Toronto-Dominion Bank (TD Canada Trust) v Kevin I. Peddie Professional Corporation (West Edmonton Law), 2014 ABQB 790

Court of Queen ’ s Bench of Alberta Citation: Toronto-Dominion Bank (TD Canada Trust) v Kevin I. Peddie Professional Corporation (West Edmonton Law), 2014 ABQB 790 Date: 20141223 Docket: 1403 06568, 1303 03948 Registry: Edmonton Action No. 1403 06568 Between: The Toronto-Dominion Bank Carrying on Business As TD Canada Trust Plaintiff - and - Kevin I. Peddie Professional Corporation Also Operating As West Edmonton Law and Barry & Pedie LLP, Kevin Ian Peddie Also Operating As Barry & Peddie LLP, Fuoco Holdings Ltd. Emilio Fuoco and Dan Currie Defendants Action No. 1303 03948 Between: Dan Currie Plaintiff - and - Brent Allan James Craig, Ana Maria Craig, Wesley Craig and Karen Craig Defendants

Brent Allan James Craig, Ana Maria Craig, Wesley Craig and Karen Craig Plaintiffs by Counterclaim - and - Dan Currie, Emilio Fuoco and Fuoco Holdings Ltd. Defendants by Counterclaim _______________________________________________________ Reasons for Judgment of W. S. Schlosser , Master in Chambers _______________________________________________________ [ 1 ] This is a case about the ostensible authority of an agent and fraud in a Land Titles setting. The question is whether, on these particular facts, the fraud of an agent will result in the loss of a mortgagee’s in rem rights.

The facts are important but not in dispute. Narrative Facts [ 2 ] Dan Currie loaned Brent and Anna Craig $220,000.00 at 16.5% on September 9, 2010. It was to be repaid at $3,025.00 per month. The loan matured March 15, 2011, at which time the remaining balance of principal and interest became due. [ 3 ] The loan was secured against two properties; an Edmonton property on Ada Boulevard and a property in Clearwater. [ 4 ] The Craigs made payments by way of post-dated cheques. The cheques were made out to “D. Currie”. They were given to Emillo Fuoco of ‘Fuoco Holdings’.

Fuoco Holdings Ltd. was a licenced mortgage broker. [ 5 ] Mortgages securing the loan were filed against both properties. [ 6 ] The mortgage on the Clearwater property was foreclosed off by a prior mortgagee November 29, 2011. That left the Ada Boulevard property. [ 7 ] The Craigs wanted some more money, so they went to the TD Bank. TD was willing to lend Brent Craig, Wesley Craig and Karen Craig $725,000.00. (It is not known what became of Anna.) The TD loan was to be secured by a conventional mortgage against the Ada Boulevard property. This property had been in Brent Craig’s name alone.

TD wanted everyone on title. [ 8 ] TD also wanted to be on first. The Currie mortgage was to be paid out. [ 9 ] The Currie mortgage read: In consideration of the sum of Two Hundred and Twenty Thousand ($220,000.00) Dollars, lent to the Mortgagor by Dan Currie c/o Fuoco Holdings Ltd. 18 Mt Alberta Bay SE, Calgary, Alberta T2Z 3N7 , (who and whose administrators, successors .and assigns are hereinafter included in the expression the “Mortgagee”) the receipt of which sum the Mortgagor does hereby acknowledge, covenant with the Mortgagee: . . .

(emphasis added) [ 10 ] The lawyer acting for the bank and for the Craigs wrote to Fuoco Holdings Ltd. saying: Please be advised we represent Brent Craig with respect to the refinancing of the above mentioned lot. Kindly provide our office with a payout statement for the Mortgage which Fuoco Holdings Ltd. has against the lot as at May 31, 2011. Please also provide us with a registerable discharge of the mortgage under the trust condition that the mortgage will be paid out by our offices within one week. I enclose a copy of title for your ease of reference.

