Court of Queen ’ s Bench of Alberta Citation: Royal Bank of Canada v. Place, 2010 ABQB 733 Date: 20101124 Docket: 0903 01184 Registry: Edmonton Between: Royal Bank of Canada Plaintiff/Respondent - and - Daryl Graham Place Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ Appeal from the Order by R.P. Wacowich, Master in Chambers Dated the 5 th day of August, 2010 Filed on the 9 th day of August, 2010 I.

Summary

[ 1 ] Mr. Place appeals a Masters decision that granted an Order Nisi and ordered sale of his house under a mortgage held by the Royal Bank of Canada (RBC). Mr. Place is self-represented and raised a number of issues and questions that he perceives as complex and warranting an appeal. But at its heart, this is an uncomplicated matter and the basic facts are not in dispute. In fact, they cannot be in dispute because Mr. Place did not file a Statement of Defence to RBC’s Statement of Claim, he was noted in default, and did not attempt to set aside the Default Judgment.

Moreover, the information he sought to obtain from RBC in his “Demand for Disclosure” [1] is akin to the discovery process. Under both the former and new Rules, the time for discoveries, Affidavits of Records, and questioning is long past. The issues related to fraud, fiduciary duties, and the validity of the contract were never plead in a Statement of Defence or other appropriate pleading and were not properly before the Master. [ 2 ] Mr. Place sought an adjournment from the Master in order to allow him time to get the requested information from RBC.

The Master refused the adjournment application, and I find no error in this exercise of his discretion. RBC had no obligation to respond to the “Demand for Disclosure”. [ 3 ] In the course of his appeal, Mr. Place attempted to file an Affidavit by an expert, Wallace Whitman, that set out alleged miscalculations of interest and principal. I refused to admit that Affidavit. The question of whether RBC had properly calculated the amounts owing or the value of the house were not raised before the Master. Mr.

Place had ample opportunity to provide evidence contesting RBC’s Statement of Indebtedness attached to the Notice of Motion, but instead chose to appear before the Master to contest the validity of the mortgage, the “standing” of the bank, and questions of fraud. Nonetheless, I have allowed Mr. Place to rely on portions of his own Affidavits as new evidence under Rule 6.14(3) to demonstrate alleged miscalculations by RBC of his indebtedness under the mortgage. RBC filed its own Affidavits by an employee explaining why its calculations are not in error.

I accept those explanations and find that there were no miscalculations. The Appeal is dismissed. II. Facts [ 4 ] On July 23, 2007, Mr. Place granted a mortgage to RBC to secure payment of monies together with interest as set out in the Mortgage. The Mortgage also secured a line of credit granted to Mr. Place, known as an RBC Homeline Plan (HLP). Mr. Place had also granted a Conditional Sales Contract (CSC) to Gibbons Motortoys Ltd., which was subsequently assigned to RBC. [ 5 ] Mr. Place defaulted on his payments pursuant to the Mortgage, the HLP and the CSC.

RBC filed a Statement of Claim on January 27, 2009, seeking foreclosure and judgment on the CSC against Mr. Place. [ 6 ] On March 3, 2010, RBC’s solicitors, Witten LLP, provided Mr. Place with a statement of the amounts due pursuant to the Mortgage, HLP and CSC, together with legal costs that had accrued to February 15, 2010, totalling $8,060.76. [ 7 ] On March 16, 2010, Mr. Place was noted in default. He has taken no proceedings to set aside the noting in default. [ 8 ] On March 29, 2010, Mr.

Place delivered $8,060.76 to Witten LLP under a cover letter stating: Please find enclosed a certified check in the amount of $8,060.76 towards TOTAL due for Mortgage arrears, Homeline Plan Agreement, Conditional Sales Contract and Legal Costs to March 1, 2010 as per your March 3, 2010 letter. [ 9 ] Witten LLP sent the said $8,060.76 to RBC on April 14, 2010. RBC applied all of the funds to the outstanding mortgage balance, which was then in further arrears.

Witten LLP did not hold back funds for their legal fees. [ 10 ] On July 22, 2010, Witten LLP filed a Notice of Motion returnable August 5, 2010 together with the Affidavit of Default and

the Affidavit of Value sworn by Douglas B. Cameron on March 20, 2010 seeking an Order Nisi/Order for Sale on the mortgaged property, and judgment on the CSC. [ 11 ] This Notice of Motion and the associated Affidavits were served upon Mr. Place and affixed to his door on July 24, 2010. [ 12 ] On August 3, 2010, Mr. Place served an unfiled “Affidavit of Truth and Fact” and “Demand for Disclosure” on Witten LLP. This Affidavit was then filed on August 4, 2010.

The “Affidavit of Truth and Fact” claimed that he, the Defendant had a right in accordance with s. 7 of the Charter of Rights and Freedoms to “review and prepare evidence, defence, right of complete disclosure, right to seek legal counsel, right to a fair trial, and in accordance with court procedures, the opportunity to review presentments 7 days prior to trial.” The Affidavit then referenced the attached “Demand for Disclosure”. The final paragraph of the Affidavit indicated that the RBC documents served on Mr.

