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English or Australian Model?

It has become the received opinion that Ontario’s version of the system of title to land by registration (commonly called there the ‘land titles’ or Torrens system) was based on the English system of registration rather than the Australian one.1 It is not surprising that this opinion should have taken hold given that the marginal notes to the original statute, the Land Titles Act 1885 (Ont.), refer repeatedly to provisions of the Land Transfer Act 1875 (U.K.), and that there are many obvious similarities in the drafting. Even so, this hardly represents the whole story: there are scattered among the marginal notes occasional references to Australian statutes and even to D’Alton McCarthy’s bill for the North-West Territories introduced in 1883. And for some reason, the marginal notes to the Ontario Act of 1885 do not reveal what is obvious from reading its provisions alongside contemporary Australian statutes: namely, that its sections 105 and 106 setting up the assurance fund and providing for compensation from it to persons deprived of land were drafted on the model of Australian provisions. Even today there is a distinct similarity in wording (and effect) between section 57 of the Land Titles Act of Ontario and several provisions in Part 18 of South Australia’s Real Property Act 1886. Ontario’s statute thus drew upon multiple sources.2

Moreover, the discussion in the previous chapter has revealed that Australian models were of much greater significance in Ontario than

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the marginal notes of the original statute of 1885 reveal. While Ontario’s Act of 1885 was drafted primarily but by no means exclusively along English lines, the inspiration for the introduction of a system of title to land by registration in Ontario came almost exclusively from Australian models. That can be said even without reviewing the extent to which the English Act of 1875 was itself influenced by the Torrens systems in operation in Australia – although we know that the Lord Chancellor responsible for the 1875 English Act was at least aware of the Torrens system, for he was none other than our old friend Lord Cairns, the English conduit for the first importation of the Torrens system into what is now Canada.

The Australian example was more important than the English one in the campaign for the introduction of the Torrens system to Ontario simply because it was necessary to show that the system worked somewhere, and given the lack of success of land registration in England to this point, Australia was the only jurisdiction of significance with a long experience of a working system of title by registration encompassing significant numbers of land parcels.3 But it was not only the inspiration for adopting the scheme that came from its success in Australia. The principles behind the system were also more or less taken over from the Australian system. As we have seen in the previous chapter, the agitation sparked by the Canada Land Law Amendment Association, which was the cause of the system’s successful introduction in Ontario, was based upon the principles adopted by Torrens in Australia. The Association advocated a system in which the register would be the only means of obtaining title to land, making the effective step in land transfer an entry on a public register and ensuring that the register would show a complete and accurate picture of interests in land. Countless examples, beyond those cited in the previous chapter, exist of Canadian advocacy based on those principles as successfully implemented in Australia. Hardly any reference at all was made to the very limited English experience in the Association’s lobbying or the broader public debate.

The importance of the Australian model was reflected in the speech of Ontario premier Oliver Mowat on introducing the bill which became the Land Titles Act 1885. After outlining the Torrens principles along classic and familiar lines, he had this to say in moving the second reading:

[The Torrens system] was first introduced in South Australia by a gentle-

man who thought there was no reason why the titles to land and their

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transfer should not be as simple as in the case of titles to shipping, and after discussing the subject thoroughly induced the Legislature to pass an Act. It is now introduced into every one of the Australasian colonies and there is no suggestion made that it does not work well and [it has] been a most beneficial Act, and we have the most satisfactory evidence because the system attracted attention in England likewise. Commissions were issued and were addressed to very able men – chancellors, Judges, lawyers and others – for taking evidence as to the work of this system in those colonies. We have the results of their investigations, from which it is perfectly manifest that the system has been a great success; that it has the effect of preventing frauds, of facilitating transfers, of removing uncertainty, of diminishing the expense. Finally an Act was passed in England which adapted all the main features of the Australasian system, and it is upon that Act that this Bill is founded … I have compared this English Act with the Acts of the colonies, and that comparison has satisfied me that it was much more scientifically and much more simply expressed than these colonial Acts were, and also that it contains some provisions which are desirable over theirs in other respects, and for that reason I thought it better to adopt it as the best.4

In other words, (South) Australia provided the idea and the inspiration, while England merely provided endorsement, a conduit, and sundry improvements in wording.

Ontario’s statute was the most obvious product of the movement for land titles reform of the early 1880s, and given that the wording of Ontario’s statute was largely (although far from wholly) based on English models, it is understandable that some have been misled into thinking that Ontario adopted the English system in 1885 in preference to the Australian one. But if we consider that the statute is the culmination of a long process, and that the preceding steps in that process, without which no statute would have come to pass at all, were almost solely based on arguments from Australian precedents, it is easy to see why the outward appearance presented by the statute is deceptive.

Introduction of the Torrens Principle

As we saw in the previous chapter, the Canada Land Law Amendment Association’s campaign tapped into a huge unmet public demand for a better land titles system than Ontario’s old-style registration-of-deeds system of conveyancing, with the defects that were familiar to Ontario

inhabitants. The Association’s campaign was so immediately success-

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ful at causing public demand for this improvement to manifest itself that politicians were more or less compelled to take action, lest they should be accused of disregarding the will of the people. In the midst of the deluge of petitions that descended upon the Legislature of Ontario in 1884, a motion was indeed moved by a member in favour of the immediate introduction of the Torrens system.

On 10 March 1884, C.O.Z. Ermatinger, a thirty-three-year-old Conservative member of the Ontario Legislature and later a judge, moved for the adoption of the Torrens system, citing many of the arguments against the old system and in favour of the new one that are by now familiar. But just as he had to the Association’s deputation a few months earlier, Premier Mowat urged caution given that ‘the system was revolutionary so far as it related to transactions in property, and he thought it could not be introduced hastily or till the people were prepared for it’ – a sentiment that sounds somewhat odd in the mouth of a Liberal premier responding to a motion from the Conservative ranks, unless understood as a way of appealing to the Conservatives on their own territory, so to speak. Mowat mentioned that he had prepared a bill, mostly on the model of the English bill, but that it was unlikely to be introduced in the current session because he had not had time to discuss it with his colleagues. Ermatinger’s motion was therefore withdrawn and the topic postponed to the following session of the legislature – that is, for almost a year. Mowat added that he found it ‘quite remarkable that an important and extensive reform regarding the transfer of land should come from a new colony like Australia’5 – a statement that highlights the difference in perspective between Ontario and British Columbia relating to the comparative age of the Australian colonies. This was a matter of importance in Ontario because the Torrens system might be thought less suitable to an older province, as titles were likely to become more complicated with time, and thus harder to convert to a state-guaranteed system.

Although this delay was disappointing for the advocates of the Torrens system, Mowat was not merely attempting to dismiss the subject with vague insincere promises of future action. While he honestly saw the Torrens system as a worthwhile reform in principle (he had said the same thing to the Association’s delegation in October 1883), Mowat was also correct to see the introduction of the Torrens system as a substantial change and to anticipate that it would meet with difficult obstacles. Mostly he judged these difficulties quite accurately, as experience would show in the first few decades of the Torrens system’s operation

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in Ontario. The obstacles included the difficulty of converting titles and providing a state guarantee of converted titles in an older province; the need for the public not only to petition for, but actually to use and above all to pay for the Torrens system; the difficulties of either centralizing all business in Toronto, which was a particular concern to Mowat, or paying for a series of regional registries; and general worries about the expense to the province in setting up a system that might be little used. It is also occasionally hinted that there were divisions in the Mowat Cabinet on the question, with some ministers strongly opposing the Torrens system despite the premier’s warm-to-lukewarm support for it.6

Mowat further perceived that lawyers were ‘apprehensive’ of the change, because it might lead to a loss of fees. But he rejected this as a reason for postponing action, as it was necessary for the public good to be served regardless of such considerations. He also thought that the lawyers’ fears were exaggerated, because the examination of titles to be brought under the Act would supply them with more than enough work.7 Perhaps not all lawyers were as venal as their detractors believed; for whatever reason or reasons, once the Torrens system had been introduced lawyers soon reconciled themselves to it. Only four years after its introduction the ‘great majority’ of the profession was ‘heartily’ in favour of the system, according to the Canada Law Journal, which kept a friendly eye on the system’s development.8

Although legislative action was postponed until 1885, the issue of conveyancing reform was kept before the public in the meantime by means such as a lively correspondence on the question in the columns of the Globe from March to May 1884, in which J.H. Mason took on a significant role and the ground was gone over yet again.9 This correspondence unearthed some who doubted the value of the Torrens system, but the majority was for it.

