BC Court of Appeal affirms decision on dedication of strata corporation’s common property as a highway
July 17, 2018
BY Kevin Zakreski
The Court of Appeal for British Columbia has dismissed an appeal of a decision of a chambers judge, which had held that a disposition of a strata corporation’s common property for use as a highway was required to comply with a subdivision provisions found in part 7 of the Land Title Act. Significantly, meeting these requirements meant that all of the strata-lot owners would be required to consent to the disposition of common property.
British Columbia (Minister of Transportation and Infrastructure) v Registrar, Victoria Land Title Office, 2018 BCCA 288, involved “a project to improve safety along a section of the Trans-Canada Highway on Vancouver Island.” The project required the use of the strata corporation’s common property “for a highway stabilization slope,” so:
In November 2016, the Minister entered into an agreement of purchase and sale with the owners of Strata Plan VIS1006. Under the agreement, the owners agreed to dedicate land as a highway for valuable consideration. In December 2016, the owners held a general meeting and, in a 3/4 vote, approved the execution of an application to deposit a reference plan in the Land Title Office indicating the dedication of land for the highway.
The registrar declined to register the plan, citing section 253 of the Strata Property Act, which “provides that a disposition of common property by way of a transfer of a freehold estate is a subdivision of land to which Part 7 of the LTA applies.” The key requirement of part 7 for the purposes of this case is found in section 97, which holds that “a subdivision plan must be signed by each owner of the land subdivided.”
The minister appealed the registrar’s decision, but a justice of the supreme court dismissed the appeal. So the minister appealed to the court of appeal.
Much of the court of appeal’s decision focused on the standard of review applicable to the registrar’s decision. The court noted that “the interpretive question at the heart of the appeal is whether a highway dedication under s. 107 of the LTA is a ‘transfer of a freehold estate’ under s. 253(1) of the SPA.” This entailed an “interpretive exercise” that “engaged analysis of provisions of the Registrar’s home statute” and that involved the registrar’s “core function”:
I also conclude that ss. 80 and 253 of the SPA are closely connected to the Registrar’s core function of registering interests in land. Before accepting a plan that subdivides common property of a strata corporation, the Registrar must ensure the requirements of s. 80 of the SPA are satisfied. To determine whether those requirements are met, the Registrar must determine whether the disposition of common property falls under s. 253(1). In this sense, the Registrar must deal with ss. 80 and 253(1) of the SPA in the usual course of his or her duties in relation to the maintenance of the land title register. In addition, ss. 80 and 253 of the SPA reference the LTA, which further supports the position that these provisions are closely connected to the Registrar’s home statute.
I emphasize that the Registrar was not called on to consider the SPA in isolation. Rather, the Registrar’s decision involved interpretation of the LTA and the relationship between the LTA and the SPA.
These considerations led the court to conclude that “the Registrar’s decision is reviewable on a standard of reasonableness.”
Applying this standard to the case, the court found that the registrar had made a decision within a range of reasonable outcomes:
Though sparse, the Registrar’s reasons reveal the path he took in rejecting the plan submitted by the Minister. Accordingly, I view the Registrar’s reasons as sufficient to satisfy the standard of transparency and intelligibility set out in Dunsmuir.
In addition, the Registrar’s decision fell within a range of reasonable outcomes defensible in respect of the facts and law. It is reasonable to conclude that a “transfer of a freehold estate” occurs when strata owners relinquish their freehold interest in common property to the Province. It is also reasonable to conclude that the transaction in this case produced a subdivision. I note that “subdivision” is defined broadly in the LTA as the division of land into two or more parcels. The Province’s submissions on the unique character of a s. 107 dedication might be attractive from a conceptual point of view, but they do not make the Registrar’s decision unreasonable.
In the result, the court dismissed the minister’s appeal.