Royal Bank of Canada v. Place, (2010) 504 A.R. 230 (QB)

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 10, 2010
• Citations: (2010), 504 A.R. 230 (QB);2010 ABQB 733

Royal Bk. v. Place (2010), 504 A.R. 230 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.130

Royal Bank of Canada (plaintiff/respondent) v. Daryl Graham Place (defendant/applicant)

(0903 01184; 2010 ABQB 733)

Indexed As: Royal Bank of Canada v. Place

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

November 24, 2010.

Summary:

Place appealed a Master's decision that granted an Order Nisi and ordered sale of his house under a mortgage held by the Royal Bank of Canada.

The Alberta Court of Queen's Bench dismissed the appeal.

Practice - Topic 3129

Applications and motions - Motions - Adjournments - Place granted a mortgage to the Royal Bank of Canada (RBC) - The mortgage also secured a line of credit granted to Place, known as an RBC Homeline Plan (HLP) - Place had also granted a Conditional Sales Contract (CSC) which was subsequently assigned to RBC - Place defaulted on his payments pursuant to the mortgage, the HLP and the CSC - RBC sued, seeking foreclosure and judgment on the CSC against Place - RBC later provided Place with a statement of the amounts due pursuant to the mortgage, HLP and CSC - Place was noted in default - He took no proceedings to set aside the noting in default - RBC moved for an Order Nisi/Order for Sale on the mortgaged property and judgment on the CSC - Place served an unfiled affidavit and "Demand for Disclosure" on RBC - A Master denied Place's request for an adjournment in order to allow him to get the requested information from RBC - The Master granted an Order Nisi and ordered sale of the mortgaged property - Place appealed, asserting that the Master erred in not granting the adjournment - The Alberta Court of Queen's Bench dismissed the appeal - The Master reasonably exercised his discretion to refuse an adjournment - RBC was under no obligation to respond to the Demand for Disclosure - Pleadings had closed, no statement of defence was filed, and Place had been noted in default and had made no attempt to set aside the noting in default - The disclosure he was seeking was akin to the discovery process and was well outside the appropriate time for seeking such information - Moreover, most of the disclosure he sought was not relevant and material and likely would not have required a response even if the questions and disclosures were sought at the appropriate time (after filing a statement of defence) - Further, an adjournment would not have ensured a determination of the real issues, as there were none other than the calculation concerns and these were not raised until the appeal - RBC would have been prejudiced by delaying the Order for Sale - Finally, there was no reasonable expectation that the adjournment would accomplish Place's goal, since RBC had no obligation to respond to the disclosure demands - See paragraphs 58 to 63.

Practice - Topic 7466.4

Costs - Solicitor and client costs - Entitlement to - Mortgage actions - Place granted a mortgage to the Royal Bank of Canada (RBC) - The mortgage also secured a line of credit granted to Place, known as an RBC Homeline Plan (HLP) - Place had also granted a Conditional Sales Contract (CSC) which was subsequently assigned to RBC - Place defaulted on his payments pursuant to the mortgage, the HLP and the CSC - RBC sued, seeking foreclosure and judgment on the CSC against Place - RBC later provided Place with a statement of the amounts due pursuant to the mortgage, HLP and CSC - Place was noted in default - He took no proceedings to set aside the noting in default - RBC moved for an Order Nisi/Order for Sale on the mortgaged property and judgment on the CSC - Place served an unfiled affidavit and "Demand for Disclosure" on RBC - A Master denied Place's request for an adjournment in order to allow him to get the requested information from RBC - The Master granted an Order Nisi and ordered sale of the mortgaged property - Place's appeal was unsuccessful - RBC sought solicitor and his own client costs - The Alberta Court of Queen's Bench stated that "I am not willing to give RBC solicitor and his own client costs in this matter. This language is not supported by the HLP document, which states that RBC is only entitled to 'reasonable costs, including legal fees' and 'reasonable legal fees.' The use of the term 'reasonable' indicates that the Mortgage does not give solicitor and his own client costs, which are not taxed on reasonableness. I am therefore awarding RBC costs on a solicitor-client basis." - See paragraphs 64 to 68.

Practice - Topic 7805

Costs - Solicitor and his own client costs - Entitlement to - Mortgage foreclosure action - [See Practice - Topic 7466.4 ].

