Royal Bank of Canada v. Mysak
- Citation
- 2020 BCSC 1122
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 31 July 2020
- Posture
- Foreclosure / Variation of Order Nisi to Set Aside Personal Judgment
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 31 July 2020
- Posture
- Foreclosure / Variation of Order Nisi to Set Aside Personal Judgment
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Because the last mortgage payment predated the bankruptcies/proposal and the mortgage was included in the creditors' packages, the Mysaks were discharged of personal liability and there was no basis for the personal judgment; the order nisi must be varied to set aside that personal judgment.
Court disposition
Order varying the order nisi of foreclosure by setting aside the personal judgment obtained against Danny Mysak and Terra Mysak.
Orders
- Order varying the order nisi dated September 9, 2019 by setting aside the personal judgment against Danny Mysak and Terra Mysak.
02
Material facts
Parties
Royal Bank of Canada
Petitioner Counsel: L.G. YangDanny Mysak
RespondentTerra Mysak
RespondentBCD Capital Inc. also known as BDC Capital Inc.
RespondentAmounts and remedies
- Docket: 29,303
03
Procedural history
Posture
Foreclosure / Variation of Order Nisi to Set Aside Personal Judgment
04
Questions and positions
Legal issues
- 01
Whether personal judgment could properly be entered against debtors discharged under the Bankruptcy and Insolvency Act or a Division I proposal
- 02
Whether the mortgage debt was included in the bankruptcy/proposal so as to preclude personal liability
- 03
Whether the order nisi should be varied to set aside the personal judgment
Party arguments
- Applicant
- The petitioner (Royal Bank) argued it honestly but mistakenly believed it was entitled to personal judgment because it understood the discharges to post‑date the demand and commencement of foreclosure.
- Respondent
- The respondents asserted that their respective bankruptcy/proposal discharges and inclusion of the mortgage in the creditors' packages precluded entry of personal judgment against them.
05
Court’s reasoning
Legal principles
- 01
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3
A discharge in bankruptcy or a Division I proposal releases the debtor from personal liability for claims included in the bankruptcy/proposal.
- 02
Bankruptcy law and foreclosure practice (applied by this Court)
A secured creditor may pursue foreclosure remedies, but personal judgment is not proper where the debt was included in a bankruptcy or proposal and discharged; an honest mistake by the creditor does not create entitlement to personal judgment.
06
Ratio, limits and disposition
Ratio decidendi
Because the last mortgage payment predated the bankruptcies/proposal and the mortgage was included in the creditors' packages, the Mysaks were discharged of personal liability and there was no basis for the personal judgment; the order nisi must be varied to set aside that personal judgment.
Obiter and limits
- The Court found the petitioner acted honestly and mistakenly in seeking personal judgment.
- The variation was limited to setting aside personal judgment; the remainder of the foreclosure order nisi was not disturbed in these reasons.
Court disposition
Order varying the order nisi of foreclosure by setting aside the personal judgment obtained against Danny Mysak and Terra Mysak.
- Order varying the order nisi dated September 9, 2019 by setting aside the personal judgment against Danny Mysak and Terra Mysak.
Source and reliance status
Supreme Court of British Columbia · 31 July 2020
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of British Columbia
Judgment· 31 July 2020
2020 BCSC 1122 Royal Bank of Canada v. Mysak
IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Royal Bank of Canada v. Mysak, 2020 BCSC 1122 Date: 20200731 Docket: 29303 Registry: Cranbrook Between: Royal Bank of Canada Petitioner And Danny Mysak, Terra Mysak and BCD Capital Inc. also known as BDC Capital Inc. Respondents Before: The Honourable Mr. Justice Marchand Reasons for Judgment Counsel for the Petitioner: L.G. Yang No other appearances: Written Submissions Received: July 29, 2020 Place and Date of Judgment: Cranbrook, B.C. July 31, 2020 [1] On April 24, 2019, the petitioner issued a demand on the mortgage that is the subject of this proceeding to the respondents, Danny Mysak and Terra Mysak. [2] On the same date, the petitioner learned that Ms. Mysak had been discharged from a Division I proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 on January 2, 2019 and that Mr. Mysak had been discharged from an assignment in bankruptcy on February 8, 2019. [3] Given that the discharges pre-dated the issuance of the demand on the mortgage and the commencement of this proceeding, the petitioner honestly but mistakenly believed that it was entitled to personal judgment against the Mysaks in this foreclosure proceeding. Accordingly, on September 9, 2019, the petitioner sought and obtained an order nisi of foreclosure, including personal judgment against the Mysaks. [4] The petitioner has subsequently
discovered that the last payment made by the Mysaks on the mortgage occurred prior to Mr. Mysak's bankruptcy and Ms. Mysak's proposal, and that the creditors' packages for Mr. Mysak's assignment in bankruptcy and Ms. Mysak's proposal both included the mortgage. As a result, there was no basis for the petitioner to have been granted personal judgment against the Mysaks. [5] For these reasons, I grant the petitioner an order varying the order nisi of foreclosure granted on September 9, 2019 by setting aside the personal judgment obtained against the respondents, Mr. Mysak and Ms. Mysak. "L.S. Marchand J." MARCHAND J.
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