The Attorney General of Canada (Applicant)
v.
Honourable William George Morrow (Respond-
ent)
Trial Division, Collier J.—Yellowknife, July 6,
1973.
Prohibition—Judge of Supreme Court of Northwest Ter-
ritories—Caveat against transfer except subject to aboriginal
rights—Jurisdiction assumed by Judge—Whether persona
designata—Whether jurisdiction exceeded— Land Titles Act,
R.S.C. 1970, c. L-4, s. 154(1).
On April 2, 1973 a number of Indian chiefs filed a caveat
with the Registrar of Land Titles of the Northwest Terri
tories to forbid the registration of a transfer affecting certain
lands in the Northwest Territories except subject to aborigi
nal Indian rights. Pursuant to section 154(1) of the Land
Titles Act, R.S.C. 1970, c. L-4, the Registrar referred the
matter to respondent who was the Judge of the Supreme
Court of the Northwest Territories. Respondent heard argu
ment, inter alia on the question of jurisdiction, on April 3
and reserved judgment. On June 7 the Attorney General
applied for a writ of prohibition pursuant to paragraph 18(a)
of the Federal Court Act. On June 14 respondent handed
down judgment on some of the jurisdictional questions.
Held, a writ of prohibition must be refused. It was not
indubitably clear from the Land Titles Act that in hearing a
reference under section 154 of the Land Titles Act respond
ent was sitting as persona designata rather than as a Judge
of the Supreme Court of the Northwest Territories and
therefore prohibition should not issue. Moreover, even if he
was sitting persona designata the question referred to him
by the Registrar was not beyond the jurisdiction contemplat
ed by section 154(1) of the Land Titles Act nor was
respondent purporting to proceed in excess of that jurisdic
tion since the question referred to him was not as to the
legal validity of the claim by reason of aboriginal rights but
rather the validity of the application to transfer the land and
the extent, right and interest of the persons applying. If
there was any doubt as to whether respondent was exceed
ing or acting without jurisdiction, the discretion of this
Court should be exercised against the writ.
Mayor of London v. Cox (1866-67) 2 L.R. (H.L.) 239,
followed.
APPLICATION for writ of prohibition.
COUNSEL:
C. R. O. Munro, Q.C., and I. G. Whitehall
for applicant.
G. Sutton, G. Price and D. Sanderson for
respondent.
COLLIER J. (orally)—I apologize for the delay,
but I needed a little more time, I am prepared to
give judgment now.
The contentions put forward by counsel for
the various parties were comprehensive, able
and thorough and I would have preferred to
reserve judgment for a longer period in order to
deal in more detail with the arguments
advanced. In the circumstances time will not
permit this. That is not to say, however, I have
any doubts as to the conclusion I have reached.
The Attorney General of Canada seeks a writ
of prohibition directed to the respondent, pro
hibiting him from proceeding in respect of any
question as to the validity of the claim made in a
caveat, dated March 24, 1973, submitted to the
Registrar of the Land Titles Office, and as to
the extent of any right or interest in the land
referred to in the caveat. The application for the
writ is launched in this court on the basis that
jurisdiction to grant the writ is found in para
graph 18(a) of the Federal Court Act, R.S.C.
1970, c. 10 (2nd Supp.). That paragraph empow
ers the Trial Division of this Court to issue a
writ of prohibition against any federal board,
commission, or other tribunal as defined in sec
tion 2 of the Federal Court Act.
To appreciate the submissions made it is
necessary to outline the basic facts. The caveat
in question was submitted to the Registrar of
Titles for the Northwest Territories on April 2,
1973. In it, Chief Francois Paulette and a
number of other Indian Chiefs claim, on behalf
of themselves and all the Indian people and
Indian bands of the Northwest Territories, by
virtue of aboriginal rights, an interest in certain
lands more particularly described in the caveat.
The caveat purports to forbid the registration
of any transfer affecting such lands or the grant-
ing of a certificate of title thereto, except sub
ject to the claim.
