BANK OF MONTREAL, APPLICANT - v. -, 2022 SKKB 240

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 240 Date: 2022 11 03 Docket: QBG-SA-01648-2011 Judicial Centre: Saskatoon BETWEEN: BANK OF MONTREAL, APPLICANT - and - DAVID BACSU, also known as DAVID J. BACSU, RESPONDENT Counsel: Uba Anya for the applicant No one contra ___________________________________________________________________________ FIAT POPESCUL C.J.K.B. November 3, 2022 ___________________________________________________________________________ I.

INTRODUCTION [ 1 ] This decision concerns an application brought by the applicant, Bank of Montreal, for an order pursuant to Rule 10-12 of The Queen’s Bench Rules granting leave to enter a new judgment for the amount remaining due and unpaid on an original judgment issued December 13, 2011 [Original Judgment], together with costs of the application. [ 2 ] The Bank of Montreal claims that David Bacsu, also known as David J. Bacsu [Mr. Bacsu], has not satisfied his indebtedness to it since the issuance of the Original Judgment. II.

BACKGROUND AND FACTS [ 3 ] The Bank of Montreal commenced an action by statement of claim on November 18, 2011. In the statement of

claim, the Bank of Montreal claimed that Mr. Bacsu executed a promissory note for the sum of $22,000.00 payable to the Bank of Montreal through weekly payments, together with interest at the rate of 9.25 percent per year above the prime interest rate in effect from time to time. [ 4 ] The statement of claim further alleged that the Bank of Montreal had demanded payment pursuant to the promissory note, but Mr. Bacsu failed or refused to pay the outstanding amount. It therefore claimed against Mr.

Bacsu judgment for the sum of $14,853.79 together with interest on the sum at the rate of 12.25 percent per annum until payment or judgment. [ 5 ] Mr. Bacsu was served with the statement of claim but did not file a statement of defence. A default judgment was accordingly entered against him on December 13, 2011, for the sum of $14,988.38 plus costs.

The total judgment amount after costs were assessed was $15,652.83. [ 6 ] On November 24, 2021, within the 10-year anniversary of the default judgment, the Bank of Montreal filed the application requesting an order pursuant to Rule 10-12 granting leave to enter a new judgment for the amount remaining due and unpaid on the Original Judgment, together with costs of the application. The application was made returnable on January 13, 2022. [ 7 ] The affidavit of Khushveer Chowhan was filed in support of the Bank of Montreal’s application. In the affidavit, Mr.

Chowhan deposed that since the date of the Original Judgment, Mr. Bacsu has not made any payments to satisfy the debt owing to the Bank of Montreal. [ 8 ] The application of the Bank of Montreal sought to charge 12.25 percent interest on the Original Judgment since the date it was issued. On January 13, 2022, the application did not proceed because Mr. Bacsu had not been served.

Nonetheless Elson J. took the opportunity to render a fiat in which he questioned the interest sought to be charged by the Bank of Montreal and explained that there is a prescribed rate of interest under The Enforcement of Money Judgments Act, SS 2010, c E-9.22 [ Act ] and The Enforcement of Money Judgments Regulations , RRS c E-9.22 Reg 1 [ Regulations ]. Specifically, under the Regulations , the prescribed rate of interest is 5 percent.

Elson J.’s fiat pointed out the problem and invited counsel for the Bank of Montreal to file affidavit material that addressed the incorrect interest rate referenced in the application. The application was then adjourned to February 24, 2022 to permit the Bank of Montreal to serve Mr. Bacsu and to address the interest rate issue. [ 9 ] Before the next appearance, on February 7, 2022, counsel for the Bank of Montreal wrote to the Court to request an adjournment because “service was not completed 20 days before the application, or at all yet to date yet [ sic ]”.

By this date, the 10-year limitation period under Rule 10-12 had expired. Dovell J. adjourned the matter as requested to April 7, 2022, and alerted counsel that he should be prepared to address compliance with Rule 10-12(1) and Rule 10-12(3) in particular. [ 10 ] Subsequently, on March 18, 2022, counsel for the Bank of Montreal wrote to the Court to advise that it was unable to effect service of the application 20 days before the adjourned date of April 7, 2022.

It therefore requested a new date, “several months in the future. [ sic ] To give time to make a amendments [ sic ] to these documents, and effect service”. The amended affidavit of Mr. Chowhan was thereafter filed on March 30, 2022. In that affidavit, the Bank of Montreal calculated the interest at the rate of 12.25 percent from the date of the Original Judgment until January 13, 2022, and 5 percent interest on the unpaid principal thereafter. [ 11 ] On March 30, 2022, counsel for the Bank of Montreal requested that the matter be scheduled for June 28, 2022. [ 12 ] Eventually, Mr.