Thank you for your attention to this matter. [ 11 ] At about that time, Mr. Fuoco e-mailed Dan Currie. He said that Brent Craig was going to sell his house. The e-mail was sent 2011/06/02. Mr. Fuoco drafted a payout statement that indicated: Principal balance: $220,000, Interest from 12/15/2010 – 07/31/2011: $20,992.55, Total: $249,992.55. [ 12 ] This “Mortgage Statement for Discharge Purposes” was addressed to Brent and Anna Craig. It was dated May 30, 2011.

It further provided that the payout amount was to be payable to Dan Currie c/o Fuoco Holdings at the address above. [ 13 ] The total in the statement was approximately correct but it did not take any payments into account and it was not an exact calculation of interest. The actual payout amount appears to have been just over $235,432.55. Nevertheless Dan Currie signed this mortgage payout statement and returned it to Mr. Fuoco. But it never went any farther. [ 14 ] Mr. Fuoco provided a different payout statement to the lawyer.

That statement provided: Principal balance: $75,000.00; Interest from 05/31/2011 – 05/31/2011: 0; Total: $75,000.00, Per diem rate: $99.45. It was dated May 30, 2011. It was address to the TD Bank. The part about making the cheque payable to Dan Currie was left out. Instead, it said ‘please make payment amount payable to Fuoco Holdings Ltd.’ It was signed by Emilio Fuoco but not by Mr. Currie. In fact, Mr. Currie had no knowledge of this second “payout statement”. [ 15 ] The bank did not question why there should only be $75,000.00 owing and not something closer to three times that amount.

As noted earlier,the loan had matured. [ 16 ] After receiving this payout statement, the lawyer wrote to Mr. Fuoco: We enclose our firm’s trust cheque in the sum of $75,298.35 representing the payout as at May 31 st , 2011 plus per diem interest at $99.45 to June 3 rd , 2011. These funds are forwarded to you in trust for a discharge of the mortgage registered as instrument No. 102333268. Trusting this is to your satisfaction, I remain.

The cheque was (apparently) made out to Fuoco Holdings Ltd., as requested. [ 17 ] Instrument number 102 333 268 was actually a mortgage to Inland Financial Inc. and it was discharged. The Currie mortgage was instrument number 102 333 270. [ 18 ] Mr. Fuoco kept the money and eventually disappeared. None of the funds were given to Mr. Currie. The Currie mortgage remains on title and in first place. This is TD’s application to compel Mr. Currie to discharge his mortgage. The Craigs have brought a similar application.

Dan Currie has brought a cross application to dismiss the TD action against him. [ 19 ] The following cases were cited in argument: Bay-Queen Investment Corp. Ltd. v. Boyko , (1958), 1958 Carswell Ont 191 (H.C.J.) ; Woeller v Orfus (1979), 1979 Can LII 2057 (ONSC); Sigurdson v Shieff (1946), 1946 CarswellMan 43 (C.A.) ; Armstrong v Cambrian Equipment Sales Co. (1977), 1977 CarswellOnt 2684 (OCJ. Gen.

Div.) ; Lyon Developments Ltd. v Airways Compressor Sales Ltd. (1985), 1985 CarswellAlta 56 (QB) ; Howard v Carline (1956), 1956 CarswellBC 243 (S.C.) ; Bowne of Canada Ltd. v First Mutual Investments of Canada Ltd. (1997), 1997 CarswellBC 2550 (C.A.) ; Jensen v South Trail Mobile Ltd. (1972), 1972 CarswellAlta 62 (S.C.) ; Irving Oil Ltd. v S & S Realty Ltd. (1983), 1983 CarswellNB 21 (Q.B.) ; Hazelwood v West Coast Securities Ltd. (1974), 1974 CarswellBC 418 (S.C.) ; National Bank of Canada v Anemi (1988), 1988 CarswellOnt 108 (D.C.) ; Kohn v Devon Mortgage Ltd. (1983), 1983 CarswellAlta 179 (Q.B.) ; Kohn v Devon Mortgage Ltd. (1985), 1985 CarswellAlta 49 (C.A.) ; Canadian Pacific Ships v Industries Lyon Corduroys Ltee (1982), 1982 CarswellNat 10 (F.C.T.D.) ; Community Savings Credit Union v U.A.

