Bank of Montreal v. Valerio et al., (2009) 480 A.R. 393 (QB)

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 30, 2009
• Citations: (2009), 480 A.R. 393 (QB);2009 ABQB 578

Bk. of Mtrl. v. Valerio (2009), 480 A.R. 393 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. OC.039

Bank of Montreal (plaintiff) v. Emilio Valerio, Brian McGlashan, M. Robert MacKinnon and Brian McGlashan and M. Robert MacKinnon carrying on business as McGlashan & MacKinnon (defendants) and M. Robert MacKinnon, John Charles Collins, 1057029 Alberta Ltd., 1041104 Alberta Ltd., Brian McGlashan and Brian McGlashan and M. Robert MacKinnon carrying on business as McGlashan & MacKinnon, Executive Loft Inc., John Doe and Richard Doe (third parties)

(0603 05685)

The Toronto-Dominion Bank (plaintiff) v. Suitel Canada Executive Suites Corporation, Executive Loft Inc., Dan White, John Collins, 1041104 Alberta Ltd., Emilio Valerio, 1057029 Alberta Ltd., Malcolm Robert MacKinnon, Malcolm Robert MacKinnon Professional Corporation, Brian McGlashan Professional Corporation, Malcolm Robert MacKinnon Professional Corporation and Brian McGlashan Professional Corporation carrying on business under the name of McGlashan & MacKinnon, and Worthington Properties Inc. (defendants)

(0703 01735)

Executive Loft Inc. (plaintiff) v. 1041104 Alberta Ltd., Emilio Valerio, 1057029 Alberta Ltd., John Collins, Malcolm Robert MacKinnon and McGlashan & MacKinnon Barristers and Solicitors (defendants)

(0603 01578; 2009 ABQB 578)

Indexed As: Bank of Montreal v. Valerio et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Yamauchi, J.

October 1, 2009.

Summary:

Five real property transactions had the effect of transferring ownership of five condominium units in the same building from Executive Loft Inc. (Executive) to 1041104 Alberta Ltd. (104 Alberta) to Valerio. Executive provided vendor take-back financing. In two transactions, the Bank of Montreal (BMO) provided financing to Valerio, while in the other three the Toronto Dominion Bank (TD) provided financing to Valerio. In all five transactions, MacKinnon acted as the lawyer for 104 Alberta, Valerio, Executive and the lenders (TD and BMO). TD brought a mortgage fraud action alleging breach of contract, breach of fiduciary duties, fraud, fraudulent misrepresentation, and conspiracy respecting the three units that it financed (the TD action). As well, TD alleged negligence and breach of fiduciary duty against the solicitor defendants. Executive brought a mortgage fraud action alleging that the defendants altered the mortgage documents without its knowledge or consent and alleging breach of contract against the defendants arising from real estate transactions involving all five units (Executive Loft action). As well, Executive alleged negligence, breach of trust and breach of fiduciary duty against the solicitor defendants. Executive also alleged that the defendants were each party to actions that were designed to cause loss to Executive. BMO brought a mortgage fraud action alleging breach of contract, fraud and fraudulent misrepresentation against one of the defendants respecting two of the units (BMO action). As well, BMO alleged negligence, breach of trust and breach of fiduciary duty against the solicitor defendants. A defendant in the BMO action, Valerio (also a defendant in the other actions), issued a third party notice on defendants already named in the TD action. Valerio alleged that the third parties made fraudulent or negligent misrepresentations that induced him to purchase units. Valerio alleged negligence, breach of trust and breach of fiduciary duty against the third party defendants and that the solicitors assisted the other third parties in their fraudulent activities. TD, Executive and BMO applied to consolidate the Executive Loft action, the BMO action and the TD action.

The Alberta Court of Queen's Bench dismissed the application, but ordered that the actions be heard at the same time.