Place for the hearing before Master Wacowich would be used as “evidence of, and not limited to, fraud perpetrated by the Plaintiff, Witten LLP, D’Arcy Moran Account Manager, Safia Jamil of RBC, Lori Bartsch of First Canadian Title Company Limited”. [ 13 ] The “Demand for Disclosure” was 9 pages long and demanded such things as “proof that the Mortgage Co./Bank loaned it’s ( sic ) credit or assets to the alleged borrower which would be in violation of the Bank Act (Section 23)”, “proof that your Mortgage Co./ Bank does not create cheque book money when the Mortgage Co./Bank grants loans, simply by adding deposit dollars to accounts on the Mortgage Co./Bank’s books in exchange for the borrower’s mortgage note.”; “proof that the a promise to pay is not equivalent of money as would be in a mortgage”, “proof that the bank informed the borrower that the Mortgage Co./Bank uses the borrower’s mortgage (signature) note to create the very money that the bank loans out to the borrower,”, “proof that the Mortgage Company/Bank funding the mortgage did not use Savings Accounts and Certificates of Deposits to fund day to day operations.”, “proof that the country is not in bankruptcy”.

Each of the 35 or so demands for proof included clauses that indicated that failure to provide the requested proof, lead to an “agreement” by the parties to a number of, frankly, bizarre conclusions like: “using the Mortgage Co./Banks assets is in violation of the Bank Act ” or that “a promissory note can be used to settle the alleged debt.” [ 14 ] On August 5, 2010, Master Wacowich granted RBC an Order Nisi/Order for Sale with a three month redemption period followed by a three month Judicial Sale Listing. Master Wacowich also granted judgment against Mr.

Place for the amount due pursuant to the CSC. [ 15 ] The evidence considered by the Master is summarized below: 1. An Affidavit of Default, filed by Witten LLP, stating that: (

a) The total mortgage indebtedness pursuant to the Mortgage and HLP was $268,170.52 as of July 5, 2010; (

b) The interest on the total mortgage indebtedness would accrue from July 5, 2010 at $23.34 per diem ; (

c) RBC is entitled to solicitor/client costs of the action under the terms of the Mortgage; (d) $40,283.93 was due to RBC under the CSC as of July 5, 2010; and (

e) The interest on the CSC accrued from July 5, 2010 at $8.57 per diem. 2. An Affidavit of Value, filed by Witten LLP, stating: (

a) The fair market value of the land is $390,000.00.

3. A Certified Copy of Title to the lands in question, dated July 17, 2010 and filed by Witten LLP on July 20, 2010, showing that the lands are encumbered by writs registered in favour of both RBC and Her Majesty the Queen in Right of Canada, as well as a Caveat re: Notice of Intention to Sell under the Civil Enforcement Act which was filed by RBC in 2008. 4. An “Affidavit of Truth and Fact,” filed by Mr. Place, discussed above. Some of the other portions of the “Demand for Disclosure” included the following requests: (i) “31.

Provide evidence that the sum of $350,000.00 was actually advanced by the Plaintiff to the mortgagor in full as per Affidavit of Default prepared by D’Arcy Moral of the City of New Westminster, by evidence of bank ledger.” (ii) “32. Provide wet ink signature contract that the Defendant covenanted to pay the Plaintiff monthly instalments of $348.55 commencing June 5, 2006 and continuing thereafter to and including May 18, 2011 when full outstanding balance becomes due, as per the Affidavit of Default as prepared by D’Arcy Moran of the City of New Westminster.” (iii) “34.

Provide wet ink signature contract that the original Mortgage amount was $160,200.00, as per sworn “Affidavit in Support of Reduced Fees” by Loti Bartash of First Canadian Title Company dated July 12, 2007.” (iv) “35. Provide a ledger showing all payments made by the defendant to the Plaintiff for the alleged Mortgage and RBC Homeline Plan Agreement, including all payments made directly to the Plaintiff and also to Witten LLP in trust.” (

b) A copy of an “Affidavit of Walker F. Todd, Expert Witness for Defendants,” which appears to have been used in the Circuit Court for the County of Oakland in 2003, (

c) A “Fee Schedule,” and (

d) A copy of the Notice of Motion and associated Affidavits for this motion, filed by Witten LLP. [ 16 ] In regards to para. 35 above, I note that this was the second last paragraph of the lengthy document, and that it did not allege any miscalculations in RBC’s Statement of Indebtedness. [ 17 ] The Transcript of the hearing before Master Wacowich is attached as Appendix A. During the Application before Master Wacowich, the following submissions were made: · Mr.

Shafir, for RBC, told Master Wacowich that the Applicant owed RBC in excess of $268,000, and that fair market value of his home as of March 16 was $390,000. · Mr. Shafir further requested judgment on the debt due and owing under the CSC, which he stated was $40,600. · Mr. Place, for himself, responded that he would like an adjournment in order for RBC to reply to his “Demand for Disclosure.” He said, at p. 2 of the transcript, “In terms of fair trial and proceedings I would request that we get that information.

It would be significant in establishing standing in this case.” (line 40-41). · Master Wacowich stated that he saw no obligation for the bank to respond to his demands for disclosure (at p. 3, lines 30-31); Mr. Place responded that “in terms of fundamental justice I believe it is” (p. 3, ll. 33).

