COURT OF APPEAL FOR ONTARIO
CITATION: Canadian Imperial Bank of Commerce v. Lightfoot, 2025 ONCA 55
DATE: 20250127
DOCKET: COA-24-CV-0727
Paciocco, Monahan and Wilson JJ.A.
BETWEEN
Canadian Imperial Bank of Commerce
Respondent
and
Marcy Lightfoot, David Lightfoot* and Evelyn Lightfoot
Appellant*
David Lightfoot, acting in person
Alexander Hora, for the respondent
Heard: January 16, 2025
On appeal from the order of Justice Michael R. Gibson of the Superior Court of Justice, dated May 30, 2024.
REASONS FOR DECISION
[1] The appellant, David Lightfoot, and his ex-spouse, Marcy Lightfoot (together the “Lightfoots”), jointly owned two abutting parcels of land that were not registered on a plan of subdivision, known municipally as 8408 and 8410 Highway 3 West, Dunnville, Ontario. They acquired both parcels under one instrument on August 11, 2015. Registrations relating to both parcels are subject to the Land Titles Act, R.S.O. 1990, c. L.5.
[2] On December 15, 2016, the Lightfoots executed and registered a charge on 8408 in favour of The Canadian Imperial Bank of Commerce (the “CIBC”). At the time, the CIBC was unaware that the Lightfoots also jointly owned 8410.
[3] On March 22, 2019, the Lightfoots transferred 8410 to Mr. Lightfoot alone, and on February 12, 2020, he subsequently transferred ownership to himself and his mother, Evelyn Lightfoot. These transfers were undertaken without a severance.
[4] Taking the view that the two abutting parcels of land had been merged pursuant to the Planning Act, R.S.O. 100, c. P.13, at the time their charge was obtained, and that the Planning Act invalidated the subsequent transfers, the CIBC brought applications to have the land transfers declared null and void and to obtain a Certificate of Pending Litigation to protect their security, pending further litigation relating to the charge. Mr. Lightfoot opposed the applications but was unsuccessful and the requested orders were made on May 30, 2024.
[5] The application judge’s reasons for making the requested orders depend upon his conclusion that ss. 50 and 50.1 of the Planning Act apply to the two abutting parcels. Mr. Lightfoot argues, on appeal, that this proposition is mistaken because, in his view, the provisions of the Land Titles Act, most significantly s. 44(1), coupled with notations on the “register”, insulate these transactions from the operation of these sections of the Planning Act. He argues that the application judge therefore erred in law in making the orders that he did. We do not agree.
[6] Section 44(1) provides, in material part:
44(1) All registered land, unless the contrary is expressed on the register, is subject to such of the following liabilities, rights and interests as for the time being may be subsisting in reference thereto, and such liabilities, rights and interests shall not be deemed to be encumbrances within the meaning of this Act:
…
11. Sections 50 and 50.1 of the Planning Act.
…
[7] When the parcels were first registered under the Land Titles Act, the register noted on each of them, “SUBJECT, ON FIRST REGISTRATION UNDER THE LAND TITLES ACT, TO: SUBSECTION 44(1) OF THE LAND TITLES ACT, EXCEPT PARAGRAPH 11, PARAGRAPH 14, PROVINCIAL SUCCESSION DUTIES AND ESCHEATS OR FORFEITURE TO THE CROWN” (the “notations”). Paragraph 11 of s. 44(1), of course, lists ss. 50 and 50.1 of the Planning Act. Mr. Lightfoot argues based upon this that the Planning Act does not apply to these parcels because “the contrary is expressed on the register”.
[8] Mr. Lightfoot is incorrect. When the Government of Ontario administratively converted land from the Registry system to the Land Titles system, it performed basic searches authorized under the Land Titles Act, s. 32, and based upon those searches, registered the titles as “Land Titles Conversion Qualified” (“LTCQ titles”): Marguerite E. Moore, Title Searching and Conveyancing in Ontario, 7th ed., (Toronto: LexisNexis Canada Inc., 2017), at pp. 395–396, and see Gold v. Chronas, 2015 ONCA 900, 128 O.R. (3d) 428, at paras. 33–35. As part of the administrative conversion process, a Planning Act search was completed for each parcel and LTCQ titles were guaranteed against Planning Act contraventions up to the date of the conversion. First registration under the Land Titles system therefore “creates a new starting point for a Planning Act compliance search”, which is what is noted on title: Moore, at p. 398. The notation on title that Mr. Lightfoot relies upon is a LTCQ title notification relating to the title of the property at the time of first registration. It does not, as Mr. Lightfoot argues, oust the operation of the Planning Act for all time. The transactions at issue in this case occurred after the parcels were registered as “fee simple in conversion qualified”. The charge and the transfers were therefore subject to the Planning Act, ss. 50 and 50.1.
[9] In support of his appeal, Mr. Lightfoot also placed reliance upon the clause in the Land Titles Act, s. 44(1) stating that the liabilities, rights and interests that s. 44(1) lists “shall not be deemed to be encumbrances within the meaning of this Act”. This clause does not assist Mr. Lightfoot, either, since properly interpreted, it does not prevent the Planning Act, ss. 50 and 50.1 from operating. Indeed, s. 44(1) provides explicitly that “[a]ll registered land... is subject to such of the following liabilities, rights and interests as for the time being may be subsisting in reference thereto” (emphasis added). Section 44(1) therefore operates to preserve the liabilities, rights and interests it lists, notwithstanding that they are not registered on title: Kosicki v. Toronto (City), 2023 ONCA 450, 167 O.R. (3d) 401, at para. 73; Lake v. Cambridge (City), 2023 ONSC 5200, 168 O.R. (3d) 503, at para. 57. Moreover, under the Land Titles Act, ss. 45 and 87 provide, in relevant part, that first and subsequent registrations respectively are “subject to” “[t]he liabilities, rights and interests … declared for the purposes of this Act not to be encumbrances …” Quite simply, the clause in s. 44(1) that Mr. Lightfoot relies upon does not assist him.
[10] Mr. Lightfoot invoked additional provisions in the Land Titles Act that describe the effect of registration in support of his appeal, but those provisions are subject to s. 44(1), which, as indicated, preserves unregistered liabilities, rights and interests. There is therefore no point in addressing these additional provisions and we refrain from doing so.
[11] The appeal is dismissed.
[12] CIBC, the successful party, is requesting costs on a partial indemnity basis and it has provided Mr. Lightfoot with a bill of costs. If Mr. Lightfoot opposes the costs award requested, he must indicate so in writing within 10 business days of the release of this decision to the court registrar, and provide written submissions not to exceed two pages, as to why the usual practice of awarding costs to the successful party should not be followed, or why the partial indemnity costs identified in the CIBC’s bill of costs are not appropriate or reasonable.
“David M. Paciocco J.A.”
“P.J. Monahan J.A.”
“D.A. Wilson J.A.”