Royal Bank of Canada v. Benchmark Real Estate Appraisals Ltd. et al., (2015) 615 A.R. 302 (QB)

• Judge: Park, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 06, 2015
• Citations: (2015), 615 A.R. 302 (QB);2015 ABQB 288

Royal Bk. v. Benchmark Real Estate (2015), 615 A.R. 302 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.050

Royal Bank of Canada (plaintiff/repondent) v. Benchmark Real Estate Appraisals Ltd., Syed Waris, Randall G. Stegemann, and M. Terry Leonard and M. Terry Leonard Professional Corporation (defendants/appellants) and M. Terry Leonard, M. Terry Leonard Professional Corporation, Danny Starke, Ali-El-Sayed, 1341223 Alberta Inc., Imtiaz Manji, MDevelopments Inc., David Steed, Catherine Steele, Lori MacPherson, Jason Evans, John Doe 1, John Doe 2, Jane Doe 1, Jane Doe 2 and ABC Corp. (third party)

Royal Bank of Canada (plaintiff/respondent) v. Danny Starke also known as Dan Starke (defendant/appellant)

(1101 11605; 1101 11606; 2015 ABQB 288)

Indexed As: Royal Bank of Canada v. Benchmark Real Estate Appraisals Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Park, J.

May 1, 2015.

Summary:

After obtaining a final order of foreclosure, the bank sued the mortgagor, the bank's lawyer and its appraisers, alleging fraud, breach of contract and negligence. The defendants sought summary dismissal of the actions. The defendants asserted that having obtained foreclosure, the doctrine of merger precluded the bank from obtaining a second judgment against the same defendant on the same cause of action, and the action was barred by either the doctrine of res judicata or s. 48 of the Law of Property Act.

A Master of the Alberta Court of Queen's Bench, in a judgment reported (2014), 589 A.R. 277, dismissed the applications. The Master held that merger did not apply where the foreclosure action was different from the present action. As for issue estoppel and cause of action estoppel, it did not preclude the present action as the issues and causes of action were different than the foreclosure action. The Master also held that the claim for damages in tort against the mortgagor for a fraudulent misrepresentation or deceit that induced the bank to enter into a contract was a totally different claim from one for the debt resulting from that contract. Section 48 did not bar such a claim. The same analysis applied to the claim against the lawyer and appraisers for negligence. Section 48 did not bar the action. Finally, the Master held that the present action did not constitute an impermissible collateral attack on the foreclosure order. The defendants appealed.

The Alberta Court of Queen's Bench dismissed the appeals. The Master correctly determined that s. 48 did not preclude the present claims and correctly rejected the application of issue estoppel, cause of action estoppel, and collateral attack. The issue of merger was not dealt with on appeal.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - See paragraphs 14 to 58.

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - See paragraphs 14 to 58.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - See paragraphs 14 to 58.

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - See paragraphs 14 to 58.

Mortgages - Topic 5512

Mortgage actions - Action for foreclosure and sale - Foreclosure order - Effect of - See paragraphs 14 to 58.

Mortgages - Topic 5537

Mortgage actions - Foreclosure and sale - Final or confirming order - Effect of - See paragraphs 14 to 58.

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - See paragraphs 14 to 58.

Counsel:

Tara Petersen, for the plaintiff/respondent;

Bruce J. MacLeod, Richard Van Dorp and Loran V. Halyn, for the defendants/appellants.

These appeals were heard on January 6, 2015, before Park, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on May 1, 2015.