CIBC Mortgages Inc. v Canadian Mutual Acceptance Corporation, 2013 ABQB 455

Court of Queen ’ s Bench of Alberta Citation: CIBC Mortgages Inc. v Canadian Mutual Acceptance Corporation, 2013 ABQB 455 Date: 20130809 Docket: 1103 16649 Registry: Edmonton Between: CIBC Mortgages Inc. Applicant - and - Canadian Mutual Acceptance Corporation Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ Introduction [ 1 ] The applicant, CIBC Mortgages Inc. (“CIBC”) applies for leave with respect to their appeal concerning an assessment of costs filed in this matter.

The applicant began foreclosure proceedings in October, 2011, and in December, 2011, was granted a redemption order – judicial listing. The redemption period expired in June, 2012, in which time the judicial listing began. In July, 2012, the applicant applied to the Court to accept an offer on the property, and after two adjournments, an order confirming sale investing title was granted on August 31, 2012. Vickers Hendrix LLP also represented the seller with respect to the sale of the property which closed on September 20, 2012.

[2] In total, Vickers Hendrix LLP prepared three arrears letters and provided them to the defendant. The bill of costs wasassessed on January 8, 2013 on an ex-parte basis. The fees were allowed, however non-taxable disbursements were reduced from$437.00 to $360.00 and taxable disbursements were reduced from $2,778.11 to $1,685.26, for a total reduction from $7,699.11 to$6,476.52. As the assessment in this matter was ex-parte, there was no recorded assessment and accordingly, the applicant also submitsthat the requirement of a transcript should be waived.

With respect to the assessment itself, the fees were allowed so the only issue waswith respect to the fax filing fee and the sale account. The applicant submits that the fax filing fee should be allowed for non-taxabledisbursements of $427.00, and in addition, the sale account should not have been reduced from $1,390.45 to $300.00. Analysis [3] In support of granting leave to appeal counsel for the applicant cites L.C. v Alberta, 2009 ABCA 77, a brief judgment ofJustice Berger which reads as follows: 1 The Applicants sought an extension of time to appeal.

The matter came before me in chambers on Thursday, February 26, 2009, Igranted the motion subject to certain conditions. I promised reasons would follow. Those reasons are set out below. 2 A motion was brought to strike the Applicants' Statement of Claim which resulted in an order filed in the Court of Queen's Bench onDecember 19, 2008. 3 A Notice of Appeal was filed on January 16, 2009 which was outside the 20 day limit.

The Notice of Appeal should have been filedon or before January 8, 2009. 4 The Applicants maintain that the Respondents were notified on numerous occasions that the Applicants intended to appeal thedecision. 5 The memorandum is support of the motion says simply that "Counsel for the Applicant erroneously believed that the Appeal timewas 30 days and not 20 days." The Respondents take the position that the criteria set out in Cairns v. Cairns, (AB CA),[1931] 4 D.L.R. 819 (Alta.

C.A.) are not met because "[t]here is no evidence before this Court upon which to determine [that issue]."(No affidavit was tendered by the Applicants). 6 The Respondents submit that an error by counsel in calculating dates is not a special circumstance serving to justify an extension:Dang v. Bahramloian, 2007 ABCA 142, [2007] A.J. No. 451 at para. 6. 7 Dang, in my opinion, is not, on its face, authority for the proposition that an error on the part of counsel is dispositive. The reasonsfor decision in that case of a single judge of this Court say only that such an error "is not enough".

It goes on to suggest that further delayby the appellant was also an important consideration in refusing leave. In addition, the decision is replete with a recital of other reasonswhy leave was not granted in that case. 8 The decision in Dang is an echo of the same judge's reasons in Armstrong v. Armstrong, 2006 ABCA 228, [2006] A.J. No. 847.Again, my view is that Armstrong does not say that an error on the part of counsel, regardless of the circumstances, "is not enough".Indeed, the context in Armstrong appears to have governed the day. Moreover, other deficiencies strongly influenced the outcome.

Thefollowing passage lends support to those observations: "Many an Alberta judge has let strong apparent merits and absence of any prejudice bridge some other gaps in a plea for relief from timelimits or other procedural rules. But those are not the facts here. Almost everything here falls short, and no aspect is strong enough forthe would-be appellant that it could make up for the weak aspects (if the law permitted that)." (at para. 48) [emphasis added] 9 The Respondents argued that absent special circumstances, the motion must fail.

Again, reliance is placed upon the acknowledgederror of counsel in failing to file the Notice of Appeal in a timely fashion which is said not to be a "special circumstance". TheRespondents submit that, if that be the case, the four-part Cairns' test cannot be satisfied. The asserted position in reliance uponArmstrong is that all four parts of the traditional test must be met, failing which the application must be refused. I do not read Armstrongto definitively so conclude. Indeed, the appellate chambers judge in Armstrong equivocated.