On April 3, 1973, the Registrar referred the
following matter to "the Judge".
A question has arisen as to the legal validity, and the extent
right and interest of the persons making application to forbid
the registration of any transfer, and whether the Registrar
has a duty conferred or imposed upon him, by the Land
Titles Act to lodge such a document, and enter same in the
Day Book.
The reference is made pursuant to subsection
154(1) of the Land Titles Act, R.S.C. 1970, c.
L-4. That subsection reads as follows:
154. (1) The registrar may,
(a) whenever a question arises with regard to the per
formance of any duty, or the exercise of any function by
this Act conferred or imposed upon him;
(b) whenever in the exercise of any duty of a registrar, a
question arises as to the true construction or legal validity
or effect of any instrument, or as to the persons entitled,
or as to the extent or nature of the estate, right or interest,
power or authority of any person or class of persons;
(c) whenever a question arises as to the mode in which
any entry or memorandum ought to be made in the
day-book or register, or upon any certificate of title or
duplicate thereof; and
(d) whenever a question arises as to any doubtful or
uncertain right or interest stated, or claimed to be dealt
with by a registrar,
refer the question in Form AA to the Judge.
It seems to be obvious that the Registrar in
framing the question he referred was
endeavouring to bring himself within paragraph
154(1)(b). At the outset, I should state my views
as to what matters the Registrar is entitled to
refer under that paragraph. The questions may
be: (1) the true construction of any instrument;
(2) the legal validity of any instrument; (3) the
effect of any instrument; (4) as to the persons
entitled; (I have some difficulty in understand
ing that expression but I do not think it applies
to this case); (5) as to the extent or nature of the
estate or any person or class of persons; (6) as
to the right or interest of any person or class of
persons; (7) as to the power or authority of any
person or class of persons.
I should also state my view, although it may
not be truly relevant, that a caveat is an "instru-
ment" within the meaning of that expression as
set out in section 2 of the Land Titles Act.
I return to the basic facts. The question was
referred to the Honourable Mr. Justice Morrow
(hereafter Morrow J.). There was a hearing on
April 3rd of this year. After hearing argument,
principally on behalf of the Attorney General of
Canada and the caveators, Morrow J. reserved
judgment on a number of questions, including
that of jurisdiction in respect of the Registrar's
reference. The hearing was adjourned to July
9th. To me, it is unclear from the transcript filed
as to exactly what form the proceedings are to
take on July 9th, but for the purposes of this
application that is not material. On June 7th a
motion for a writ of prohibition was launched
but not served. A revised motion, claiming iden
tical relief was filed June 13th. On June 14th,
Morrow J. handed down judgment dealing basi
cally with some of the jurisdictional points pre
viously raised on April 3.
The applicant for the writ asserts these
grounds. (1) Morrow J. in hearing the question
referred under subsection 154(1) was sitting
persona designata, and not as the Supreme
Court of the Northwest Territories or a Judge of
that Court; (2) whether Morrow J. is sitting as
the Court or a Judge of it, or as persona desig-
nata, is a matter of law, and the form in which
any previous decisions, orders, or judgments
have been given in these proceedings is
immaterial. Counsel for the caveators does not
dispute that proposition; (3) as persona desig-
nata under section 154, he, and that is Morrow
J., is "a federal board, commission or other
tribunal" to which prohibition can be directed
by this Court. Counsel for the caveators does
not dispute the general proposition that prohibi
tion may issue from a Superior Court to some
one sitting persona designata, even though that
person may in another capacity be also a Judge
of a Superior Court. I cite as an illustration Re
Grys and Stratton [1972] 2 O.R. 227; (4)
Morrow J., sitting persona designata, has
embarked upon, or is embarking upon, the hear
ing and decision of a question which is beyond
his jurisdiction, and prohibition should issue.
As to grounds (1) whether Morrow J., is in
this particular matter, sitting persona designata.
