First Nations Bank of Canada v. Ledoux et al.,

• Jurisdiction: Saskatchewan
• Judge: Wilkinson, J.
• Neutral Citation: 2005 SKQB 262
• Citation: 2005 SKQB 262,(2005), 266 Sask.R. 73 (QB),[2006] 1 WWR 190,12 CBR (5th) 5,266 Sask R 73,266 SaskR 73,(2005), 266 SaskR 73 (QB),266 Sask.R. 73
• Date: 07 June 2005
• Court: Court of Queen's Bench of Saskatchewan (Canada)

First Nations Bk. v. Ledoux (2005), 266 Sask.R. 73 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JN.040

First Nations Bank of Canada (proposed plaintiff) v. Norman Ledoux and Tricia Sutherland (proposed defendants)

(2005 Q.B.G. No. 21; 2005 SKQB 262)

Indexed As: First Nations Bank of Canada v. Ledoux et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Wilkinson, J.

June 7, 2005.

Summary:

The plaintiff mortgagee applied for leave to commence an action for foreclosure. Two issues arose: (1) whether the mortgaged property was farm land, such that the Saskatchewan Farm Security Act would apply rather than the Land Contracts (Actions) Act; and (2) whether it was appropriate for a mortgagee to claim solicitor-client costs of, and incidental to, an application for leave to commence an action for foreclosure.

The Saskatchewan Court of Queen's Bench held that the property was not farm land. The plaintiff was granted leave to commence an action for foreclosure with the proviso that the claim for costs of the application for leave and of the foreclosure action would be "as between solicitor and client" as provided in the mortgage.

Mortgages - Topic 5519

Mortgage actions - Action for foreclosure and sale - Costs - A mortgagee applied for leave to commence a foreclosure action - The mortgagee argued that its contractual right to solicitor-client costs should not be disallowed in the absence of egregious or unreasonable conduct on the part of the mortgagee - The Saskatchewan Court of Queen's Bench rejected the argument - Notwithstanding the mortgagee's contractual right to costs as between solicitor and client, the court had the right to exercise its discretion as to costs in a manner contrary to the agreement - However, that discretion had to be exercised judicially and for good reason - The court possessed that right where the costs claimed were unfair, or excessive, or unduly onerous in all of the circumstances - Alternatively, the court stated that it could justify an abatement of the amount claimed on the ground that the contractual term used ("costs as between solicitor and client") had an imprecise meaning - There was authority for the proposition that that term could denote something less than full costs on a solicitor-client basis - See paragraphs 6 to 19.

Mortgages - Topic 7746.1

Mortgagee's remedies - General - Statutory suspension (incl. farm land security legislation) - Farm land - What constitutes - A mortgage was held on a 10.6 acre parcel of land - A house was located on a six acre portion, which was zoned residential - The remaining 4.6 acres were zoned agricultural - There was an old barn and some fencing on the property - There were several horses - There was no evidence that the mortgagors utilized the property for any commercial purpose and one mortgagor was engaged in off-farm employment - The Saskatchewan Court of Queen's Bench held that the property was not farm land to which the Saskatchewan Farm Security Act applied - See paragraphs 4 to 5.

Practice - Topic 7466.4

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Mortgage actions - [See Mortgages - Topic 5519 ].

Cases Noticed:

Royal Bank of Canada v. Lockhart, [1996] 7 W.W.R. 305; 144 Sask.R. 190; 124 W.A.C. 190 (C.A.), refd to. [para. 5].

Naber Seed & Grain Co. (Receivership) v. Prairie Pulse Inc. et al. (2004), 258 Sask.R. 163; 2004 SKQB 518, refd to. [para. 5].

Canadian Imperial Bank of Commerce v. Swystun (1989), 80 Sask.R. 282 (Q.B.), refd to. [para. 7].

Fidelity Trust Co. v. Hawrish, Ward and Ward (1986), 55 Sask.R. 10 (C.A.), refd to. [para. 7].

Mayhew v. Adams, [1930] 3 W.W.R. 539; 25 Sask. L.R. 204; [1931] 1 D.L.R. 611 (C.A.), refd to. [para. 7].

Saskatoon Credit Union v. MacKay (1988), 73 Sask.R. 31 (Q.B.), refd to. [para. 7].

Lloydminster Credit Union Ltd. v. Hogg (1992), 102 Sask.R. 185 (Q.B.), refd to. [para. 7].

Royal Bank of Canada v. Bohach (1996), 144 Sask.R. 139; 124 W.A.C. 139 (C.A.), refd to. [para. 7].

Toronto-Dominion Bank v. Neilson et al. (2003), 233 Sask.R. 311; 2003 SKQB 199, refd to. [para. 7].

CIBC Mortgage Corp. v. Dubois (2003), 240 Sask.R. 50; 2003 SKQB 472, refd to. [para. 8].

Bossé v. Mastercraft Group Inc. et al. (1995), 80 O.A.C. 185 (C.A.), consd. [para. 12].

R. v. Innocente (D.J.) (2003), 214 N.S.R.(2d) 263; 671 A.P.R. 263; 2003 NSSC 75, consd. [para. 17].

Authors and Works Noticed:

Falconbridge, Law of Mortgages (4th Ed. 1977), p. 694 [para. 7].

Rayner, W.B. and McLaren, R.H., in Falconbridge, Law of Mortgages (4th Ed. 1977), p. 694 [para. 7].

Counsel:

C.M. Wiegers, for the proposed plaintiff;

A.K. Pandilla, Q.C., for the proposed defendant, Tricia Sutherland.

This application was heard before Wilkinson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following fiat on June 7, 2005.