Practice - Topic 4122

Joinder of causes and consolidations - Consolidation of actions and applications or motions - When available - Five real property transactions had the effect of transferring ownership of five condominium units in the same building from Executive to 104 Alberta to Valerio - Executive provided vendor take-back financing - In two transactions, the Bank of Montreal (BMO) provided financing to Valerio, while in the other three the Toronto Dominion Bank (TD) provided financing to Valerio - In all five transactions, MacKinnon acted as the lawyer for 104 Alberta, Valerio, Executive and the lenders (TD and BMO) - TD brought a mortgage fraud action alleging breach of contract, breach of fiduciary duties, fraud, fraudulent misrepresentation, and conspiracy respecting the three units that it financed (the TD action) - As well, TD alleged negligence and breach of fiduciary duty against the solicitor defendants - Executive brought a mortgage fraud action alleging that the defendants altered the mortgage documents without its knowledge or consent and alleging breach of contract against the defendants arising from real estate transactions involving all five units (Executive Loft action) - As well, Executive alleged negligence, breach of trust and breach of fiduciary duty against the solicitor defendants - Executive also alleged that the defendants were each party to actions that were designed to cause loss to Executive - BMO brought a mortgage fraud action alleging breach of contract, fraud and fraudulent misrepresentation against one of the defendants respecting two of the units (BMO action) - As well, BMO alleged negligence, breach of trust and breach of fiduciary duty against the solicitor defendants - A defendant in the BMO action, Valerio (also a defendant in the other actions), issued a third party notice on defendants already named in the TD action - Valerio alleged that the third parties made fraudulent or negligent misrepresentations that induced him to purchase units - Valerio alleged negligence, breach of trust and breach of fiduciary duty against the third party defendants and that the solicitors assisted the other third parties in their fraudulent activities - TD, Executive and BMO applied to consolidate the Executive Loft action, the BMO action and the TD action - The Alberta Court of Queen's Bench dismissed the application given, inter alia, the uncommon aspects of the actions and the uncertainty of how a consolidated claim would be structured in a way that assured efficiency, economy and convenience - However, the court ordered that the actions be heard at the same time.

Practice - Topic 5258

Trials - General - Trial of actions together or back to back - When appropriate - [See Practice - Topic 4122 ].

Cases Noticed:

Welco Expediting Ltd. v. Harris and Q Process Equipment Ltd. (1995), 171 A.R. 341; 31 Alta. L.R.(3d) 173 (Q.B.), refd to. [para. 12].

Reichmann v. Toronto Life Publishing Co. (1988), 31 C.P.C.(2d) 54 (Ont. S.C.), refd to. [para. 12].

Grebely (Andy & Jean) Holdings Ltd. et al. v. Commercial Union Assurance Co. of Canada et al. (2000), 282 A.R. 296; 2000 ABQB 604, refd to. [para. 12].

Jeerh et al. v. Yorkton Securities Inc. et al. (2004), 362 A.R. 5; 2004 ABQB 975, refd to. [para. 12].

Vanbrabant et al. v. Alberta (Minister of Education) et al. (1989), 102 A.R. 77; 37 C.P.C.(2d) 113 (C.A.), refd to. [para. 13].

Mikisew Cree First Nation v. Canada et al. (1998), 224 A.R. 157 (Q.B.), appld. [para. 13].

Rabbit Hill Recreations Inc. v. Stelter et al. (2009), 473 A.R. 26; 2009 ABQB 329, refd to. [para. 17].

Alliance Pipeline Limited Partnership et al. v. Franklin (C.E.) Ltd. et al. (2007), 417 A.R. 1; 410 W.A.C. 1; 2007 ABCA 285, refd to. [para. 25].

Fontaine v. Haslam et al. (2007), 427 A.R. 395; 2007 ABQB 27, refd to. [para. 27].

Scheidl v. Southam Inc., 1981 CarswellAlta 57 (Q.B.), refd to. [para. 27].

Peel Financial Holdings Ltd. et al. v. Western Delta Lands Partnership et al., [2003] B.C.T.C. Uned. 305; 2003 BCSC 784 , refd to. [para. 28].

Norwester Ltd. v. British Aviation Insurance Co., 1977 CarswellAlta 109 (N.W.T.S.C.), refd to. [para. 31].

Counsel:

Keltie L. Lambert (Witten LLP), for the Bank of Montreal;

Sandeep K. Dhir and Lindsey Miller (Field LLP), for the Toronto-Dominion Bank;

Ronald H. Haggett (Kennedy Agrios LLP), for Emilio Valerio;

Thomas E. Plupek, for John Collins (Action 0603 05685);

Grant Hardwick (Doak Shirreff LLP), for John Collins (Action 0703 01735);

Jon E. Hillson (Fraser Milner Casgrain LLP), for Executive Loft Inc.;

Donald R. Cranston, Q.C., and Daniel L. Morrow (Bennett Jones LLP), for M. Robert MacKinnon and Brian McGlashan and M. Robert MacKinnon carrying on business as McGlashan & MacKinnon.

This application was heard on September 30, 2009, by Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on October 1, 2009.