



COURT OF APPEAL FOR ONTARIO

CITATION: CIBC Mortgages Inc. (FirstLine Mortgages) v.
    Computershare

Trust Co. of Canada, 2015 ONCA 846

DATE: 20151204

DOCKET: C60056, C60057

Sharpe, Cronk and Miller JJ.A.

BETWEEN

CIBC Mortgages Inc., Trading as FirstLine
    Mortgages

Applicant (Appellant)

and

Computershare Trust Company of Canada

Respondent (Respondent)

AND BETWEEN

Computershare Trust Company of Canada

Applicant (Respondent)

and

CIBC Mortgages Inc., Trading as FirstLine
    Mortgages
and the Director of Titles pursuant to s. 57(14) of the
Land
    Titles Act

Respondent (Appellant)

Benjamin Frydenberg and Sam Rappos, for the appellant

Jeffrey Spiegelman and Christine Jonathan, for the respondent

Heard: December 1, 2015

On appeal from
    the judgment of Justice John C. Murray of the Superior Court of Justice, dated January
    23, 2015, with reasons reported at 2015 ONSC 543.

By the Court:

[1]

We agree with the respondent that this Court does not have jurisdiction
    to entertain these appeals. For the following reasons, we order that the appeals
    be transferred under s. 110 of the
Courts of Justice Act
, R.S.O. 1990,
    c. C.43, to the Divisional Court, which has jurisdiction to entertain the
    appeals pursuant to the
Land Titles Act
, R.S.O. 1990, c. L-5, s. 27.

[2]

The orders under appeal were made by a Superior Court judge on two
    applications brought to resolve a priority issue in relation to mortgages
    registered under the
Land Titles Act
. The application judge found that
    the owner of the property had fraudulently discharged the mortgage in favour of
    Computershare Trust Company of Canada (Computershare) and that the
    Computershare mortgage should be restored and given priority over the
    subsequently registered mortgage in favour of CIBC Mortgages Inc., trading as FirstLine
    Mortgages (FirstLine).

[3]

Both applications were brought under the
Land Titles Act
. The FirstLine
    Notice of Application referred to ss. 72, 78, 159 and 160 and the Computershare
    Notice of Application referred to ss. 57(13), 57(14), 78(4.1), 159 and 160. The
    crucial provisions are s. 78(4) and (4.1) dealing with the effect of the
    registration of fraudulent instruments. Section 57(13) and (14) provides that a
    judge may order rectification of the register in the event of fraud and ss.
    57(13), 57(14), 159 and 160 make general provision for rectification of the
    register to comply with determinations made by the court.

[4]

Section 24(1) provides: Any jurisdiction of the court under this Act,
    other than an appeal to which section 19 of the
Courts of Justice Act
applies, may be exercised by a judge of the court. Court is defined in s. 1
    as the Superior Court of Justice and s. 19 of the
Courts of Justice Act
provides for appeals from certain orders to the Divisional Court.

[5]

The appeal provisions in the
Land Titles Act
are found in ss.
    26 and 27 and read as follows:

Appeal to court

26. A party to a hearing held under this Act may appeal the
    decision or order of the Director of Land Registration or the Director of
    Titles to the court within 30 days of the date of the decision or order, as the
    case may be, and the appeal shall be by way of a new trial.

Further appeal

27. Any person affected by an order made under this Act by a
    judge of the court may appeal to the Divisional Court within 30 days of the
    date of the decision and, subject to the rules, in like manner as in the case
    of other appeals to that court.

[6]

The issue to be resolved is whether these appeals fall within the reach
    of s. 27. If they do, the appeals lie to the Divisional Court and not this
    Court:
Courts of Justice Act
, s. 6(1)(b).

[7]

The appellants first submission relies on the heading Further appeal.
    The appellant says that when s. 27 is read in the light of that heading and the
    provisions authorizing the Director of Land Registration or the Director of
    Titles to conduct hearings, it can only refer to orders made under s. 26,
    dealing with appeals from decisions of the Director.

[8]

We disagree. While headings in statutes may be used as an interpretive
    aid, they are not determinative, especially where the language of the statute
    itself clearly points in a different direction: see
Interpretation Act
,
    R.S.O. 1990, C. I.11, s. 9;
Canada (Attorney General) v. Jackson
,
    [1946] S.C.R. 489, at pp. 495-96;
R. v. Lohnes
, [1992] 1 S.C.R. 167,
    at p. 179. Section 24 and the other provisions referred to above specifically
    contemplate applications coming directly to a Superior Court judge. The heading
    Further appeal fails to reflect that aspect of the statutory scheme and
    cannot deprive s. 27 of its ordinary meaning that 
any
    person
affected by
an order made under this Act

    (emphasis added) has an appeal to the Divisional Court.

[9]

The appellant also argues that we should assume jurisdiction under s. 6(2)
    of the
Courts of Justice Act
, which gives this court jurisdiction to
    hear an appeal that lies to the Divisional Court if an appeal in the same
    proceeding lies to and is taken to this court. The appellant argues that its
    appeal against the application judges finding that Computershare did not have
    actual notice of the discharge of its mortgage is such an issue.

[10]

We
    disagree. That factual finding was not a separate and discrete issue but rather
    part and parcel of the application judges overall consideration of which
    mortgage had priority under the
Land Titles Act
. No term of the orders
    under appeal deal with that finding as a separate matter or proceeding. It was
    simply a factual finding made in the course of the
Land Titles Act
applications and must be treated accordingly for the purposes of jurisdiction
    for the appeals.

[11]

We
    recognize this court has previously entertained appeals from orders of the Superior
    Court made under the
Land Titles Act
: see e.g.
R.A. & J Family
    Investment Corporation v. Orzech
(1999), 44 O.R. (3d) 385 (C.A.);
Household
    Realty Corp. Ltd. v. Liu
(2005), 261 D.L.R. (4th) 679 (C.A.);
Lawrence
    v. Wright
, 2007 ONCA 74, 84 O.R. (3d) 94;
Di Michele v. Di Michele
,
    2014 ONCA 261, 319 O.A.C. 72.

[12]

While
    this court did entertain those appeals, the issue of jurisdiction was not
    raised or decided. Those decisions do not establish the jurisdiction of the
    court in a subsequent appeal: see
Amaranth L.L.C. v. Counsel Corporation
(2004), 71 O.R. (3d) 258 (C.A.), at paras. 13-15;
Pruner v. Ottawa Hunt and
    Golf Club, Limited
, 2015 ONCA 609 (CanLII), at para. 51.

[13]

In
    the circumstances, the appropriate order is to transfer these appeals to the
    Divisional Court pursuant to s. 110 of the
Courts of Justice Act
.

[14]

There
    will be no order as to costs.

Released: December 4, 2015

Robert J. Sharpe
    J.A.

E.A.
    Cronk J.A.

B.W.
    Miller J.A.


