Alexanian v. Dolinski

Alexanian v. Dolinski

Majority held the appeal must be dismissed because the Local Master’s conditional reopening of a final foreclosure was an erroneous exercise of discretion in the circumstances: the mortgagor had made no serious effort to raise money before the redemption deadline, there were no special equitable circumstances to justify reopening, the required indemnity bond was never produced, and the escrowed funds were not delivered to the mortgagee so did not effect redemption; a sale had been made to a bona fide purchaser who paid his money.

Citation
[1968] SCR 473
Parties
Appellant (mortgagor): Sarkis Alexanian; Respondent (purchaser): John Dolinski; Plaintiff (mortgagee): William C. Nickerson
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 April 1968
Procedural Posture
Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario / Final Appeal; Judgment on Merits (1968)
Outcome
Appeal dismissed (majority); Spence J. dissenting
Legal Topics
Foreclosure, Redemption, Reopening of Final Order, Bona Fide Purchaser, Solicitor Knowledge/imputation, Accounting in Equity
Source Language
English
Property Law Mortgages Equity Civil Procedure Foreclosure Redemption Reopening of Final Order Bona Fide Purchaser +2 more

Case Brief

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Parties

Sarkis Alexanian

Appellant (mortgagor)

John Dolinski

Respondent (purchaser)

William C. Nickerson

Plaintiff (mortgagee)

Procedural Posture

Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario / Final Appeal; Judgment on Merits (1968)

Legal Issues

  1. 1 Whether a final order of foreclosure can be reopened after the redemption period has expired and a sale has been made
  2. 2 Whether deposit of funds with the mortgagee’s solicitors and retention in their trust account constituted redemption
  3. 3 Whether purchaser was a bona fide purchaser for value without notice where same solicitor firm acted for mortgagee and purchaser

Ratio Decidendi

Majority held the appeal must be dismissed because the Local Master’s conditional reopening of a final foreclosure was an erroneous exercise of discretion in the circumstances: the mortgagor had made no serious effort to raise money before the redemption deadline, there were no special equitable circumstances to justify reopening, the required indemnity bond was never produced, and the escrowed funds were not delivered to the mortgagee so did not effect redemption; a sale had been made to a bona fide purchaser who paid his money.

Court Disposition

Appeal dismissed (majority); Spence J. dissenting

Orders

  • Appeal dismissed with costs to the respondent