Local 324 (2001), 2001 CarswellBC 652 (S.C.) ; Canadian Pacific Hotels Ltd.v Bank of Montreal (1981), 1981 CarswellOnt 113 (H.C.J) . Cwalina Estate v Parkland (County), 2013 ABCA 343 .

The Position of the Parties [20] TD and the Craigs argue that Mr. Fuoco had apparent, or ostensible authority to issue the $75,000.00 mortgage payoutstatement and to receive payment. They say that Mr. Currie is bound by this and is obliged to discharge his mortgage. For his part, Mr. Currie argues that this is really nothing more than TD paying a third party. He refuses to accept it as satisfaction of all or part of the debt.So it all comes down to whether Mr. Fuoco had the ability to bind Mr. Currie, or, to put it another way, whether Mr. Currie must bearresponsibility for the acts of Mr. Fuoco.

The Law [21] A useful starting point is Jensen v. South Trail Mobile Ltd. 1972 ALTASCAD 29 , [1972] 5 WWR 7, 28 DLR (3d)233. There, we find, in the dissenting opinion of McDermit, J.A.: 7 The onus of proof to show such ostensible authority is on Jensen: Robin Line SS. Co. v Canadian Stevedoring Co., (SCC), [1928] S.C.R. 423, [1928] 3 D.L.R. 856. “Obviously the question of ostensible authority or holding out is one of fact and mustbe determined by a consideration of the relevant facts not in dispute and an appreciation of the evidence bearing on those not admitted”:Anglin C.J.C. in Quebec Federated Co-op Co. v.

Farmers Fence Co. (SCC), [1925] 2 D.L.R. 574 at 575 (Can.),giving the unanimous judgment of the Court. 8 The learned trial Judge found the facts in the case at bar were analogous to those found in Farm Products Ltd. v. MacLeodFlouring Mills Co., (AB CA), 14 Alta L.R. 128, [1918] 3 W.W.R. 1035, 43 D.L.R. 770 (C.A.); and in Reed and Keastv McKenzie Co. Ltd., (SK CA), 14 Sask. L.R. 212, [1921] 3 W.W.R. 72, 61 D.L.R. 95 (C.A.). In both these latter casesthe agents were held to have ostensible authority.

The learned trial Judge came to the conclusion that on the facts in this case the agenthad been held out as having authority to make the deal in question. In coming to this conclusion the learned trial Judge quoted the law applied by the Saskatchewan Court of Appeal in Reed and Keast v McKenzie Co. Ltd., supra, taken from 1 Halls. (1st) 201: 429.

Where a person has by words or conduct held out another person, or enabled another person to hold himself out, as havingauthority to act on his behalf, he is bound, as regards third parties, by the acts of such other person to the same extent as he would havebeen bound if such other person had in fact had the authority which he was held out as having. 9 This principle is subject to the exception as quoted by the trial Judge from Halsbury, supra: 431.

Where a principal, in conferring authority upon his agent to act on his behalf, imposes conditions or limitations on its exercise, noact done by the agent in excess of the conditional or limited authority is binding on the principal as regards such persons as have or oughtto have notice of such excess of authority.

But, in the absence of notice, the principal cannot, by any instructions to his agent, escape liability for acts done by the agent which fallwithin the apparent scope of his authority. 10 However, the trail Judge decided that this case did not fall within the exception and it is here that counsel for the companycontends that he went astray. Jensen knew that the agent had to have approval for the transaction, for this information was given him bythe agent. Subsequently the agent advised Jensen that he had obtained such approval.

Counsel for the company submits that an agentcannot hold himself out as having authority and submits to us the following cases. In Attorney General for Ceylon v A. D. Silva, [1953]A.C. 461 at 479, the Judicial Committee stated, “All ‘ostensible’ authority involves a representation by the principal as to the extent ofthe agent’s authority.

No representation by the agent as to the extent of his authority can amount to a ‘holding out’ by the principal.”Again, in Russo-Chinese Bank v Li Yau Sam, [1910] A.C. 174 at 184, Lord Atkinson, giving the judgment of the Judicial Committee,said: It is undoubted that a person who deals with an agent, whose authority he knows to be limited, as the plaintiff knew in this case, does soat his peril, in this sense, that should the agent be found to have exceeded his authority his principal cannot be made responsible ...

