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Real Property - Land Titles (4). Bemco Financial Services Ltd. v. 12425467 Canada Inc.
In Bemco Financial Services Ltd. v. 12425467 Canada Inc. (Ont CA, 2026) the Ontario Court of Appeal considered a dispute over the accuracy of an LTA registered instrument (which transferred property) regarding the amount of total consideration, and whether the instrument must be accepted in evidence on it's face [by virtue of LTA s.78(4) 'Effect of registration'] - or whether other evidence could be admitted to vary the amount in dispute:[8] On appeal, the appellants do not dispute that this was an appropriate case for summary judgment. In their factum, they advance the same submissions made before the motion judge. However, at the oral hearing, they focused on whether the motion judge erred in the manner in which she dealt with Registered Instrument SD475685. They write in their factum that she erred by “rectifying” the Land Transfer Tax statement, contrary to the requirements of the Land Titles Act, R.S.O. 1990, c. L.5 (the “Act”). They also submit that the motion judge reversed the burden of proof by placing the onus on the appellants to rebut the presumption of accuracy of registered documents as set out in s. 78(4) of the Act.
[9] We do not accept either submission.
[10] The motion judge was not asked to make a rectification order under s. 160 of the Act. She did not rectify anything. She simply considered this document, along with all of the other evidence before her, to determine the total consideration received for the sale of the property.
[11] Section 78(4) of the Act had no application in this case. The focus of the section is on the indefeasibility of title and the protection of subsequent purchasers for value: see Airport Business Park Inc. v. Huszti Holdings Inc., 2023 ONCA 391, 481 D.L.R. (4th) 696, at para. 44, leave to appeal refused, [2023] S.C.C.A. No. 347. That was not in issue in this case. Instead, the motion judge was tasked with determining the consideration received for the sale of the property for the purposes of deciding the summary judgment motion. She was entitled to accept the evidence of Mr. Turtel, as well as the authenticity of the documents appended as exhibits to his affidavits. It was in light of this evidence that she rejected the appellants’ evidence as inauthentic. In doing so, she did not reverse the burden of proof. We see no error in the manner in which the motion judge reached her decision.
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