Canada Case Law

Sky v. Toronto-Dominion Bank

Court

British Columbia Court of Appeal

It is not plain and obvious that the disputed pleading is a collateral attack or abuse of process because it does not contradict the order nisi, alleges independent actionable wrongs (breach of contract/duty of good faith) that were not and could not meaningfully have been raised at the order nisi hearing, and permitting the pleadings will not cause manifest unfairness or bring the administration of justice into disrepute; therefore the chambers judge erred and the amendments should be permitted.

Source excerpt

• Collateral attack
• Abuse of process
• Order nisi
• Foreclosure
• Good faith in contractual discretion
• Amendment of pleadings

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Khehra v. 1291454 B.C. Ltd.

Court

Supreme Court of British Columbia

In a foreclosure petition, the court held claims against two respondents were statute barred and dismissed them with costs, while granting an order nisi against the registered owner.

• Foreclosure
• Guarantee versus covenant
• Limitation act discoverability
• Acknowledgement of debt
• Redemption period
• Order nisi

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Vant Geloof v. Grewal

Court

Supreme Court of British Columbia

In a foreclosure application, an associate judge held that a mortgage clause raising interest from 6% to 18.99% after maturity offended s. 8 of the Canada Interest Act.

• Canada interest act s.8
• Penalty interest
• Redemption period
• Order nisi
• Associate judge jurisdiction
• Foreclosure

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Instafund Mortgage Management Corp. v. 1365651 B.C. Ltd.

Court

Supreme Court of British Columbia

The court refused a one-day redemption period in a foreclosure application, finding the petitioner had not shown sufficient risk to security and granting the statutory six-month period.

• Order nisi
• Redemption period
• Shortened redemption period
• Valuation evidence
• Risk to security
• Doctrine of election

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Guards Capital Corp. v. 1220740 BC Ltd.

Court

Supreme Court of British Columbia

The court set aside an order nisi in a foreclosure matter, finding no wilful default, a prompt application, and a defence worthy of investigation.

• Order nisi
• Service of affidavits
• Setting aside
• Redemption period
• Wilful default
• Miscarriage of justice

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Shuswap Association for Eco Development and Fairtrade v. Olympia Trust Company (A50545)

Court

British Columbia Court of Appeal

The Court of Appeal dismissed Shuswap’s application to vary a chambers order refusing leave to appeal, finding no error of law or fact and no reviewable basis to intervene.

• Leave to appeal
• Order nisi
• Conduct of sale
• Extension of time
• Procedural fairness
• Charter rights

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Home Equity Mortgage Corporation v. Hirji

Court

Supreme Court of British Columbia

The Supreme Court of British Columbia granted an order nisi in foreclosure, finding the mortgagors in default because registered strata judgments breached the mortgage covenant against encumbrances.

• Order nisi
• Mortgage default
• Collateral attack
• Res judicata
• Unclaimed property act
• Costs

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Sky v. The Toronto-Dominion Bank

Court

Supreme Court of British Columbia

La Cour autorise en partie une quatrième modification de la NOCC, mais refuse les passages qui attaquent indirectement l’ordonnance nisi de forclusion et les écarte comme abusifs.

• Amendment of pleadings
• Order nisi
• Res judicata
• Cause of action estoppel
• Abuse of process
• Good faith in exercise of contractual discretion

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Reliable Mortgages Investment Corp. v. Branconnier

Court

Supreme Court of British Columbia

The court dismissed an application for FDMA protection, finding the applicant had not proved she was a farmer engaged in commercial farming.

• Farm debt mediation act
• Definition of "farmer"
• Foreclosure
• Order nisi
• Service of notice (s.21 fdma)
• Costs

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Instafund Mortgage Management Corp. v. Ranga

Court

Supreme Court of British Columbia

Court granted conduct of sale in a foreclosure matter and dismissed Manny Ranga’s application, holding he lacked standing to challenge the redemption period.

• Conduct of sale
• Redemption period
• Standing
• Order nisi
• Priority of registered interests
• Capacity/committeeship

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