Federal Business Development Bank v. Caskey, (1992) 126 A.R. 254 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 15, 1992
• Citations: (1992), 126 A.R. 254 (QBM)

FBDB v. Caskey (1992), 126 A.R. 254 (QBM)

MLB headnote and full text

Federal Business Development Bank (applicant) v. Cameron Caskey (defendant)

(Action No. 9103 22147)

Indexed As: Federal Business Development Bank v. Caskey

Alberta Court of Queen's Bench

Judicial District of Edmonton

Quinn, Master in Chambers

January 15, 1992.

Summary:

A bank applied for a declaration that an agreement for sale of land had been termi­nated and for an order for discharge of a caveat registered against the land.

A Master of the Alberta Court of Queen's Bench allowed the application.

Crown - Topic 2803

Crown immunity - General - Immunity under provincial legislation - Alberta Law of Property Act - A Master of the Alberta Court of Queen's Bench held that the Crown and its agents were not bound by ss. 41(1) and (2) of the Law of Property Act - See paragraphs 16 to 21.

Crown - Topic 2885

Crown immunity - Exceptions - Bene­fit/burden or waiver - The Federal Busi­ness Development Bank (FBDB) sought a declaration as an unpaid vendor that an agreement for sale of land had been ter­minated extrajudicially - FBDB sub­mitted that a Crown agency was not bound by the ss. 41(1) and (2) of the Law of Property Act - A Master of the Alberta Court of Queen's Bench held that FBDB had not waived Crown immunity as it had not commenced an action pursuant to the Law of Property Act seeking an in rem remedy - It relied only on its contractual right and sought only declaratory relief - See para­graphs 16 to 22.

Practice - Topic 3084

Applications and motions - Applications - Inter partes - When appropriate - [See Sale of Land - Topic 9281 ].

Sale of Land - Topic 7604

Remedies of vendor - Upon default by purchaser - A Master of the Alberta Court of Queen's Bench held that, in cases where the Crown or a Crown agent was not involved, an unpaid vendor could not extrajudicially terminate the agreement, where the purchaser was an individual - See paragraphs 4 to 15.

Sale of Land - Topic 9281

Practice - Summary applications respect­ing title - General - Federal Business Development Bank sought a declaration that an agree­ment for sale of land had been extrajudic­ially terminated - The purchaser sub­mitted that a declaration could not be made on a summary applica­tion where there were issues to be tried, for example, whether the purchaser had defaulted, whether the bank had repudiated the agreement, whether there were evidentiary impediments - A Master of the Alberta Court of Queen's Bench found no triable issue and made a declaration that the agreement had been extrajudicially deter­mined - See paragraphs 23 to 58.

Cases Noticed:

Tymo et al v. Wild Rose Properties Ltd. (1983), 43 A.R. 54; 24 Alta. L.R.(2d) 351, refd to. [para. 5].

Alberta Government Telephones v. Cana­dian Radio-Television and Tele­communications Commission - see Alberta Government Telephones and Alberta (Attorney General) v. Canada Labour Relations Board and International Brotherhood of Electrical Workers, Local 348.

Alberta Government Telephones and Alberta (Attorney General) v. Canada Labour Relations Board and International Brotherhood of Electrical Workers, Local 348, [1989] 5 W.W.R. 385; 98 N.R. 264; 68 Alta. L.R.(2d) 1; 61 D.L.R.(4th) 193; 26 C.P.R.(3d) 289 (S.C.C.), refd to. [para. 20].

Co-operators General Insurance Co. (1988), 90 A.R. 295; 62 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 32].

Slipchuk v. Yadlowsky (1988), 86 A.R. 348; 57 Alta. L.R. 263 (Q.B.), refd to. [para. 35].

Bank of Montreal v. Brown (1957), 21 W.W.R.(N.S.) 287 (B.C.S.C.), refd to. [para. 41].

Advance Rumley Thresher Co. v. LeClair, [1917] 1 W.W.R. 875 (Alta. C.A.), refd to. [para. 42].

Toronto Dominion Bank v. Snowbird Electric (1984) Ltd. and Walters (1985), 75 A.R. 216; 49 Alta. L.R.(2d) 221, refd to. [para. 45].

Decren Properties Ltd. v. Yarmovich (1985), 59 A.R. 62, refd to. [para. 50].

Statutes Noticed:

Fires Prevention (Metropolis) Act 1774, 14 Geo. 3, c. 78, generally [para. 52].

Judicature Act, Amendment Act, S.A. 1939, sect. 37(q) sect. [para. 12].

Law of Property Act, R.S.A. 1980, c. L-8, sect. 41(1), sect. 41(2) [para. 12]; part 5 [para. 16].

Rules of Court (Alta.), rule 305(2) [para. 43]; Part 49 [para. 4].

Authors and Works Noticed:

Alberta Law Reform Institute, Mortgage Remedies in Alberta, pp. 40 [para. 17]; 47-51 [para. 18].

Price and Trussler, Mortgage Actions in Alberta, p. 433 [para. 8].

Counsel:

B.W. Sarabin (Bishop and McKenzie), for Federal Business Development Bank;

F.H. Monaghan (Cook, Duke and Com­pany), for Cameron Caskey.

This application was heard before Quinn, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following judgment on January 15, 1992.