



COURT OF APPEAL FOR ONTARIO

CITATION: Beaucage v. Storr, 2019 ONCA 818

DATE: 20191015

DOCKET:
C66334

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)

Edward Rae, for the appellants

Jason Herbert, for the respondent

Heard: September 23, 2019

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]

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]

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

[3]

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

[4]

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 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 Nathans actual date of birth, as well as the
    spelling of Traceys name on the transfer, as part of the constellation of
    facts they say cast doubt on the validity of the transfer.

[6]

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]

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]

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 lawyers office in
    that capacity. Nathan had no knowledge of the transfer and never consented to
    it.

[9]

The issues between the parties on this appeal
    are narrow, and turn on whether the application judges 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 judges 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]

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 Arthurs interest in the property may foreclose an
    argument that the 2015 transfer was ineffective, affecting Arthurs right to
    the property in that eventuality. Recording Nathans actual date of birth on
    title and the correct spelling of Traceys 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]

The respondent argues that the impugned
    provisions of the application judges 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 Arthurs 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]

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]

We therefore allow the appeal in part and vary
    the application judges 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]

The application judges 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]

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.





[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.