· Mr. Shafir objected to the adjournment application noting that Mr. Place was seeking a remedy under s. 7 of the Charter , that RBC is not subject to the Charter , and that this was not a criminal matter (p. 3, ll. 36-37; p. 4, ll. 10-13). · Master Wacowich ended the hearing by ordering a three month redemption period, and granted Mr. Shafir his Order. He told Mr. Place that his remedy was to appeal. [ 18 ] Justice Macklin dismissed Mr. Place’s application for a stay of the Master’s Order on August 10, 2010. Mr.

Place then proceeded with an appeal of the Master’s Order, filing his Notice of Appeal on August 16, 2010. On August 30, 2010, Justice Binder adjourned the matter to September 7, 2010 to allow Mr. Place an opportunity to serve all subsequent encumbrancers with the Notice of Appeal. Mr.

Place served the Canada Revenue Agency (CRA) on September 1, 2010. [ 19 ] On September 7, 2010, Justice Moen directed that the appeal be adjourned to a special chambers application; at the same time, she directed that no further affidavits be filed in the matter. [ 20 ] On November 10, 2010, the parties appeared before me to argue this appeal. III. Issues [ 21 ] Mr. Place’s Notice of Appeal raises the following grounds of appeal: 1. The Master in Chambers erred in law in interpreting the law applicable to questions of fact raised by the evidence; 2.

The Master in Chambers relied on the Plaintiff’s calculation of the debt owing despite a lack of supporting documents provided, and without hearing the facts that the Defendant raised several unanswered questions regarding the amount owing; 3. The Master in Chambers did not hear or consider evidence regarding the Defendant’s reasons for requesting a longer redemption period; and 4. The Master did not hear evidence regarding the appraised value of the home and made the decision after only considering one appraisal. [ 22 ] I note that the last three issues suggest that Mr.

Place made submissions to the Master on the calculation of the debt owing, the length of redemption period, and the appraised value of the house. Review of the transcript reveals that he made no such submissions. The first issue has no context or specifics. These issues then relate to matters that were not before the Master. [ 23 ] Mr. Place’s written Brief did not conform to the issues raised by his Notice of Appeal, and attempted to rely on numerous Affidavits filed after Master Wacowich’s decision and on documents attached to his written submissions.

It was in these submissions that the question of whether RBC had correctly calculated the amounts owing was first raised by Mr. Place. As well as the Affidavits actually filed, Mr. Place sought leave to file and rely on a further Affidavit at the hearing of the appeal. This raises the issue of whether new evidence should be admitted on the appeal. [ 24 ] Other issues raised in the written Brief included allegations of fraud, RBC’s failure to provide full disclosure, the validity of the contracts, and breach of trust or fiduciary duties by Witten LLP.

He asked that I not only rescind the contract, but require RBC to repay to him all payments he made under the contracts and to give him title to the property free and clear of any RBC encumbrances.

[ 25 ] I have attempted to give Mr. Place broad leeway in this appeal given that he is self-represented, and I have therefore identified the following issues, drawing from the record, the submissions and the admitted Affidavits: 1. What is the standard of review? 2. Is the appeal outside the time limits? 3. What issues are properly before the Court? 4. New evidence: a. Fresh evidence at the appeal hearing. b. Evidence adduced before the appeal hearing. 5. Should the Master have granted the adjournment? IV. Analysis 1.

What is the standard of review? [ 26 ] Under the Old Rules , the standard of review for Queen’s Bench Justices reviewing Master’s decisions was “correctness,” as the hearing was de novo and essentially a brand new hearing on the merits: see Alberta Treasury Branch v. Cieslik , 2010 ABQB 113 ; Maple Reinders Inc. v. Eagle Sheet Metal Inc. , 2006 ABQB 150 ; United Utility Workers Association of Canada v. TransAlta Corporation , 2004 ABCA 200 ; Fern Investments Ltd. v. Burnet Duckworth & Palmer , 2004 ABCA 329 . [ 27 ] The Rules of Court , Alta.

Reg. 184/2010 ( New Rules ) create a significant change from the Rules of Court , Alta. Reg. 390/68 ( Old Rules ) in this regard. As of November 1, 2010, any appeal of a Master's decision is now “on the record of proceedings before the master”: New Rules , Rule 6.14(3). [ 28 ] An appeal on the record suggests that the standard of review should then be that of general appellate review as set out by the Supreme Court of Canada in Housen v. Nikolaisen , 2002 SCC 33 (CanLII) , [2002] 2 S.C.R. 235 , and summarized by our Court of Appeal in Harper v.

Canada (Attorney General) , 2002 ABCA 301 (rev’d 2004 SCC 33 (CanLII) , [2004] 1 S.C.R. 827 on other grounds) (at para. 35): The standards of appellate review have been extensively set out by the Supreme Court of Canada in Housen v. Nikolaisen , 2002 SCC 33 . The standard of review for questions of law is one of correctness. For findings of fact, it is palpable and overriding error. For inferences of fact, the standard is also palpable and overriding error.

