CANADA MORTGAGE v. HOUSING CORPORATION, 2023 NBKB 204

2023 NBKB 204 BC-130-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: CANADA MORTGAGE AND HOUSING CORPORATION Plaintiff - and - GASTON BOUCHER Defendant BEFORE: The Honourable Justice Ivan Robichaud AT: Bathurst, New Brunswick DATE OF HEARING: October 27, 2023 DATE OF DECISION: November 23, 2023 APPEARANCE: Corben Parker on behalf of the Applicant.

[TRANSLATION] Robichaud, J.: A. introduction [ 1 ] On July 19, 2021, the Plaintiff filed a Notice of Action with Statement of Claim Attached against the Defendant claiming the deficiency following the Defendant’s failure to pay the amounts owing on a mortgage and after the Plaintiff bought the mortgaged property in a mortgage sale held under the Property Act . [ 2 ] The Defendant was served but did not file a Statement of Defence.

The Plaintiff therefore had the Defendant noted in default on February 14, 2022. [ 3 ] The Plaintiff proceeded to trial in respect of the claim for unliquidated damages and presented its evidence by affidavit in accordance with Rule 21.05 of the Rules of Court . [ 4 ] The Defendant was served with a Notice of Hearing, the trial record, as well as the Plaintiff’s brief. The Defendant did not attend the hearing. [ 5 ] In its Statement of Claim, the Plaintiff indicated that it wished to proceed in English.

The Notice of Trial was in French, as was the Certificate of Readiness, which specified that the Plaintiff intended to proceed in French. The Plaintiff’s pre-trial brief was in French, and the Plaintiff made its submissions in English at the hearing, but it submitted a draft order in French. This decision was therefore initially issued in French and has been translated. B. deemed admitted facts and proven facts [ 6 ] Under Rule 21.02 of the Rules of Court , a defendant deemed to be in default is deemed to admit the truth of all allegations of fact made in the Statement of Claim.

Of course, this does not apply to the amount of any unliquidated damages, which the court must determine at trial. [ 7 ] The following facts are deemed admitted and have additionally been proven by affidavit: a. On April 19, 2006, Caisse Populaire de la Péninsule Ltée (the “Caisse”) extended a $58,377 loan to the Defendant, secured by a mortgage duly registered against the Defendant's land and subject to interest at an annual rate of 3.45%. b. The mortgage was insured by the Plaintiff. c. On or about September 12, 2019, the Defendant defaulted on his payment obligations under the mortgage. d.

Following a demand, the Caisse proceeded with the mortgage sale of the property in question. e. On November 10, 2020, the Caisse obtained an appraisal of the property from an independent appraiser. According to the appraisal report, the property had a fair market value of $29,000 but a forced sale value of $18,000. f. The Caisse met the requirements under the Property Act for the mortgage sale.

g. The public sale was held on January 13, 2021. The Caisse bought the property for $18,000. h. On March 4, 2021, the Caisse transferred the property to the Plaintiff. [ 8 ] The facts show that the Caisse did not “improperly exercise” its power of sale. [ 9 ] As for the unliquidated damages, the evidence reveals that: a. On March 9, 2020, the amount owed by the Defendant was $33,418.59 (Exhibit C of the Affidavit of Chantal Orieux). b. The interest accrued between March 9, 2020, and the mortgage sale totals $979.21 ($33,418.59 x (3.45%/365) x 310 days). c.

Unpaid property taxes prior to the mortgage sale total $5,539.46. d. Management fees prior to the date of the mortgage sale total $1,741.39. e. Legal fees, disbursements and HST incurred by the Caisse up to the mortgage sale total $802.13; f. After deducting the mortgage-sale price of $18,000, the balance is $24,480.78. g. The interest, still at 3.45%, accrued from the date of the mortgage sale to the trial, totals $2,355.59. [ 10 ] All of this is illustrated in the table below: C. costs [ 11 ] Costs, however, remain to be determined.

In its Statement of Claim, the Plaintiff seeks only its costs and disbursements. The same is true of the Plaintiff’s pre-trial brief, which was served on the Defendant. [ 12 ] However, at the hearing, the Plaintiff sought an award of costs on a solicitor-client basis. The Defendant was not informed of this request.

[ 13 ] The request is not based on any reprehensible conduct, but rather on clause 110.1 of the mortgage. [ 14 ] Clause 110.1 of the Optional Covenants and Conditions included in the mortgage reads as follows: 110.1 The mortgagor covenants with the mortgagee that the mortgagor shall pay all fees, costs as between solicitor and client, charges and expenses which are incurred in making and maintaining this mortgage as a charge on the lands and premises, or in negotiating or effecting a renewal of this mortgage, or in obtaining or retaining or realizing or attempting to realize upon any security to which this mortgage is collateral, or in advancing any money under this mortgage or in inspecting or revaluing the property and premises, or in taking, recovering and keeping or attempting to procure possession of the lands and premises, or in any proceeding judicial or otherwise to protect or to realize this security, and any amounts so paid by the mortgagee shall be payable forthwith by the mortgagor to the mortgagees. [ 15 ] For the reasons articulated in CMHC v.

Chantal Plourde , BC-150-2021, which was handed down at the same time as this decision, I find that the facts justify the exercise of the Court’s discretion to award costs on a party-party basis, in accordance with Scale 1 of Tariff “A” in Rule 59. [ 16 ] Based on the amount involved of $26,836.37, costs are therefore set at $1,850. D. disposition [ 17 ] The Plaintiff is therefore entitled to judgment against the Defendant in the amount of $26,836.37, plus costs set at $1,850, HST thereon, as well as allowable disbursements. Dated at Bathurst, New Brunswick, this 23rd day of November 2023.

Ivan Robichaud, Judge Court of King’s Bench of New Brunswick