This is not an easy question and a good deal of
the difficulty stems from the expression "the
judge" (the last two words in subsection 154(1)
and the expression "Judge" as defined in sec
tion 2 of the Land Titles Act).
"Judge" means an official authorized in the Territories to
adjudicate in civil matters in which the title to real estate
is in question.
I also quote the statutory meaning given to
"court" in that Act.
"court" means any court authorized to adjudicate in the
Territories in civil matters in which the title to real estate
is in question.
I am not convinced that Morrow J. in hearing
this reference pursuant to section 154 is sitting
persona designata. To my mind, there are no
authorities precisely in point. What judicial
decisions there are were decided many years
ago when the geographical, political, economic,
and other circumstances in the Territories were
considerably different. The sections of the Land
Titles Act relied on here were enacted many
years ago when the circumstances I have men
tioned were much different from today's. I think
it is a fair interpretation to place on the words
of section 154 to say that the "Judge" referred
to there, in this day and age, includes a Judge of
the Supreme Court of the Northwest Terri
tories, sitting as a Judge of that Court, and not
sitting "persona designata". (I interject at this
point to echo the sentiments of Mr. Justice
Middleton in Hynes v. Swartz, [1938] 1 D.L.R.
29 at 31 that the term persona designata is an
unfortunate one.) I find some assistance in the
decision of the Supreme Court of Canada in
North British Canadian Investment Company v.
St. John School District No. 16 of the North
West Territories (1904) 35 S.C.R. 461. In that
case lands in the Northwest Territories were
sold for arrears of school taxes. The purchasers
lodged a caveat and then applied under section
97 of the Land Titles Act for confirmation of
the transfer. Among other things it was argued
that the order of the Judge confirming this sale
was made by a judge sitting persona designata,
and not as the court, and therefore no appeal
could lie. The relevant section of the Land
Titles Act referred to "A judge's order." The
majority, in the Supreme Court of Canada,
rejected the argument that the Judge was per
sona designata, but did not elaborate their rea
sons. The point is more fully developed in the
dissenting judgment of Mr. Justice Killam and
there is no doubt the jurisdictional issue was on
the question of persona designata or not. The
equivalent section in the present Land Titles
Act is section 131. I see little difference
between the use of the expression "A judge" or
"A judge's order" in section 131 and the
expression "the judge" in section 154.
In my view, in endeavouring to interpret or
construe the meaning of the words "the judge"
in section 154, one must look at the statute as a
whole, and other sections of it, where similar or
identical expressions are used. In that regard
there seems to be neither consistency nor
rationale in the use of the terms "court" "court
or a judge" "court or judge" "the judge" and "a
judge". As I see it, these expressions are used
almost indiscriminately in various sections of
the Land Titles Act. The following list is by no
means exhaustive but I refer, as illustrations to,
the following provisions: sections 22, 38, 39,
61, 62, 64-66 inclusive, 99-103 inclusive,
107(2), 122, 123, 127(1), 128, 130-131, 136-140
inclusive, 146, 150, 152(1), 153-157 inclusive,
159(2), 166-167, 169-172 inclusive, 177, 179-
184 inclusive, 185, 187, 192.
I do not propose to go into any detail in
respect of the sections I have just referred to
except to say that in my view, many of them are
inconsistent with the assertion that the expres
sion "judge" is used in the sense of "persona
designata".
If Morrow J. is not hearing this reference
persona designata, then it seems to be common
ground he is sitting as the Supreme Court of the
Northwest Territories or in his capacity as a
Judge of that Court, fulfilling the functions and
jurisdiction of that Court or of its Judges. In
that situation, it was not contended, nor do I
think it could seriously be contended, there was
any jurisdiction in the Federal Court, Trial Divi
sion, or a Judge thereof, to issue a writ of
prohibition.
It is therefore my opinion, on the material
before me, that Morrow J. is not necessarily and
indubitably sitting persona designata, and there
fore prohibition should not, in the circum
stances, issue.
