



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Ravnyshyn 
          v. Drys,







2006 
          BCCA 20



Date: 20060113





Docket: CA
032952

Between:

Paraskovia 
    V. Ravnyshyn, Maria M. Dzubak, Olen M. Goubchouk, Ivan G. Demediuk, 
    Maria G. Nestorouk, Ganna G. Dymydiuk, Vasyl G. Dymydiuk, Yuri G. 
    Dymydiuk, Vasylyna V. Kermoshchouk, Vasiliy V. Dymydiuk, 
    Oleksi V. Dymydiuk, Petro V. Dymydiuk, Mykola V. Dymydiuk, 
    Olena V. Dymydiuk, Maria S. Aksuk, Ganna S. Tymchouk, Yuri S. Shekeryak, 
    Mychaylo S. Shekeriak, Mykola S. Shekeriak, Vasylyna S. Storoshchouk, 
    Dmytro S. Shekeryak, Nikolay N. Demediuk, Yuri F. Demediuk, 
    Ganna Yu Shkoundeuk, Vasylyna Yu Gavrylchouk, Yevdokia Yu Marfiyevych/Mouratshi, 
    Mychaylo Yu Doutchak, Yekaterina Yu Slyvinskaya, Mariya Yu Labyuk 
    and Paraskoviya Yu Gavrylchouk

Appellants

(
Plaintiffs
)

And

Igor 
    Drys and Nataliia Drys

Respondents

(
Defendants
)












Before:


The 
          Honourable Madam Justice Saunders




(In 
          Chambers)










G.T. 
          Rhone


Counsel for the Appellants




H.S. 
          Wellman


Counsel for the Respondents




Place 
          and Date of Hearing:


Vancouver, British Columbia




November 10, 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 13, 2006





Reasons for Judgment of the Honourable Madam Justice 
    Saunders:

[1]

Mr. and Mrs. Drys apply for an order discharging a certificate of pending 
    litigation filed by the appellants on October 25, 2005 against properties 
    they inherited under a will previously contested by the appellants.  Mr. and 
    Mrs. Drys also apply for an order finding the appellants in contempt of court 
    for filing the certificate of pending litigation, and an order prohibiting 
    them from filing further certificates of pending litigation or other charges 
    against the properties.

[2]

The reasons for judgment of the learned trial judge are indexed at 
    (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561.  Those reasons for judgment dismissed 
    the appellants action in which they sought to expunge the clause in a will 
    by which Mr. and Mrs. Drys inherited the properties or, alternatively, sought 
    to have the entire will declared invalid.  The trial judge resoundingly rejected 
    the claims of undue influence and causing the death of the testator advanced 
    by the appellants, on findings of credibility favouring Mr. and Mrs. Drys 
    and their witnesses.  In dismissing the claim, the trial judge expressly ordered 
    the cancellation of all certificates of pending litigation filed against the 
    properties.   The detail of the basis for the order, whether a provision of 
    the
Land Title Act
,

R.S.B.C. 1996, c. 250, or 
    the inherent jurisdiction of the court, is not provided.

[3]

The appellants filed a notice of appeal but failed to file appeal books 
    and transcripts in this Court in a timely way.  Mr. and Mrs. Drys brought 
    a motion for an order dismissing the appeal for failure to comply with the 
    time limits, for an order allowing reinstatement of the appeal upon providing 
    security for costs and for an order removing a certificate of pending litigation.  
    The appellants cross-applied for an order extending the time for filing the 
    appeal books and transcripts and for an order staying execution of the judgment 
    against them.

[4]

I heard the cross-motions and by reasons for judgment issued October 
    24, 2005, and indexed at 2005 BCCA 505, extended the time for the filings.  
    I also ordered the posting of security for costs.  And I dismissed the application 
    for an order removing the certificate of pending litigation, saying:

Lastly, 
    there is the matter of the certificate of pending litigation.  The trial court 
    has ordered the certificate be removed.  In my view, the correct route to 
    secure compliance with that order lies in the Supreme Court of British Columbia 
    through entry of the order made and such other steps as shall be required.