At the very least, the following passage is,on its face, inconsistent with the emphasized portion of the above-cited excerpt and acknowledges a measure of uncertainty: "I read the Alberta cases as saying that the various parts of the traditional test must all be met (subject to an exception for specialcircumstances). But if I am wrong, and it is a matter of weighing countervailing criteria, there are no factors favoring the proposedappeal which outweigh those operating against the appeal.

That conclusion is reinforced by two other relevant considerations (notice ofintent to appeal and lack of general importance) which are not absolute bars, but also against the would-be appellant here." (at para. 49) [emphasis added] 10 In the result, and with great respect to the contrary view, I am of the opinion that no single deficiency operates to dictate theoutcome. That is particularly so when a minor temporal error by counsel would operate to the prejudice of his or her client and when theremaining Cairns criteria have been satisfied. For sake of clarity, those criteria are the following:

a) That there was a bona fide intention to appeal while the right to appeal existed, and that there was some special circumstance thatwould excuse or justify the failure to appeal;

b) An explanation for the delay and that the other side was not so seriously prejudiced by the delay that it would be unjust to disturb thejudgment, having regard to the position of both parties;

c) That the applicant has not taken the benefits of the judgment from which appeal is sought; and

d) That the appeal would have a reasonable chance of success if allowed to proceed. Cairns v. Cairns, supra, at paras. 35 - 40 Sohal v. Brar (1998), 1998 ABCA 375 , 223 A.R. 141 (Alta. C.A.) at para. 1 [Underlining mine] 11 The factors favouring the proposed appeal, in my opinion, outweigh those operating against the appeal and, in the result, favour thegranting of the order sought. 12 The Respondents are entitled to costs payable in any event of the cause. [4] The applicant herein specifically relies on the four provisions cited at paragraph 10 in L.C..

It asserts that there is noprejudice to anyone’s interests if leave were granted, and specifically argues that there is no prejudice to the respondent as the assessmentproceeded on an ex-parte basis, pursuant to the order confirming sale investing title. In fact, although the assessment proceeded on an ex-parte basis, this matter is being opposed today by Mr. Oluk, who as it happens, was accidentally made aware of these proceedingspresently before me. Mr.

Oluk argues that there is prejudice to his interests if leave were granted as it could further affect future creditratings, and other recourse financing. [5] The applicant further submits that there is no benefit to the applicant on a decision to increase their bill of costs. HoweverMr.

Oluk at another assessment, Home Trust Company v. 1115525 Alberta Ltd, Action 1103-14754, and again before me now, allegesthat it is common for Alberta law firms to charge fixed bulk rates to lenders, and pocket the difference obtained on the assessments.While the allegation was denied as ever having occurred by Appellant’s counsel in any file involving his law firm, it would if truerepresent a real or potential benefit to the applicant, or its client. [6] Additionally, the fact that Mr.

Oluk and Officer 1115525 Alberta Ltd. may be present at the hearing of this appeal byaccident because the matter of the initial assessment proceeded on an ex-parte basis does not mean that there is no prejudice to therespondent in this matter. I agree that future credit ratings could be affected, and that not all mortgages involve non-recourse financing. [7] Furthermore, the applicant has not provided any reasonable explanation in affidavit form or otherwise for the delay in thismatter, nor has the applicant shown a bona fide intention to appeal while the right to appeal existed.

As I understand it, the assessmentoccurred on July 30, 2012, yet the notice of appeal was not filed until January, 2013 because the applicant was already out of time. Theapplicant had one month to file the appeal, and appears it simply did not do so until many months later. Accordingly there are no specialcircumstances that would excuse or justify their failure to appeal on a timely basis. [8] Furthermore, the basis of the appeal itself does not necessarily appear to have a reasonable chance of success if leave isgranted.

The legal fees and disbursements, the out-of-town agent fees, and the fax filing fees, are significantly controversial and have notbeen allowed on appeal or otherwise in several instances. Conclusion [9] As such, I conclude that leave to appeal should not be granted in the present circumstances. There is no affidavit evidencewhatsoever provided by the applicant to explain their delay in this matter, there is potential prejudice to the defendant/respondent,potential or real benefit to the applicant and the case on appeal is not reasonably strong. Accordingly, leave to appeal is denied.

Heard on the 15th day of May, 2013. Dated at the City of Edmonton, Alberta this 7th day of August, 2013. Donald Lee J.C.Q.B.A. Appearances: Nicholas Maggisano

Vickers Hendrix LLP for the Applicant John Oluk for the Respondent