R. v. A.V.B.

R. v. A.V.B.

The unregistered mortgage executed August 30, 2008 did not create an interest enforceable against the Crown because it was not registered under the Land Title Act and the restraint order registered September 4, 2008 is an encumbrance with priority; alternatively, the bank failed to satisfy s.20(4)(b) CDSA because it...

Source-derived case information.

Citation
2009 BCSC 1807
Parties
Crown: Regina; Accused/owner: A.V.B.; Applicant/third Party Mortgagee: Canadian Imperial Bank of Commerce
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 October 2009
Procedural Posture
Criminal Forfeiture Under the Controlled Drugs and Substances Act (cdsa) Involving Real Property / Chambers Application for Declaration Under S.20 CDSA (interlocutory Application Following Forfeiture Order)
Outcome
Application dismissed in respect of the unregistered (new) mortgage; declaration/order granted by consent for the registered second mortgage
Legal Topics
Forfeiture, Restraint Order, Mortgage Priority, Equitable Mortgage, Registration Under Land Title Act, Innocent Third Party, S.20 CDSA Discretion, Title Search/deemed Notice
Source Language
english
Criminal Law Property Law Statutory Interpretation Civil Procedure Forfeiture Restraint Order Mortgage Priority Equitable Mortgage +4 more

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Parties

Regina

Crown

A.V.B.

Accused/owner

Canadian Imperial Bank of Commerce

Applicant/third Party Mortgagee

Procedural Posture

Criminal Forfeiture Under the Controlled Drugs and Substances Act (cdsa) Involving Real Property / Chambers Application for Declaration Under S.20 CDSA (interlocutory Application Following Forfeiture Order)

Legal Issues

  1. 1 Does the applicant have standing as a person claiming an interest in the property?
  2. 2 Does an unregistered (equitable) mortgage executed before registration but after the owner reduced his interest create an enforceable interest against the Crown where a restraint order was registered?
  3. 3 Are Land Title Act registration, deemed notice and priority rules displaced by the CDSA?

Ratio Decidendi

The unregistered mortgage executed August 30, 2008 did not create an interest enforceable against the Crown because it was not registered under the Land Title Act and the restraint order registered September 4, 2008 is an encumbrance with priority; alternatively, the bank failed to satisfy s.20(4)(b) CDSA because it did not exercise all reasonable care (a more current title search would have revealed the restraint), therefore the court could not or would not exercise its discretion to protect the unregistered mortgage.

Court Disposition

Application dismissed in respect of the unregistered (new) mortgage; declaration/order granted by consent for the registered second mortgage

Orders

  • Application under s.20 CDSA dismissed with respect to the unregistered mortgage executed August 30, 2008
  • Declare and order that the registered second mortgage in favour of the Canadian Imperial Bank of Commerce in the amount of 100000 CAD (plus accrued interest and appropriate expenses) be paid out