‘Forgery’ is issue of authenticity, not truth

Real Property - Sale of Land - Title

DB held title “in trust” to 55 acre property. DB and plaintiffs were beneficiaries, each having stake in property in various proportions. DB sold property without notice to plaintiffs. At time, DB had two executions registered against him in favour of financial institutions. To complete sale, DB signed affidavit stating that he was not one and same person as “DB” subject to executions. Plaintiffs brought action wherein it was found that conveyance was fraudulent; title register was rectified by declaring transfer void. Director of titles, purchaser, and DB appealed. Appeals by purchaser and director allowed; appeal by DB dismissed; order for rectification of title set aside; ownership of purchaser confirmed; matter remitted for determination of claim for damages against DB. Trial judge erred in law when he found that DB was fictitious person because of content of affidavit respecting writs of execution. DB was registered owner of property, he was real person, not fictitious person, and he had authority to convey property. Transfer should not have been held to be fraudulent instrument. Although DB provided affidavit that contained false statement, he did not commit forgery in commonly understood meaning of that term. “Forgery” is issue of authenticity, not truth. DB did not forge another's signature or falsely alter terms of document.

1168760 Ontario Inc. v. 6706037 Canada Inc. (2019), 2019 CarswellOnt 14401, 2019 ONSC 4702, Aston J., Swinton J., and Sachs J. (Ont. Div. Ct.); reversed (2017), 2017 CarswellOnt 15911, 2017 ONSC 5149, Robert J. Smith J. (Ont. S.C.J.). (Ont. Div. Ct.); reversed (2017), 2017 CarswellOnt 20099, 2017 ONSC 7497, Robert J. Smith J. (Ont. S.C.J.).

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