Bacsu was served with the application and supporting amended material on May 13, 2022, which is over 10 years from the date the Original Judgment was issued. [ 13 ] On June 27, 2022 the matter was, once again adjourned at the request of the Bank of Montreal, this time to July 26, 2022. The matter was then heard by Crooks J. on July 26, 2022. She found that the application was still deficient because the interest claimed by the Bank of Montreal was in excess of what is permitted under s. 10 of the Regulations .

As such, the Bank of Montreal was again invited to file a new affidavit setting out the appropriate judgment amount, the appropriate rate of interest and the appropriate amount owing. That application was then adjourned to August 11, 2022. [ 14 ] On August 11, 2022, the matter was again adjourned at the request of the Bank of Montreal to August 23, 2022. [ 15 ] The supplemental affidavit of Harmonie Wenaas was thereafter sworn on August 12, 2022 and filed on August 16, 2022.

It deposes that the default judgment was issued in the amount of $15,652.83 and that the balance owing as of August 23, 2022 was $24,028.15, which includes $8,375.32 in interest, calculated at the rate of 5 percent per annum. [ 16 ] Mr. Bacsu, albeit properly served, has not participated in any of the court proceedings. [ 17 ] I thereafter heard the matter on August 23, 2022 and reserved my decision. III. ANALYSIS A. Relevant Legal Principles

i) Service and Filing of the Application [ 18 ] Section 7(1) of the Regulations prescribes that a judgment is effective for 10 years from the date of issuance and may thereafter be renewed for additional periods of 10 years. [ 19 ] Rule 10-12 sets out the process for renewing a judgment and permits a judgment creditor to apply for a new judgment for any amount remaining due and unpaid on an original judgment, at any time before the proceedings would be barred by The Limitations Act, SS 2004, c L-16.1 . It provides:

10-12(1) If a judgment has been recovered and the judgment creditor alleges that all or any part of the judgment remains unsatisfied, heor she may, at any time before proceedings under the judgment would be barred by The Limitations Act, serve on the judgment debtor anotice of application requiring the judgment debtor: (

a) to appear before a judge in chambers; and (

b) to show cause why the judgment creditor should not have a new judgment for the amount remaining due and unpaid on the originaljudgment.

(2) A proceeding pursuant to subrule (1) is deemed an action on a judgment or order of the Court.

(3) Notice of the application: (

a) must issue in the original cause or matter; and (

b) must be served on the judgment debtor at least 20 days before its return date.

(4) If on the return of an application pursuant to this rule the judgment debtor does not appear and the judge is satisfied as to due serviceof the notice of application and as to the amount still due and unpaid under the original judgment, the judge may make an order that thejudgment creditor has leave to enter a new judgment for the recovery of the amount due and costs.

(5) If the judgment debtor appears and disputes the judgment creditor’s claim in whole or in part, the judge may: (

a) give directions for the trial of an issue with or without pleadings as the circumstances of the case may require; and (

b) give all other necessary directions.

(6) After the trial of an issue directed pursuant to subrule (5), the judge may make any order or give any judgment that the Courtconsiders required. [Emphasis added] [20] Given the similarities between what is now Rule 10-12 and former Rule 347, which likewise dealt with therenewal of expiring judgments, it is appropriate to rely on the jurisprudence interpreting and applying both former Rule 347 and Rule 10-12 to inform my decision. [21] Rule 10-12 sets out the process to renew a previous judgment as contemplated by s. 7(1) of the Regulations.

Itpermits an application for a new judgment or order under a former judgment without the need to commence a fresh action. In this regard,Rule 10-12 creates a simplified and expeditious process to renew a judgment by eliminating the need to sue on the initial judgment: seeAlberta Treasury Branches v Canadian Egg Processing Inc., 2014 ABQB 548 at para 18, 596 AR 373. [22]

Section 7.1 of The Limitations Act stipulates the applicable limitation period under Rule 10-12. It provides thatwith respect to a claim based on a judgment or order for the payment of money, “no proceeding shall be commenced after 10 years fromthe date of the judgment or order”. [23] It is well established that an application for a new judgment pursuant to Rule 10-12 need not be heard prior tothe expiration of the limitation period prescribed by s. 7.1 of The Limitations Act, provided that it is served prior to the expiration of thelimitation period, which, in this case is 10 years.

