Court of Appeal for Ontario

Date: 2019-10-15 Docket: C66334

Judges: Lauwers, Fairburn and Zarnett JJ.A.

Between

Nathan Beaucage Applicant (Respondent on Appeal)

and

Tracey Storr aka Tracey Lstorr, Arthur Painter aka Thomas Arthur Storr Respondents (Appellants on Appeal)

Counsel

Edward Rae, for the appellants Jason Herbert, for the respondent

Heard: September 23, 2019

On Appeal

On appeal from the judgment of Justice Thomas M. Wood of the Superior Court of Justice, dated December 20, 2018, with reasons reported at 2018 ONSC 7611.

Reasons for Decision

[1] Overview

The appellants appeal the order of the application judge which dealt with the title to property at 90 Cotton Grass Street, Kitchener, Ontario ("the property").[1]

[2] Background – Original Ownership

Prior to December 16, 2015, the property was owned by the appellant, Arthur Painter, also known as Thomas Arthur Storr ("Arthur").

[3] The Parties

The respondent, Nathan Beaucage ("Nathan"), born September 21, 1985, is the son-in-law of Arthur, married to but now separated from Arthur's son, Jeffrey Storr ("Jeffrey"). The appellant, Tracey Storr ("Tracey"), born October 23, 1973, is Arthur's daughter. Her middle initial is L.

[4] The 2015 Transfer

On December 16, 2015, a transfer of the property was registered. The transferor named was "Arthur Thomas Painter". The transferees named were "Nathan Beaucage", with a date of birth of September 1, 1984, and "Tracey Lstorr", with a date of birth of October 23, 1973, as joint tenants.

[5] The Appellants' Position on the 2015 Transfer

The parties disagree about the validity and effect of the 2015 transfer. The appellants' position is that Arthur intended to transfer the property to his son and daughter, not to his son-in-law. The appellants rely, among other things, on the birthdate for Nathan Beaucage on the transfer, which is not Nathan's actual date of birth, as well as the spelling of Tracey's name on the transfer, as part of the constellation of facts they say cast doubt on the validity of the transfer.

[6] Pending Litigation

The parties agreed before us that the validity and effect of the 2015 transfer remains to be determined in litigation among them, and was not intended to be determined by the order the application judge was asked to make. Including the application in which the order below was made, there are three separate applications pending among the parties. The parties also agreed before us that the continuing applications should be consolidated and resolved by a trial.

[7] The 2017 Transfer

What was intended to be dealt with by the order of the application judge was the effect of a purported transfer of the property registered on November 28, 2017. In that document the transferors named were "Nathan Beaucage" and "Tracey Lstorr", and the transferees named were "Tracey Lstorr" and "Arthur Painter", as joint tenants.

[8] Admission of Fraud

All parties agree that the 2017 transfer was fraudulent. As the application judge noted in para. 7 of his reasons: "It is admitted by the respondents [Arthur and Tracey] that … Jeffrey fraudulently posed as Nathan and executed the necessary documents in the lawyer's office in that capacity. Nathan had no knowledge of the transfer and never consented to it."

[9] Issues on Appeal

The issues between the parties on this appeal are narrow, and turn on whether the application judge's order went beyond the determinations properly flowing from the admitted invalidity of the 2017 transfer in light of the fact that the validity and effect of the 2015 transfer are still to be determined.

[10] The Application Judge's Order

The application judge's order provides that title to the property is vested in Nathan and Tracey, as joint tenants, and is to reflect the correct spelling and birthdates of both (para. 1). He ordered that any right title or interest in the property held by Arthur is extinguished (para. 2). He ordered the Land Registrar at Kitchener to amend the register to show title in accordance with his order (para. 3). And he directed that a certificate of pending litigation issue for registration against the property (para. 4).

[11] Appellants' Argument

The appellants complain that paragraphs 1 and 2 of the order not only set aside the effect of the 2017 transfer, but trench upon what is still to be determined about the validity and effect of the 2015 transfer. Extinguishing Arthur's interest in the property may foreclose an argument that the 2015 transfer was ineffective, affecting Arthur's right to the property in that eventuality. Recording Nathan's actual date of birth on title and the correct spelling of Tracey's name goes further than removing the effect of the 2017 transfer and may foreclose arguments arising from the description of the transferees as they appeared in the 2015 transfer. The appellants also maintain that certain findings of fact that the application judge made were not necessary to deal with the fraudulent 2017 transfer and overlap with what must be decided about the circumstances leading up to and involving the 2015 transfer.

[12] Respondent's Argument

The respondent argues that the impugned provisions of the application judge's order, properly read in context, do not go farther than to delete the effect of the 2017 transfer. He says for example that para. 2 of the order is only intended to extinguish Arthur's interest to the extent that it arose from the 2017 transfer. He says it was right to correct his date of birth on title from the way it was shown on the 2015 transfer. And he says that the application judge recognized that he was not finally determining all issues in his reasons by his references to this being the "opening salvo in what will no doubt be a protracted [legal] battle", and by his granting of a certificate of pending litigation (which assumes further litigation).

[13] Court's Analysis

In our view, portions of the order below go beyond what was required to deal with the effect of the 2017 transfer and restore title to its state prior to that transfer. Given the parties' acknowledgement before us that the issues of the validity and effect of the 2015 transfer are to be determined in the pending applications and require a trial, the order should be varied to avoid any uncertainty as to its effect.

[14] Decision

We therefore allow the appeal in part and vary the application judge's order by replacing paragraphs 1, 2 and 3 with an order declaring the 2017 transfer to be void and directing the Land Registrar at Kitchener to delete the 2017 transfer (Registration Number WR1082048) from the parcel register for the property.[2] The order for a certificate of pending litigation should remain in place. The parties should attend before the Superior Court to implement their mutual intention that the balance of application CV 18-110 be consolidated with the other two pending applications (CV 18-178 and CV 17-172) and tried, and to obtain the appropriate procedural directions in order to obtain an expeditious determination of those matters.

[15] Binding Effect of Findings of Fact

The application judge's findings of fact, to the extent they bear on issues relating to the validity and effect of the 2015 transfer, should not be treated as binding in the continuing proceeding.

[16] Costs

We would not interfere with the order for costs below. The parties should bear their own costs of this appeal.

"P. Lauwers J.A." "Fairburn J.A." "B. Zarnett J.A."

Footnotes

[1] The legal description of the property is: PART BLOCK 2, PLAN 58M-133, DESIGNATED AS PART 81 ON PLAN 58R-12162. CITY OF KITCHENER. The property identification number (PIN) is 22727-0853.

[2] Referred to in footnote 1 of these reasons.