Toronto Dominion Bank v. Gauthier, 2012 ABQB 569

Court of Queen ’ s Bench of Alberta Citation: Toronto Dominion Bank v. Gauthier, 2012 ABQB 569 Date: 20120914 Docket: 1203 05586 Registry: Edmonton Between: Toronto Dominion Bank Plaintiff - and - Adam C. Gauthie r also known as Adam Christian Gauthier Defendant _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is Mr. Gauthier ’ s application to set aside a default judgment. It was made on short notice.

Original counsel for the Plaintiff was not able to appear at this application so a student lawyer was dispatched to ask for an adjournment. [ 2 ] The TD Bank commenced an action against Mr. Gauthier. They say he was served. Mr. Gauthier denies this and says that the first notice he received of the action followed the Default Judgment. He contacted the Plaintiff ’ s lawyer ’ s office immediately.

[3] Mr. Gauthier admits that he owes the TD Bank some money on two personal credit facilities: an Overdraft and a Visa. [4] The Default Judgment was based on an Affidavit of the Process Server, dated April 18, 2012. Mr. Gauthier filed his ownAffidavit and took out an application to open up the default. In the meantime, there were settlement discussions. Mr. Gauthier says thathe understood the matter was settled. Indeed, the email correspondence attached to his most recent Affidavit indicates that there was anagreement about a number.

The only issue appears to have been whether the settlement would be reported to the Credit Bureau as “paidin full” or “settled in full”. The bank said it would do the latter. Mr. Gauthier seems to have tacitly accepted this. [5] The Bank didn’t think there was a settlement. The Bank’s lawyer indicated (in the same email on July 31) that they wouldbe filing a supplementary Affidavit from the Process Server. They said that they would see Mr. Gauthier in Court the next day. TheBank filed its Affidavit and sent a copy to Mr. Gauthier. The Bank’s lawyer showed up in Court but Mr. Gauthier did not.

MadamJustice Ross dismissed Mr. Gauthier’s application in his absence and awarded solicitor and client costs. Ironically, the costs came fromthe default in filing a defence. The lending agreement is not in evidence. [6] Mr. Gauthier proceeded to arrange financing to pay the Bank pursuant to what he thought was the settlement. He did notknow of Madam Justice Ross’ Order. In the meantime, the Bank had filed a Writ against title for the entire amount of the claim pluscosts of the action and the earlier application; some $6,000.00 higher than the settlement number.

The lawyer doing the mortgagefinancing discovered the Writ. [7] Mr. Gauthier then renewed his application to open up, this time based on the settlement. There is probably a live issueabout whether Rule 9.15(1)(

b) applies. The Rule allows the Courts to open up an Interlocutory Order if one side doesn’t appear. [8] Mr. Gauthier’s materials are not particularly articulate. There is a direct conflict in the evidence of the process server andthe evidence of Mr. Gauthier. Mr. Gauthier said in Court that he was not served and that he thought the matter had been settled. Hecould not explain the process server’s Affidavit. There may well be a live issue about whether fairness mandates opening up the default. Don Reid Upholstery Ltd. v. Patrie (1995) (AB KB), 173 A.R. 233 (Q.B.) per Viet, J. [9] Mr. Gauthier is self represented.

All he wants is for the Court proceedings to pause for a moment and for the playing fieldto be levelled so he can bring matters to a close. [10] There is no doubt that in a collections practice ‘well done is quickly done’. However, it is time for this locomotive to pullinto the station for a moment and for us to reflect upon Rule 1.2; especially, Rule 1.2(2)(c), which encourages early, informalresolution. In our zeal to move matters forward, it is easy to forget that the Rules are about resolving disputes not taking steps. Morehaste, less speed. [11] The matter is adjourned to September 21.

The Writ is to be discharged from title so that the second mortgage financing canproceed. Costs may be addressed at the adjourned application. The alleged settlement amount is to be held in the lawyer’s trust accountto the credit of the TD Bank, pending the hearing of the adjourned application. LINC can prepare the form of Order. Rule 9.4(2)(

c) willapply. [12] Given the conflict in the evidence, and given that several proceedings have already taken place before a Judge (the bank hasalready obtained a Judge’s stay of the above Order). It is preferable that the adjourned matter proceed in Judge’s chambers. Heard on the 07th day of September, 2012.

Dated at the City of Edmonton, Alberta this 14 th day of September, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances: Adam Gauthier self represented B. Esch Witten LLP For the Plaintiff