On August 15, 2007, Mr. Fournier sold land to a family corporation (“Canada Inc.”) for a purchase price that was satisfied by the issuance by it of a non-interest-bearing promissory note. Canada Inc. then started work on a condo development on the property. Mr. Fournier and his wife opted to receive a particular condo in the development pursuant to a preliminary purchase agreement dated March 18, 2009, and opted to pay various “extras” for the construction of their unit to an enhanced standard. After taking possession in December 2010 for use of the condo as their personal residence, they paid the condo-related utilities and municipal taxes personally.
Due to lender requirements, it was not possible to transfer legal ownership to Mr. Fournier in 2010, but on July 31, 2013, an executed notarial deed provided for the transfer of ownership of the condo unit by Canada Inc. to him. In 2017, apparently after an ARQ assessment of him for a taxable benefit under the Quebec equivalent of s. 56(2) respecting the rent-free use of the condo unit viewed as a corporate asset (of Canada Inc.) by him and his wife for most of the period between December 2010 and July 2013, the parties amended the July 2013 notarial deed through a deed of correction which indicated that Mr. Fournier became the owner of the condo on December 1, 2010.
Before concluding (at para. 107, TaxInterpretations translation) that “this correcting notarial deed achieved an accurate reflection of what the parties wished to write down from the outset, being that which corresponded to reality,” so that the ARQ’s taxable benefit assessments respecting the December 2010 to July 2013 period were to be vacated, Guénard JCQ noted that the documentary evidence was mixed (a hypothec granted on the property had named Mr. Fournier and his wife as the grantors) and that the credible testimony of Mr. Fournier indicated that the July 31, 2013 deed was prepared in the standard form used in other condo closings rather than to reflect the parties’ intention, as evidenced inter alia by the bearing of the condo expenses from December 2010 onwards personally.
After quoting from Jean Coutu, he stated (at para. 135):
The amended notarial deed in this case did not rewrite history.