LeBreton v. Poirier et al.,

• Jurisdiction: New Brunswick
• Judge: Rideout, J.
• Neutral Citation: 2008 NBQB 218
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Date: 18 June 2008

LeBreton v. Poirier (2008), 335 N.B.R.(2d) 314 (TD);

    335 R.N.-B.(2e) 314; 861 A.P.R. 314

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.B.R.(2d) TBEd. JL.003

Renvoi temp.: [2008] N.B.R.(2d) TBEd. JL.003

Dorothy May LeBreton (plaintiff) v. Claude Poirier, Registrar Land Titles, and Service New Brunswick (defendant)

(M/M/1/08; 2008 NBQB 218; 2008 NBBR 218)

Indexed As: LeBreton v. Poirier et al.

Répertorié: LeBreton v. Poirier et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

June 26, 2008.

Summary:

Résumé:

The plaintiff sought an order requiring that the defendant Registrar General Land Titles to remove or cancel a judgment which was registered against the property she received under a mortgage sale.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application and requested that the defendant rectify the title register by removing a reference to the judgment.

Creditors and Debtors - Topic 3006

Examination of debtors - General - Instalment order (incl. effect of) - The plaintiff sought an order requiring the the defendant Registrar General Land Titles to remove or cancel a judgment which was registered against the property she received under a mortgage sale - The plaintiff argued that the judgment was supplanted or superseded by the effects of a monthly instalment payment order made under s. 45(1) of the Arrest and Examinations Act and barred further recourse to the judgment in accordance with Canadian Surety Co. v. Spencer (NBCA, 1963) - Section 45(6) permitted a judge or other officer to vary an order for payment to such extent as the judge or officer considered reasonable under the circumstances - The judgment creditor argued that the effect of s. 45(6) was that there were no final orders under s. 45(1) and an instalment order could be rescinded - The New Brunswick Court of Queen's Bench, Trial Division, held that it was the intention of the legislation to make instalment orders final orders subject to the possibility of varying the orders as to amount of the instalment only - Rescission had such a strong effect that it would require a clear provision or amendment to s. 45(6) to accomplish that change - Therefore, the judgment had been supplanted and superseded by the instalment order - The court requested that the defendant rectify the title register by removing a reference to the judgment - See paragraphs 26 to 40.

Mortgages - Topic 5664

Mortgage actions - Sale - Interest conveyed - The plaintiff sought an order requiring that the defendant Registrar General Land Titles to remove or cancel a judgment which was registered against the property she received under a mortgage sale - The judgment creditor had commenced an action and filed a Certificate of Lis Pendens - In the action, the judgment creditor sought, inter alia, confirmation that its judgment had priority over the mortgage under which the mortgage sale was held and sought a declaration that the mortgage was void and of no effect - The New Brunswick Court of Queen's Bench, Trial Division, stated that if the defendant were to grant the application requested, this would have the effect of resolving the litigation between the plaintiff and the judgment creditor - Until that litigation had been resolved, it was very difficult for a court to be sufficiently satisfied to order rectification - See paragraphs 21 to 25.

Real Property - Topic 8043

Title - Registration of instruments, etc. - Land titles system - The registrar - Scope of powers - [See Mortgages - Topic 5664 ].

Créanciers et débiteurs - Cote 3006

Interrogatoires des debiteurs - Généralités - Ordonnance de paiement échelonné (y compris effet) - [Voir Creditors and Debtors - Topic 3006 ].

Hypothèques - Cote 5664

Actions hypothécaires - Vente - Intérêt cédé - [Voir Mortgages - Topic 5664 ].

Biens réels - Cote 8043

Titre - Enregistrement d'actes instrumentaires - Système d'enregistrement foncier - Le régistrateur - Portée des pouvoirs - [Voir Real Property - Topic 8043 ].

Cases Noticed:

Atlantic Waste Management Ltd. v. Mario's Metals Ltd. et al., 2004 NBQB 83, refd to. [para. 2].

Canadian Car Co. v. Pelletier (1961), 50 M.P.R. 272 (N.B.S.C.), refd to. [para. 14].

Hardy v. Munn and Household Finance Corp. of Canada (1977), 18 N.B.R.(2d) 386; 26 A.P.R. 386 (C.A.), refd to. [para. 15].

Canadian Surety Co. v. Spencer (1963), 37 D.L.R.(2d) 646; 1963 CarswellNB 9 (C.A.), refd to. [para. 16].

Bank of Montreal v. Monsell, 1984 CarswellBC 360 (S.C.), refd to. [para. 20].

Montgomery & Co. v. De Bulmes, [1898] 2 Q.B. 420; 67 L.J.Q.B. 768 (C.A.), refd to. [para. 29].

Mitchell, Re; Ex parte Cohen (1910), 54 Sol. Jo. 252, refd to. [para. 29].

Cooke (J.) & Sons v. Binding, [1961] 2 All E.R. 693 (C.A.), refd to. [para. 29].

Charlebois v. Saint John (City) (2004), 275 N.B.R.(2d) 203; 722 A.P.R. 203 (C.A.), refd to. [para. 36].

Hawkes v. Nolais et al. (2002), 253 N.B.R.(2d) 371; 660 A.P.R. 371 (C.A.), refd to. [para. 37].

Statutes Noticed:

Arrest and Examinations Act, R.S.N.B. 1973, c. A-12, sect. 45(1), sect. 45(6) [paras. 13, 38, 39].

Authors and Works Noticed:

Dunlop, Charles Richard Bentley, Creditor-Debtor Law in Canada, pp. 122, 123 [para. 19].

Counsel:

Avocats:

Patrick E. Hurley, Q.C., on behalf of the plaintiff;

David Eidt, on behalf of the defendant.

This application was heard on June 18, 2008, by Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on June 26, 2008.