DOBRANSKY v ROTELIUK, 2018 ABQB 660
9.15: Setting aside, varying and discharging judgments and orders
9.6: Effective date of judgments and orders
The Applicant, Brenda Cameron (“Cameron”) applied as representative of the estate of William Dobransky (“Dobransky”) to rectify the title to a parcel of land to finally give effect to an Order pronounced in 2010. The Order mandated that the Respondent, Marjorie Roteliuk, be listed as a tenant in common of the parcel of land with Dobransky, rather than joint tenant. However, the Land Titles Office refused to register the Order. Cameron argued that the Order should be given effect, despite the fact that it had not been registered at the Land Titles Office. Conversely, the Respondent maintained that the Order failed to sever the joint tenancy.
Bokenfohr J. referred to Rule 9.6, pursuant to which every Order comes into effect on the date of pronouncement. The Order provided for immediate severance of the joint tenancy and was not appealed. Bokenfohr J. maintained that the non-registration of the Order by the Land Titles Office did not change the effect of the Order, which ought to have been “obeyed and respected”. Justice Bokenfohr also held that the reasons for the non-registration of the Order by the Registrar were not determinative as the Registrar’s administrative act was insufficient to defeat a Court Order.
Further, though the Applicant argued that the Order was flawed because it failed to fix the proportionate interests of the parties as tenants in common, Bokenfohr J. maintained that it was reasonable to infer that the Order intended each of the parties to have an undivided one-half interest in the parcel of land. Accordingly, Justice Bokenfohr maintained that the Order had the effect of severing the joint tenancy.
Next Bokenfohr J. considered whether to exercise discretion to rectify title by directing the Land Titles Office to give effect to the Order. Justice Bokenfohr held that it was appropriate to exercise such discretion.
Finally, the Respondent argued that the Order should be set aside pursuant to Rule 9.15(4). However, as the Respondent only made this argument in additional written submissions requested by the Court, Bokenfohr J. held that the submissions were not “properly before the Court” and there was no Application before Her Ladyship in respect of the application of this Rule. Further, as the issue of whether Rule 9.15(4) applied was not fully argued, Justice Bokenfohr made no determination as to whether it applied. However, Bokenfohr J. noted that in the circumstances, even if the Rule were engaged, Her Ladyship would not set aside or vary the Order. Ultimately, Justice Bokenfohr directed that title in respect of the parcel of land be rectified.View CanLII Details