Bank of Montreal v. Stusick, (1994) 126 Sask.R. 76 (QB)

• Judge: Halvorson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 03, 1994
• Jurisdiction: Saskatchewan
• Citations: (1994), 126 Sask.R. 76 (QB)

Bk. of Mtrl. v. Stusick (1994), 126 Sask.R. 76 (QB)

MLB headnote and full text

Bank of Montreal (plaintiff/respondent) v. Michael Stusick (defendant/applicant)

(1993 Q.B. No. 295)

Indexed As: Bank of Montreal v. Stusick

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Halvorson, J.

November 3, 1994.

Summary:

A farmer requested that an order nisi for sale be set aside as prohibited by s. 44(10) of the Saskatchewan Farm Security Act on the ground that the mortgaged land was his homestead. The issue was whether the relief should be granted despite the fact that the farmer had induced the bank to make a loan by swearing that the land was not his home­stead.

The Saskatchewan Court of Queen's Bench granted an order setting aside the order nisi for sale.

Estoppel - Topic 1394

Estoppel in pais (by conduct) - Circum­stances where doctrine not applicable - To defeat positive statutory obligation or contravene public policy - [See Mort­gages - Topic 7744.3 ].

Mortgages - Topic 7744.3

Mortgagee's remedies - General - Statu­tory suspension (incl. farmland security legislation) - Action by mortgagee - Bars - A farmer gave a bank an equitable mortgage on land as security for a loan - The farmer, mistakenly believing that it was true, swore that the land was not his homestead - The farmer defaulted - The bank obtained an order nisi for sale - The farmer then claimed that the land was part of his homestead and that the order nisi was prohibited under the Saskatchewan Farm Security Act - The Saskatchewan Court of Queen's Bench held that public policy favouring preservation of the farm­er's homestead outweighed the bank's right to enforce its security and that the bank could not invoke estoppel in the face of the public policy evident from the Act.

Cases Noticed:

Farm Credit Corp. v. Strelioff (1990), 87 Sask.R. 52 (C.A.), refd to. [para. 7].

Watson Credit Union Ltd. v. Pastl (1991), 94 Sask.R. 74 (Q.B.), consd. [para. 11].

Melfort Credit Union Ltd. v. Wall et al. (1993), 114 Sask.R. 40 (Q.B.), consd. [para. 12].

Statutes Noticed:

Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, sect. 2(1)(h)(i), sect. 2(1)(h)(ii) [para. 6]; sect. 44(10) [para. 5].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 15, p. 169 [para. 10].

Counsel:

Richard S. Yaholnitsky, for the defen­dant/applicant;

Randy P. Kachur, for the plaintiff/ respon­dent.

This application was heard before Halvor­son, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on November 3, 1994.