Canada Case Law

1842752 Ontario Inc. v. Fortress Wismer 3-2011 Ltd.

Court

Court of Appeal for Ontario

Appeal dismissed: the Execution Act does not authorize declaring a writ of seizure and sale binding on the registered owner who holds land as trustee; an execution creditor can only enforce the debtor's interest and cannot obtain a greater or proprietary right against the registered owner, and s.93(4) of the Land Titles Act does not convert actual notice of a writ into priority over subsequent advances under a prior registered charge; priorities are determined by the Creditors' Relief Act and statutory land titles rules.

Source excerpt

• Writ of seizure and sale
• Priority of charges and subsequent advances
• Unregistered trust vs registered title
• Effect of actual notice
• Sheriff sales and distribution under creditors' relief act
• Interpretation of execution act and land titles act provisions

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Carfrae Estates Limited v. 2108790 Ontario Inc.

Court

Court of Appeal for Ontario

The Limitations Act s.4 and s.15 establish a uniform ten-year limitation for remedies under charges; the respondent's rights in the debenture were extinguished because more than ten years elapsed from the 1984 demand to the 2006 assignment, equitable considerations cannot override the clear statutory extinguishment, and the trial judge erred in deciding the case on unpleaded equitable grounds; accordingly the debenture must be discharged and deleted from title and the defendants' counterclaim dismissed.

Source excerpt

• Discharge of debenture
• Limitation periods
• Title extinguishment
• Statutory interpretation
• Pleadings and scope of trial

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Levesque v. MMR Holdings

Court

Supreme Court of British Columbia

The court held that #100 did not consent to a one-year extension of the loan, was discharged as surety, and was entitled to return of its duplicate title.

• Discharge of guarantor by variation
• Extension of loan term
• Hypothecation of duplicate certificate of title
• Return of security
• Order nisi and redemption
• Suretyship

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Collins v. Cunningham / Cunningham v. Drysdale

Court

Supreme Court of Canada

The Supreme Court of Canada upheld a chambers order staying foreclosure proceedings on payment into court and allowed a sale order that preserved a lessee’s rights.

• Foreclosure
• Party joinder
• Stay of proceedings
• Priority of incumbrances
• Sale subject to lessee's rights
• Assignment of mortgage

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