On questions of mixed fact and law, the standard is overriding and palpable error, unless it is clear that the trial judge made some extricable error in principle with respect to the characterization or application, in which case, the error may be an error of law subject to a correctness standard. [ 29 ] The standard of review of facts underlying a judge’s exercise of discretion has been summarized in Balogun v. Pandher, 2010 ABCA 40 (at para. 7 ): As such, the standard of review for the factual underpinnings of the exercise of discretion is deferential absent palpable and overriding error: L. (H.) v.

Canada , [2005] 1 S.C.R. 401 , [2005] S.C.J. No. 24 (QL) , 2005 SCC 25 at paras. 52 to 56 . [ 30 ] Further, reasonableness is applied to the actual exercise of discretion: R. v. Nicholson , 2003 ABCA 283 (at para. 3 ):

The standard of review for an exercise of discretion is reasonableness. The decision can only be interfered with if it is so clearly wrong as to amount to an injustice or is based on some improper principle: R. v. Regan , [2002] 1 S.C.R. 297 , [2002] S.C.J. No. 14 , 2002 SCC 12 . Having reviewed the trial judge's reasons for judgment, we do not find his decision to be unreasonable. He characterized the prior errors warranting new trials as procedural and we see no basis on which to equate them with prosecutorial misconduct. 2. Is the Appeal outside the time limits? [ 31 ] First, RBC submits that Mr.

Place is foreclosed from proceeding with his appeal, as his service of the Notice of Appeal was outside the time limits found in both the Old Rules and the New Rules . [ 32 ] RBC argued before me that Mr. Place was required to serve all subsequent encumbrancers within seven or ten days after the Wacowich Order was served on Mr. Place on August 10, 2010, depending on whether the Old Rules or the New Rules were effective. RBC argued that since the CRA was not served until September 1, 2010, they were served outside of the time period for Notices of Appeal and therefore Mr.

Place is out of time for this appeal. [ 33 ] In order to make this argument, RBC argued that because an Order Nisi or an Order for Sale must be served upon all subsequent encumbrancers in both sets of Rules, it must be the case that a Notice of Appeal for those orders must also be served upon the subsequent encumbrancers. [ 34 ] During the hearing, Mr.

Place responded that RBC was correctly served within the time frame, and that as soon as Binder J. made him aware of the requirement to serve the CRA, he did in fact serve them within two days. [ 35 ] At the time that I heard this application on November 10, 2010, the New Rules were in effect.

However, the actions of the parties on this file occurred before the introduction of the New Rules , and therefore the Old Rules may be considered as well. [ 36 ] Under the Old Rules , a party wishing to appeal a decision from a Master had seven days from the date the Order was entered and served to file their Notice of Appeal: Rule 500(2). This would mean that RBC had to be served with the Notice of Appeal by August 17, 2010, seven days after Mr. Place was served with the Order.

RBC was served on August 16, 2010, so they were served correctly under the Old Rules . [ 37 ] Under the Old Rules , subsequent encumbrancers need only be given notice when certain applications are made, none of which are an appeal application: Rule 686(3). [ 38 ] Under the New Rules , a party wishing to appeal a decision from a Master has ten days from the date the Order was entered and served on them to file their Notice of Appeal: Rule 6.14(2). This would mean that RBC had to be served with the Notice of Appeal by August 20, 2010, ten days after Mr. Place was served with the Order.

RBC was served on August 16, 2010, so they were served correctly under the New Rules . [ 39 ] Under the New Rules , subsequent encumbrancers need only be given notice when certain applications are made, none of which are an appeal application: New Rules , Rule 6.5(2). [ 40 ] Therefore, RBC was served in time under both the Old Rules and the New Rules , and there was no clear requirement under either set of Rules that Mr. Place serve the CRA in those seven days. Further, when Binder J. brought up the requirement for the CRA to be served at the August 30, 2010 hearing, Mr.

Place immediately did so, serving them personally on September 1, 2010.

[ 41 ] RBC failed to direct me to any cases that suggest that a Notice of Appeal must be served upon subsequent encumbrancers. After a review of the cases citing the old

section 686, I was also unable to find any authority for the suggestion that subsequent encumbrancers must be served with a Notice of Appeal. Without a case to direct me, I may not depart from the clear wording of Rule 686(3) and Rule 6.5(2) . [ 42 ] With that in mind, I find that Mr. Place was in time in filing and serving his Notice of Appeal. I can see from his questions and his filing dates that he was, at all times, attempting to conform with the dates set out by the Rules and by the Masters and Justices directing him. 3. What issues are properly before the Court? [ 43 ] On appeal Mr.

Place raised issues going to the validity of the contract, to fraud, to whether Witten LLP owed him a fiduciary, or some other duty, and whether the calculations by RBC were correct. None of these were argued before Master Wacowich and are raised for the first time here. [ 44 ] Mr. Place relied on many exhibits attached to his Affidavits that are not properly before the Court because he could not swear to the truth of the contents of these documents from his personal knowledge. He also relied on documents appended to his Brief; again these are not evidence.

Affidavits sworn by non-parties in other jurisdictions in other matters are not evidence, nor do they have persuasive authority.

He also applied to me in the course of the hearing to admit a new Affidavit that he alleged dealt with miscalculations by RBC of payments and interest. [ 45 ] Under the New Rules , Rule 6.14(3) any appeal of a Master's decision is now “on the record of proceedings before the master and, if the judge permits, may also be based on new evidence that is significant enough that it could have affected the master's decision.” Further, New Rules , Rule 6.14(5) states that any new evidence sought to be admitted on the appeal must be filed and served at least one month before the scheduled hearing date. [ 46 ] The validity of the contract, the question of fraud, and the issue of Witten LLP’s obligations (if any) to Mr.

Place are matters that should properly have been raised in a Statement of Defence or a separate cause of action. Mr. Place was noted in default, and he has thus effectively admitted that the contracts are valid and that he has amounts owing under those contracts. See Yaremchuk v. Haight , 2001 ABCA 7 , 277 A.R. 160 at para. 5 : According to Rule 142(3) once a defendant has been noted in default he or she is no longer entitled to deliver a statement of defence or demand of notice.

Furthermore, once the defendant has been noted in default: [a]ll the plaintiff has to prove, or the defendant is permitted to controvert, is the amount of the damages ; for the cause of action itself, as stated in the plaintiff's claim, and the right to some damages in respect of it, is admitted by the defendant, by his suffering judgement to pass against him by default (emphasis added). T.W. Chitty, ed., Chitty's Archibold's Practice of the Queen's Bench Division, vol. 2, 14th ed. (London: Sweet & Maxwell, 1885) at 1336, as cited in Sulef v. Parkin and Breno (1966), 1966 CanLII 638 (AB CA) , 57 W.W.R. 236 (Alta.

C.A.) . [ 47 ] With a Default Judgment in place and no steps taken to overturn it, Mr. Place may not raise allegations against a non-party, contest the validity of the contracts, or allege fraud in this appeal. The only possible issue Mr. Place may be able to raise afresh relates to the amount of damages owed to the RBC. 4. New Evidence

a. Fresh evidence adduced at the appeal hearing [ 48 ] During the hearing on this matter, Mr. Place attempted to introduce a report authored by Mr. Wallace Whitman. Mr. Place submits that the report contains information related to the alleged miscalculations of RBC in regards to the mortgage. [ 49 ] Mr. Place explained that the reason he included the report behind his written submissions and not in Affidavit form was that Moen J., had ordered that no further Affidavits be filed in his matter during the September 7 hearing. Further, Mr. Place had brought Mr.

Whitford to the hearing, and had a sworn Affidavit of Mr. Whitford which he asked that I allow him to file. [ 50 ] I ruled that the proposed Affidavit could not be filed nor considered by me in this application on the basis of Moen J.’s order that no further affidavits be filed and the doctrine against collateral attack. In Wilson v.

The Queen , 1983 CanLII 35 (SCC) , [1983] 2 S.C.R. 594 (S.C.C.) McIntyre, J. stated the rule at p.117: It has long been a fundamental rule that a court order made by a court having jurisdiction to make it stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed.

It is also well settled in the authorities that such an order may not be attacked collaterally - and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. [ 51 ] There is some flexibility for the Court to apply the rule where the circumstances warrant: Dagenais v. Canadian Broadcasting Corporation . 1994 CanLII 39 (SCC) , [1994] 3 S.C.R. 835 , but there are no such circumstances here. I find that Mr.

Place had from January 28, 2009, the date that the Statement of Claim was served on him, until the hearing before Master Wacowich on August 5, 2010 to gather evidence in order to dispute the calculations found in the Statement of Claim and to plead such discrepancies in a Statement of Defence. He did not do so. [ 52 ] I also held that the Affidavit was inadmissible on the basis of the test for admission of fresh evidence on appeal in Palmer v. The Queen , 1979 CanLII 8 (SCC) , [1980] 1 S.C.R. 759 at 775 : (

a) Evidence should not generally be admitted if by due diligence it could have been adduced at the trial. (

b) The evidence must bear upon a decisive or potentially decisive issue in the trial. (

c) The evidence must be credible in the sense that it is reasonably capable of belief. (

d) The evidence if believed could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result. [ 53 ] I concluded that Mr. Place could have gathered this evidence by due diligence before the hearing before Master Wacowich. In fact, with the exception of a small paragraph in the very lengthy “Notice to Disclose” attached to his Affidavit, Mr. Place did not raise the issue of miscalculations before Master Wacowich at all, arguing only that he needed to get more information from RBC. Due diligence would have required Mr.

Place to have filed a Statement of Defence and to have used the court process for discovery to get the information he sought in a timely manner. b. Evidence adduced before the Appeal hearing [ 54 ] Mr. Place filed three Affidavits between the date of the appealed decision and the appeal. Under R. 6.14(3) I may admit such

evidence if the new evidence is significant enough that it could have affected the Master's decision. If the new evidence were to establish that RBC miscalculated the amount owing, this could have affected the Master’s decision to the extent that the Statement of Indebtedness would require change and the Order Nisi/Order for Sale would state different amounts owing under the Mortgage. [ 55 ] I note, however, that the issue of miscalculation was never raised before Master Wacowich.