[5]

What was not divulged to me prior to my order of October 24, 2005, 
    or to counsel for Mr. and Mrs. Drys, was that on June 23, 2005 the appellants 
    had obtained a document from this Court entitled Certificate of Pending Litigation 
    certifying that in this court a claim is made for an estate or interest in 
    land .   Counsel on this motion advised that the certificate was obtained 
    without the aid of counsel.

[6]

I am advised on this application that the original certificate of pending 
    litigation has been discharged, and I know of no proceedings to appeal that 
    decision of the Registrar of Land Titles.  I have not been informed of the 
    date of that discharge.

[7]

On October 25, 2005, the day following publication of my reasons for 
    judgment on the application for extension of time, security for costs and 
    dismissing the application to cancel the certificate of pending litigation, 
    the appellants filed the fresh certificate of pending litigation they had 
    obtained on June 23, 2005, in the Victoria Land Title Office against the properties 
    inherited by Mr. and Mrs. Drys.

[8]

As required by the
Land Title Act
,

the Registrar 
    of Land Titles gave notice to Mr. and Mrs. Drys that a fresh certificate of 
    pending litigation had been filed against the properties.  This prompted the 
    applications now before me.

Removal of the Certificate of Pending Litigation

[9]

The authority for filing a certificate of pending litigation is s. 
    215(1) of the
Land Title Act
:

215(1)      
    A person who has commenced or is a party to a proceeding, and who is

(a) claiming an estate or interest in land, or

(b) given by another enactment a right of action in respect 
    of land,

may 
    register a certificate of pending litigation against the land in the same 
    manner as a charge is registered, and the registrar of the court in which 
    the proceeding is commenced must attach to the certificate a copy of the originating 
    process, or, in the case of a certificate of pending litigation under Part 
    5 of the
Court Order Enforcement Act,
a copy of the notice of motion 
    or other document by which the claim is made.

[10]

Mr. and Mrs. Drys contend that the fresh certificate is fatally deficient 
    and could not be registered because the appeal is not a proceeding and because 
    the notice of appeal is not an originating process within the meaning of 
    s. 215(1) of the
Act
.

[11]

The question of a fresh certificate of pending litigation issuing from 
    this court has been addressed in
Cleansteel Products Ltd. v. Canada 
    Permanent Trust Company, Freedman & Felix Salvage & Exchange Ltd
. 
    (1978), 7 B.C.L.R. 231 (C.A.), and
H.K. Floors Ltd. et al. v. Canam 
    Western Ventures Ltd
. (1984), 55 B.C.L.R. 69 (C.A.).

[12]

In
Cleansteel
, the original certificate of lis pendens 
    (now called a certificate of pending litigation) was released following the 
    dismissal of an action for specific performance of an alleged agreement for 
    sale, and a fresh certificate of lis pendens was filed relying upon the notice 
    of appeal filed.  Craig, J.A., writing for the majority,  referring to then 
    s. 181 which was the precursor to present day s. 215, held at 238:

Once the registrar has cancelled the registration of a lis pendens, as 
    he did in this case, where is his authority to accept an application to register 
    a new lis pendens merely because a notice of appeal has been filed?  In this 
    circumstance, s. 181 does not allow the unsuccessful party to, in effect, 
    re-register the lis pendens with respect to the action.

[13]

In
H.K. Floors
, Craig, J.A. again discussed the registration 
    of a fresh lis pendens

based upon a notice of appeal from a decision 
    dismissing the action in which an interest in land was claimed, referring 
    to then s. 213 which was the precursor of present day s. 215.  He said at 
    pp. 71-72:

In
Cleansteel Products Ltd. v. Can. Permanent Trust 
    Co
, (1978), 7 B.C.L.R. 231, this court held that s. 181 [am. 1970, c. 
    19, s. 12; now s. 213 [am. 1982, c. 60, s. 57]] and s. 190 [now s. 233] of 
    the Land Registry Act, R.S.B.C. 1960, c. 208 [repealed and substituted by 
    the Land Titles Act, 1978 (B.C.), c. 25; now the Land Title Act, R.S.B.C. 
    1979, c. 219] did not authorize a registrar of land titles to register a lis 
    pendens merely because a person had filed a notice of appeal from a decision 
    dismissing his action in which he claimed an interest in land.  Apparently, 
    the registrar has now adopted the view that s. 213 and s. 233 of the Land 
    Title Act, which replaced the Land Registry Act, authorize the registrar to 
    issue a certificate of lis pendens

when a notice of appeal has been 
    filed from a dismissal of such an action involving a claim of an interest 
    in land.

I disagree with this view.



Section 181 referred to an action; s.  213(1) refers 
    to a proceeding.  The Act does not define proceeding.  Rule 1 of the Supreme 
    Court Rules defines proceeding as meaning several things including action 
    and appeal.  Apparently, the registrar of the court, relying on this definition, 
    has concluded that the word proceeding in s. 213(1) includes an appeal to 
    the Court of Appeal.  I think, however, that the word appeal in the definition 
    of proceeding in the Supreme Court Rules must mean an appeal from a tribunal 
    to a Supreme Court Judge, not an appeal to the Court of Appeal, and that in 
    the context of the relevant sections proceeding refers to the trial level, 
    not the appeal level.

[14]

Section 181 of the
Land Registry Act
, R.S.B.C. 1960, 
    c. 208 referred to in
Cleansteel
, and s. 213 of the
Land 
    Title
Act, S.B.C. 1978, c. 25, referred to in
H.K. Floors
provided, 
    respectively:

181.     Any person who has commenced an action or is a party hereto, 
    and is making a claim therein in respect of any land, may register a
lis 
    pendens
against the land in like manner as a charge is registered, and 
    the Registrar of the Court shall embody in his certificate a copy of the endorsement 
    upon the writ  or of the pleading whereby such claim in respect of land is 
    made, or, in the case of a
lis pendens
under the
Execution Act
, 
    a copy of the notice of motion.



213.     (1)        A person who has commenced or is a party to a proceeding, 
    and who is

(a)        claiming an estate of interest in land, or

(b)        given by another enactment a right of action 
    in respect of land,

may register a certificate of
lis pendens
against the land in the 
    same manner as a charge is registered, and the registrar of the court in which 
    the proceeding is commenced shall attach to his certificate a copy of the 
    originating process, or, in the case of a lis pendens under the
Execution 
    Act
, a copy of the notice of motion or other document by which the claim 
    is made.

[15]

The appellants say that
H.K. Floors
is no longer binding 
    authority on the issue because the
Court of Appeal Rules
, which did 
    not define proceeding when those cases were decided, now defines proceeding 
    in s. 1 to mean an appeal or application for leave to appeal, an appeal or 
    a cross-appeal.  They say that this definition should be imported into the
Land Title Act
to expand the meaning of the word proceeding 
    discussed in
H.K. Floors
.  They refer me to
Canada Trustco 
    Mortgage Co. v. Canada
(2005), 340 N.R. 1, 2005 SCC 54 restating at 
    para. 10 the well known principle that the words of an Act are to be read 
    in their entire context and in their grammatical and ordinary sense harmoniously 
    with the scheme of the Act, the object of the Act, and the intention of Parliament.  
    The appellants say that the entire context here includes the provisions of 
    the
Court of Appeal Rules
.  They refer me as well to
Canadian 
    Pacific Limited v. Canadian Transport Commission
(1985), 60 N.R. 298, 
    [1985] 2 F.C. 136 (F.C.A.) wherein one statute was used to interpret a word 
    in another statute.

[16]

On my canvas of authorities, the issue of the interpretation of proceeding 
    in s. 215, has not been considered since the definition of proceeding was 
    included in the
Court of Appeal Rules
by Reg. 297/2001.