Practice - Topic 9000

Appeals - Notice of appeal - Time for filing and service of notice of appeal or reply - Place granted a mortgage to the Royal Bank of Canada (RBC) - The mortgage also secured a line of credit granted to Place, known as an RBC Homeline Plan (HLP) - Place had also granted a Conditional Sales Contract (CSC) which was subsequently assigned to RBC - Place defaulted on his payments pursuant to the mortgage, the HLP and the CSC - RBC sued, seeking foreclosure and judgment on the CSC against Place - RBC later provided Place with a statement of the amounts due pursuant to the mortgage, HLP and CSC - Place was noted in default - He took no proceedings to set aside the noting in default - RBC moved for an Order Nisi/Order for Sale on the mortgaged property and judgment on the CSC - Place served an unfiled affidavit and "Demand for Disclosure" on RBC - A Master denied Place's request for an adjournment in order to allow him to get the requested information from RBC - The Master granted an Order Nisi and ordered sale of the mortgaged property - Place appealed - His Notice of Appeal was filed on August 16, 2010 - Place served the Canada Revenue Agency (CRA) on September 1, 2010 - At issue was, inter alia, whether the appeal was outside the time limits - The Alberta Court of Queen's Bench held that RBC was served in time under both the old Rules of Court (seven days) and the new Rules of Court (10 days), and there was no clear requirement under either set of rules that Place serve the CRA in those seven days - See paragraphs 31 to 42.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - Place granted a mortgage to the Royal Bank of Canada (RBC) - The mortgage also secured a line of credit granted to Place, known as an RBC Homeline Plan (HLP) - Place had also granted a Conditional Sales Contract (CSC) which was subsequently assigned to RBC - Place defaulted on his payments pursuant to the mortgage, the HLP and the CSC - RBC sued, seeking foreclosure and judgment on the CSC against Place - RBC later provided Place with a statement of the amounts due pursuant to the mortgage, HLP and CSC - Place was noted in default - He took no proceedings to set aside the noting in default - RBC moved for an Order Nisi/Order for Sale on the mortgaged property and judgment on the CSC - Place served an unfiled affidavit and "Demand for Disclosure" on RBC - A Master denied Place's request for an adjournment in order to allow him to get the requested information from RBC - The Master granted an Order Nisi and ordered sale of the mortgaged property - Place appealed - On appeal, Place raised issues going to the validity of the contract, to fraud, to whether RBC's counsel owed him a fiduciary, or some other, duty and whether the calculations by RBC were correct - None of these were argued before the Master and were raised for the first time - The Alberta Court of Queen's Bench held that with a default judgment in place and no steps taken to overturn it, Place could not raise allegations against a non-party, contest the validity of the contracts, or allege fraud in the appeal - The only possible issue Place could be able to raise afresh related to the amount of damages owed to RBC - See paragraphs 43 to 47.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - Place granted a mortgage to the Royal Bank of Canada (RBC) - The mortgage also secured a line of credit granted to Place, known as an RBC Homeline Plan (HLP) - Place had also granted a Conditional Sales Contract (CSC) which was subsequently assigned to RBC - Place defaulted on his payments pursuant to the mortgage, the HLP and the CSC - RBC sued, seeking foreclosure and judgment on the CSC against Place - RBC later provided Place with a statement of the amounts due pursuant to the mortgage, HLP and CSC - Place was noted in default - He took no proceedings to set aside the noting in default - RBC moved for an Order Nisi/Order for Sale on the mortgaged property and judgment on the CSC - Place served an unfiled affidavit and "Demand for Disclosure" on RBC - A Master denied Place's request for an adjournment in order to allow him to get the requested information from RBC - The Master granted an Order Nisi and ordered sale of the mortgaged property - Place appealed and sought to introduce a report that contained information related to the alleged miscalculations of RBC in regards to the mortgage - The Alberta Court of Queen's Bench refused to admit the fresh evidence - Place could have gathered this evidence by due diligence before the hearing before the Master - With the exception of a small paragraph in the very lengthy "Notice to Disclose" attached to his affidavit, Place did not raise the issue of miscalculations before the Master at all, arguing only that he needed to get more information from RBC - Due diligence would have required Place to have filed a Statement of Defence and to have used the court process for discovery to get the information he sought in a timely manner - See paragraphs 48 to 53.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - Place granted a mortgage to the Royal Bank of Canada (RBC) - The mortgage also secured a line of credit granted to Place, known as an RBC Homeline Plan (HLP) - Place had also granted a Conditional Sales Contract (CSC) which was subsequently assigned to RBC - Place defaulted on his payments pursuant to the mortgage, the HLP and the CSC - RBC sued, seeking foreclosure and judgment on the CSC against Place - RBC later provided Place with a statement of the amounts due pursuant to the mortgage, HLP and CSC - Place was noted in default - He took no proceedings to set aside the noting in default - RBC moved for an Order Nisi/Order for Sale on the mortgaged property and judgment on the CSC - Place served an unfiled affidavit and "Demand for Disclosure" on RBC - A Master denied Place's request for an adjournment in order to allow him to get the requested information from RBC - The Master granted an Order Nisi and ordered sale of the mortgaged property - Place appealed and sought to introduce three affidavits - The Alberta Court of Queen's Bench held that under rule 6.14(3), the court could admit such evidence if the new evidence was significant enough that it could have affected the Master's decision - If the new evidence were to establish that RBC miscalculated the amount owing, this could have affected the Master's decision to the extent that the Statement of Indebtedness would require change and the Order Nisi/Order for Sale would state different amounts owing under the mortgage - The court admitted the affidavits, and dismissed the appeal - There was no miscalculation of mortgage indebtedness - See paragraphs 54 to 57.