The closest the record comes to raising the calculations of indebtedness is in the “Demand for Disclosure” which demands that RBC provide “a ledger showing all payments made by the defendant to the Plaintiff for the alleged Mortgage and RBC Homeline Plan Agreement.” Permitting new evidence under R. 6.14 does not extend to permitting an appellant to raise a new issue not before the court below. Generally, the test for raising a new issue on appeal is quite strict. The Court of Appeal in Alberta (Minister of Infrastructure) v.

Nilsson , 2002 ABCA 283 , 320 A.R. 88 noted (at para 172 ): The burden on the party seeking to raise the new issue is substantial. The party must prove beyond a reasonable doubt that all the facts relevant to the new argument are before the appellate court, and no satisfactory answer to the new argument could have been given by the opposing parties if the argument had been raised at trial. [ 56 ] On the other hand, Mr. Place is a self-represented litigant, and until the New Rules came into force, an appeal of a Master’s decision was often de novo .

I am inclined to exercise some flexibility and discretion in these circumstances and will consider the new issue and the new evidence. I therefore admit the portions of Mr. Place’s Affidavits that relate to this issue alone: paras. 10 and 11 of the Affidavit filed August 16, 2010 and paras. 4 to19 of the Affidavit filed August 30, 2010. [ 57 ] I also admit the Affidavits of D’Arcy Moran, an employee of RBC, filed August 26, 2010 and September 17, 2010 in response to Mr. Place’s Affidavits. Mr.

Moran’s August 26, 2010 Affidavit attaches the Mortgage history documents, setting out the payments and interest on the Mortgage. Mr. Place’s August 30 Affidavit relies on this document to identify alleged calculation errors. Mr. Moran’s September 17 Affidavit explains each alleged error, pointing to Mr. Place’s failure to take into account accrued interest and failure to include interest when deducting payment amounts from the principal. I have reviewed each of these and accept Mr. Moran’s explanation. I find that based on the new evidence, there were no miscalculations of Mortgage indebtedness. 5.

Should the Master have granted the adjournment? [ 58 ] While not expressly argued by Mr. Place, I have considered whether Master Wacowich should have granted the adjournment requested by Mr. Place in order to await RBC’s response to his “Demand for Disclosure”. [ 59 ] The general rule articulated in R. v.

Barrette , 1976 CanLII 180 (SCC) , [1977] 2 S.C.R. 121 , 68 D.L.R. (3d) 260 is that a judge has a wide discretion to grant or refuse adjournments, but it is a judicial discretion which may be reviewed on appeal if it is not “well founded in law.” The standard of review is whether the decision was reasonable. [ 60 ] Courts have held that adjournments require the balancing of interests between the parties and the administration of justice in the orderly processing of civil trials ( Khimji v.

Dhanani , (2004), 2004 CanLII 12037 (ON CA) , 69 O.R. (3d) 790 at para.14 (C.A.), per Laskin J (in dissent, but the majority adopted this point)), and a number of factors have been identified as relevant to the exercise of discretion, including: 1. The principle that there should be a just determination of the real matters in dispute and that cases should be decided on their merits ( Khimji ); 2. The prejudice caused by either granting or denying the adjournment (Khimji ); 3. The Applicant's explanation for not being ready ( Khimji );

4. The length of the adjournment and the consequent disruption of the Court's

schedule ( Khimji ); 5. The importance of effectively enforcing previous court orders ( Khimji at para. 27 ); 6. The proper marshalling of evidence and prosecution of complex and multi-faceted actions ( Dreco Energy Services Ltd. v. Wenzel Downhole Tools Ltd. , 2010 ABCA 257 at para. 14 ); 7. Whether there is a realistic expectation that the adjournment will accomplish its stated purpose ( Bank of Montreal v. Lysyk , 2003 ABQB 47 at para. 19 ); 8. The history of the proceedings, including other adjournments and delays, and at whose instance those adjournments and delays occurred ( Somerset Specialities Ltd. v.

Keith Strub Construction Ltd. , 2007 ONCA 885 at para. 6 ); 9. Where the adjournment is sought in order to amend pleadings, how long the issue the amendment is aimed has been known to counsel and whether there had been previous opportunities to amend ( Matthison v. Bradburn (Trustee of) , 2007 ABCA 173 , 412 A.R. 19 (at para. 3 ); 10. Whether the application for adjournment is merely an attempt to delay the proceedings ( Matthison at para. 3 ) ; and 11. The Plaintiff should not bear the consequences of counsel's failures ( Sprostranov v. State Farm Mutual Automobile Insurance Co. , [2009] O.J. No. 923 (Ont. Sup.

Ct. Just. Div.) at para. 12 ) . [ 61 ] See also: Penton v. Metis Nation of Alberta Assn . (1995), 1995 CanLII 9069 (AB KB) , 171 A.R. 140 , 29 Alta. L.R. (3d) 223 (QB) (at para. 37 ); Edward v. Niagra Neighbourhood Housing Cooperative Inc. (2006), 2006 CanLII 16485 (ON SCDC) , 210 O.A.C. 110 , 23 C.B.R. (5th) 71 at paras. 33-35 ); Jovanovic v. Hamilton-Wentworth Regional Police Services Board , [2009] O.J. No. 5384 , 257 O.A.C. 3 (Ont. Sup. Ct. Of Justice) (at para. 12 ); York Condominium Corp. No. 98 v. Jeffers , [2008] O.J.

