Bank of Montreal v. McCance, 2012 ABQB 537

Court of Queen ’ s Bench of Alberta Citation: Bank of Montreal v. McCance, 2012 ABQB 537 Date: 20120828 Docket: 1001 16843 Registry: Calgary Between: Bank of Montreal Plaintiff - and - Malcolm Lee Duncan McCance and Lynda Rose McCance Defendants _______________________________________________________ Reasons for Judgment of J.B. Hanebury, Master in Chambers _______________________________________________________ [ 1 ] The Bank of Montreal seeks a final order for foreclosure in relation to its mortgage registered against the title to property in Okotoks owned by Mr. and Ms. McCance.

The Bank alleges it has been unable to market and sell the property due to the actions of the owners and therefore the only remedy left is a final order for foreclosure. Mr. McCance opposes the Bank’s application. [ 2 ] This foreclosure commenced in November, 2010. The defendants were noted in default. Ms. McCance apparently gave Mr. McCance authority to act on her behalf and in December, 2010, he filed two applications which are difficult to follow, but apparently seek to dismiss the claim of the Bank of Montreal.

[ 3 ] Various other documents from Mr. McCance dated in November, 2010, are on the court file, but do not appear to have been actually filed. They include an affidavit and various “Certificates of Acceptance.” They are virtually incomprehensible. [ 4 ] Mr. McCance’s applications were dismissed by Justice Hunt McDonald on January 11, 2011 and she granted the application of the Bank for an Order Nisi/Order for Sale. A six month redemption period was granted and the mortgage was held to be valid and enforceable with a balance outstanding of $304,381.70 as of that date.

After the expiration of the redemption period the property was to be listed for sale at a list price of $450,00.00. [ 5 ] On March 4, 2011, Mr. McCance filed with the Clerk of the Court a piece of paper entitled “Private Indemnity Bond.” It seems the Clerk was to use this to pay out the mortgage. It is not readily apparent from the document how it could be replaced by money to pay the Bank. [ 6 ] On July 20, 2011, Mr. McCance sent the Clerk of the Court a “Notice of Appointment” that appears to appoint the Court and the Bank of Montreal’s counsel as trustees for Mr. McCance. [ 7 ] On July 20, 2011, Mr.

McCance filed a “Notice of Demand for Order.” It appears to say that a demand will be made at the next hearing that the proceeding be dismissed unless the Bank provides “prima facie” evidence of its authority to deal with the estate of Mr. McCance. A “Notice to Produce” was also filed demanding production of the same evidence.

A similar “Demand for Order” was filed demanding that this Court produce its oath of office. [ 8 ] In November, 2011, an offer was received for $375,000.00 for the purchase of the property and an application was made for the Court to consider the offer. [ 9 ] Further materials were filed by Mr. McCance. He filed “A Special Notice and Notice of Demand” which stated that it was filed by Malcolm-Lee-Duncan: House of McCance, :Private-Lawful Third Party Representative, and Acting de facto-Executor of: Malcolm Lee Duncan McCance, Estate.

In it he alleged that the party filing the document has been denied certain rights from the Claim of Right Act, the Coronation Oath Act, Her Majesty’s Royal Prerogative and the Queen’s Common Law together with the Maxim’s of the Queen’s Common Law and the Ancient Rights and Freedoms as set forth in the Queen’s Authorized (King James) Bible, and the Crown Grant, and the Canadian Bill of Rights. [ 10 ] Copies of this and some of the other documents were sent to many parties including the Governor General and the Canadian Military Forces Police. [ 11 ] The offer to purchase the property was rejected by Justice Jeffrey on November 21, 2011, and the judicial listing was extended for a further 90 days from January 15, 2012.

Justice Jeffrey also ordered that the defendants give vacant possession of the property to the Bank by January 16, 2012, apparently to allow the property to be more easily marketed. [ 12 ] On December 16, 2011, Mr. McCance filed an application to stay the execution and enforcement of the order of Justice Jeffrey for vacant possession and a re-listing of the property, pending a hearing by the Alberta Court of Appeal of the appeal of Justice Jeffrey’s order. In support he filed an affidavit, in the usual format used in this Court with a proper style of cause, attaching a copy of his Notice of Appeal.

On January 9, 2012, he filed an affidavit stating that pursuant to the exhibits, which included evidence of his birth, he has a right “as a living man to administer [his] Estates, including the Estate of ...his wife”. [ 13 ] On January 16, 2012, he provided for the consideration of the Court a transcript of the hearing before Justice Jeffrey. His application for a stay was heard on January 20, 2012, and according to the Clerk’s notes, Justice Millar granted the stay in relation to the order for vacant possession but refused it in relation to the listing of the property and directed that the property be re-listed.

[ 14 ] In April, 2012, Mr. McCance filed an appeal of the original Order Nisi/Order for Sale granted by Justice Hunt McDonald in January, 2011. [ 15 ] On May 17, 2012, the Bank filed an affidavit attaching copies of documents it had received from the McCances. They include a “Notice of No Trespassing” and a “Notice to Cease and Desist”.