Cases Noticed:

Alberta (Treasury Branches) v. Cieslik (2010), 488 A.R. 80; 2010 ABQB 113, refd to. [para. 26].

Maple Reinders Inc. v. Eagle Sheet Metal Inc. et al. (2006), 393 A.R. 375; 2006 ABQB 150, refd to. [para. 26].

United Utility Workers Association of Canada et al. v. TransAlta Corp. et al. (2004), 354 A.R. 58; 329 W.A.C. 58; 2004 ABCA 200, refd to. [para. 26].

Fern Investments Ltd. v. Burnet Duckworth & Palmer et al., [2004] A.R. Uned. 332; 2004 ABCA 329, refd to. [para. 26].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 28].

Harper v. Canada (Attorney General) (2002), 320 A.R. 1; 288 W.A.C. 1; 2002 ABCA 301, revd. in part [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201, refd to. [para. 28].

Balogun v. Pandher (2010), 474 A.R. 258; 479 W.A.C. 258; 2010 ABCA 40, refd to. [para. 29].

R. v. C.E.N., [2003] A.R. Uned. 585; 2003 ABCA 283, refd to. [para. 30].

Yaremchuk et al. v. Haight et al. (2001), 277 A.R. 160; 242 W.A.C. 160; 2001 ABCA 7, refd to. [para. 46].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 50].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 51].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 52].

Alberta v. Nilsson (2002), 320 A.R. 88; 288 W.A.C. 88; 2002 ABCA 283, refd to. [para. 55].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321; 68 D.L.R.(3d) 260, refd to. [para. 59].

Khimji v. Dhanani (2004), 182 O.A.C. 142; 69 O.R.(3d) 790 (C.A.), refd to. [para. 60].

Dreco Energy Services Ltd. et al. v. Wenzel Downhole Tools Ltd., [2010] A.R. Uned. 303; 2010 ABCA 257, refd to. [para. 60].

Bank of Montreal v. Lysyk, 2003 ABQB 47, refd to. [para. 60].

Somerset Specialties Ltd. v. Strub (Keith) Construction Ltd., [2007] O.A.C. Uned. 535; 2007 ONCA 885, refd to. [para. 60].

Matthison v. Bradburn (R.A.) Enterprises Inc. et al. (2007), 412 A.R. 19; 404 W.A.C. 19; 2007 ABCA 173, refd to. [para. 60].

Sprostranov v. State Farm Mutual Automobile Insurance Co. et al., [2009] O.A.C. Uned. 178 (Div. Ct.), refd to. [para. 60].

Penton v. Métis Nation of Alberta Association (1995), 171 A.R. 140; 29 Alta. L.R.(3d) 223 (Q.B.), refd to. [para. 61].

Edward v. Niagara Neighbourhood Housing Co-operative Inc. (2006), 210 O.A.C. 110; 23 C.B.R.(5th) 71 (Div. Ct.), refd to. [para. 61].

Jovanovic v. Hamilton-Wentworth Regional Police Services Board et al. (2009), 257 O.A.C. 3 (Div. Ct.), refd to. [para. 61].

York Condominium Corp. No. 98 v. Jeffers, [2008] O.A.C. Uned. 394; 168 A.C.W.S.(3d) 297 (Div. Ct.), refd to. [para. 61].

Alberta Permit Pro et al. v. Booth et al. (2008), 459 A.R. 320; 2008 ABQB 167, refd to. [para. 64].

Counsel:

Daryl G. Place appeared on his own behalf;

Steven M. Shafir (Witten LLP), for the respondent.

This appeal was heard on November 10, 2010, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on November 24, 2010.