When the Ontario Legislature resumed in 1885 the promise made in the debate on Ermatinger’s 1884 motion was redeemed, and the legislature passed the government’s Torrens bill – but it was a very limited one, geographically speaking. Section 2(1) of what became the Land Titles Act 1885 (Ont.) provided that it applied ‘to the City of Toronto and County of York only.’ The Act was not only limited in that way, but also inflexibly so: extensions of the Act’s geographical reach could occur only by amendment to the Act and not, for example, by executive decree embodied in a proclamation of the lieutenant-governor. In introducing the bill, Mowat stated that the Land Titles Act, as an experiment,

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The only other statement of note in Mowat’s speech introducing the Torrens bill was that he was not entirely convinced of the need for a guarantee fund, as there was not one in England, but had decided ‘on the whole’ to depart from it in this respect and follow the Australian model. On moving the second reading, on 19 March, Mowat referred to the fact that the assurance funds in the Australasian colonies had generally been over-supplied with money, no doubt the reason for his doubts about whether such a fund was necessary at all. That he resolved them in favour of the Australasian model rather than the English solution is the most noticeable feature of the Act itself showing the importance of Australian influence.

The Opposition made the further suggestion that dower should be abolished. But Mowat said flatly that he ‘did not approve of the abolition of dower,’ and that was pretty much the end of that branch of the Association’s campaign in Ontario.14 Section 22(7) of the Land Titles Act 1885 (Ont.) preserved rights to dower and curtesy even if not shown on the register. In fact, curtesy was not formally abolished in Ontario until 1977, and dower not until the following year – over half a century after their abolition even in England paved the way for a more modern means of regulating matrimonial property interests. Until their abolition in Ontario they prevailed, even if unregistered, over registered interests.15

Slow Beginnings

Once the Land Titles Act had passed and the Torrens system became available to the public, it got off to rather a slow start, not surprising given that it was both limited in geographical extent and even within that area compulsory for no one. In its first six months the registry attracted only fifty-three applications. A year later the total was only 102 applications, although many of those were for large blocks of land of significant value which were furthermore to be subdivided into allotments.16 Beverley Jones, for example, had brought a tract of 290 new allotments under the Act just after Christmas 1885, and in a communication to the House of Assembly of New Brunswick in March 1886, which was considering the introduction of the system in that province, he mentioned that there were many similar cases.17 But even the Canada Land Law Amendment Association, at its annual general meeting on 24 April 1886, could not hide its disappointment at the small number of applications.

This slow start was not due to any unduly high barriers in the legal

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requirements for obtaining a title, which if anything were slightly more generous than under Torrens’s original scheme of 1858. Drafted on the model of the English Land Transfer Act 1875, the system adopted in Ontario involved merely a decision by the Master of Titles on documents provided by the applicant, with a possible reference of disputed questions to the High Court.

There were numerous other barriers, however. First and foremost, Ontario’s registration-of-deeds system was, within the limitations of its type, an efficient and well-administered system. It had been considerably improved in 1865 by the organization of its contents by land parcels rather than by the names of the persons lodging documents, making searches easier and thus both reducing cost and increasing certainty.18 It was still no ‘hospital,’ unlike the Torrens system, but for the general run of cases it was quite serviceable. There was also an optional extra procedure for increasing certainty, the Quieting Titles Act of 1865.19 This statute, rather like some earlier British legislation and an old Chancery procedure, permitted declarations to be made by courts to the effect that the title to a particular parcel of land was indeed vested in the claimant.20 There was admittedly one weakness in the Quieting Titles Act which made it inferior to the Torrens system: after the declaration was made,

the transfer of land becomes subject to the general law, and as to all transactions taking place after the purchase the title is liable to become again involved in complications and embarrassments similar to those from which it was relieved … Permanent simplification of title and simplicity of transfer are not attained by the Act, and retrospective investigation of title becomes again necessary (though … not to the same extent as formerly).21

Despite their defects, these alternatives as well as plain inertia deterred possible applicants from incurring the once-off but higher expense of bringing their titles under the Torrens system. They had less to gain by shifting from the old system than in places with less well-designed oldsystem registers. People also naturally tended to hope that they would not need the Torrens system, trusting that no difficulty would arise in relation to their own titles. The Canada Land Law Amendment Association also referred on other occasions to what it saw as the unduly cumbersome procedure for bringing land under the Act.22 Although any procedure was likely to be unduly cumbersome from the Association’s point of view, there seems, however, to have been some basis for these

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complaints. When J.G. Scott, Q.C. , the first Master of Titles for Ontario, retired in 1921 after thirty-five years in the job, the Canada Law Journal, despite the nature of the occasion, referred to the fact that ‘some practitioners might think him unduly careful,’ suggesting another wellknown and clearly long-lasting source of vexation and expense for would-be holders of a Torrens title. Occasionally there are other hints that this problem did indeed exist.23 The chief effect of undue caution was to save claims on the assurance fund. By 1908 the fund had reached $80 000, or about $1.5 million in today’s money, while less than $2000 had been paid out in compensation.24 This suggests that perhaps a little less caution might not have been a bad thing.

Cost was also a significant problem for the early Ontario Torrens system. Excessively large contributions to the assurance fund deterred people from applying.25 Moreover, applicants did not know the precise cost of obtaining a Torrens title in advance: the titles office was not authorized to provide an advance bill of costs until the extent of the difficulties in registering and the expenses in general (such as the contribution to the assurance fund) were known. Furthermore, many of the areas in which the Act applied were less well-off so that even a few dollars could be a significant expense for people, and unless an owner was about to sell land with an imperfect or doubtful old-system title there would be no immediate return upon the investment.26 The extent of this problem was indicated by a law clerk in the federal Department of the Interior, which was responsible for the Torrens system in the Territories. In a confidential memorandum he wrote that the cost of transferring land in Ontario was in fact so much higher under the Torrens system than under the old one that only persons with complicated titles would derive any benefit from the Act.27 But there was no intention to fix this problem. When complaints about the level of the fees were brought to Premier/Attorney General Mowat by a deputation from the Canadian Land Law Amendment Association in April 1887, his response was that the fees were, if anything, too low.28

When we add to all this the fact that as early as 1887 – the second year of the Torrens system’s operation in Ontario – there was a surplus of about $9000 in the Land Registry, we may suspect that the government was using the system more for the raising of revenue than for the improvement of land titles.29 There was an easy way of testing the government’s intentions. In 1887 a bill to enable the surplus money to be used for the purposes of extending the Torrens system was introduced by John Leys, a member of the Association’s executive – but it was not

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supported by the government and withdrawn. The Association itself petitioned the legislature to take action along similar lines in the following year, but without effect.30 Perhaps there was little that could be done. In 1890 the Master of Titles said that the fees did not cover the cost in many cases, and pointed out that where Torrens was used to transform poor titles into marketable ones, considerable expense was inevitable.31 The broader context of this is the complication of land titles that was inevitable in an older province.

Although relatively few in number, those who used the Torrens system appeared very satisfied with it, and happy customers were good for publicity purposes. The hopes that the availability of a Torrens title would be a selling point also came true. As early as 1887, the possession of a Torrens title was already being cited in advertisements as a desirable feature of land for sale.32 Beverley Jones’s New Brunswick testimonial included praise by a client for the Torrens system, whom it had saved large amounts of money and time; it had permitted at least one transaction to proceed at very short notice which would have been abandoned under the old system for lack of time to carry out the necessary searches.33 The Association made similar claims in its annual report for 1887.34 By the following year ‘a very gratifying advance [had] been made in the amount of land brought under the Act,’ largely due to the addition of newly subdivided land to the system, and it became likely that the Land Titles Office would shortly cover its recurrent costs through fees received.35 This did indeed occur in the following year, 1889.36 However, any hopes of being able to promote the system by a reduction of fees were short-lived: a general downturn in land sales started to bite in 1891, and there was a deficit of over $1000 in operating

costs for that year (although the assurance fund still had a balance of over $15 000).37

In his address at Toronto City Hall in 1890, just before the land bust of the nineties struck, J.H. Mason was able to boast of almost $10 million worth of land in Ontario under Torrens. The Torrens system, he added, had been a factor in the rapid expansion of Toronto: a variation on the theme, so often heard in newer areas, that the Torrens system would attract settlers. But all this activity came to a halt shortly afterwards as land prices plummeted. By 1892 the year’s new registrations were down to twenty; the average for 1886–90 had been almost fifty per year. In 1895 there were only eight applications to bring land under the Act during the whole year. In reporting this fact to the legislature, the Master of Titles provided a list of suggestions headed by a proposal to

