Toronto-Dominion Bank v. Dickison (Bankrupt) et al., 2015 NSSC 377

• Judge: Hood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 01, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 377;(2015), 369 N.S.R.(2d) 114 (SC)

TD Bk. v. Dickison (2015), 369 N.S.R.(2d) 114 (SC);

    1162 A.P.R. 114

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JA.035

The Toronto-Dominion Bank, one of the chartered Banks of Canada (plaintiff) v. BDO Canada Limited/BDO Canada Limitee as Trustee in bankruptcy for the Estate of Thomas A. Dickison and BDO Canada Limited/BDO Canada Limitee as Trustee in bankruptcy for the estate of Pauline Dickison (defendants)

(Hfx. No. 427967; 2015 NSSC 377)

Indexed As: Toronto-Dominion Bank v. Dickison (Bankrupt) et al.

Nova Scotia Supreme Court

Hood, J.

December 4, 2015.

Summary:

A bank applied to set aside a foreclosure sale on the ground that the bank's representative at the sale believed her bid to be the highest but the property was knocked down to another bidder. The sheriff would not re-open the sale to allow the bank to bid more.

The Nova Scotia Supreme Court dismissed the application.

Mortgages - Topic 5584

Mortgage actions - Setting aside a judicial or foreclosure sale - Grounds - General - The Nova Scotia Supreme Court extracted the following general principles from decided cases involving the setting aside of a foreclosure sale: "1. The Court has a discretion to set aside foreclosure sales but it should be used sparingly. 2. The party seeking to have a foreclosure sale set aside bears the burden of establishing it should be set aside. 3. Each case must be considered on its own facts to determine if there are special circumstances which require that the sale be set aside. A lawyer's inadvertence is not a special circumstance. 4. Inadequacy of price is, of itself, not sufficient reason to set aside a sale in the absence of an inference of unfairness, fraud, or mistake, or a price that shocks the conscience. 5. The integrity of the sale process is important. A successful bidder should be able to rely on the sale being final. 6. With respect to the Sheriff's conduct of the sale: a. the Sheriff is an officer of the Court; b. the Sheriff has an obligation to get the best price obtainable; c. the Sheriff must conduct the sale to ensure everyone who wishes to has an opportunity to bid; d. the Sheriff must ensure the property is sold to the highest bidder; e. before knocking the property down, the Sheriff must indicate 'Going once, going twice, going a third time' (or words to similar effect) and allow sufficient time between each announcement so there is time for any additional bid to be made; f. beyond the specific requirements set out in the Civil Procedure Rules, the Foreclosure Order, the Practice Memorandum and the Sheriff's policies, the Sheriff has discretion in the conduct of the sale, which discretion must be exercised reasonably." - See paragraph 50.

Mortgages - Topic 5592

Mortgage actions - Setting aside a judicial or foreclosure sale - Inadequacy of price plus other special circumstances - A foreclosure sale was held for property appraised at $205,000 - The bank (mortgagee) had a representative bidding - Two others also bid - The property was sold for $80,000 to Simms as the highest bidder - The representative, who had authority to bid up to $215,000, mistakenly believed that she, not Simms, had bid the $80,000 and accordingly did not bid higher - The sheriff conducting the sale refused to re-open the bidding to permit the representative to bid more - The Nova Scotia Supreme Court dismissed the bank's application to exercise its discretion to set aside the foreclosure sale - The Sheriff gave everyone an opportunity to bid - The amount of the final bid was indicated and the Sheriff provided an opportunity for additional bids by saying "Going once, going twice, going a third time" with sufficient pause to allow for a further bid - Once the final bid was accepted, it was appropriate for the Sheriff to refuse to re-open the bidding - The fact that the accepted bid was significantly less than the appraised value was not, in itself, sufficient reason to set aside the sale - The bidding was not rushed - There were only three bidders - The representative, through inadvertence or inattention, lost track of who made the $80,000 bid - It was not the Sheriff's responsibility to correct the error or assume there even was one - The bank failed to establish that there were special circumstances warranting setting aside the foreclosure sale.

Cases Noticed:

Pew v. Zinck, [1953] S.C.J. No. 12, refd to. [para. 23].

Atlantic Trust Co. v. H. & E. General Stores Ltd. et al. (1977), 25 N.S.R.(2d) 526; 36 A.P.R. 526 (T.D.), refd to. [para. 24].

Shaw v. Bunny (1864), 2 De G.J. & S. 468; 46 E.R. 456, refd to. [para. 25].

Northland Pine Co. v. Northern Insulating Co., 145 Minn. 395, refd to. [para. 26].

Reyes v. Sibley and Saranic (1979), 29 N.S.R.(2d) 599; 45 A.P.R. 599 (C.A.), refd to. [para. 29].

Nova Scotia Savings & Loan Co. v. Hill and Hill (1981), 45 N.S.R.(2d) 689; 86 A.P.R. 689 (T.D.), refd to. [para. 31].

Royal Bank of Canada v. Bonnar et al., (2007), 262 N.S.R.(2d) 60; 839 A.P.R. 60 (T.D.), refd to. [para. 36].

iNova Credit Union Ltd. v. Giamac Inc. et al. (2012), 323 N.S.R.(2d) 176; 1025 A.P.R. 176; 2012 NSSC 431, refd to. [para. 41].

McInnes Cooper & Robertson v. Sea Star Developments Ltd. (1997), 164 N.S.R.(2d) 60; 491 A.P.R. 60 (S.C.), refd to. [para. 46].

Counsel:

Andrew Rankin, for the plaintiff;

Stephen Kingston, for 3276325 Nova Scotia Limited.

This application was heard on December 1, 2015, at Halifax, N.S., before Hood, J., of the Nova Scotia Supreme Court, whose oral decision of December 4, 2015, was released in writing on January 18, 2016.