Farm Credit Canada Plaintiff v. Timberland Resources v. Trucking Limited,, 2016 NSSC 185

SUPREME COURT OF Nova Scotia Citation: Farm Credit Canada v. Timberland Resources and Trucking Ltd. , 2016 NSSC 185 Date: 20160719 Docket: HFX390282 Registry: Halifax Between: Farm Credit Canada Plaintiff v. Timberland Resources and Trucking Limited, 3250471 Nova Scotia Limited, and 3268239 Nova Scotia Limited Defendants Decision Judge: The Honourable Justice Michael J. Wood Heard: June 30, 2016, in Halifax, Nova Scotia with oral reasons given that date.

Counsel: Theresa Graham, for the Plaintiff Tyler Colwell, agent for the Defendants By the Court (Orally): [ 1 ] This is a motion by the plaintiff, Farm Credit Canada, for an order confirming the foreclosure sale which took place in September 2015. [ 2 ] The order for foreclosure and sale issued by Justice MacAdam on July 10, 2015, directed that notice be provided to the defendants by email, through the email address of Mr. Colwell.

The standard order provides that notice be sent by mail, but in this case that was changed and the order directed notice by email. [ 3 ] Instead of the notices being sent by email they were sent to the registered addresses of the three corporate defendants. Mr. Colwell, who is a principle of those companies and the registered agent, indicated in his pre-hearing brief that the notice was not received.

This statement was accepted by counsel for Farm Credit as evidence and he was not cross examined on that point. [ 4 ] The purpose of notifying the defendant is twofold, to permit redemption of the property which can occur any time prior to the foreclosure sale or to determine whether to attend and bid at the sale itself. Mr. Colwell said in his brief and also in his submissions that he would have borrowed money from third parties in order to redeem the property or bid at the sale if he had received notice. His

statement was accepted as evidence and he was not cross examined. [ 5 ] Ms. Graham argued that although email notice was required by the order, because of the history she had in dealing with Mr. Colwell at that email address, notification by that route would likely not have been received. She described the email address as “spotty”. In my view that does not matter whether it was actually received or the email address was “spotty”, if the notice had been sent to that address there would have been compliance with the order.

It would not have been necessary to have this hearing because the prothonotary would have been able to deal with the motion for the confirmatory order. [ 6 ] I am satisfied that the failure to comply with the direction in the foreclosure order, combined with the evidence that the notice was not received by the defendants who intended to redeem the property or bid at the sale, means the sale should not be confirmed.

I will not grant the confirmatory order which means the property will have to be resold pursuant to the terms of the original order for foreclosure and sale issued by Justice MacAdam. [ 7 ] I would say this to you Mr. Colwell, the order requires the notice to be sent to your email address and published in both the Digby Courier and the Chronicle Herald. If you wish to attend the sale you had better be looking out for this because if the sale takes place and notice is sent to the email address then it doesn’t matter whether you receive it or not.

The burden is on you to look for that sale notice and attend if you wish. Wood, J.