No. 2646 , 168 A.C.W.S. (3d) 297 (at para. 5-6 ). [ 62 ] In my view Master Wacowich reasonably exercised his discretion to refuse an adjournment. Mr. Place sought the adjournment to give RBC time to respond to his “Demand for Disclosure”. As Master Wacowich correctly noted, RBC was under no obligation to respond to that document. Pleadings had closed, no Statement of Defence was filed, and Mr. Place had been noted in default and had made no attempt to set aside the noting in default.

The disclosure he was seeking was akin to the discovery process and was well outside the appropriate time for seeking such information. Moreover, most of the disclosure he sought was not relevant and material and likely would not have required a response even if the questions and disclosures were sought at the appropriate time (after filing a Statement of Defence). [ 63 ] Further, an adjournment would not have ensured a determination of the real issues, as there were none other than the calculation concerns and these were not raised until the appeal.

As well, RBC would have been prejudiced by delaying the Order for Sale. Finally, there was no reasonable expectation that the adjournment would accomplish Mr. Place’s goal, since RBC had no obligation to respond to the disclosure demands. V. Costs [ 64 ] RBC requests solicitor-client costs. An instructive decision on when solicitor-client costs maybe awarded pursuant to a contract is Alberta Permit Pro v. Booth , 2008 ABQB 167 . That decision outlined two lines of judicial authority, one being that a party

asserting solicitor-client costs under a covenant or agreement is required to plead that covenant or agreement, and the other being that solicitor-client costs need never be plead as a consequence of Old Rules , R. 120 ( New Rules , Rule 10.31). [ 65 ] In this case, I need not rely upon the discretion to award costs found in the Rules, as the Statement of Claim on this matter pleads solicitor-client costs according to the terms of the Mortgage. [ 66 ] In the HLP signed between RBC and Mr.

Place, the following provision in Paragraph 10, deals with costs: “...if a Mortgage Loan becomes a ‘Mortgage Loan in default,’ for any reason, you will have to pay all of these amounts: ...

Any reasonable costs, including legal fees, that we incur to collect or attempt to collect the amount owing, [and] Any amounts, including reasonable legal fees and costs we spend to protect the Property or to take action under the terms of the RBC Homeline Plan Mortgage Loan Contract.” [ 67 ] I note that in the written brief submitted by RBC, they claim the following costs award: “costs to RBC on a solicitor and his own client, full-indemnity basis in accordance with the terms of the Mortgage.” [ 68 ] I am not willing to give RBC solicitor and his own client costs in this matter.

This language is not supported by the HLP document, which states that RBC is only entitled to “reasonable costs, including legal fees” and “reasonable legal fees.” The use of the term “reasonable” indicates that the Mortgage does not give solicitor and his own client costs, which are not taxed on reasonableness. I am therefore awarding RBC costs on a solicitor-client basis. VI. Conclusion [ 69 ] I therefore dismiss the appeal and award costs to RBC on a solicitor-client basis as provided for in the Mortgage. Heard on the 10 th day of November, 2010.

Dated at the City of Edmonton, Alberta this 24 th day of November, 2010. Don J. Manderscheid J.C.Q.B.A. Appearances: Daryl G. Place Applicant - Appeared on His Own Behalf

Steven M. Shafir Witten LLP for the Respondent Appendix A Proceedings taken in the Court of Queen’s Bench of Alberta, Law Courts, Edmonton, Alberta August 5, 2010 Morning Session MR. PLACE: Sir, before the plaintiff carries on with his argument I would ask that we get a copy of the affidavit of service prior to proceeding with the Order Nisi, please, as required for, you know, the standard rules of practice in the Court of law it requires that particular affidavit of service. MR. SHAFIR: Sir, here is the affidavit of service. MASTER WACOWICH: You are? MR. PLACE: Place, Sir, Daryl Graham Place. MR.

SHAFIR: Sir, he was served by posting to the door, it has obviously come to his attention. MASTER WACOWICH: He is here. MR. PLACE: I am not worried about that. We did receive the documents. MASTER WACOWICH: Well, let me hear Mr. Shafir first. MR. PLACE: Okay. Submissions by Mr. Shafir (Application) MR. SHAFIR: Sir, this is an application for an Order Nisi/Order for Sale, as well as judgment on an unsecured -- or, sorry, on a secured loan.

The Royal Bank of Canada has a first conventional mortgage. Service of notice of the application on the subsequent encumbrancers is in order, Sir. The defendant is here. Noted in default on March 16, 2010, the amount due and owing to the plaintiff is in excess of $268,000. Fair market value as of March 16th is $390,000, Sir. There are two subsequent writs as well as a caveat regarding a notice of intention to sell the land registered against title to the property. I do understand that there is significant equity, but that caveat was registered in 2008. It could be moved on at any point in time, Sir.

