Daniels v. Mitchell, 2005 ABCA 271

• Judge: Conrad, McFadyen and Hunt, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 09, 2005
• Citations: 2005 ABCA 271;(2005), 371 A.R. 298 (CA)

Daniels v. Mitchell (2005), 371 A.R. 298 (CA);

    354 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.054

David Arthur Daniels (respondent/applicant on originating motion) v. Judy Mitchell (appellant/respondent on originating motion)

(0401-0178-AC; 2005 ABCA 271)

Indexed As: Daniels v. Mitchell

Alberta Court of Appeal

Conrad, McFadyen and Hunt, JJ.A.

August 19, 2005.

Summary:

A mortgagee commenced foreclosure proceedings. The mortgagor applied to have the mortgage discharged, arguing that the proceeding was barred by the Limitations Act, 2000. At issue was whether the Limita­tion Act, 2000, or the Limitation of Actions Act, 1980, applied.

A Master of the Alberta Court of Queen's Bench, in a decision reported at [2003] A.R. Uned. 824, held that the 2000 Act applied. The Master granted the mortgagor's ap­plication to have the mortgage discharged. The mortgagee appealed.

The Alberta Court of Queen's Bench, in a decision reported at 358 A.R. 386, dismissed the appeal. The mortgagee appealed.

The Alberta Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 2185

Actions in contract - Mortgages - Action for foreclosure and sale - A mortgagee commenced a foreclosure proceeding - At issue was whether a mortgagee's fore­closure proceeding was barred by the Limitations Act, 2000, which came into force on March 1, 1999 - Section 2(2) stated in part that a claim was statute barred "if, before March 1, 1999, the claimant knew, or in the circumstances ought to have known, of a claim and the claimant has not sought a remedial order before ..." two years after the Act came into force - The mortgagee argued that the Act did not apply because a mortgage foreclosure was not a "remedial order" as defined by s. 1(i) of the Act - In particular, she argued that her action on the mortgage was a "declaration of rights and duties" and was excluded from the definition of "remedial order" - The Alberta Court of Queen's Bench rejected the argument and affirmed that an order of foreclosure was a remedial order - Therefore, the Act applied - The Alberta Court of Appeal agreed - See paragraphs 28 to 63.

Limitation of Actions - Topic 2185

Actions in contract - Mortgages - Action for foreclosure and sale - A mortgagee commenced foreclosure proceedings - The mortgagor argued that the proceeding was barred by the Limitations Act, 2000 - The mortgagee argued that the Limitation of Actions Act, 1980, continued to apply because it was specifically referenced in s. 106(1)(c) of the Land Titles Act (discharge of mortgage) by a revision that was com­pleted after the 2000 Act was proclaimed -The 2000 Act provided that it did not apply when a claimant sought a remedial order the granting of which was subject to a limitation provision in another provincial enactment (s. 2(4)) - The Alberta Court of Appeal applied ss. 5(2) and 36(1)(f) of the Interpretation Act and held that any refer­ences in the Land Titles Act to the 1980 Act were to be construed as references to the 2000 Limitations Act - See paragraphs 64 to 73.

Limitation of Actions - Topic 2185

Actions in contract - Mortgages - Action for foreclosure and sale - A mortgagee commenced foreclosure proceedings - The mortgagor argued that the proceeding was barred by the Limitations Act, 2000 - The mortgagee argued that the Limitation of Actions Act, 1980, continued to apply because it was specifically referenced in s. 106(1)(c) of the Land Titles Act (discharge of mortgage) - The citation for the 1980 Act was added to s. 106(1)(c) after the 2000 consolidation and revision of the Land Titles Act - The Alberta Court of Queen's Bench stated that it was probable that in keeping the reference to the 1980 Act and adding a citation, the legislative intention was not to keep the previous limitation period, but rather to ensure that those mortgage or encumbrance claims that had been extinguished under the 1980 Act could still be brought to the Registrar to be struck from the title - The intention was not to retain the previous limitation periods for mortgages - The Alberta Court of Appeal agreed - See paragraph 73.

Limitation of Actions - Topic 2185

Actions in contract - Mortgages - Action for foreclosure and sale - A mortgagee commenced foreclosure proceedings - The mortgagor argued that the proceeding was barred by the Limitations Act, 2000 - Clause 12 of the mortgage provided that "Provided that I shall not be entitled to a discharge of this mortgage until and unless I shall have kept and performed all of the covenants, provisos, agreements and stipu­lations herein contained, whether the Mort­gagee has taken legal proceedings thereon and recovered judgment or otherwise ..." - The mortgagee argued that clause 12 pre­vented the mortgagor from receiving a discharge of the mortgage until he had performed all the covenants in the mort­gage, regardless of limitations law - The Alberta Court of Appeal rejected the argu­ment - See paragraphs 13 to 16.

Limitation of Actions - Topic 2185

Actions in contract - Mortgages - Action for foreclosure and sale - Section 18(a) of the Limitation of Actions Act, R.S.A. 1980, c. L-15 (the "Old Act") provided that "No person shall take proceedings to recover land except within 10 years next after the right to do so first accrued to that person" - The Alberta Court of Appeal stated that it did not "think s. 18 was directed at mortgages. Rather, in combina­tion with s. 44 of the Old Act, its purpose was to specify the number of years re­quired before a claim to ownership of land could be founded on the doctrine of ad­verse possession." - See paragraph 33.

