Gryckiewicz v. Calafate Holdings Ltd. et al.,

• Judge: Robertson
• Neutral Citation: 2014 ABQB 258
• Citation: 2014 ABQB 258,(2014), 587 A.R. 358 (QBM),587 AR 358,(2014), 587 AR 358 (QBM),587 A.R. 358
• Date: 07 April 2014
• Court: Court of Queen's Bench of Alberta (Canada)

Gryckiewicz v. Calafate Holdings Ltd. (2014), 587 A.R. 358 (QBM)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.016

Ada Gryckiewicz (applicant) v. Calafate Holdings Ltd. and Timber Ridge Capital Ltd. (respondents)

(1301 00523; 2014 ABQB 258)

Indexed As: Gryckiewicz v. Calafate Holdings Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Robertson, Master

April 29, 2014.

Summary:

Gryckiewicz had half of the money required to purchase a home, but did not have a good credit history. She entered into an agreement with her daughter and son-in-law (Dalen) pursuant to which they purchased the home for her, but put title in Dalen's name and Dalen obtained a mortgage for the remaining half of the purchase price. Dalen, without the knowledge of Gryckiewicz, borrowed funds from a "syndicate" for his own purposes and granted them a second mortgage on the home. When Gryckiewicz learned about the mortgage, she spoke to Dalen who said that he would pay it off. He wrote a cheque to the syndicate but it was returned for non-sufficient funds. Unbeknownst to Gryckiewicz, Ironside paid the mortgage off on Dalen's behalf and subsequently obtained default judgment against Dalen for the amount owing as a result of the payment. Gryckiewicz applied under s. 106(1)(c) of the Land Titles Act to have the mortgage discharged, asserting that the time for enforcing the mortgage had run under the Limitations Act. Ironside opposed the application, asserting that he was the successor to the syndicate's position as mortgagees and the limitation period had not run to prevent a foreclosure because Dalen had made payments in kind that re-started the limitation period.

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

Agency - Topic 301

Creation of relations - General - What constitutes - Gryckiewicz had half of the money required to purchase a home, but lacked a good credit history - She entered into an agreement with her daughter and son-in-law (Dalen) pursuant to which they purchased the home for her, but put title in Dalen's name and Dalen obtained a mortgage for the remaining half of the purchase price - Dalen, without Gryckiewicz's knowledge, granted a "syndicate" a second mortgage on the home - When Gryckiewicz learned about the mortgage, she spoke to Dalen who said that he would pay it off - He wrote a cheque to the syndicate but it was returned for non-sufficient funds - Unbeknownst to Gryckiewicz, Ironside paid the mortgage off on Dalen's behalf and subsequently obtained default judgment against Dalen for the amount owing as a result of the payment - Gryckiewicz applied under s. 106(1)(c) of the Land Titles Act to have the mortgage discharged, asserting that the time for enforcing the mortgage had run under the Limitations Act - Ironside asserted that he was the successor to the syndicate's position as mortgagees, and the limitation period had not run to prevent a foreclosure because it had been restarted when Dalen made payments in kind - A Master of the Alberta Court of Queen's Bench allowed Gryckiewicz's application - The rights of a transferee of a mortgage did not pass unless and until the transferee had both taken a proper transfer of the mortgage and had it registered - Ironside never obtained a transfer - He could not provide a discharge and never had the right to seek an in rem remedy - To the extent that Dalen made payments on the debt to the syndicate or Ironside, he did so because he had acted outside the scope of, and in breach of, the agreement with Gryckiewicz - He was not making those payments as her agent - Accordingly, the time for enforcing the mortgage had run under the Limitations Act.

Limitation of Actions - Topic 2182

Actions in contract - Mortgages - When time begins to run - [See Agency - Topic 301 ].

Limitation of Actions - Topic 2185

Actions in contract - Mortgages - Action for foreclosure and sale - [See Agency - Topic 301 ].

Mortgages - Topic 1481

The mortgage - Transfer or assignment - General - [See Agency - Topic 301 ].

Mortgages - Topic 3307

Discharge of mortgage - General - Entitlement - [See Agency - Topic 301 ].

Mortgages - Topic 3403

Discharge of mortgage - Discharge by court order - When available - [See Agency - Topic 301 ].

Cases Noticed:

Gottlieb (David M.) Professional Corp. et al. v. Tymkow, [2011] A.R. Uned. 385; 2011 ABQB 317, refd to. [para. 52].

Daniels v. Mitchell (2005), 371 A.R. 298; 354 W.A.C. 298; 2005 ABCA 271, refd to. [para. 54].

Blair v. Desharnais (2005), 371 A.R. 196; 354 W.A.C. 196; 2005 ABCA 272, refd to. [para. 54].

Century 21 Real Estate Ltd. v. Reykdal Investments Ltd., [1979] A.J. No. 906 (T.D.), refd to. [para. 58].

National Trust Co. v. Conroy (1995), 168 A.R. 161 (Q.B.), refd to. [para. 62].

Avco Financial Services Canada Ltd. v. Kilbreath (1996), 192 A.R. 131 (Q.B.), refd to. [para. 62].

Counsel:

Paul Edwards and Tyler Bond (Gowling Lafleur Henderson LLP), for the applicant, Ada Gryckiewicz;

David LeGeyt and Doug Schweitzer (Dentons Canada LLP), for the respondent (non-party), Brett Ironside;

No one appearing for the respondents, Calafate Holdings Ltd. and Timber Ridge Capital Ltd.

This application was heard in chambers on April 7, 2014, by Robertson, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on April 29, 2014.