[17]

While provisions in one statute may define a term used in another statute, 
    or be used as an aid in interpreting a provision in another statute, the same 
    influence is not exerted by a regulation under one statute on a provision 
    in another statute.  That is, I think it is inevitable that a new definition 
    in our
Rules
(which have the character of a regulation) will have little 
    impact upon the meaning of a term in the
Land Title Act
that 
    has long existed and that has been the subject of this Courts interpretation.

[18]

I am not persuaded that the definition of proceeding in s. 1 of the
Court of Appeal Rules
has the effect of extending the meaning of the 
    word proceeding in s. 215 of the
Land Title Act
beyond that 
    described by Craig, J.A. in
H.K. Floors
, and I think the draftsman 
    of the new definition included in the general revision of our
Rules
would be surprised indeed to discover that the meaning of a provision in the
Land Title Act
had changed from that previously stated simply 
    because this Courts
Rules
have been refreshed.

[19]

Not discussed in
H.K. Floors
is s. 39 of the
Interpretation 
    Act
, R.S.B.C. 1996, c. 238

(then s. 35), which provides:

39.       
    The definition section of the
Supreme Court Act
, so far as the terms 
    defined can be applied, extends to all enactments relating to legal proceedings.

[20]

Section 1 of the
Supreme Court Act
, R.S.B.C. 1996 c. 
    443

defines proceeding in the same fashion as the Supreme Court
Rules 
    of Court
:

proceeding 
    means an action, suit, cause, matter, appeal or originating application.

[21]

While it may have been arguable that the s. 1 definition includes an 
    appeal in this Court, this section of the
Interpretation Act
and 
    the definition of proceeding in the
Supreme Court Act
have 
    not changed since
H.K. Floors
.  I am bound, in my view, by the 
    conclusion in
H.K. Floors
.  Further, the view expressed in
H.K. 
    Floors
that the reference to "appeal" in the
Supreme 
    Court

Rules
definition of "proceeding" referred to an 
    appeal to that court is equally persuasive applied to the same definition 
    found in the
Supreme Court Act
.  Reading that definition in 
    the
Supreme Court Act
, one would wonder why the term appeal 
    would refer to any process other than a process in the Supreme Court of British 
    Columbia.

[22]

The appellants also advance the 
    wording of s. 254 as a basis upon which I may decline to follow
H.K. 
    Floors
.
Section 
    254 of the
Land Title Act
provides for cancellation of a certificate 
    of pending litigation following dismissal of an action, is these terms:

254.     If an action in respect of which a certificate of pending litigation 
    is registered has been dismissed, the registrar must cancel the registration 
    as provided in the regulations, or, on

(a)        application, and

(b)        production of a certificate of the registrar 
    of the court that issued the certificate of pending litigation, endorsed by 
    the registrar of the Court of Appeal, certifying that

(i)         
    the action has been dismissed and that the time limited for appeal has expired 
    and no notice of an appeal has been filed with the registrar of the Court 
    of Appeal, or

(ii)        
    a notice of appeal has been filed and has been finally disposed of, and the 
    dismissal of the action has not been set aside by the Court of Appeal or the 
    Supreme Court of Canada.

[23]

Section 254 is, except for the replacement of the term lis pendens 
    with certificate of pending litigation, the same as the
former 
    s. 23
3 in effect when
H.K. Floors
was decided. 
      On the effect of s. 233 upon the ability to file a fresh lis pendens based 
    upon the fact of an appeal, Craig, J.A. said:

Notwithstanding this conclusion, I do not think that upon the dismissal of 
    an action a defendant can require a registrar of title to remove a lis pendens 
    as he could have done in the case of s. 190 of the Land Registry Act.  The 
    purport of s. 233 seems to be that the lis pendens should remain registered 
    against the property until either of the conditions in subs.
(b)(i)
or
(ii)
has been established, that is, that there has been no appeal 
    from the dismissal of the action filed within the time limited for filing 
    an appeal or that the appeal has been finally disposed of" and that 
    the dismissal of the action has not been set aside by the Court of Appeal 
    or the Supreme Court of Canada, or unless, in the meantime, the registrar 
    has cancelled the registration as provided in the Regulations.