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lower the fees. As he pointed out, the province could afford to take a short-term loss in the interests of extending a system that was for the public benefit. But most of the suggestions, including lowering the fees, would have required legislative action that was not taken.38

But by 1903 the land market had picked up again, and with it came a pleasing increase to 850 in the number of new registrants; that number included many old residents who had seen the light and were having their titles converted.39 Although it was pleasing that the Torrens system had not entirely ceased to attract customers and had been saved from complete oblivion, 850 new registrations was still a minuscule proportion of land parcels in the province. The Torrens system had failed to become the generally accepted system in most parts of Ontario. Beverley Jones, making another appearance in the Canadian Law Times, saw the Torrens system’s clients in this period as falling into two classes: subdividers of land, and those with doubtful titles for whom it was of significant benefit to go through the procedure of obtaining an indefeasible title.40 The system had sufficient critical mass to ensure that it would not be wholly abandoned in the province or entirely disappear from public view, but no one in Ontario could sensibly have refused to consider land for purchase that was not already under the Torrens system – this would have been the point of no return, so to speak, which, as we shall see, had been reached in Manitoba at about this time.

The Torrens system was not being taken up by those with no particular immediate need for it. In 1907 the Globe returned to the question of conveyancing reform, an issue that was still outstanding in its view because the Torrens system had failed to bring relief to the public.41 The Globe did not say why this was so, but probably the chief reason it had in mind was the low take-up rate. By 1911, demand for new registrations was reported to be slow again, with people not registering in the hope that they would not need the increased security of the Torrens system and that some later owner would have to bear the expense.42 Clearly the system, like most luxuries, was very sensitive to changes in people’s income and in market needs; it was, in economic jargon, an example of a service for which there was a very elastic demand.

From Morden, Manitoba, came a blunter, homelier view of the reasons for the slow progress of Torrens registration in Ontario. One A. McLeod, presumably of the firm of McLaren, McLeod and Black, barristers in Morden,43 contributed an article to the Canadian Law Times in 1909 in which he contrasted the efficiency of his local lands titles office at Morden with that at Winnipeg, which was ‘notorious as a resting

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place for political hacks and incompetents’ and ‘a discredit to the Torrens system.’44 The people of Ontario, however, were in another class again. Hostile to all simple solutions, they preferred complicated social, religious, commercial, educational, political, and legal conditions. And they were wedded to traditional solutions.45 If they ever really adopted it, they could probably ruin even the Torrens system by spoiling its beautiful simplicity.

McLeod had asked legal friends in Ontario why the Torrens system was making such slow progress there, and they

explain the dormant condition of the Torrens system in Ontario by pointing out that the expense is too great, that there is much delay, and that by the time one has satisfied all the requisitions on title that are made, he doesn’t need a Torrens title. They say that if they could get a Torrens title in Toronto … as we do in Morden, where we make an application one day and go back the next day for the certificate of title, everyone in Toronto would have Torrens titles. And then they go on and say things about the Toronto Land Titles Office not fit for publication. But that explanation doesn’t explain. Why do the people of Toronto put up with a circumlocution office of that kind, if they really want Torrens titles? The fact is that the Torrens-title-while-you-wait system is not wanted in Ontario; if it was wanted, the people would have it. The cause lies deep down in the conditions of life in the province [– this is a reference to the supposed love of Ontarians for complicated solutions and their respect for tradition –] and the non-user of the Torrens system is only one small indication of these conditions.46

If this analysis was right, it was not just the over-cautious approach of the Master of Titles that was to blame for the slow progress of the Torrens system, although McLeod’s article clearly also suggests that that was indeed a difficulty. That was but a symptom of the real problem, which went much deeper. Ontarians were simply temperamentally unsuited to the Torrens system. It was, in short, too good for them.

Gradual Extension and Conquest of Ontario

If we go back twenty years in time before this analysis and return to legal history as distinct from essays in mass psychology conducted by country lawyers, we can recall the earlier observation that the Canada Land Law Amendment Association’s efforts in the late 1880s were not

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merely devoted to suggesting improvements in the operation of the Torrens system where it existed. It was also the Association’s aim, battling against the obstacles just outlined by our commentator from Morden, to extend the system’s geographical reach within Ontario beyond the city of Toronto and York County. In this aim the Association, and pro-Torrens lobbyists more generally, after the effective end of the Association’s corporate existence some time in the early 1890s, had steady but only very slow success until the 1980s.

In 1886, along familiar lines, the Association had organized petitions to the Ontario Legislature from the counties of Hastings, Welland, Perth, Lambton, Ottawa, and Wellington asking for extension of the system, and had introduced a petition itself seeking the extension of the system to the whole of Ontario. Bills were also introduced seeking its extension to the counties of Carleton and Perth.47 The bills got no further. The cynical view was that the government had refused to sponsor them simply because the Opposition had.48

The Torrens system clearly had considerable local support in the northwest. A local newspaper was supportive and called for the circulation of a petition to replace the old system, which it strikingly called ‘as verbose and reiterative as the geneology [sic] of a Jew, traced back to the days of Noah’s ark.’49 The newspaper was not deterred by the opposition it anticipated from the members of the legal profession in the legislature, and although it did not expressly say why, its reasoning was doubtless that pecuniary loss to the legal profession was proof that the system was a beneficial one. Its advocacy of the Torrens system for its district found support in the Toronto press on the grounds that the district was new and therefore the more easily brought under the Torrens system.50

A fortnight later, the Port Arthur newspaper printed an interview with the local member of the provincial legislature, in which he expressed his aim of attracting more settlers to the area and added his voice to the pro-Torrens clamour.51 We learn from this report that the pro-Torrens petition was already in circulation. On 13 February 1886, the newspaper called for the Torrens system to be extended to the district in the current session of the legislature. However, no action occurred until 1887, when two important statutes were passed. The first extended the Torrens system to Algoma, Thunder Bay (including Rainy River), Muskoka, Parry Sound, and Nipissing, and came into effect on 31 December 1887 with the Revised Statutes of that year.52

But the new Act did not merely effect an extension of the existing

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optional system. The Act required all new patents in the areas named to be forwarded to the local Master of Titles for registration.53 The government – still the Mowat government – had thus roused itself from its torpor, resolved any divisions that existed in Cabinet and decided that the initial trial of the Torrens system had shown that the system was working well enough that registration could be made practically compulsory for newly patented lands in the named districts, the first time that this occurred anywhere in Ontario. The result of this reasonably although not excessively prompt action is that in northwestern Ontario only the very few parcels of land patented before that date and not since brought under the Act are not Torrens land.54

The second statute from 1887 contained a new power to extend the system further if local councils made by-laws for that purpose. This in turn enlivened a power in the lieutenant-governor to extend the system to the council’s area by proclamation. Councils were required to supply the funding for all staff, offices, and equipment, including fire-proof vaults, which were then used by the provincial government for the registry office.55

When proposed in the provincial legislature, the bill for that second statute ran into objections on the part of Mr Meredith, for the Opposition, to the effect that it would probably remain a dead letter because it required the local council concerned to pay the expenses of the scheme without having any voice in how it was run or who was employed to run it.56 In fact, on the introduction of the bill for this scheme, Meredith provoked laughter in the House by stating that this scheme had been dreamt up ‘with a view to destroying instead of extending the system. Some enemy had done this’57 – a reference, perhaps, to the rumoured splits in Cabinet on the desirability of the Torrens system.

Indeed, if one wished to design a plan for the slowest possible extension of the Torrens system in Ontario consistent with a show of support for the system (and leaving aside northwestern Ontario, in which it was about to become practically compulsory), it would be hard to design a better system than one which threw all the costs onto one level of government, if it chose to bear them, and left all the decisions to be taken by another. This solution is uncannily reminiscent of Sir Humphrey Appleby’s dictum that non-serious issues can safely be left in the hands of local authorities, whose incapacity to solve them can be relied upon.58 The niggardly nature of this apparent concession was obvious to observers at the time.59 If it were not for the other statute of 1887 relating to northwestern Ontario, it would indeed be hard to avoid the

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conclusion that the government was trying to sabotage the Torrens system.

The most that could be said for this solution was that it did nothing to promote centralization of all work in Toronto, a possibility that Mowat claimed aroused strong feelings in other parts of the province.60 But as was shortly afterwards shown in Manitoba, a government that was really committed to the extension of the Torrens system could do much better than this while still avoiding undue centralization.

Nevertheless, some councils did take up this scheme.61 But predictably enough the response rate remained low because of the cost to councils. The slow extensions of the Torrens system can be followed in the regular issues of the Revised Statutes from 1897. By that year Elgin County (including the city of St Thomas), and the district of Manitoulin had been added. J.H. Mason was thus able to boast that the system extended over more than half of the province.62 By 1914 the list was extended to include the city of Ottawa, the counties of Carleton and Ontario (the latter is now part of Durham Region), and all provisional judicial districts (that is, Sudbury, Temiskaming, and Kenora, in addition to the list given earlier of northwestern Ontario districts).63 There was now also a provision in the statute for ratepayers to petition for extension as well. In northwestern Ontario, where the Torrens system was now a serious competitor to the old system and on the way to becoming dominant, costs were kept down and the spectre of centralization avoided by uniting the old-system and Torrens offices in most places.64 In this Ontario was actually taking a leaf out of Manitoba’s book, for the same strategy had already proved a success in Manitoba.

Despite a minor campaign by politicians and commercial bodies such as the Border Cities Real Estate Board and the Ontario Associated Boards of Trade and Chambers of Commerce to extend the Torrens system in the early 1920s, which met with initial interest on the part of the government but was not sustained, there were no further additions to the lists in the statutes after 1914 until 1960.65 In the Revised Statutes of that year, reflecting developments since 1950, Lincoln County (including St Catharine’s), Halton County, and the United Counties of Prescott and Russell were added to the list of Torrens areas.

In 1970, only ten years later, in the last statutory list to appear before the task of designating the areas in which the Act applied was remitted to the regulation-maker, the list is a very long one: every provisional judicial district (as defined earlier); the counties of Bruce, Durham, Elgin, Essex, Halton, Hastings, Ontario, Oxford, Peel, Simcoe, and

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Wentworth; the registry division of the west riding of Middlesex County and the city of London; the United Counties of Prescott and Russell; the judicial districts of Niagara North, Niagara South, OttawaCarleton, and York; and such other parts of the province as might be designated by the lieutenant-governor. This explosion was the result of enthusiastic political support for the extension of the Torrens system and a campaign by the provincial director of titles.66 Under the regulations in force in 2006, the list of areas in which the Torrens system applies is even longer: there are now over fifty designated areas.67

This in no way means that all land in the counties, districts, ridings, and cities mentioned in the regulations is under the Torrens system. The list simply identifies the areas in which it is available and says nothing about the percentage of properties which are actually held under Torrens title. But with the exception of the period from 1914 to 1950/60, there was a steady growth of availability testifying to a steady demand, and even in the period mentioned ground was held and there was no decline in geographical coverage. The number of parcels of land under the system grew gradually, too. A message from Ontario read at the Torrens system’s centenary banquet in Adelaide in July 1958 indicated that many subdividers still insisted on Torrens titles for their subdivisions.68

It was the computer age that made the difference and led to the system’s really taking off after that final statutory list of 1970. In 1971, after eighty-six years of Torrens, 85 per cent of the parcels in Ontario were under the old system and about 15 per cent were Torrens, with the latter ‘very slowly gaining land’ as it had been doing for the past fifty years.69 At the rate of 15 per cent of land every ninety years or so, the Torrens system would have taken about another five centuries to become generally adopted in Ontario, and if exactly the same rate of progress were kept up as for the period from 1885 to 1971 the last oldsystem title could have been expected to disappear in the year 2458.

But in its landmark report of 1971, the Ontario Law Reform Commission recommended the adoption of the Torrens system as ‘the sole system for land registration in Ontario’ for all the usual reasons connected with its superiority over the old system, plus the likelihood that it would be better adapted to coming technologies.70 By the 1980s the Torrens system was clearly the way of the future. It was greatly helped by the suitability to the computer age of a system that enables the ownership of land and any encumbrances on it to be readily and instantly discoverable anywhere at the touch of a button: the mirror principle

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works extremely well when the mirror is visible throughout the world because it is online. Furthermore, electronic transaction processing could be introduced and was more efficient under the Torrens system.

By the mid-1980s, therefore, the Torrens system was being ‘constantly expanded,’ even in southern Ontario.71 A vigorous administrative program for the conversion of the province began. In 2006, the percentages of 1971 had been more than reversed, with almost 90 per cent of the parcels of land in the province under the Torrens system. These titles are often subject to qualifications, particularly in regard to the possibility that someone might have a better right to the land as a result of adverse possession.72 But time will take care of many such qualifications. In two decades Ontario has thus moved from an old-sys- tem province with some significant Torrens areas, mostly in its more remote corners, to a Torrens province with a few remaining old-system pockets. The conquest of the great province of Ontario by the Torrens system in the late twentieth century is surely its most significant one since its early victories in South Australia and its neighbouring colonies in the late 1850s and early 1860s.

Some Concluding Thoughts

At an election meeting in 1893, A.S. Hardy, shortly to succeed Mowat as premier and attorney general on the latter’s retirement,

pointed out that since 1872 the government had among other good things established for the benefit of the people the following institutions: asylums at Hamilton, Orillia and Mimico; the Central Prison; School of Science and Mining; Industrial School; additional hospitals, refuges, orphanages, houses of industry, teachers’ institutes, schools of art and design, School of Pedagogy, Experimental Farm, Dairy School, Farmers’ Institute, Agricultural College, Factory Act, Torrens system, Bureau of Mines, national parks, etc.73

It is hard to imagine a more striking demonstration of the statement by Professor H.L.A. Hart, one of the twentieth century’s most influential legal philosophers, that there are some ‘laws which provide facilities or powers and say, “If you wish to do this, this is the way to do it.”’74 Here the Torrens system is treated in exactly the same way as any new facility that the state might be asked to provide for the benefit of those of its

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citizens who are interested in taking advantage of it, or even compelled to.

This utilitarian perspective, however startling for lawyers when it is expressed as bluntly as Hardy did, is perhaps less startling for the layperson for whom law and lawyers are more of a necessary evil, or at best a means to an end, than a lovingly cherished and studied phenomenon. The layperson’s point of view is, moreover, admirably suited to a system such as the Torrens system, which was promoted as a streamlined modern system shorn of all medieval hocus-pocus and unnecessary complication – a utilitarian solution to a modern need. The idea that the Torrens system was an optional facility for those who were interested in it or needed it (except in northwestern Ontario), which the statement just quoted reflects, also indicates one basis of the government’s attitude to making it compulsory.

This perspective was also the reason why the Torrens system grew so slowly in the first century of its existence in Ontario. Rather than being the result of any natural love of complication (as our commentator from Morden, Manitoba, speculated), the slow growth of the Torrens system in Ontario was merely the result of rational assessments of economic advantage on the part of those to whom the state offered this facility.

Only once the state itself had adopted Torrens as in the interests of the whole polity, as occurred in Ontario in the 1980s, could it come into its own. Until then, it remained the preserve of private initiative, and the short-term utilitarian perspective often favoured staying with the old system and avoiding the expense and possible unpleasant discoveries consequent upon the process of investigation of title and conversion to the Torrens system. This was especially so given that the old system in Ontario was reasonably well designed and administered, so that the benefits to be obtained even from a smooth transition to a Torrens title were often not very high and the expense not justified. The early exceptions to this general approach – subdividers and persons with doubtful titles – prove the point, for these are people whose immediate financial interest lay in obtaining a Torrens title so that their properties could compete more efficiently or even at all on the market. The minimal coverage of Torrens titles in most of Ontario meant, however, that the general run of properties could still compete without a Torrens title. From the point of view of a rationally acting citizen of Ontario, other than in northwestern Ontario, the Torrens system was thus a service provided by the state which could be purchased if the need arose – if the cost of doing so outweighed the costs of not doing so – and which was other-

wise to be treated as a luxury.

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The Torrens system came so late to Ontario (other than the new areas of northwestern Ontario) that it is lucky that it gained a foothold in the province at all. In older jurisdictions where land titles will as a rule have a greater likelihood of being complicated, it is more difficult for the state to give a guarantee of them. Ontario, when the Torrens system reached it, was older than any of the Australian colonies had been when they adopted the system. Furthermore, with the important exception of South Australia, the Australian colonies had been convict settlements, so that land sales had not featured greatly in their early history anyway. Until the Torrens system reached the Maritimes in the first years of the twenty-first century, Ontario was far and away the oldest province of Canada in which Torrens land could be found. Had the Torrens system come twenty or thirty years later to Ontario, after the beginnings of mass settlement in northwestern Ontario, it is less likely that it would ever have been established in sufficient strength for it to survive. For that reason the Canada Land Law Amendment Association chose a fortunate time for its advocacy, and even then it required forceful, persistent, and well-connected efforts on its part to have the system made available in Ontario.

