T H E L A W O F T H E L A N D

The Advent of the Torrens System in Canada

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PATRONS OF THE SOCIETY

David Asper

Blake, Cassels & Graydon LLP

Gowlings

McCarthy Tétrault LLP

Osler, Hoskin & Harcourt LLP

Paliare Roland Rosenberg Rothstein LLP

Torkin Manes Cohen Arbus LLP

Torys LLP

WeirFoulds LLP

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks The Law Society of Upper Canada for its continuing support.

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© Osgoode Society for Canadian Legal History 2008 Printed in Canada

www.utppublishing.com ISBN 978-0-8020-9913-6

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication

Taylor, Greg

The law of the land : the advent of the Torrens system in Canada / Greg Taylor.

Includes index.

ISBN 978-0-8020-9913-6

1. Torrens system – Canada – History. 2. Land titles – Registration and transfer – Canada – History. I. Osgoode Society for Canadian Legal History. II. Title.

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council.

University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the

Book Publishing Industry Development Program (BPIDP).

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Contents

Foreword vii

Preface ix

1 The Torrens System: An Outline 3 The Spread of the Torrens System 3 The Need for Reform 5

The Torrens System 9

2 The Invention of the Torrens System 18

Man and Idea 18

A Thousand Fathers 27

3 Vancouver Island: The Second Torrens Jurisdiction in the World 31

Background 31

Establishing the Australian Link 35

Was It Really the Torrens System? 42 Public Response to the Torrens System 49

4 British Columbia 57

The Mainland Colony 57

The Ordinance of 1870 60

vi Contents

Personalities 70

Beginnings 73

The Association Puts Torrens on the Public Agenda 78 The Association: A Front for Loan Sharks? 86

Later History of the Association 93

6 Ontario 95

English or Australian Model? 95 Introduction of the Torrens Principle 97 Slow Beginnings 101

Gradual Extension and Conquest of Ontario 106

Some Concluding Thoughts 111

7 Saskatchewan, Alberta, and the North-West Territories 115

Historical Background 115

Introduction of the Torrens System 116

Trouble in Paradise I: Early Problems with the Torrens System 122 Trouble in Paradise II: The Registrar at Calgary 126

The Torrens System in Saskatchewan and Alberta after 1905 129

8 Manitoba 131

The Mission of June 1883 131

The Manitoba Land Law Amendment Association 136

Success 140

Failure? 144

Success! 149

9 Quebec, the Maritimes, and Newfoundland and Labrador 155

10 Concluding Remarks 162

Appendix 169

Notes 171

Index 215

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Foreword

THE OSGOODE SOCIETY

FOR CANADIAN LEGAL HISTORY

The Torrens system was a mid-nineteenth-century reform of land titles registration originating in South Australia. Almost as soon as it was invented, the system was introduced to the then colony of Vancouver Island, and a little later it became the land titles system for British Columbia. In the later nineteenth and early twentieth centuries it was introduced to what is now Western Canada and to Ontario. This book tells the story of these various receptions of the system. While in British Columbia and the Western territories/provinces the system was established more or less at the time of initial European settlement, Ontario’s reception of Torrens came well after the province was settled and was the work of a powerful lobby group comprised of moneylenders and lawyers. This book tells us why the Torrens system was considered such an improvement on the previous method of land registration and why it took so long for the reform to win public acceptance in some provinces. This is a fascinating account of interest groups and the reform of Canadian private law, one that demonstrates how the different histories of the various parts of Canada have shaped, and continue to shape, their law.

The purpose of the Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, former attorney general for Ontario and former chief justice of the prov-

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viii Foreword

ince, and officials of the Law Society of Upper Canada. The Society seeks to stimulate the study of legal history in Canada by supporting researchers, collecting oral histories, and publishing volumes that contribute to legal-historical scholarship in Canada. It has published seventy books on the courts, the judiciary, and the legal profession, as well as on the history of crime and punishment, women and law, law and economy, the legal treatment of ethnic minorities, and famous cases and significant trials in all areas of the law.

Current directors of the Osgoode Society for Canadian Legal History are Robert Armstrong, Attorney General Chris Bentley, Kenneth Binks, Patrick Brode, Brian Bucknall, David Chernos, Kirby Chown, J. Douglas Ewart, Martin Friedland, John Honsberger, Horace Krever, Ian Kyer, Gavin MacKenzie, Virginia MacLean, Roy McMurtry, Jim Phillips, Paul Reinhardt, Joel Richler, William Ross, Paul Schabas, Robert Sharpe, James Spence, Mary Stokes, Richard Tinsley, and Michael Tulloch.

The annual report and information about membership may be obtained by writing to the Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Telephone: 416-947-3321. Email: mmacfarl@lsuc.on.ca. Website: www.osgoodesociety.ca.

R. Roy McMurtry

President

Jim Phillips

Editor-in-Chief

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