Mortgages - Topic 5

General principles - General - Source of law - The Alberta Court of Appeal re­viewed some basic principles of mortgage law in Alberta - The court noted, inter alia, that "Modern mortgage law is an amalgam of slowly developed legal and equitable principles, with an overlay of statutory provisions." - The court set out the reme­dies available to a mortgagee - See para­graphs 18 to 27.

Mortgages - Topic 3307

Discharge of mortgage - General - Entitle­ment to - [See third and fourth Limitation of Actions - Topic 2185 ].

Mortgages - Topic 5301

Mortgage actions - General - [See Mort­gages - Topic 5 ].

Mortgages - Topic 7701

Mortgagee's remedies - General - [See Mortgages - Topic 5 ].

Statutes - Topic 6904

Operation and effect - Commencement, duration and repeal - Repeal - Substitution for repealed statute - General - [See second Limitation of Actions - Topic 2185 ].

Statutes - Topic 7101

Operation and effect - Consolidation and revision - General - [See third Limitation of Actions - Topic 2185 ].

Words and Phrases

Duty - The Alberta Court of Appeal dis­cussed the meaning of the word "duty" as found in s. 1(i) of the Limitations Act, R.S.A. 2000, c. L-12 - See paragraphs 34 to 63.

Words and Phrases

Remedial order - The Alberta Court of Appeal discussed the meaning of this phrase as found in s. 1(i) of the Limita­tions Act, R.S.A. 2000, c. L-12 - See paragraphs 34 to 63.

Cases Noticed:

Syncrude Canada Ltd. et al. v. Hunter Engineering Co. and Allis-Chalmers Canada Ltd. et al., [1989] 1 S.C.R. 426; 92 N.R. 1; 57 D.L.R.(4th) 321, refd to. [para. 15].

Co-op Centre Credit Union Ltd. v. Greba and Greba (1984), 55 A.R. 176 (C.A.), refd to. [para. 16].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 17].

Blair v. Desharnais (2005), 371 A.R. 196; 354 W.A.C. 196; 2005 ABCA 272, refd to. [para. 18].

Canada Permanent Trust Co. v. King Art Developments Ltd. (1984), 54 A.R. 172 (C.A.), refd to. [para. 19].

Meridian Developments Ltd. v. Nu-West Group Ltd. (1984), 52 A.R. 248 (C.A.), refd to. [para. 26].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1; 171 D.L.R.(4th) 577, refd to. [para. 29].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129; 98 C.C.C.(3d) 20; 28 C.R.R.(2d) 1, refd to. [para. 29].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

United Steelworkers of America, Local 9332 v. Richard, J. - see Phillips et al. v. Richard, J.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 29].

Edwards Books and Art Ltd. v. R. - see R. v. Videoflicks Ltd. et al.

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Turta v. Canadian Pacific Railway Co. and Imperial Oil Ltd., [1954] S.C.R. 427, refd to. [para. 31].

Northwest Trust Co. v. Melane In­vestments Ltd. et al. (1991), 118 A.R. 321 (Q.B. Master), refd to. [para. 32].

Yorkshire Trust Co. v. Armwest Develop­ment Ltd. et al. (1986), 74 A.R. 241 (C.A.), refd to. [para. 36].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 50].

Brennenstuhl v. Trynchy et al., [2002] A.R. Uned. 193 (Q.B.), dist. [para. 54].

Tardif Estate et al. v. Wong et al. (2002), 303 A.R. 103; 273 W.A.C. 103; 2002 ABCA 121, refd to. [para. 4].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161; 172 D.L.R.(4th) 185, refd to. [para. 75].

Statutes Noticed:

Limitation of Actions Act, R.S.A. 1980, c. L-15, sect. 18 [para. 33, Appendix].

Limitations Act, R.S.A. 2000, c. L-12, sect. 1(i) [para. 35, Appendix]; sect. 3(4) [para. 55, Appendix].

Authors and Works Noticed:

Alberta, Hansard, Legislative Assembly, Official Reports of Debates (April 2, 1996), p. 988 [para. 30].

Alberta, Hansard, Legislative Assembly, Official Reports of Debates (March 6, 1996), pp. 416, 419 [para. 30].

Alberta, Law Reform Institute, Limitations, Report for Discussion, No. 4 (1986), generally [para. 28]; pp. 18 [para. 43]; 177, 178 [para. 44]; 213, 214 [para. 47]; paras. 3.67 to 3.71, 9.1 to 9.5 [para. 57].

Alberta, Law Reform Institute, Limitations, Report for Discussion, No. 55 (1989), generally [para. 28]; pp. 38 [para. 52]; 74 [para. 58].

Alberta, Law Reform Institute, Limitations Act: Adverse Possession and Lasting Improvements, Final Report No. 89 (2003), pp. 17 to 20 [para. 59].

Megarry, Robert, and Wade, William, The Law of Real Property (6th Ed. 1982) (2000 Update), pp. 1171, 1173 [para. 20].

Price, Francis C.R., and Trussler, Mar­guerite J., Mortgage Actions in Alberta (1985), pp. 74, 75, 132, 134 [para. 25]; 147 [para. 40]; 148 [para. 25]; 153, 154, 226, 227 [para. 26].

Sarna, Lazar, The Law of Declaratory Judgments (2nd Ed. 1988), p. 1 [para. 50].

Counsel:

K.E. Staroszik, Q.C., for the appellant;

A.J. Di Lello, for the respondent.

This appeal was heard on March 9, 2005, by Conrad, McFadyen and Hunt, JJ.A., of the Alberta Court of Appeal. Hunt, J.A., delivered the following decision for the court on August 19, 2005.