It is tempting to compare the adoption of the Torrens system in Ontario with its failure in the United States (where private near-univer- sal title insurance commonly takes its place) and to speculate that something called ‘Canadian values’ is responsible for the difference. It is certainly noticeable that the Torrens system involves the provision of a guarantee of titles and a registry of them by the state, while under title insurance the first function and frequently also the second is carried out by private enterprise. Very occasionally one comes across attempts in the history of the Canadian Torrens system to create a sense of Canadian difference on this basis.75 Thus as part of the unsuccessful agitation in the 1920s for more Torrens in Ontario, a commission of inquiry reported that the Canadian Torrens system ‘is a source of pride to Canadians living near the international boundary’ and quoted a criminal lawyer from Minnesota as stating that it ‘is far better than the system we have,’ as a result of which his Canadian property was worth more than his American property, acre for acre.76

This sort of thing, and arguments that the Torrens system was more attuned to Canadian values, would be more convincing if the Torrens system had been adopted with alacrity by the citizens of Ontario, instead of grudgingly and strictly on a utilitarian needs basis, or until pushed into it by the provincial government. It is also the case that sub-

stantive differences of law unrelated to any obvious relevant difference

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in national values between Canada and the United States were significant causes of the lack of success of the Torrens system in the United States: the constitutional problems that bedevilled the Torrens system in many of the American states did not intervene in Canada.

The difference between Canadian and American reception of the Torrens system may also have arisen because a group of moneylenders and lawyers got together at what was the eleventh hour for the Torrens system in Ontario and buttonholed the provincial government for so long that in order to shut them up, the government brought in a system which was just attractive enough that in Canada – unlike in the United States – it acquired just enough momentum to survive until the computer age. At that point the Torrens system became far more attractive because its inherent advantages over the registration-of-deeds system were greatly magnified by technology.

But however much this difference may owe to unrelated or random factors, it is at least fitting that the Torrens system and the public sector should have been the solution developed in the largest province of Canada, despite the historical obstacles to doing so and in preference to the private-sector solutions that have either been chosen by or forced upon the Americans, by constitutional or other factors.

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7

Saskatchewan, Alberta, and the

North-West Territories

Historical Background

The Prairies were purchased from the Hudson’s Bay Company and conferred on the infant Dominion of Canada in 1869. With the exception of the special case of Manitoba, created as a province in 1870 in the wake of the Métis rebellion of that year, the whole area remained under direct federal suzerainty until 1905, when the provinces of Saskatchewan and Alberta were created.

In 1885 and 1886, all three provinces (or provinces-to-be) received the Torrens system. This chapter is about how Saskatchewan and Alberta did so jointly by federal legislation – as part of the North-West Territories – in 1886. What remained of the Canadian federal territories after 1905 also shares the same inheritance, and so this is the story of the present-day Northwest Territories, the Yukon, and Nunavut as well. In the remainder of this chapter, I shall often use ‘the Territories’ to mean the enormous area encompassed by the North-West Territories in 1886, including therefore what are now Saskatchewan, Alberta, the presentday Northwest Territories, the Yukon, and Nunavut.

The Canada Land Law Amendment Association had as one of its principal objects the introduction of the Torrens system into the Territories. In the Territories an old-style, pre-Torrens system of registration had been established on the Ontario model. Under this system, the registrar was required to accept for registration all deeds apparently

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affecting interests in land without any determination of, or addition to, their effectiveness.1 This was a standard old-style registration-of-deeds system that recorded, concealed, and perpetuated problems rather than resolving them.

In its endeavours to have the old system replaced by a Torrens system, the Canada Land Law Amendment Association had, in one crucial respect, a much easier task than in Ontario (other than northwestern Ontario): the Territories had not yet been opened up to large-scale settlement. Only about three hundred patents had been issued to the middle of 1884.2 It was therefore much easier to have the Torrens system’s state-run register and guarantee of title introduced there. There was far less danger of running into existing complicated titles. The Torrens system profited for another reason from the fact that the Territories were still to be exploited. As was repeatedly pointed out in the House of Commons, it was necessary to make the area as attractive as possible to settlers, and cheap and secure conveyancing was important in this cause.3

However, the Torrens agitators also ran into several small and two large obstacles in the struggle to introduce the system into the Territories – obstacles that did not exist elsewhere. The first of the large obstacles, which almost sank the entire project, was called Senator the Hon. Sir Alexander Campbell, Q.C. The second was the incompetence and cupidity of Thomas Alexander McLean, the registrar at Calgary.

Introduction of the Torrens System

The Torrens system for the Territories had a somewhat rocky road before its adoption as a government measure in 1886. Attempts in the late 1870s to have a Torrens system bill passed for the Territories were abortive, as we have seen.4 In 1883, D’Alton McCarthy’s bill appeared in the House of Commons. It was drafted by Beverley Jones and his brother H.C. Jones of the Canada Land Law Association, and proposed the introduction of the Torrens system in the Territories.5 At about the same time John A. Macdonald was asked in the House of Commons by Edward Blake whether he would sponsor the Torrens system for the Territories as a government measure. Prime Minister Macdonald’s response was that this topic would be considered by the minister of justice and by the government, but that he was ‘not at all sure, however, that the system which has been found to work well in Australia, where they have a peculiar population, and certain peculiarities due to the

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character of the country, and which do not exist here, can be well adopted here.’6 In 1883, as it turned out, the government did not decide to adopt the Torrens system either of its own motion or after D’Alton McCarthy’s bill for that purpose had been introduced. The government maintained its determined lethargy when the bill was re-introduced in early 1884, and McCarthy was absent and unable to pursue the matter personally.7

Shortly after the introduction of the bill of 1883, Edward Blake said that in his private lobbying of the prime minister on behalf of the Torrens system, Macdonald had not given any reason for his doubts about the applicability of the system in the Territories.8 It is hard to know quite what peculiarity Macdonald can have had in mind in the extract quoted above, in which he purported to give his reasons for not adopting the Torrens bill. It is not that Australia is without peculiarities; it is just that none seems especially relevant to the question at hand. Sometimes the competition between the British colonies for imperial attention, resources, settlers, and so on did lead to Canadian disparagement of Australia in internal political debate.9 Yet competition can inspire the adoption of useful ideas from one’s competitors, for otherwise one might be left behind, so that this factor explains little in this instance. Was the Prime Minister’s response an opportunistic sneer at the supposed convict origins of Australia? If so, the sneer was entirely misdirected, for no convict presence ever disgraced the South Australian soil on which the Torrens system was first conceived. But it is difficult to see what difference it would have made to the question under discussion even if South Australia, like all its Australian sisters, had originally been a convict colony.

John A. Macdonald, furthermore, had a history of not treating the Torrens system seriously. His failure to take up the cause on regaining office in 1878, despite the availability of a recently drafted bill for that purpose, caused the Globe to reflect on his ‘ingenuity,’ ‘tact,’ and even ‘manliness.’10 The more conservative Toronto Week shared the liberal Globe’s view on this point, making the cause a cross-party one in the media of the day; but still the prime minister was unmoved.11

In his business career, which involved both land trading and lending, Macdonald must have come into contact with the defects of the old system of conveyancing, and others of a conservative temperament and lesser gifts saw the need for reform in the field.12 Beverley Jones’s facesaving explanation for the targets of his pro-Torrens propaganda was that delay had been caused federally, because the government had

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decided to wait for the Territories to have their own constitutions and legislatures so that they could do the deed themselves.13 This, however, was merely window dressing, and indeed when the Torrens system was eventually adopted in the Territories the federal government actually refused to devolve power over the topic to them. The real reason for the Prime Minister’s lack of interest in the Torrens system eventually leaked out: Sir Alexander Campbell, the minister of justice, was opposed to it, and the prime minister was taking his cue from his close political ally.14

Alexander Campbell was an ‘aloof man, contemptuous of the masses and somewhat scornful of popular politics’; his style was ‘cool, conscientious, conservative, legalistic, narrow, paternalistic and frugal.’15 Although Beverley Jones had attempted to convert him to the Torrens system in early 1883, Campbell was very sceptical of its worth – no doubt the more so because it was supported by a popular petitioning campaign.16 In private notes in early 1884 he cautioned John A. Macdonald against hurriedly changing the time-honoured inherited English system just because ‘a few enthusiasts have got hold of it [the Torrens system] and they have impressed Macpherson,’ the minister of the interior.17 For his part, David Macpherson argued to Macdonald that ‘the measure is really more an economic than a legal one.’18 This was an attempt to deprive the minister of justice of the last word on its desirability, but it was hard to overcome Campbell’s blockade given his close political relationship with the prime minister.

