Case Comment: Entwistle v. The Owners, Strata Plan EPS 3242, 2019 BCSC 1311
By: Nathan Ische
The Supreme Court of British Columbia released its decision in Entwistle v. The Owners, Strata Plan EPS 3242, 2019 BCSC 1311, on August 8, 2019. This decision deals with the respective roles of the Supreme Court of British Columbia (the “Court”) and the Registrar of Land Titles (the “Registrar”) in rectifying strata plans registered in the Land Title Office.
In 2015, Darren Entwistle and Fiona Entwistle (together, the “Petitioners”) and the developer of a high-rise residential tower in downtown Vancouver known as “Telus Garden” agreed that if the Petitioners purchased both strata lots 423 and 424 in “Telus Garden”, then the developer would construct a roof deck for the exclusive use of the Petitioners, designate that roof deck as limited common property (“LCP”) for strata lot 423 and include a portion of the roof within strata lot 423 in order to provide the Petitioners with access to the roof deck.
However, on the final strata plan (the “Strata Plan”) filed in the Land Title Office, the developer failed to designate the roof deck as the LCP of strata lot 423 and did not include the portion of the roof to be used for access in strata lot 423.
After these errors and certain other errors on the Strata Plan (collectively, the “Errors”) were discovered, the Petitioners filed a petition (the “Petition”) with the Court seeking to have the Errors corrected. The Petitioners served the strata corporation (The Owners, Strata Plan EPS 3242) (the “Strata Corporation”) with the Petition and the Strata Corporation consented to rectifying the Errors. In response to the Petition, the Court issued an order (the “Order”) directing the Registrar to correct the Errors.
The Petitioners then made an application to the Registrar to amend the Strata Plan pursuant to the Order. However, the Registrar refused to correct the Errors, for the reasons discussed below.
In response to the Registrar’s refusal, the Petitioners applied to have the Registrar found in contempt of court, and the Registrar brought a separate application to have the Order set aside.
Registrar’s Reasons for Refusal
The Registrar relied on two arguments in refusing to correct the Errors:
- The Registrar took the position that section 14.12 of the Strata Property Regulation, B.C. Reg. 43/2000 (“Regulation 14.12”) gives the Registrar exclusive jurisdiction to correct errors in registered strata plans, and, as a result, the Court lacked the jurisdiction make the Order.
- The Registrar also argued that it was a necessary party to the Petition because the relief sought included an order requiring the Registrar to correct a registered strata plan and, because notice of the Petition was not given to the Registrar, it is not bound by the Order.
With respect to the question of jurisdiction, the Court rejected the Registrar’s position that the Registrar has exclusive jurisdiction to correct errors in registered strata plans. In relying on previous case law and the Law and Equities Act, R.S.B.C. 1996, c. 253, the Court held that the Court has equitable jurisdiction to order the rectification of documents, including registered strata plans, that the Registrar is bound by a decision of the Court to this effect and that Regulation 14.12 does not deprive the Court of this jurisdiction. Further, the Court held that an inquiry into the Errors by the Registrar would be inappropriate as the Court had already made a determination that the Errors were to be corrected.
The Court also rejected the Registrar’s argument that it should have been served with the Petition, finding that the Registrar was not involved in the essential issue to be decided in the Petition, which was whether the Petitioners were entitled to the equitable remedy of rectification.
While the Court held that it had the jurisdiction to make the Order and that it was not necessary for the Petitioners to give notice of the Petition to the Registrar, the Court clarified that the Registrar has a role to play in the correction of errors to registered strata plans. In particular, the Registrar has the statutory power and obligation to ensure that rectified documents, including strata plans, can be properly registered in the Land Title Office.
Ultimately, the Court upheld its initial decision requiring the Registrar correct the Errors, but varied the Order by providing that the rectified Strata Plan should be registered only once it is in a form acceptable to the Registrar.