DATE: 20040604

DOCKET: C40748

COURT OF APPEAL FOR ONTARIO

RE: REVEREND BROTHER WALTER A. TUCKER (Appellant) – and – STEETLEY INDUSTRIES LIMITED (Respondent)

BEFORE: MOLDAVER, GILLESE and BLAIR JJ.A.

COUNSEL: Reverend Brother Walter A. Tucker in person

Lee Pinelli and Amanda Jackson for the Hamilton Region Conservation Authority

HEARD: June 1, 2004

RELEASED ORALLY: June 1, 2004

On appeal from the orders of Justice Casimir N. Herold of the Superior Court of Justice dated May 13, 2003 and October 6, 2003.

E N D O R S E M E N T

[1] The Reverend Brother Walter A. Tucker appeals from the orders of Herold J. dated May 13, 2003 and October 6, 2003, dismissing the appellant’s motions to set aside an earlier order of Judge McNeely dated June 21, 1983.

[2] No one appeared for Steetley Industries Limited, which no longer owns the lands that are the subject matter of those proceedings. Counsel responded on behalf of Hamilton Region Conservation Authority, which is the current owner, and which was granted intervener status by Justice Herold.

[1] Judge McNeely’s order terminated Reverend Brother Tucker’s tenancy on property in the Guelph area. The property was owned by Steetley Industries Limited (formerly Canada Crushed and Cut Stone Limited). By supplementary letters patent dated April 24, 1969, Canada Crushed and Cut Stone Limited had changed its name to Steetley Industries Limited. These supplementary letters patent, however, were not registered on title against the lands until 1987. Judge McNeely’s order was appealed to the Divisional Court, but the appeal was dismissed as abandoned. These issues went to the Supreme Court of Canada where the application for leave to appeal was dismissed. Reverend Brother Tucker was unsuccessful.

[2] In 1985, Reverend Brother Tucker sought to set aside a writ of prohibition and to quash the writ of possession issued pursuant to the order of Judge McNeely. Justice Reid dismissed that motion. This court dismissed an appeal from Justice Reid’s order and an application for leave to appeal to the Supreme Court of Canada was dismissed.

[3] In 1987, Steetley Industries sold the lands to the Hamilton Region Conservation Authority. Although the appellant knew at the latest in 1985 that Canada Crushed and Cut Stone Limited had changed its name to Steetley Industries Limited and that Steetley Industries was not “the paper title holder of the land”, he did not bring the application that gives rise to this appeal until April 2003. The application is based on the argument that Steetley Industries fraudulently obtained the order from Judge McNeely terminating the tenancy because the lands were not registered in its name at the time of the application and, therefore, Steetley Industries did not have authority to apply to terminate the tenancy.

[4] Justice Herold rejected this argument in careful reasons and dismissed the motion. Then, at the request of the Reverend Brother Tucker, he held a rehearing and dealt with the matter again, dismissing the motion a second time.

[5] We see no error in Herold J.’s reasons or in his conclusions. At all relevant times prior to the sale to the Hamilton Regional Conservation Authority in 1987, the lands were owned by the same corporate entity. All that happened was that the corporate name was changed from Canada Crushed and Cut Stone Limited to Steetley Industries Limited. The fact that the name change was not registered on title was not a bar to the commencement of the application before Judge McNeely, nor did it constitute a fraud on the court. Justice Herold was therefore correct in dismissing the motion.

[6] The appeal is therefore dismissed.

[7] Costs to the respondent fixed at $3,000 inclusive of GST and disbursements.

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”

“R.A. Blair J.A.”