Campbell’s opposition infuriated the ‘enthusiasts,’ as he had called them. One of them, H.C. Jones, resorted to abuse and wrote to Macdonald, stating, ‘I honour you for what you have done. I despise Sir Alexander Campbell for putting a stop to the best legal reform in the country!’ Jones warned that just as Sir Alexander had put a stop to the Torrens system, he ‘will put a stop to the Conservative Party having anything to do with the govt if you do not look out.’19 Campbell’s public line, which he expressed in a debate on the inevitable petition to the Senate from the Canada Land Law Amendment Association, was that he would carry out a ‘careful investigation’ of the merits of the Torrens system.20 And a close reading of his private notes to Macdonald reveals that he was at this stage not an incorrigible opponent of the system, as the ‘enthusiasts’ clearly thought, but rather someone yet to be convinced of its merits, and certainly not capable of being convinced by petitioning campaigns or enthusiasm alone.

Fortunately for the Torrens system and the North-West Territories,

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Campbell redeemed his promises to study the Torrens system with an open mind late in 1884 and became convinced that it was a good thing.21 He claimed to have read everything available on the system, which was certainly a creditable effort for a busy minister, even given the smaller volume of legal literature in those days.22 A number of factors besides Campbell’s own reading clearly also helped. At the end of November 1884 his department provided him with a briefing note, based in part on information they had received from Adelaide about the costs of and revenue produced by the system, which stated that the Torrens system was by far preferable to the old system.23 Hugh Richardson – one of the stipendiary magistrates for the Territories, in which capacity he was shortly to preside at the trial of Louis Riel – also assisted in convincing Campbell of the merits of the Torrens system during Campbell’s conversion experience of late 1884. It is not known how Richardson had come into contact with the Torrens system, but Campbell had him brought down from the Territories in order to discuss the practicability of a Torrens registry in the Territories face to face, and was convinced by him that Torrens could work there.24 Richardson was a member ex officio of the Territories’ legislature, the NorthWest Territories Council, which was strongly in favour of Torrens.25 It was thus distinctly possible that the Council might legislate on the matter itself if Ottawa did not move, and this perhaps also assisted in winning over Campbell.

Once Campbell had been convinced, the task of drawing up the initial draft bill was entrusted to Hugh Richardson, who handed in his work just before Christmas 1884. A final draft was completed within the following month, and on 30 January 1885 it was introduced in the Senate. On 23 February 1885 none other than Senator Sir Alexander Campbell moved the second reading for the bill for the Torrens system.26 By this stage Sir Alexander was clearly a convert. In late February 1885 he wrote to his son stating that the Torrens system was to be introduced in the North-West Territories; we do not have the original letter, but what his son wrote indicates that Sir Alexander had not, even in this private forum, expressed any reluctance to take this step.27 Shortly afterwards in debate in the Senate, Sir Alexander vigorously defended the Torrens system against attack in the Senate as ‘according to my judgment … a good system’, and added that

the question is not what the loan societies desire; the question is what is the best thing to do for the people, and for the titles that exist in the North-

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West. It is not whether the loan companies desire this, or whether they do not desire it, that is the question before the House. That a certain society in Toronto, of which this gentleman, Mr Mason, is the president, have taken an active part in promoting this Bill is quite true; that it may facilitate their operations is also quite true; but these are not the motives that are actuating the government and the House.

… [Is it not] the duty of the government to give the settlers [in the Territories] every facility to enable them to deal with their lands and promote settlement? Will it not promote settlement there if the people find that the transfer of land titles is easy, and they can acquire property without much expense? Will it not be a good thing to say to the people in England, ‘Go to the North-West, you will have good land there, and you will not have the difficulty that you have at home, you will be able to get a deed for your land without expense or delay’?28

The promotion of settlement in the North-West, in late-nineteenth-cen- tury Canada, was a trump card that always won an argument. By the following year, in a nice reversal of roles, ‘this gentleman, Mr Mason,’ in defending himself from charges of self-interest, was citing Alexander Campbell as one of the ‘earnest advocates’ of the Torrens system in order to show that it was not just being put forward by a group of selfinterested, money-hungry loan companies.29

Once Alexander Campbell had been converted, the bill for introducing the Torrens system in the North-West Territories enjoyed a relatively smooth passage through the Senate. The bill itself was an eclectic production. It included many borrowings from the then-current South Australian legislation, which was drawn upon very heavily – including for crucial provisions such as one stating that instruments were not to be effectual unless registered (s. 59), which in letter, spirit, and effect was strongly reminiscent of the very first Torrens statute, the Real Property Act [1858] of South Australia.30 There were a couple of sections from the statutes of New South Wales and a considerable number from D’Alton McCarthy’s bill; for example, machinery provisions relating to the division of the Territories into registration districts, which had no equivalents in the South Australian legislation. This was an obvious necessity in such a large territory, and indeed a settler in the Territories – or at least a person claiming to be such – wrote to the Ottawa Citizen in the middle of the debate in the Senate stating that the Torrens system could not work in the Territories because of the large distances involved.31 These provisions provided part of the answer to such concerns.

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There was also one clause each from the statutes of Newfoundland (the 1834 Chattels Real Act), Manitoba (that abolishing curtesy), and Lord Cairns’s Land Transfer Act 1875 (U.K.) (s. 92: ‘A purchaser for valuable consideration shall not be affected by the omission to send any notice by this Act directed to be given, or by the non-receipt thereof’).32 Finally, there were a few newly drafted sections relating to things such as the appointment of deputy registrars and the opening hours of registrars’ offices.

In its 1885 debates, however, the Senate took exception to the adoption of the Chattels Real Act in the Territories, and Alexander Campbell withdrew the clauses concerned; but on a division the abolition of dower and curtesy was saved, after a strong defence by Sir Alexander.33 This (together with a similar decision made at about the same time in Manitoba) meant that all three prairie provinces inherited systems of property law that lacked protection for women’s interests afforded by the law of dower, and after the adoption of the Torrens system an ultimately successful campaign was started in all three provinces to restore that protection in a somewhat more modern form.34 A great deal of what the adoption of Newfoundland’s Chattels Real Act was meant to achieve was saved in 1885, as another clause was amended to state that land would always vest in the personal representative of a deceased person, like moveable property, rather than in the heir-at-law.35 Other than that, the amendments made in 1885 were of detail only.

But time ran out for the consideration of the 1885 bill, and although it passed the Senate it received nothing more than a first reading in the House of Commons.36 However, the work of 1885 was not in vain, for it meant that the bill would receive a swift passage in 1886. A determined effort was made to get it through that year, and a select committee of the Commons considered the bill in detail. The select committee included convinced pro-Torrens members such as D’Alton McCarthy and David Mills, so the bill was sure of a favourable reception.37 Even the proposed section based upon Newfoundland’s Chattels Real Act was restored and made it to the statute book. In this connection the Senate was content with the somewhat less than exhaustive – or truthful – statement that Chattels Real Act was ‘the gist of the whole Bill, and it is essential to the carrying out of the principle of this legislation.’ No one pointed out that there was no exactly equivalent provision in the law of South Australia, for example.38

The resulting product became the Territories Real Property Act [1886] (Can.) when the Torrens bill for the Territories received royal assent on

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2 June 1886. The Act, and with it the Torrens system across the huge area embraced by the Territories, came into force on 1 January 1887.

The Act required all future patents to be forwarded to the registrar and a Torrens title issued.39 This meant that the North-West Territories, in which to this point only a few hundred patents had been issued, would enjoy from the outset one of the ‘purest’ Torrens systems in the world, with very little contamination by old-system land titles.40 This being so, less depended upon the mechanism for bringing already patented land under the Act than in Ontario or South Australia. For what it was worth, the mechanism selected for the Territories, originating with the McCarthy bill, involved a judicial decision except in cases in which the applicant was the original grantee of the land and there was no other issue about title, or in which there were otherwise no doubts of the applicant’s good title. The aim of this unusual involvement of the judiciary appears to have been the minimization of opposition from the legal profession on the grounds that the final say should not be vested in an administrative officer.41 But in the North-West the arrangements for conversion were not very important, and the concession was easily made.