That document advises that a penalty will be imposed of up to ten million dollars, the greatest amount being for anyone who violates any of God’s Supreme Laws or causes the McCances to violate any of God’s Supreme Laws. [ 16 ] Attached to the affidavit of the Bank’s representative is another document from Mr.

McCance, an “Affidavit of Trespass”, that alleges that various people including a real estate agent, the president of BMO Personal Banking, the Chief Justice of the Alberta Court of Appeal and the Attorney General of Canada have trespassed. [ 17 ] A further affidavit was filed by the Bank of Montreal attaching other documents from the McCances which include a bill for a million dollars for trespassing, which bill is directed to counsel for the Bank. [ 18 ] On June 11, 2012, the Bank filed an affidavit attaching a draft affidavit it had asked the listing realtor to swear and a copy of her email response which states that the affidavit is correct.

The draft affidavit states that she has had calls for more information regarding the property and knows of four realtors who were very close to writing unconditional offers but the purchasers “got cold feet” when they thought about the kind of condition that the property might be in if their offer were accepted. As well there has been annoyance on the part of the realtors because no one can view the property. The listing realtor had received several notices of trespassing and an invoice for a million dollars.

The realtor said that the notices and demands were extremely disturbing and made her fearful and she would not swear the draft affidavit prepared by the Bank. [ 19 ] The Bank applied for a final order for foreclosure in June, 2012. Mr. McCance filed a long affidavit setting out some of the history of the matter. He confirmed that his appeal of the original Order Nisi/Order for Sale of Justice Hunt McDonald was not allowed to proceed as it was out of time and time was not extended.

He stated that he had filed a cross-application to get clarification of the order for the stay of the order for vacant possession. [ 20 ] The Bank filed an updated appraisal indicated a fair market value for the property of $420,00.00. The final affidavit of default states that there is $329,010.30 outstanding as of May 18, 2012. The Certified Copy of Title shows writs against both defendants filed by the Bank of Montreal in the sum of $66,590.00 and by Canada Revenue Agency in the sum of $39,883.00 against Mr.

McCance alone. [ 21 ] On June 18, 2012, Master Laycock heard the application of the Bank for a final order for foreclosure and ordered that the property be offered for sale again, this time by tender by way of an advertisement in the Calgary Herald and the Okotoks Western Wheel with tenders closing July 13, 2012. The matter was to return to court on July 23 rd , 2012. [ 22 ] On July 19, 2012, Mr. McCance filed an affidavit alleging that certain property is subject to Maritime liens registered in Washington D.C..

He states as well that the Bank of Montreal and its agents have continued to commit unlawful trespasses, in excess of 60 times, and he has posted a public notice of “No Trespassing”, which makes reference to the particulars being available at the website www.mmnotrespassing.info. [ 23 ] On the same date the Bank filed the tear sheets for the advertisements seeking tenders for the sale of the property. Beside the court-ordered advertisements in three of the four tear sheets can be seen another notice entitled a “Notice of No Trespassing”.

It is in relation to the property advertised pursuant to Master Laycock’s order and states that “Violators will be Prosecuted” according to the terms and fees of the trespass found at www.mmmnotrespassing.info. [ 24 ] The matter was returned to court on July 23 rd , 2012, and as no tenders had been received, the Bank again sought a final order for foreclosure. Mr. McCance appeared. When questioned as to the equity remaining in the property he advised that they are not contesting the liability under the Bank of Montreal writ but are presently contesting the Canada Revenue Agency writ.

During the course of the proceeding Mr. McCance provided the Court with a copy of a bill to Justice Hunt MacDonald in the sum of one million dollars for trespassing.

[25] The matter was adjourned to August 27th , 2012. [26] On August 15, 2012, the Bank filed an affidavit updating the balance outstanding under the mortgage which as of August 2,2012, was $335,492.46, exclusive of legal costs. It also filed an affidavit as to the amount outstanding under its writ which is now inexcess of $72,000.00 in relation to Mr. McCance. Ms. McCance is liable for just over $68,000.00 of that amount, plus solicitor and clientcosts. [27] Mr.

McCance filed a further affidavit on August 21, 2012, outlining his attempts to pay the Bank by “private indemnity bond”and other means and stating that he and his wife have a Crown Land Patent Grant which is valid and the Bank of Montreal and its agentshave trespassed more than 60 times and thereby agreed to pay the fees found in the fee schedule. ANALYSIS [28] The issue is whether it is appropriate in the facts of this case for the Court to grant a final order for foreclosure? [29] Mr.