Inother words, if the agent be held out as having only a limited authority to do on behalf of his principal acts of a particular class, then theprincipal is not bound by

an act done outside that authority, even though it be

an act of that particular class, because, the authority beingthus represented to be limited, the party prejudiced has notice, and should ascertain whether or not the act is authorized. I acknowledge that this is a dissenting judgment but there does not seem to be any disagreement about the law between majority anddissent.

The difference lay in the application of the law to the facts. [1] [22] A very helpful, and slightly more recent, decision is that of Stratton, J. (as he then was) in Kohn v Devon Mortgage Ltd. (1983) (AB KB), 28 Alta LR (2d) 276, 3 DLR (4th) 466, in that case, Stratton J. adopts the outline provided byMcRuer C.J.H.C. in the Bay-Queen case saying: 29 In the English case of Kent v Thomas (1856), 1 H. & N. 473, 156 E.R. 1287, a solicitor had been authorized to receive interestpayments on a mortgage debt. However the solicitor fraudulently obtained a portion of the principal from the mortgagor.

Although thatcase can be distinguished from the present one particularly on the basis that in the English case the fraudulent solicitor had acted as agentfor both the payor and payee, the case supports the proposition that authority to receive interest on a mortgage by no means imports anauthority to receive the principal. Alderson B. pointed out in his judgment that the plaintiff never gave the agent authority to do anymore than receive the interest. The court refused to impute any authority whatsoever beyond the authority to receive interest paymentsonly. 30 In Bay-Queen Invt. Corp. Ltd. v.

Boyko (1958), (ON SC), 14 D.L.R. (2d) 483, McRuer C.J.H.C. of the OntarioHigh Court sets out an excellent outline of the main rules of law “to be applied in deciding where the loss is to fall when a debtor pays

money to a person other than his creditor and the money is misappropriated by the person to whom it is paid” [pp. 485-86]. At p. 486 ofthe report these rules, with authorities, are set forth. These rules are: 1. When a debtor pays money to a person other than his creditor the onus is on him to show by clear evidence that the person towhom it was paid was authorized by the creditor to receive it: Re Tracy; Scully v Tracy (1894), 21 O.A.R. 454; Parent v O’Connor(1922), 21 O.W.N. 386. 2. This may be shown by proving express or implied authority. 3.

As between a mortgagor and mortgagee, the fact that a solicitor or conveyancer acted for the mortgagee in drawing up themortgage papers and advancing the money does not show authority to receive mortgage payments of principal or interest. 4 The mere possession of the mortgage deed by a solicitor or conveyancer does not prove authority to receive the mortgage moneys:Wilkinson v Candlish (1850), 5 Exch. 91, 155 E.R. 39. 5.

Possession of a mortgage signed by the mortgagor with an acknowledgement of receipt of the money does not show authority toreceive the mortgage moneys from the mortgagee: Viney v Chaplin (1858), 2 De G. & J. 468. 44 E.R. 1071; Ex p. Swinbanks, ReShanks (1879), 11 Ch. D. 525; Gillen v R.C. Episcopal Corp. of Diocese of Kingston in Canada (1984), 7 O.R. 146; McMullen v.Polley (1887), 13 O.R. 299 and Murray v Crossland, (ON CA), [1929] 4 D.L.R. 721, 64 O.L.R. 403 (C.A.). 6.

The mere authority to receive payments of interest does not prove authority to receive moneys on account of principal: Kent v.Thomas [supra]; Re Tracy, Scully v Tracy, [supra]; Gillen v R.C. Episcopal Corp of Diocese of Kingston in Canada supra; Bolton vTydall (1915), 9 O.W.N. 266 and McDonald v Gray (1932), 41 O.W.N. 71 (C.A.). 7. Express authority to receive payments of principal before they fall due must be clearly proved.

