Crossroads-DMD Mortgage Investment Corporation v Gauthier, 2015 ABQB 809

Court of Queen ’ s Bench of Alberta Citation: Crossroads-DMD Mortgage Investment Corporation v Gauthier, 2015 ABQB 809 Date: 20151216 Docket: 1503 14455 Registry: Edmonton Between: Crossroads-DMD Mortgage Investment Corporation Plaintiff - and - Adam Christian Gauthier Defendant _______________________________________________________ Reasons for Judgment of L. A. Smart , Master in Chambers _______________________________________________________ Background [ 1 ] Counsel for the Plaintiff attended before me in relation to this matter on October 28, 2015.

I was informed that an application for Redemption Order-Judicial Listing had been adjourned from October 1, 2015 but for some unexplained reason it had not been placed on the list. The Defendant Gauthier was not in attendance but based on Counsel’s advice, I allowed the application to proceed. The

action had initially been brought in the Judicial District of Calgary but when the Plaintiff’s application was first made, Master Prowse directed that it be moved to the Judicial District of Edmonton and was scheduled for October 1, 2015. [ 2 ] I was further informed that Mr. Gauthier exhibited characteristics of an OPCA litigant. Mr. Gauthier had attempted to file a counterclaim, application to amend the style of cause in the Statement of Claim and an affidavit with exhibits attached. Mr. Gauthier refused to pay filing fees based on an Order from Master Prowse waiving those fees.

The Clerk being of the opinion that Master Prowse lacked jurisdiction to make such an order refused to file his documents. Counsel then explained that as a consequence the Clerk would not accept the Statement of Defence prepared by the Plaintiff in response to the counterclaim. After hearing all of Counsel’s submissions including particulars with respect to indebtedness and valuation, I granted an Order providing for the redemption period to expire on November 28, 2015 with a Judicial Sale Listing for 90 days to follow if redemption did not occur. [ 3 ] On or about November 24, 2015, Mr.

Gauthier called the Edmonton Master’s office asking to speak to Master Schlosser in relation to an order he had ostensibly granted on October 28, 2015. He was very concerned that this had occurred as among other things he had not received notice that an application in that regard was to be made. Mr. Gauthier provided a copy of the Order which he advised was obtained from the Judicial Listing Realtor. He also provided a copy of unsigned correspondence dated November 20, 2015 delivered to him from Hendrix Law Per: Denise M. Hendrix.

That correspondence indicates that the Redemption Order had been previously served upon him (he says it was not though nothing turns on that per se) and that the judicial listing would commence on November 29, 2015. The correspondence points out the need for Mr. Gauthier to cooperate with the listing realtor and that his failure to do so would constitute contempt of Court that would permit an application to be brought before a Justice for sanctions. [ 4 ] Mr.

Gauthier’s confusion with respect to it being Master Schlosser’s order no doubt stems from someone having scrawled “Schlosser” in the space where the name of the Master who granted the order is inserted. That Order was in fact the Order which I had granted and signed. On further investigation it was determined that the original application on October 1, 2015 was heard by Master Schulz. She gave directions that Mr. Gauthier had until October 13, 2015 to provide the Master’s Office any pleadings and arguments he had in response to the Plaintiffs action and, in particular, the Redemption Order sought.

The Plaintiff was given until October 23 to respond and thereafter Master Schulz would issue a written judgment. Mr. Gauthier submitted material as directed but there was no response from the Plaintiff. Master Schulz issued her Memorandum of Decision on November 6, 2015 which was forwarded to Plaintiff’s counsel and Mr. Gauthier. No doubt having received that Decision prior to the letter from Hendrix Law also led to Mr. Gauthier’s confusion. [ 5 ] By way of facsimile transmission on November 25, 2015 a form of order based on Master Schulz’s decision was received by the Edmonton clerk’s office.

At the top of the cover sheet a handwritten note says “Sorry this is correct version to 10\29\15 give to Schultz”. At the bottom there is a notation “2nd Fax”, three stamps “FAXED” with the dates of 11\18\15 \, 11\24\15 and 11\25\15 inserted below and a further handwritten note “please give to Schulz to sign & file”. Presumably the note at the top of the page is in reference to my Order of October 28, 2015 although no copy of it could be found on the Court file nor could the clerk recall if it had been received.

Directions [ 6 ] Noting that there was no notice of the application and that the matter was on reserve with Master Schulz when it proceeded before me, on my own motion, I set aside my Order of October 28, 2015 nunc pro tunc . It follows that all steps taken purportedly in reliance upon that Order are of no affect. The costs of the application and any costs arising from steps taken based on that Order will be borne entirely by the Plaintiffs. [ 7 ] I have listened to the entire 26 minute application of October 1, 2015 before Master Schulz.

There was no discussion whatsoever that could cause one to conclude that the matter had been adjourned. I am mindful that Hendrix Law has a very busy foreclosure practice and Counsel appearing before me (the same counsel that appeared before Master Schulz) may well have been genuinely mistaken when representing to me that the matter had been adjourned. However, Hendrix Law upon receiving the written Decision of Master Schulz of November 6, 2015 ought to have recognized the error. Nonetheless correspondence dated November 20, 2015 was prepared and served upon Mr.

Gauthier referencing and relying on the October 28, 2015 Order and instructions were given to the Listing Realtor. By November 25, 2005, Hendrix Law was plainly aware of the error yet there has been no communication of this to the Masters’ Office. [ 8 ] On its face, conduct of Plaintiff’s Counsel is at best questionable and at its worst egregious. I direct that Ms. Blanchard, who appeared on the applications and Ms. Hendrix, who is the ostensible author of the November 20, 2015 correspondence, provide their written explanations of what has transpired.

Thereafter, I will decide whether it is appropriate to impose a sanction under r 10.49. Dated at the City of Edmonton, Alberta this 16 th day of December, 2015.

L. A. Smart M.C.C.Q.B.A. Appearances: J. Blanchard Hendrix Law for the Plaintiff Adam Christian Gauthier did not appear