, and we find that his decision is reasonable.

Conclusion

[19] The respondent seeks costs of over $10,000. Ms. Joubarne argues that there should be no costs. We see no reason in this case to deviate from the principle that the successful party should be entitled to costs. In our view, $5,000 in costs is reasonable. The issues raised were not particularly complex, although they were made somewhat more complex by the volume of materials filed by Ms. Joubarne.

[20] The application is dismissed. Ms. Joubarne is to pay $5,000 in costs to the respondent within 30 days of the date of the decision.

SWINTON J.

FAVREAU J.

COPELAND J.

DATED: November 21, 2019