Such authority cannot be inferredfrom any ordinary course of dealings between the parties: Re Tracy, Scully v Tracy, [supra] Maclennan J.A. at p. 464. [23] That case was overturned by the Court of Appeal, but on its facts. Moir, J.A., said for the court at (1985) 1985 ABCA 10 , 37 Alta LR (2d) 20, 20 DLR (4th) 480: 3 Clearly Devon had with the respondent Glass’ authority held itself out to be able to collect both principal and interest. If there wasa limitation placed on their authority by Mrs. Glass, she did not advise the appellant mortgagors of the limitation. Accordingly, they arenot bound by the limitation.

Devon Mortgage was the agent. We agree with the result of the judgment of Hope J. in Bjornson v Skylark Invt. Ltd., Alta QB, 13th July 1984 (not yet reported). [24] This case was relied upon heavily by TD and the Craigs. But it too turned on its facts and does not have the effect of reversingthe onus or, in all circumstances, placing a continuing obligation on a principal to communicate any limitations on an agent’s powers. Stop or Go [25] The liability of a principal for an agent’s apparent authority is sometimes said to be based on estoppel.

At least, that is theorthodox view and it is often reflected in the language of the decided cases. Other times the reference point seems to be vicarious liability in tort. (Bowstead and Reynolds on Agency, 18th ed, 2006; Sweet and Maxwell, paras. 1-010 and 1-026 and the authoritiescited there). [26] Estoppel requires a representation by words or conduct by the principal and a corresponding change of position (or alternationof legal position) by a third party in reliance. (eg Freeman & Lockyer v Buckharst Park Properties (Mangal) Ltd. [1964] All ER 630 at 644 per Diplock L. J.).

The representation, itself, must be clear and unequivocal. (Freeman, Lyon, Howard and 1 Hals, 3rd ed., p.158).Vicarious responsibility, on the other hand, focuses on the principal’s duty from having enabled (or perhaps having ‘held out’) theagent. [27] The cases tend to be highly fact-driven, but the two approaches are fundamentally different. If liability might be thought of asa moving vehicle, on the estoppel theory, the principal is not liable unless he puts on the gas. On the tort theory, he is liable unless heputs on the brakes. [28] The distinction is subtle but important here.

TD’s argument is that Currie is bound (perhaps ‘vicariously’) unless hedischarged a duty to communicate a limitation on Fuoco’s authority. Otherwise, TD and the Craigs were safe to make assumptions aboutFuoco’s powers. Currie, on the other hand, takes a more ‘estoppel-like’ approach, arguing that Fuoco’s status is not enough.

He arguesthat TD has to justify reliance by something Currie, not Fuoco, said or did; and in this case, all Currie did was to provide Fuoco as anaddress. [29] In my view, the correct approach to an apparent authority question in agency is to put yourself in the shoes of the personclaiming that the agent acted within their apparent authority and ask ‘What made you think that?’ If it was something the principal saidor did, the principal is bound. If it is something the agent said or did, that cannot be enough on its own. Otherwise the principal wouldalways be liable for the fraud of the agent.

However, if the authority is something that is usual to the office of the agent, the principalshould be expected to know this and bear the risk of not communicating any limitations. An unsupported assumption is not enough toimpose a duty to communicate a limitation. [30] In this case it is not a question of an agent having authority to accept some payments or some types of payment, but not others.Instead, the jump is from: ‘make cheques payable to the mortgagee’, to ‘make cheques payable to the agent, personally’.

Analysis (

i) Actual Authority [ 31 ] The evidence supports a conclusion that Fuoco Holdings Ltd. was Dan Currie’s agent. Fuoco Holdings Ltd. had actual authority to issue the mortgage payout statement signed by Dan Currie. However, Fuoco Holdings Ltd. had no actual authority to issue any other payout statement, or accept payment in its own name. [ 32 ]

Section 18 of the Real Estate Act, RSA 2000 c. R-5 provides:

(2) No industry member shall receive money in the course of carrying on business as an industry member unless, before receiving the money, the industry member has entered into a service agreement with the person who provides the money or on whose behalf it is to be held that expressly acknowledges the trust arrangement between them and sets out the terms on which the money will be received, held and disbursed. (emphasis added) [ 33 ] There is no evidence that Fuoco had actual authority to receive money in his own name in trust under the terms of the Real Estate Act , or otherwise. (ii) Apparent Authority [ 34 ] The narrow and vital question is whether Fuoco had apparent authority to issue the payout statement he did and to accept payment in his name, such that TD could rely on it.

