DAVID ARTHUR DANIELS Plaintiff - v. -, 2003 ABQB 279

Daniels v. Mitchell, 2003 ABQB 279 Date: 2003 0324 Action No. 0101-12092 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: DAVID ARTHUR DANIELS Plaintiff - and - JUDY MITCHELL Defendant _______________________________________________________ MEMORANDUM OF DECISION of L. ALBERSTAT Q.C. , Master in Chambers _______________________________________________________ APPEARANCES: Anthony J. Di Lello (Fric, Lowenstein & Co. LLP) For the Applicant Jason M. Holowachuk (Rogers & Company)

For the Respondent [ 1 ] Dockman granted a mortgage in favour of Mitchell 19 th September, 1991. Daniels purchased the property 24 th September 1991 payable by some cash and assumption of the Mitchell mortgage. [ 2 ] Daniels made monthly mortgage payments from January 1992 to April 1993.

No payments were made after 1993. [ 3 ] On October 14 th , 1997 a letter was sent by Mitchell to the present owner (Daniels) demanding payment. [ 4 ] The 3 rd paragraph of the mortgage contains the following: AND I hereby agree that if any default shall happen to be made in any payment of principal or interest or any of the moneys hereby secured or any part thereof, then, and in such case, the whole principal moneys hereby secured shall at the option of the Mortgagee, become due and payable in like manner to all intents and purposes as if the time herein mentioned for payment of such principal money had fully come and expired.

AND in the event of my making a breach of any of the covenants in this Mortgage contained then such breach shall be deemed to be a default in payment of interest, and the Mortgagee shall at his option be at liberty to call in forthwith the whole of the principal and interest secured by this Mortgage and eject all persons in possession of the mortgaged premises.

PROVIDED, however, and the parties hereby agree that the powers in this paragraph contained must be actually invoked to become effective and that nothing herein contained shall cause the Statute of Limitations to commence to run unless and until the Mortgagee shall actually exercise the option hereinbefore contained. [ 5 ] Pursuant to this clause the operation of the limitation period did not commence to run until the date of the demand. [ 6 ] The issue is what limitation act applies to this mortgage.

That is, The Limitations Act R.S.A. 2000 c.L-12 or the Limitations of Actions Act 1980 c.L-15, as referenced in the Land Titles Act R.S.A. section 106(1)(c)? [ 7 ] The Limitation of Actions Act R.S.A. 1980 c.L-15 , ss 14, 18 provides for two types of actions; an action on the covenant to pay: 14(1). No proceedings shall be taken to recover (

a) a sum of money charged on or payable out of land,... except within 6 years next after the present right to recover it accrued to a person capable of giving a discharge therefore or a release thereof. or an action in rem: 18. No person shall take proceedings to recover land except (

a) within 10 years next after the right to do so first accrued to that person... [ 8 ] Under the 1980 legislation the limitation for an action on the covenant expires on 14 October 2003, and an action in rem

expires 14 October 2007. [ 9 ] The Land Titles Act R.S.A. 2000 section 106(1)(

c) says: 106(1). The Registrar shall discharge a mortgage or an encumbrance wholly or in part, or the land comprised in it wholly or in part, according to the tenor of the discharge, and shall make an entry of the discharge on the certificate of title affected by the discharge, in any of the following cases:... (

c) on the production of a certificate signed by a judge certifying that the right of any person to recover any money secured by the mortgage or encumbrance has been extinguished by reason of the operation of the Limitations of Actions Act, R.S.A. 1980 c.L-15 . [ 10 ] The respondent submits that the limitation to be applied is that contained in the 1980 Statute. The respondent says in his submission at page 2 paragraph 9: The Limitations Act R.S.A. 1996 cL-15.1 was enacted in 1996 to take effect after March 1, 1999. It applied to claims arising before or after that date (section 2(1)).

It did not apply where there was a limitation provision in any other enactment of the Province (section 2(2) (b)). Claims to which the said Act applied were subject to a ‘ drop dead ’ date of March, 2001 (section 2(1)(b)). In other words, if a person had a claim under the old Act that did not expire until after March 1, 2001, they nevertheless had to commence their action by March 1, 2001.

These provisions were carried forward into Limitations Act R.S.A. 2000, cL-12, ss 2(1), 2(2)(b), 2(4)(b): 2(1) This Act applies where a claimant seeks a remedial order in a proceeding commenced on or after March 1, 1999, whether the claim arises before, on or after March 1, 1999.

(2) Subject to sections 11 and 13, if, before March 1, 1999, the claimant knew, or in the circumstances ought to have known, of a claim and the claimant has not sought a remedial order before the earlier of (

b) two years after the Limitations Act , SA 1996 cL-15.1, came into force. the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

(4) This Act does not apply where a claimant seeks (

b) a remedial order the granting of which is subject to a limitation provision in any other enactment of the Province. [ 11 ] To put it more simply, the respondent maintains that the 2000 Land Titles Act says that a limitation for discharge of a mortgage shall occur on “ production of a certificate signed by a Judge ” pursuant to Limitations of Actions Act R.S.A. 1980 c.L-15 . The new Limitation Act c.L-15.1 was proclaimed 1 st March, 1999. The new Land Titles Act post dates the 1996 Limitations Act and specifically refers to the 1980 Limitation of Actions Act .

Therefore the 1980 Limitation should apply. [ 12 ] The Limitations Act S.A. 1996, c.L-15 says: 16. The Limitations of Actions Act is repealed.

17. This Act comes into force on Proclamation. [ 13 ] The Limitations Act was proclaimed 1st March, 1999, so on that date the Limitation of Actions Act was repealed and ceased to exist. [ 14 ] The basic limitation periods now are found in sections 2 and 3 of the Limitations Act R.S.A. 2000 c.L-12 . [ 15 ] The

Interpretation Act R.S.A. 2000 c.I-8 says at section 5(2) : 5(2). An enactment that is repealed and replaced ceases to have affect at the time the new enactment commences. [ 16 ] Section 36(1) (

f) of the

Interpretation Act R.S.A. 2000 c.I-8 says: (

f) Any reference in an unrepealed enactment to the repealed enactment shall, with respect to a subsequent transaction, matter or thing, be construed as a reference to the provisions of the new enactment relating to the same subject-matter as the repealed enactment, but if there are no provisions in the new enactment relating to the same subject-matter, the repealed enactment shall be construed as being unrepealed insofar as is necessary to maintain or give effect to the unrepealed enactment. [ 17 ] Therefore any references in the Land Titles Act to the Limitations of Actions Act are now to be construed as references to the new Limitations Act . [ 18 ] The result is that the mortgage granted by Dockman to Mitchell and registered as instrument number 991 211 818 on title legally described as Plan 5252 G, Block 14, Lot 14 is unenforceable pursuant to the provisions of the Land Titles Act and Limitations Act of Alberta and is discharged from the title. [ 19 ] Counsel may speak to me concerning costs.

HEARD on the 21 st day of January, 2003. DATED at Calgary, Alberta this 24th day of March, 2003. __________________________ M.C.Q.B.A.