Caisse Populaire de St. Boniface Ltd. v. Marcyniuk et al., (1979) 2 Man.R.(2d) 357 (CA)

• Judge: Freedman, C.J.M., Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 07, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 2 Man.R.(2d) 357 (CA)

Caisse Pop. v. Marcyniuk (1979), 2 Man.R.(2d) 357 (CA)

MLB headnote and full text

La Caisse Populaire de St. Boniface Ltd. v. Marcyniuk, Marcyniuk, Libich and Libich

Indexed As: Caisse Populaire de St. Boniface Ltd. v. Marcyniuk et al.

Manitoba Court of Appeal

Freedman, C.J.M., Matas and Huband, JJ.A.

November 7, 1979.

Summary:

This case arose out of the defendant mortgagees' motion for preliminary determination of questions of law in the plaintiff's action. The mortgagees registered a notice of exercising power of sale and served the notice on all those interested in the property at that time. The plaintiff acquired an interest in the property after the notice was registered, but claimed to be entitled to notice anyway. The plaintiff brought an action against the mortgagees and the purchasers of the property at the sale for damages or for a declaration that the sale was void. The mortgagees moved for a preliminary determination of the issue of whether the plaintiff was entitled to notice.

The Manitoba Court of Queen's Bench in a judgment unreported in this series of reports dismissed the motion. The mortgagees appealed.

The Manitoba Court of Appeal allowed the appeal, held that the preliminary issue should be determined and held that the mortgagees were not required to serve notice of exercising power of sale on the plaintiff.

Mortgages - Topic 7898

Statutory and contractual rights - Sale under power of sale - Notice - Persons entitled to notice - Real Property Act, R.S.M. 1970, c. R-30, s. 125(1) - The Manitoba Court of Appeal held that a mortgagee exercising a power of sale was not required to serve written notice of exercising power of sale on any party who acquires an interest in the mortgaged property subsequent to the registration of notice in the Land Titles Office.

Practice - Topic 5261

Trials - Trial of preliminary issues - Issues of law - Court of Queen's Bench Rules (Man.), Rule 205 - The Manitoba Court of Appeal after stating that a court should not make a final disposition of an action upon a question of law under Rule 205 except in a very clear case held that a decision on a preliminary question of law was proper, where the facts and law were clear and the determination of the question would establish whether the plaintiff had a cause of action - See paragraphs 16 to 17.

Cases Noticed:

Warren v. People's Finance Corporation Limited (1959), 27 W.W.R.(N.S.) 189, appld. [para. 16].

Findlay v. Rose, [1938] 1 W.W.R. 314, appld. [para. 16].

Rafnson et al. v. Canada Permanent Trust Company, [1978] 3 W.W.R. 85, consd. [para. 19].

Statutes Noticed:

Court of Queen's Bench Rules (Man.), rule 205 [para. 1].

Authors and Works Noticed:

Thom, Canada Torrens System (2nd Ed. 1962), p. 515 [para. 19].

Counsel:

M. Monnin, for the plaintiff/respondent;

R.P. Olynyk, for the defendants/appellants.

This case was heard on November 7, 1979, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MATAS and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On November 7, 1979, MATAS, J.A., delivered the following judgment for the Court of Appeal: