Bank of Montreal v. Hyrnewich Holdings Ltd., (1988) 70 Sask.R. 91 (QB)

• Judge: Sirois, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 13, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 70 Sask.R. 91 (QB)

Bk. of Mtrl. v. Hyrnewich Holdings (1988), 70 Sask.R. 91 (QB)

MLB headnote and full text

The Bank of Montreal v. Hyrnewich Holdings Ltd., formerly Wakaw Motor Hotel Ltd.

(defendant)

(No. 747 A.D. 1986)

Indexed As: Bank of Montreal v. Hyrnewich Holdings Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Sirois, J.

June 13, 1988.

Summary:

The defendant gave a mortgage to the plaintiff following a consolidation of various debts, including a prior mortgage. The land was worthless than half of the amount owing on the mortgage. The plaintiff applied for foreclosure, sale, immediate possession and judgment against the defendant.

The Saskatchewan Court of Queen's Bench refused to order judicial sale but granted foreclosure including a 30 day redemption period with immediate possession to the plaintiff.

Mortgages - Topic 5405

Mortgage actions - Action on the covenant - Prohibition against - A mortgagor gave a mortgage to a mortgagee following a consolidation of various debts, including a prior mortgage - Section 2(1.1) was added to the Limitation of Civil Rights Act prohibiting an action on the covenant - Upon default, the mortgagee commenced an action against the mortgagor - The Saskatchewan Court of Queen's Bench held that the amendment applied to the mortgage because the action was commenced after the enactment of the amendment - See paragraphs 5 to 6.

Mortgages - Topic 5662

Mortgage actions - Judicial sale - When available - The Saskatchewan Court of Queen's Bench stated that judicial sale is an equitable remedy - The court refused to order judicial sale where the land was worthless than the balance due on the mortgage - See paragraphs 7 to 12.

Cases Noticed:

Maple Creek Credit Union Limited v. Pollock and Pollock (1985), 47 Sask.R. 318, refd to. [para. 5].

Canadian Mortgage and Housing Corporation v. Hagblom, Hagblom, Canada Permanent Trust Company and Wallace Construction Specialities Ltd. (1983), 28 Sask.R. 31, refd to. [para. 5].

Canadian Acceptance Corporation Limited v. Matte et ux. (1957), 22 W.W.R.(N.S.) 97, refd to. [para. 5].

Minchau v. Busse, [1940] 2 D.L.R. 282, refd to. [para. 5].

National Trust Company Limited v. Larsen and Remai Financial Corporation, [1988] 3 W.W.R. 634, refd to. [para. 5].

Norfolk Trust Co. v. Genereux (1985), 42 Sask.R. 145, refd to. [para. 5].

Co-Operative Trust Company of Canada v. O'Grady, [1984] 2 W.W.R. 666; 32 Sask.R. 224, affd. [1986] W.W.R. 731; 43 Sask.R. 317, consd. [para. 9].

Saskatoon Credit Union Limited v. Goertz and Atlas Industries Ltd., [1987] 5 W.W.R. 436; 62 Sask.R. 282, consd. [para. 10].

Lozinski v. Mayoh (1984), 32 R.P.R. 164; 9 D.L.R.(4th) 304; 32 Sask.R. 312, refd to. [para. 11].

Statutes Noticed:

Limitation of Civil Rights, R.S.S. 1978, c. L-16, sect. 2(1) [paras. 5, 6]; sect. 2(1.1) [paras. 4, 5]; sect. 2(2) [para. 5]; sect. 5 [paras. 7, 8, 10]; sect. 6 [para. 8].

Counsel:

K.A. Eggum, Q.C., and R.C. Stewart, for the plaintiff;

R.J. Mills, for the defendant.

This case was heard before Sirois, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on June 13, 1988.