Section 25 of the Land Title regulations, B.C. Reg. 334/79, 
    provides:

25.       
    Where a person applies to cancel a
certificate of lis pendens
following 
    a dismissal of the preceding [sic] in respect of which it was filed, the Registrar 
    may cancel the lis pendens

(a)        
    on production of a consent to cancellation signed by the party who filed the 
    lis pendens, or

(b)        
    giving notice of the owner of the lis pendens.

Normally, I think that a registrar of Land Title would 
    not cancel a lis pendens under the provisions of s. 25 of the regulations 
    unless he were satisfied that either subs.
(b)(i)
or
(ii)
applied, 
    but he could do so.

[24]

In my view those observations are equally apt in relation to the present 
    s. 254 where the order of the British Columbia Supreme Court is simply dismissal 
    of an action.  Here, of course, the trial judge expressly ordered the discharge 
    of the certificate of pending litigation, and that discharge appears to have 
    occurred without challenge.

[25]

I am confirmed in my view that a fresh certificate of pending litigation 
    may not be obtained based on an appeal in this court by the requirement in 
    s. 215 that the registrar attach to the certificate a copy of the originating 
    process.  Originating process is not a term defined in the
Court 
    of Appeal Act
or
Rules
.  It is, however, defined in the Supreme 
    Courts
Rules of Court
as a writ of summons, petition, third party 
    notice or any document which commences a proceeding or adds a new party to 
    a proceeding.  Harkening to the reasoning in
H.K. Floors,
it 
    can be fairly said that a notice of appeal is not an originating process 
    within the meaning of s. 215.

[26]

It follows that I do not consider that a fresh certificate of pending 
    litigation should have been issued from this Court, as the appeal is not a 
    proceeding and the notice of appeal is not an "originating process 
    as required.

[27]

Given the earlier application to this Court, the unavailability to 
    the appellants of a fresh certificate of pending litigation from the Court, 
    and the appellants' failure to forthrightly advise me of the fresh certificate 
    when the issue of the certificate was first raised (I note that counsel on 
    this application, by reason of injuries he suffered in an accident, did not 
    appear on that occasion), I have no hesitation in declaring, pursuant to s. 
    10 of the
Court of Appeal Act,
that that the certificate of 
    pending litigation now registered is a nullity.   On that conclusion I would 
    expect the registration to be cancelled.  Given my
conclusion, I consider there is no need for an order 
    prohibiting the fresh filing of further certificates premised on this appeal.

Contempt of Court

[28]

Mr. and Mrs. Drys also seek an order that the appellants are in contempt 
    of court.  This application must be dismissed as there was no order prohibiting 
    the fresh filing of a certificate of pending litigation.  While I have concluded 
    that the
Act
does not provide for a fresh certificate of pending 
    litigation consequent on the filing of a notice of appeal, I do not consider 
    that presenting a document issued by this Court can be considered contempt 
    of court, as contended.

Summary

[29]

In conclusion, the application for an order that the appellants are 
    in contempt of court is dismissed.  I declare the certificate of pending litigation 
    filed on October 25, 2005 a nullity and order its cancellation.

The Honourable Madam Justice Saunders







Corrigendum 
    to the reasons of

The Honourable Madam Justice Saunders  03 February 2006

I
n 
    the corrigendum to reasons for judgment dated January 25, 2006, paragraph 
    3 should read as follows:

The 
    opening sentence in paragraph 27 should read:  "Given the earlier application 
    to this Court, the unavailability to the appellants .





Corrigendum 
    to the reasons of

The Honourable Madam Justice Saunders  25 January 2006

In 
    reasons for judgment dated January 13, 2006, the last two words in paragraph 
    3, "for costs", should be deleted.

In 
    the last sentence of paragraph 24, the words  " and without application 
    to this Court for a stay of execution" should be deleted.

The first sentence in paragraph 27 should read:  "Given 
    the earlier application to this Court".