McCance’s written statements to the effect that certain laws only apply to him if he permits them to apply and that he is a“living man called: Malcolm-Lee Duncan :House of McCance” are the types of statement seen before by the Courts, although moreusually in the context of claims or charges under the Income Tax Act: R. v. Porisky and Gould, 2012 BCSC 67; R. v. Amell; 2010 SkPC107; R. v. Klundert (No.2), 2008 ONCA 767, leave to appeal refused [2004] S.C.C.A. No. 463; R. v. Turnir, 2006 BCPC 460; R. v.Sydel, 2006 BCPC 346; and Kennedy v. Canada (Customs and Revenue Agency), (ON SC), [2000] O.J. 3313. [30] In R. v.

Klundert (No. 2), 2008 ONCA 767; leave to appeal to the Supreme Court of Canada refused ([2004] S.C.C.A. No.463), MacFarland J.A., stated: [11] ... he [the accused] explained his failure to pay taxes as arising from his belief that he was not obligated to pay taxes. Klundert tookthe position that he was not obligated to pay income tax because he believed the Act does not apply to him. Klundert testified that he isneither a "person" nor a "taxpayer" as defined in the Act. ... [15] In essence, Klundert's evidence was that as a natural person he had no obligation to pay taxes because he didn’t owe any.

Therespondent did not consider himself to meet the definition of “person” as that term is defined in the Act. According to the respondent, hehad the option to act as a natural person - to whom the Act does not, in his view, apply, or to submit to the Act as a taxpayer. Because therespondent considered himself to be earning income in his individual capacity for himself as a natural person and not as a taxpayer, hedid not believe he was under any obligation to pay income tax. ... [19] Unfortunately for the respondent, the Act does not distinguish between persons and natural persons.

The definition of "person" inthe Act includes human beings of which specie the respondent belongs. [31] If Mr. McCance also thinks in this way and takes the view that the foreclosure provisions of the Law of Property Act, R.S.A.2000, c. L-7 do not apply to him, he is incorrect.

They do apply and this Court must decide whether a final order for foreclosure isappropriate in this situation. [32] The Court is under an obligation to “seek by whatever means possible to obtain a genuinely fair price for the land that is to besold...” and to try “to get the highest possible price so that the debt being enforced may be paid to the advantage of the borrower and ofthose liable on collateral securities”: Canada Permanent Trust Company v. King Art Developments Ltd., (1984) 1984 ABCA 182, 32 Alta. L.R. (2d) 1, paragraphs 4 and 189.

Laycraft J. states in paragraph 192 of that decision that he will not tie the hands of

the Court by specifying or forbidding any specific sales process but rather leave the process to the “common sense exercise of discretion.” [ 33 ] From my review of the steps taken in these particular circumstances, this obligation of the Court to seek a fair price for the land has been met. [ 34 ] Not surprisingly, purchasers of residential real estate are often wary of purchasing properties in foreclosure when the owner is not co-operating in the marketing of the property.

They may be unable to view the interior so will not know what problems they could face upon ownership and they may fear that the sale will ultimately be problematic if the owner refuses to leave the property or leaves it in a poor or damaged condition. The pool of potential purchasers in such a situation can be small to non-existent. [ 35 ] Mr. McCance made it very clear to the Court, the realtor, and potential purchasers that he was not cooperating in the Court ordered sale of the property.

It is not surprising no further offers have been received. [ 36 ] There is no remaining dispute as to the validity and amount of his mortgage to the Bank of Montreal. The Order Nisi/Order for Sale granted by Justice Hunt MacDonald stands as an order of the Court as his appeal was out of time and was not permitted to proceed. There is presently owing in excess of $335,000.00 under that mortgage. There is more than $72,000.00 owing by way of a writ to the Bank. Mr.

McCance is disputing the writ owed to Revenue Canada. [ 37 ] Therefore, at this point, assuming the exclusion of the writ of Canada Revenue Agency, the McCances have less than $13,000.00 left in equity in the property before legal fees. If the Canada Revenue Agency writ were to be included, they have no equity in the property. The last mortgage payment made was in 2010. They have not co-operated in any fashion in the attempts to sell their property, and in fact have worked actively to thwart attempts to obtain the fair market value of the property.

They have done nothing to recover the small remaining equity that could have been available to either them or Canada Revenue Agency. [ 38 ] Canada Revenue Agency has not appeared to oppose a final order for foreclosure. [ 39 ] I see nothing to be gained by further attempts to sell this property. It is a fruitless exercise and the equity available does not suggest that further steps should be taken. A final order for foreclosure is granted. Vacant possession is to be given by 5 p.m. on Sunday, Sept. 30 th , 2012. [ 40 ] Mr.

Steen shall provide me, rather than the Clerk, with a copy of the order for signature in the template format. The approval of Mr. McCance to the form of order is not required and the requirements of Rule 9.2(2) are waived. Heard on the 27 th day of August, 2012. Dated at the City of Calgary, Alberta this 28 th day of August, 2012.

J.B. Hanebury M.C.C.Q.B.A. Appearances: Raymond Walter Steen Witten LLP for the Plaintiff Malcom Lee Duncan McCance for the Defendants