I now turn to the fourth ground put forward
by the applicant: That Morrow J. sitting persona
designata, has embarked upon or is embarking
upon the hearing and decision of a question
which is beyond his jurisdiction and prohibition
should therefore issue. For the purposes of this
submission, I will assume Morrow J. is persona
designata. In my opinion the question referred
by the Registrar is not beyond the jurisdiction
contemplated by subsection 154(1) nor is
Morrow J. purporting to proceed beyond the
jurisdiction conferred by the subsection. The
applicant here contends that what Morrow J. is
being asked to decide, and what he proposes to
decide, is the validity of the claim, asserted by
the caveators. In my opinion, that is not the
question referred by the Registrar, nor is it the
type of question contemplated for referral by
him, nor is it the question Morrow J. proposes
to decide.
The question or questions referred, are with
deference, not crystalline clear but a reasonable
interpretation can be given. I quote in part
... a question has arisen as to the legal validity and the
extent, right and interest of the persons making application,
to forbid the registration of any transfer .. .
There is nothing there requesting the Judge to
decide the legal validity of the claim advanced
in respect to aboriginal rights. The question
referred as I see it, is the legal validity of the
application to forbid, or notice forbidding, trans
fer. The other question appears to be the extent,
right, and interest of the persons making the
application, again, not the validity of those
rights or interests. On this point, it may well be
the Registrar has in mind whether the caveators
making the application had any right to repre
sent the other Indian people or bands in respect
of this caveat or whether the particular cavea-
tors have any right or interest in the particular
lands.
I do not agree with the contention that in
respect of a caveat the only duty or function of
the Registrar is to register it and that any pro
ceedings in respect of it must be pursued or
confined to the procedures set out in sections
136-140 of the statute.
I therefore conclude there is nothing in the
material before me to indicate there is, has
been, or will necessarily be a usurpation of
jurisdiction or an exercise of jurisdiction not
given by the statute. I think Morrow J. has
properly and accurately stated the functions of
the tribunal under subsection 154(1) and in
respect of the question referred. I quote from
page 28 of his reasons:
1. That it would be wrong to file the caveat without first
deciding the question or questions raised in the Reference.
2. That the issue or issues, by the provisions of the Land
Titles Act, are required to be tried by me in my present
capacity.
3. That in my present capacity, it is I, and not the Federal
Court, that has jurisdiction to try the issue or issues but that
I am not to go any further than to ascertain the nature of the
aboriginal rights claimed and the rights claimed under the
Order in Council and whether they may form the basis upon
which a caveat can be filed.
4. That depending on what evidence may come before me, I
should decide whether a caveat may be filed to protect
whatever may be found to be the above claim.
5. That if the caveat should be filed, how the caveators
realize on it or enforce it, to the extent of obtaining compen
sation, is properly a claim against the Crown and should be
brought in the form of proceedings in the Federal Court.
I reiterate, the validity of the claim of aborigi
nal rights is not being adjudicated in the pro
ceedings attacked, nor is it sought to have that
claim adjudicated. In essence, the question is
whether the caveat ought to be lodged and
entered in the day-book.
I am satisfied there is here no apparent or
patent defect in jurisdiction as that expression
has been used in the case of Mayor of London
v. Cox (1866-67) 2 L.R. (H.L.) 239. Assuming
there is a doubt as to whether Morrow J. is
exceeding or acting without jurisdiction, I
would, in the circumstances here, exercise my
discretion against the issuing of a writ of prohi
bition. On this point of discretion, I adopt the
rationale put forward by Lord Parker, the
learned author of the section on Crown Pro
ceedings in Volume 11, Hals. 3rd edition, p.
116, para. 215. I also refer to the comments of
Mr. Justice McCardie in Turner v. Kingsbury
Collieries Limited [1921] 3 K.B. 169 at 182.
The motion is dismissed. Only the caveators
will have their costs of this motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.