Kraus v. Frith et al., (1996) 182 A.R. 108 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 12, 1996
• Citations: (1996), 182 A.R. 108 (QBM)

Kraus v. Frith (1996), 182 A.R. 108 (QBM)

MLB headnote and full text

Glen Kraus (plaintiff) v. Wesley George Frith, The Trustee in Bankruptcy of the Estate of Wesley George Frith and Mary Frith (defendants)

(Action No. 9603 00236)

Indexed As: Kraus v. Frith et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

March 12, 1996.

Summary:

A mortgagee applied for a summary judg­ment, being an order nisi in a foreclosure lawsuit.

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

Mortgages - Topic 4609

Redemption of mortgage - Variation of statutory period - A mortgagee asked that a statutory redem­ption period be shortened because the mortgagor was unable or unwilling to pay and his failure to pay was not due to con­ditions beyond his control - A Master of the Alberta Court of Queen's Bench rejected the request - The Master stated that it was not logical to interpret the statute to mean that the mortgagor's inabil­ity to pay is a ground for shortening the redemption period - "If that is so, the ... poor man gets less time to pay while the rich man gets more time to pay... The reasonable interpretation is the other way. The poor man needs more time. The rich man needs less time" - See paragraphs 54 to 62.

Practice - Topic 5708

Judgments and orders - Summary judg­ments - Bar to application - Existence of issue to be tried - A shareholder borrowed money for investment in the company - The money was advanced to a lawyer who paid it to the company - The shareholder defaulted - The lender sought summary judgment - The shareholder replied that the lawyer was acting for the company and that he never got any money - A Master of the Alberta Court of Queen's Bench granted summary judgment for failure of a triable issue on this point because the shareholder did not say that he did not authorize the plaintiff to advance the pro­ceeds to the lawyer and did not say that he did not auth­orize the lawyer to disburse the proceeds to the company - See para­graphs 17 to 27.

Real Property - Topic 2216

Dower or rights of wife - Assignment or bar of dower - Consent to conveyance - Requirement of acknowledgment - A mortgage on homestead property had the wife's consent as required by s. 4 of the Dower Act (Alta.) and a certificate of acknowledgment as required by s. 5 - The wife attacked her consent and acknowl­edgment on grounds of failure to receive independent legal advice - A Master of the Alberta Court of Queen's Bench dis­missed the wife's attack and held: "Where there is a consent signed by the spouse and a certificate of acknowledgment, both which are proper on their face, and the mortgagee is 'innocent', the mortgagor or the spouse cannot attack either the validity of the consent or the accuracy of the certif­icate" - See paragraphs 37 to 53.

Cases Noticed:

Northern Trusts Co. v. Naismith, [1926] 2 W.W.R. 127 (Alta. T.D.), refd to. [para. 3].

Canadian Imperial Bank of Commerce v. Ohlson (1996), 180 A.R. 248 (Q.B.), refd to. [para. 30].

Senstad v. Makus, [1978] 2 S.C.R. 44; 17 N.R. 361; 6 A.R. 451, consd. [para. 38].

McFarland v. Hauser et al., [1979] 1 S.C.R. 337; 23 N.R. 362; 12 A.R. 332, consd. [para. 38].

Amyotte v. Urchyshyn and Urchyshyn (1978), 13 A.R. 27 (T.D.), consd. [para. 38].

Statutes Noticed:

Dower Act, R.S.A. 1980, c. D-38, sect. 2, sect. 4 [para. 39]; sect. 5 [para. 6].

Law of Property Act, R.S.A. 1980, c. L-8, sect. 42(1)(b) [para. 54]; sect. 42(2)(b) [para. 59].

Counsel:

N. Fenna (Ritchie Mill Law Office), for the plaintiff;

D.N. Skovberg (Skovberg, Hinz & Assoc.), for the defendants.

This application was heard at Edmonton, Alberta, by Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton.

Master Funduk delivered the following decision on March 12, 1996.