Trouble in Paradise I: Early Problems with the Torrens System

As late as 1907 the Department of the Interior claimed to have never received any complaints about the Torrens system, although it had been compulsory for over twenty years.42 It was correct to say that the Torrens system had largely been successful in the Territories, but it was nevertheless unrealistic to think that any new system, made obligatory over a huge area and entrusted to officials of various standards of competence, could be designed and administered in such a way that universal satisfaction would result and no defects would come to light. Dissatisfaction with the Territories Real Propery Act was expressed by a variety of persons, for a variety of reasons. There was the special case of the registrar at Calgary, who caused so much frustration that he deserves a section (the next one) all to himself. Here I deal with three less persistent and less difficult irritants: the Legislative Assembly of the North-West Territories (as the the Territories’ Legislative Council became in 1888), H.C. Jones, and users of the system.

On the constitutional front, the Legislative Assembly became annoyed that it had no control over the system of land titles registration in its jurisdiction. This was because the Territories Real Property Act and

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its successor statute, the Land Titles Act 1894 (Can.), were federal legislation and thus beyond the Assembly’s powers to alter. Throughout the 1890s it complained to Ottawa of this gap in its powers.43 Its predecessor, the Council, had asked for federal legislation in the first place, but the Territories had had a full-scale Legislative Assembly since 1888, were looking forward to provincial status at least for their southernmost parts, and were eager to take responsibility for themselves in as many areas as possible. But the federal government did not act on these complaints, and it remained beyond the capacity of the local legislature to alter the Act until shortly after Saskatchewan and Alberta were created as provinces in 1905.44 This was a strangely intransigent attitude for the federal authorities to adopt: there was no reason to fear that the Legislative Assembly might have done something unacceptable to the Torrens system, and it had authority in many other areas. I have not found any explanation for this obstinacy, so I must assume it was simply due to a conviction that Ottawa knew best, coupled with inertia and perhaps also a desire to retain a useful source of government patronage.

H.C. Jones of the Canada Land Law Amendment Association became annoyed for a different reason, but one that was very typical of Canada under John A. Macdonald. Jones felt that he had not received sufficient patronage from the government in recognition of his labours in drafting D’Alton McCarthy’s bill of 1883, which was used to a large extent as the basis of the government bill of 1885 and the Real Property Act of 1886. Jones had in fact already been paid $250 for his labours in drafting the bill, apparently at the instance of Alexander Campbell, and despite the fact that in his letter to John A. Macdonald in January 1885 seeking payment he had again taken the opportunity to abuse Campbell for not supporting the Torrens system when he, Campbell, had in fact just been converted to it and was about to act on the matter.45

But clearly Jones considered his payment insufficient, and he addressed a long and tedious series of petitions, letters, and memorials to various persons associated with the federal government in an attempt to have the government purchase gradually diminishing but always numerous copies of his manual (or ‘practical treatise,’ as he had called it) on the Torrens system at $5 each, about $100 in today’s money. His campaign started in 1885, even before his book had been published or the Torrens system had reached the statute book.46 I suspect that these letters, petitions, memorials, and so on had the same effect on the government officials of the day as they have on the researcher reading them 120 years later, namely a growing sense of irritation at the volume of

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correspondence. Perhaps Jones was reckoning with this effect and trusting that it would produce for him what has been elegantly referred to in the Australian Senate as ‘piss off money.’47

At first Jones mentioned a judgeship or the post of registrar general in the North-West as a suitable reward for himself but quickly abandoned this idea in order to concentrate on securing an order for several hundred copies of his book, an ambition which if realized would, after all, require no further work on his part and no tiresome change of address. He started off asking for an order of perhaps three hundred or four hundred copies; that is to say, an expenditure of about $30 000 or $40 000 in today’s values. But unfortunately for him there was a decree by the federal Privy Council from 1880 that prohibited orders for more than four copies of any book, so it was quite easy for these requests to be dismissed. Eventually Jones reduced his ‘bid’ to an order of two hundred, and then to fifty copies; he suggested all sorts of unlikely outlets for copies of his book, such as members of Parliament, justices of the peace in the Territories, and so on.48

On several occasions H.C. Jones wrote to John A. Macdonald personally, urging this claim in one form or another. By 1889 it had clearly occurred even to him that his persistence might be annoying the prime minister of Canada, and he apologized by stating, ‘You cannot think how I require money or I would not bother the govt,’ and by trying to cajole Macdonald by referring mysteriously to his ‘story of the “Jew, the thunderstorm and the pork.”’49 This last letter had some success and the government ordered an extra ten copies of the book, so that the result of Jones’s sustained campaign from 1885 to 1889 was that the federal government ordered a total of twenty-five books.50

Compared to this long-running campaign, users of the system were more easily satisfied. The most serious complaint about the Torrens system in the Territories was a familiar one: it was too expensive for those subjected to it. The Calgary Tribune suggested abolition of the assurance fund, as it was not required for the operation of the system, deterred improvements in land values, and also because ‘in Australia it was inserted in the Act to conciliate opponents when it was first introduced in Parliament. The insurance [sic] fund has been found to be a sort of stupid thing in Australia and there is no reason why we should copy that stupidity on the part of our antipodes.’51 Private parties occasionally raised the same complaint. One J.G. Gordon wrote from Moose Jaw to the federal minister of justice, pointing out that the fees were $25.10 on a property worth $500, and ‘we can’t call that a boon. It will

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create the utmost dissatisfaction and prohibit the transfer of property in these Territories.’52

In addition to the usual complaints about the cost of the system, various minor drafting defects in the legislation inevitably came to light and were pointed out by those affected by them. These were easily resolved, given that the Department of the Interior was committed to the basic Torrens principle and quite willing to promote amending legislation as needed in order to improve the system in detail. In 1889, for example, a prominent firm of barristers in Calgary wrote to the Department of Justice pointing out that the Reverend Oblate Fathers had registered their mission property under the 1886 Act despite doubts about whether this was lawful. These doubts arose, they said, because of the wording of section 120 referring to subdivision plans for ‘a town plot.’53 (The wording of the section was otherwise largely copied from the South Australian statute about plans of subdivisions, which as we saw in table 3.1 was also copied on Vancouver Island.) By 1892 work was in hand on amending legislation to remove such minor irritants, which (as had also occurred in early South Australia) turned into a full-scale consolidation and minor amendment exercise and became the Land Titles Act 1894.54 Among other things, the Act of 1894 resolved the question raised by the Reverend Oblate Fathers: section 121 of the Land Titles Act 1894 contained words confining the requirement for the lodgement of a plan to land for which a certificate of title had been granted, thus making it clear that it did not apply to first registrants.

The 1894 Act also made important gestures towards reducing costs. It provided that no fees would be payable to the assurance fund for the first registration of unencumbered land.55 This, clearly, was a great boon to first registrants, particularly those whose patents were issued without encumbrances. For mortgagor first registrants, the contribution to the assurance fund could be added to the loan, in comparison with which it was likely to be a small expense indeed.

Clearly the Torrens system was generally a success from the point of view of its users, and the Department of the Interior’s assessment of the success of the Torrens system with which I began this section was generally correct. The public comments and correspondence I have seen, whether from lawyers or laymen, advocated without exception the fine-tuning of the Act rather than fundamental change or repeal. This was so despite the fact that registration was compulsory and applied to several millions of dollars worth of land over an enormous and disparate area that included districts experiencing very rapid growth.56 But

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126 The Law of the Land

the Act’s success also depended on the quality of the officials appointed to administer it.

Trouble in Paradise II: The Registrar at Calgary

Thomas Alexander McLean (1824–96) was one of seven children of Archibald McLean, chief justice of the Court of Queen’s Bench for Upper Canada in the 1860s. Although a graduate of Osgoode Hall and admitted to practice as a lawyer in Ontario, McLean made his career chiefly as a political organizer. He was a life-long Conservative, a rousing platform speaker – and a friend of Sir John A. Macdonald.57

By 1884 he was tiring of life in Toronto and wished for a post in some quiet corner of Canada. For such people, the North-West Territories were a godsend.58 He applied for and received the post of registrar at Calgary under the old system, since the Torrens Act had not yet been passed. When it was passed, as a money-saving measure section 23 provided that on taking the oath of office and furnishing a fidelity bond, the existing registrars of deeds should become the registrars under the Torrens system. In this way McLean succeeded to the post virtually automatically.