The corollary is whether Dan Currie had an obligation to communicate any limitation to anyone, or bear the risk of the agent’s fraud. [ 35 ] I note that the cases dealing with limitations on an agent’s apparent authority typically involve an agent who has some authority but not all; such as the authority to accept interest payments but not principal.

In my view, it is a much larger jump between being able to accept principal because you can accept interest, on one hand, to, on the other, making a payment in the name of the agent personally, because the agent had in the past accepted cheques made payable to the principal. In fact, the latter seems more of a non- sequitur than anything else. [ 36 ] The onus is on TD and the Craigs to establish the scope of the agent’s authority or, more accurately, to show that Fuoco Holdings Ltd. had the authority to accept the payout funds in its name .

This is something that is to be proved ‘to the hilt’ ( Woeller , citing Di Castri ). In so far as a representation need be proved, it must be shown to be clear and unequivocal ( Freeman, Lyon ) [ 37 ] There is no evidence of any customary or usual authority of a mortgage broker, such that TD would be safe to make an assumption about the scope of Fuoco’s authority to accept a cheque in its own name. I acknowledge that mortgage brokers are obliged to maintain trust accounts under the rules under the Estate Act , RSA 2000, c. R-5 .

However, just because Fuoco Holdings Ltd. might have been capable of accepting trust funds does not mean that it could, in these circumstances. [ 38 ] Much was made of the fact that the payment was $75,000.00 and not something in the range of $220,000.00 plus. I do not think that this would be enough to alert the bank, or to put the bank on inquiry. After all TD is concerned with the payout amount and should be able to accept it at face value. It is unconcerned with any behind-the-scene dealings between the parties. The bank would also not know whether the entire face value of the mortgage had been advanced.

In this case, the mortgage covered two properties and, in the circumstances, a $75,000.00 balance would not be unusual enough from the bank’s perspective to trigger that category of cases in which unusual circumstances, or a party’s negligence would transfer to it, the risk of limits on an agent’s authority. [ 39 ] If we discount the mortgage payout statement itself as being a representation by the agent of the agent’s authority, all the bank knew was that Dan Currie was the mortgagee and Fuoco Holdings Ltd. was his address. Dan Currie was not operating as Fuoco Holdings Ltd.

In my view, the mortgage cannot be interpreted to mean that both Dan Currie and Fuoco Holdings were the mortgagees. [ 40 ] Brent Craig should certainly have known that the cheques should have been made to ‘D. Currie’, as they had been in the past, even though the cheuques might have been given to Emilio Fuoco for conveyance to Mr. Currie. [ 41 ] There is no magic to the Land Titles context. This is a common-garden agency problem.

Principles of indefeasibility central to the Torrens system and other specialized principles pertaining to that context do not enter into the agency question by shifting a burden or heightening any duties of the mortgagee. [ 42 ] The Land Titles Procedure Manual requires that a post office address of the mortgagee be provided, as was done here. The Registrar too appears to have treated this as an address rather than an instrument in favour of a corporation; as would be the case if Fuoco Holdings Ltd. was a mortgagee. [ 43 ] The Craigs point to a second Promissory Note for $160,000 to justify their position.

This note is not properly in evidence. It was sent by their lawyer to Mr. Currie’s lawyer to flesh out paragraphs 11 and 12 of the Craigs’ Statement of Defence. The Craigs have not otherwise filed any evidence. Their position is largely set out in their pleadings. [ 44 ] The Craigs’ application for a discharge of the mortgage seems opportunistic, especially in view of the fact that even the new note contains a charging provision. [ 45 ] The debt, and consequently the charge against the Ada Boulevard property, is at least $160,000.00 plus interest at 16 per cent

since June of 2011; or, $423,539.38 as at December 15, 2014, if the original debt is calculated in accordance with the amortization table for the original loan. Conclusion [ 46 ] Holding in favour of TD and the Craigs would be inconsistent with the results of other decided cases (eg Bay Queen, Woeller, Butwick v. Grant [1924] 2 KB 483 . CP Ships ).