We are, therefore, seeking a shortened redemption period followed by a three-month judicial listing, sir, as well as judgment on the debt due and owing under the sales contract, Sir. MASTER WACOWICH: How much is that? MR. SHAFIR: The debt due and owing is - - sorry, Sir, just over $40,600. MASTER WACOWICH: Okay. MR. SHAFIR: And, Sir, the other writs are one for in excess of $85,000 and one that is in favour of Her Majesty the Queen for in excess of $258,000. MASTER WACOWICH: Thank you. Mr. Place? MR. PLACE: I don't speak quite as fast. MASTER WACOWICH: Take your time. Submissions by Mr. Place (Application) MR.

PLACE: Firstly, Sir, I'd like to make a motion for adjournment as the plaintiff has not provided disclosure in response to our affidavit of truth and fact which was entered in support of our evidence. It would save significant time as we would need to go through all of those issues and details that you will see further on in that attached document for a demand for disclosure. In terms of fair trial and proceedings I would request that we get that information. It would be significant in establishing standing in this case. MASTER WACOWICH: I am not familiar with such an affidavit of truth and fact. MR.

PLACE: Sir, I am not a lawyer. I am attempting to enter an affidavit as required for evidence that I believe to be true and factual. And as thus have included all pertinent things that I believe to be true including enclosures that we will be referencing if we continue in regards to enclosures of the served documents to us.

MASTER WACOWICH: The fact of the matter is you owe $268,000 on the mortgage and the market value is $390,000. You have obviously been missing payments which is why they are foreclosing on you. MR. PLACE: Well, we will be going through it and discussing all of those elements further on if we choose to continue and I am okay with that and if you so choose we can continue, but it will take a little longer this way. MASTER WACOWICH: Well, every time Mr. Shafir shows up it is costing you money through the terms of the mortgage. The bank is entitled to their legal costs. MR. PLACE: I understand that, Sir.

MASTER WACOWICH: So, what are you seeking, then? You said you are seeking an adjournment? MR. PLACE: Yes, so that the plaintiff can respond to our demand for disclosure, Sir. MASTER WACOWICH: I do not see any obligation to respond to this demand. MR. PLACE: In terms of fundamental justice I believe it is. MR. SHAFIR: Sir, he is seeking a remedy under

Section 7 of the Charter Rights and Freedoms . MASTER WACOWICH: I see that. How much time do you need? MR. PLACE: I believe that in full questioning of this disclosure document, if Steve is prepared to answer it, it will take in the neighbourhood of four hours. MASTER WACOWICH: Well, today is August 5 th . MR. PLACE: Now, if he has - - MASTER WACOWICH: I will adjourn the matter for two weeks, does that work for you? MR. SHAFIR: Sir, I object to the adjournment of this matter. This is a remedy that he is seeking pursuant to

Section 7 of The Charter of Rights and Freedoms . The plaintiff, as the Royal Bank of Canada, is not a government authority. This is not a criminal matter. MASTER WACOWICH: I am not saying he is going to get anything. MR. SHAFIR: Sir, he is asking for -- in his demand for disclosure he is asking for copies of wet ink signatures, which in accordance with the Alberta Evidence Act the document registered at Land Titles suffices as a certified copy of the mortgage.

MASTER WACOWICH: Right. Submissions by Mr. Shafir (Application) MR. SHAFIR: He is seeking proof that Canada is bankrupt. He is seeking proof that the bank did not engage in fraudulent activities pursuant to the Deceptive Trade Practices Act , Sir. This affidavit where he is seeking what he is seeking is not the standard of what one would be seeking. Further, he has been noted in default. Therefore, Sir, the question arises of whether or not he has standing to bring this application at this time. He is not asking simply for the amounts due and owing under the mortgage and what payments have been made.

What he is asking goes beyond the scope of the affidavit of default that has been sworn, beyond the scope of the action itself, seeking basically a wide-ranging search of the bank’s internal policies as well as some sort of conspiracy that I honestly upon reading this three or four times can't put my finger on. It also makes certain allegations with respect to if certain things aren't stated in the demand for disclosure then certain rules are -- MASTER WACOWICH: I have seen his documents before, similar documents. MR. SHAFIR: Yes, Sir. MASTER WACOWICH: There is not really any force or affect to them. MR.

PLACE: Sir, in addition to and included in the demand for disclosure there is very specific and detailed demands for information that I truly believe to be relevant to the standing of the Royal Bank. MASTER WACOWICH: What were you seeking for a redemption period? MR. SHAFIR: Sir, six months -- or, sorry, one month because of the subsequent writs and the notice of intention to sell. MASTER WACOWICH: Three months. MR. SHAFIR: Thank you, Sir. MR. PLACE: Sir. Ruling (Application) MASTER WACOWICH: I am going to grant the order. You will remedy if you disagree with my order to appeal it.

You have got seven days from being served with a copy of the order to appeal. MR. PLACE: How may I appeal it, Sir?

MASTER WACOWICH: By filing a notice of appeal in the Court of Queen's Bench and a Justice can hear your appeal. MR. PLACE: The Court of Queen's Bench, thank you, Sir. MASTER WACOWICH: That is correct. MR. SHAFIR: Thank you, Sir. [1] This “ Demand for Disclosure ” is not a process known to the rules, either old or new. The closest is a “ Notice to Disclose ” in Family Law Practice Note 2, which is not applicable here.