When Darren Entwistle and his wife, Fiona, bought two condo units in a Vancouver tower, the deal came with a rooftop deck. The high-rise was part of Telus Garden, a mixed-use development in the heart of downtown that included a new headquarters for the telecommunications company.
Entwistle is president and CEO of Telus.
Entwistle is credited by Westbank Projects Corp. for envisioning the concept for Telus Garden. Westbank is a development company and Telus’s joint-venture partner in the downtown project.
Going back to the deck, it was for the exclusive use of the Entwistles. The views are awesome, for sure, but there was a problem.
When the developer registered the strata plan with the land title office, the document contained a number of errors. One of these mistakes was that it did not provide that the deck and a portion of the roof that is used to access the deck are part of one of the Entwistles’ condo units.
The couple sought to have these errors rectified through a petition before the B.C. Supreme Court.
Named as respondent, the strata corporation agreed that the mistakes should be corrected. The registrar of land titles was neither served with the petition nor included as respondent.
In July 2018, Judge Robert J. Sewell issued an order directing the registrar to correct the errors.
However, the registrar refused. It did not recognize the authority of the court to correct mistakes in registered strata plans. According to the registrar, such authority resides exclusively in its jurisdiction under the provincial strata property regulations.
The registrar filed a petition to set aside Sewell’s order. The Entwistles filed a petition to cite the registrar in contempt of court.
A hearing was held in January 2019. The contempt application was adjourned, and Sewell issued his reasons for judgment this month.
Sewell’s ruling addressed the question of the respective roles of the court and the registrar regarding the rectification of strata plans registered in the land title office.
According to Sewell, the court has the power to rectify documents in cases “in which the court finds as a fact that an agreement or instrument as recorded did not accurately set out the pre-existing agreement of the parties”.
Sewell referred to this authority as the court’s “equitable jurisdiction” under the Law and Equity Act.
“In this case the uncontradicted evidence is that the developer and the petitioners made the agreement alleged in the Original Petition,” Sewell noted. “In addition, there is no dispute that the developer inadvertently failed to cause the Strata Plan to be prepared in accordance with that agreement. Therefore, the elements necessary to order rectification were established.”
The judge also explained that an order for rectification “acts retrospectively to the date the instrument was created”. This means that his July 2018 order effectively amended the strata plan “prior to the time it was submitted for registration” in 2016.
Sewell likewise stated that there seems to him “no inconsistency between the power of the Registrar to correct errors and the power of the court to rectify documents”.
According to the judge, the registrar is “bound by the finding of the court”, but the registrar must also be “satisfied that the rectified document is registrable”.
The registrar’s application to set aside the judge’s 2018 order was dismissed. The office was directed to register the amended strata plan “once it is in a form acceptable to the Registrar”.