Clearly, McLean had little to no knowledge of his new area of work before his appointment in 1884. When writing to the Department of the Interior to ask when his salary would commence (and suggesting a suitably early time for this to occur), he took the opportunity to ask, ‘Can you give me any information as to what sort of place Calgary is?’59 Could he, for example, buy furniture there? His salary was $1200 per annum, but the legislation also provided that he might retain all the fees

of his office if for two consecutive years they amounted to more than $1500.60

McLean therefore made it his personal mission to maximize the fees coming into his office, and once the Torrens system started operation on 1 January 1887 this ambition became a serious obstacle to its acceptance in what is now southern Alberta. He adopted various strategies to achieve his aim, such as insisting on a new certificate of title (and thus a new contribution to the assurance fund) with every transfer (against which practice the bar at Calgary petitioned) or alternatively, a new contribution with every document registered, a practice which a prominent legal firm reported caused ‘general disgust.’ There were also more general complaints of delays in completing the work because he was inefficient.61

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McLean regularly had to be directed to stop his fee-maximizing practices.62 At times he pursued them to the point of rendering himself a laughing stock. On one occasion, for example, he registered a transfer of a fee simple as an encumbrance on the existing fee simple in order to increase the fees payable and was rightly reprimanded for doing so by the Department of the Interior. He thereupon wrote a ‘private, personal’ letter to the head of the Department in order to have the decision reversed. The departmental head, however, referred the ‘private’ letter to the Department’s legal adviser and sent a devastatingly worded opinion to McLean: the legal adviser rightly called the view taken by McLean ‘absurd in the extreme,’ because a fee simple could not be subject to (encumbered by) another fee simple, an equal estate.63

In 1889 the long-hoped-for day dawned when McLean’s fees exceeded $1500 for two consecutive years. On his interpretation of the law, therefore, he was entitled to retain them. But the Department of the Interior took the view that the relevant provisions of the North-West Territories Act 1880 had in effect been repealed by the Territories Real Property Act [1886] because the latter made no such provision for Torrens registrars, but merely stated that they should be paid salaries voted by Parliament.64 The omission in the Torrens statute of any provision for payment by fees, historically well understood to be the opposite of the payment of officials by salary for which it did provide, was all the more significant because fees play a greater role in the Torrens system, owing to governmental investigation and guarantee of titles and transfers. This omission suggests that the drafters of the statute did not overlook the matter or leave it to be regulated by the rule set out in the earlier and very different statute of 1880, but had rather deliberately decided to pay the Torrens registrars by salary only. Thus the Department’s view of the law was correct. However, the converse position was also arguable, and needless to say McLean lost no time in writing to John A. Macdonald to argue it. He also wrote to the minister of justice, to the great irritation of the Department of the Interior.65 There is a huge amount of correspondence on this topic.

The Department of the Interior eventually won this battle, and also took the earliest opportunity to have one further point clarified. When the Land Titles Act 1894 was passed, a special and unusual provision (section 23) indicated that the registrars ‘shall be attached to the Department of the Interior and be under the control of the Minister of the Interior.’ This was passed, as an internal memorandum explained, ‘in consequence of certain officers taking their own views of the law

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and hesitating to obey the orders of the Minister of Interior acting under the advice of the Minister of Justice.’66

Towards the end of 1890, McLean’s fidelity bond was cancelled by the guarantee company. Some of his office’s takings had not been properly banked, and this news had clearly reached the Guarantee Company of North America. Perhaps McLean was acting on his own interpretation of the law and just taking what in his view was rightfully his, although he never said that. Another problem for McLean that emerged at about the same time was that the attention of one J.H. Mason (president of the Canada Land Law Amendment Association) had been drawn to his incompetence, and it is easy to imagine the latter’s reaction to the fact that his system was not succeeding as well as it should have been because the officials running it were not capable. Even more galling for Mason must have been the news that one loan company had withdrawn its agency at Regina because of the slowness of the aged registrar there, one G.A. Montgomery.67

McLean and Montgomery had made a powerful enemy,68 but McLean was particularly vulnerable, being already in the Department of the Interior’s bad books because of his avarice. The cancellation of his bond provided an easy and convenient means of getting rid of him. All registrars were required to have a fidelity bond according to section 26 of the Act, so McLean could not continue without one. At the last minute, however, he managed to provide a bond – from his sister – and the takings were eventually banked in full.69 For the time being McLean also managed to survive the disapproval of J.H. Mason: the problem of inefficiencies and delays was solved by the provision of additional clerical assistance following a visit by the departmental inspector.70

Sir John A. Macdonald died in June 1891, and immediately the Department of the Interior began moves to remove McLean, citing the complaints made by J.H. Mason. Montgomery, the Regina registrar, was eventually compelled to retire at the age of seventy-five, but the moves against McLean were unsuccessful.71 The files do not reveal why, but McLean probably managed to pull strings elsewhere. Or perhaps (to traduce a play of about the same period) to lose two registrars would have made the Department look careless in its appointments.

McLean was again suspended in July 1894 after the money went missing again, and this time it was not banked at all. McLean wrote a grovelling letter admitting to having learnt ‘a terrible lesson’ and in essence pleading not to be dismissed; it is clear that he had indeed misappropriated fees to the value of about $820, around $15 000 in today’s

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values. Yet again he managed to avoid dismissal, and after the Department told the guarantee company, no doubt through gritted teeth, that he had been reinstated ‘by the Minister’ his fidelity bond was even continued by the company.72 The minister of the interior at the time was T.M. Daly, a perfectly unexceptionable and reasonably competent but now forgotten politician of the day. As far as published biographical notes indicate, he had no particular reason to show kindness to McLean, but McLean was an old Conservative Party warhorse with many contacts: something was clearly going on behind the scenes here, and the files do not reveal precisely what it was.

The best the Department of the Interior could do to remedy the situation was to provide McLean with a competent deputy officer, Lawrence Clarke, who ran the office capably until the burden on the public funds constituted by McLean’s existence was removed with his death on 28 November 1896, news of which was conveyed to the Department by telegram that same day.73 No official comment on these tidings is recorded in the files, but it is not difficult to imagine the private feelings of the civil servants in Ottawa.

The Torrens System in Saskatchewan and Alberta after 1905

On becoming provinces in 1905, Saskatchewan and Alberta naturally seized the opportunity, so long denied to the North-West Territories, to bring the Torrens system under local legislation: the legislature of each province passed a Land Titles Act in 1906, which came into force when the federal legislation was repealed in early September of that year. There were some minor differences of detail but the Acts followed the federal parent very closely.74

Having thus adopted the Torrens system as part of their own provincial legal systems, the two new provinces had a further and even more agreeable task: dividing almost all the collected wealth of the Territories’ assurance fund between them. Most of the money in the fund had been raised from transactions in what was now Saskatchewan and Alberta, and in almost twenty years there had been only one claim against the fund.75 This was a case in 1895 resulting from the registrar’s omission to note a mortgage on a certificate of title, which cost the assurance fund $259.60 plus the costs of the action.76 In addition, the fees from the date of the grant of provincial status to the actual transfer of administration were passed on by the federal authorities to the new provinces.77

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The result was a very useful initial war chest for both provinces, distributed to them pursuant to special federal legislation which, naturally enough, also required them to accept the risk of any further claims against the assurance fund – something that they were quite willing to do in order to access the money. The federal government’s initial further claims to perpetual rights of free registration and free access to the records met with provincial opposition, however, and were abandoned.78 In the end, Saskatchewan received $125 621.12 (rather more than $2.25 million in today’s money), and it promptly transferred a considerable sum from the assurance fund to its general revenue account. Alberta’s share was $85 350.70 (about $1.5 million today).79

To this day, the Torrens system remains virtually the exclusive system for the registration of freehold land titles in Saskatchewan and Alberta. Within a few decades of its introduction, it was impossible to conceive of any other system on the Prairies; it had become a natural and irreplaceable part of the local legal scene.80 And even after more than a century and a half, numerous changes in both the content and the linguistic style of the law, and developments in technology undreamt of when the Torrens system was first designed, provisions such as section 25(1) of Saskatchewan’s Land Titles Act 2000 and section 53 of Alberta’s Land Titles Act, which state that only registration can transfer interests in land and not private dealings between parties, are still clearly in their wording, spirit, and legal effect derived from the pioneering South Australian legislation of 1858.81

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