I appreciate it is not quite like making a cheque payable to Canada Post because the principal has a post office box, and also that this fraud came unexpectedly, as most frauds do, like a thief in the night: but one who pays a third party instead of a creditor does so at their peril. [ 47 ] I cannot find on this evidence that the bank is entitled to rely on the agent’s apparent authority such that it is entitled to a discharge of the Currie mortgage, or to move into first place. Disposition (

i) Craigs [ 48 ] The Craigs’ application is dismissed with costs on a solicitor and client basis, to be assessed, in accordance with the original mortgage. (ii) TD [ 49 ] TD’s application to compel discharge of the Currie mortgage is dismissed with costs on column 3. (iii) Currie [ 50 ] Mr. Currie has brought a cross application to have the TD lawsuit dismissed against him. TD’s Statement of Claim was filed September 18, 2014. On August 16, 2011, the (then) bank’s lawyer said that he had paid out the Currie mortgage but that he had not yet received a discharge.

Section 75 of the Law of Property Act requires a discharge within 30 days of payout. (The cheque had been sent June 2, 2011). [ 51 ] By August, or at the latest, September, 2011, the bank had actual knowledge that no discharge was provided and that they were suffering an injury by remaining in second place. They knew that Currie, the mortgagee, had not provided a discharge and that an action (which was actually started in 2014) to compel a discharge or to seek damages, was warranted. [ 52 ] I acknowledge that Mr. Fuoco strung the lawyer along for a while.

However, a willingness to grant indulgences does not mean that the clock is not running, or more particularly, that a proceeding is not warranted. I am not aware of any facts or circumstances that should extend the time to three years post-August 2011, instead of the two that are allowed under the Limitations Act , RSA 2000 c. L-12. [ 53 ] The Statement of Claim against Dan Currie filed May 6, 2014 is roughly a year out of time and should be struck. [ 54 ] TD’s action (No. 1403 06568 ) is dismissed against Mr.

Currie, with costs on column 3. (iv) Fuoco and the Lawyer Defendants [ 55 ] Fuoco has been noted in default and did not appear. No relief is sought against the Lawyer Defendants. One Last Point [ 56 ] A finding of apparent authority (and presumably the lack of apparent authority) is a matter of fact. This finding is essential to the outcome of this application. [ 57 ] I acknowledge that Masters are not to decide contentious and disputed matters of fact on affidavit evidence unless the parties consent: Court of Queen’s Bench Act , RSA 2000, c. C-31, section 9(3)(b).

Since this was not raised expressly at the application, I infer consent; deciding this fact was what the application was all about. [ 58 ] Even if I am not correct about this, it is plain that none of the issues raised here genuinely require a trial. To put it another way, Currie’s defence is so compelling that the likelihood it will succeed is very high. Accordingly, I am able to determine this summarily pursuant to Rule 7.3(1)(

b) without having to resort to finding a

central fact. WP v. Alberta , 2014 ABCA 404 . Heard on the 12 th day of November, 2014. Dated at the City of Edmonton, Alberta this 23rd day of December, 2014. W. S. Schlosser M.C.C.Q.B.A. Appearances: Patty Ko Bishop & McKenzie LLP for the Plaintiff Anthony J. Di Lello Fric, Lowenstein & Co. LLP for Dan Currie Ryan Pelletier Pelletier Law for the Craigs Stuart Weatherill Emery Jamieson LLP For Kevin Peddie Professional Corp. [1] I note that this must have been an interesting appeal to hear. W. A. Stevenson, Q.C. , lately of the Supreme Court of Canada, was counsel for the appellant. The late ‘Miss N.

Foster’, lately of the Court of Queen’s Bench, appeared for the respondent. The appeal was carried, by a majority, though on its facts.