This is supported both by relevant jurisprudence and by the language of Rule 10-12,which provides that “at any time before the proceedings under judgment would be barred by The Limitations Act”, the judgment creditormay “serve on the judgment debtor a notice of application …”. The first appearance for the application need not be scheduled prior to theexpiration of the limitation period, nor does the new judgment itself need to be issued prior to the expiry of the limitation period.

SeePaquette Farms Inc. v McLeod (1997), (SK KB), 156 Sask R 112 (Sask QB); Northern Enterprise Fund Inc. vYogi’s Snack Den, 2003 SKQB 52 at para 9, 229 Sask R 193; and Turuk v Nikiten, (SK KB), [1976] 6 WWR 766 (SaskQB) [Nikiten]. The Court in Nikiten held: … It appears to me that the main requirement of Rule 347(1) is that the judgment creditor must serve a notice of motion on the judgmentdebtor within the said ten year period so as to give to the latter notice of the judgment creditor’s application and permit the judgmentdebtor to appear on the return date if he should so desire.

The non-filing of the notice of motion is, in my view, at the most an irregularityand the court may relieve against such irregularity under the provisions of Rule 537.

The “proceeding” referred to in Rule 347(1) is in myopinion, the serving of the notice of motion. … The facts in the case before me establish that the judgment debtor received notice of the proceedings initiated by the judgmentcreditor prior to the expiration of the ten year period and, in my view, justice will be done by permitting the filing of the notice of motionand the Court then disposing of the matter on the merits. [24] As such, by combination of Rule 10-12 and s. 7.1 of The Limitations Act, it is evident that if the application for anew judgment is served prior to the expiration of 10 years from the date of an original judgment, the limitation period will not haveexpired. [25] In this case the application was not served prior to the expiration of the 10-year limitation period.

Therefore, thequestion that arises is whether the failure to do so amounts to an “irregularity” that can be cured by Rule 1-6. [26] Rule 1-6 permits the Court to cure a contravention, non-compliance or irregularity if doing so will not causeirreparable harm to any party. When doing so, the Court may impose terms and conditions to eliminate or ameliorate any reparable harm,and prevent the recurrence of the contravention, non-compliance or irregularity and may impose a suitable sanction for same. It must be

in the interests of justice to cure the contravention, non-compliance or irregularity. [27] However, it is important to note that pursuant to Rule 1-6(5), the Court cannot use Rule 1-6 to cure “anycontravention, non-compliance or irregularity if to do so would have the effect of extending a time period that the Court is prohibitedfrom extending”.

Jurisprudence establishes that Rule 1-6, formerly Rule 5, cannot be used to extend a statutory limitation periodimplemented by The Limitations Act. [28] In Hunter v McCorriston, 2016 SKCA 144, 86 RFL (7th) 260 [Hunter], the Saskatchewan Court of Appealconsidered the authority that Rule 1-6 grants. While the quotation that follows is lengthy, I include it because it is important in thepresent circumstances to understand the purpose and full extent of this rule: 39 Rule 1-6 of The Queen’s Bench Rules is the successor to what was familiarly called the “slip rule” under the old Queen’s BenchRules [Old Rule 5].

While the rule was drafted in broad terms, judicial

interpretation of Old Rule 5 had limited its application to curing“procedural defects” only; its application did not extend to curing non-compliance with or contravention of substantive or statutory laws.The language used in Rule 1-6 does not suggest a more expansive scope than had Old Rule 5. In fact, the new rule is more prescriptive inits language than the old rule: … … 41 In Co-operative Trust Co. of Canada v. Maranda, 2002 SKCA 10, 213 Sask. R. 262 (Sask.

C.A.), Sherstobitoff J.A. described OldRule 5 in broad terms but, in doing so, he underscored a concern with the breadth of the Old Rule: [10] Rule 5 gives to the court almost complete power to relieve against any irregularity in complying with the Rules. In the exercise ofthis power, the guiding principle must be to see that justice is done. See Coulthard v.

Coulthard (1952), (SK CA), 5W.W.R. (N.S.) 662, a judgment of this Court, which remains the leading authority in this jurisdiction respecting irregularities and non-compliance with the Rules. … Justice Sherstobitoff’s concerns seem to have been picked up in the language of Subrule 1-6(4), which says the Court may only cure acontravention, non-compliance or irregularity in specific circumstances, and Subrule 1-6(5), which prohibits the Court from curing “anycontravention, non-compliance or irregularity if to do so would have the effect of extending a time period that the Court is prohibitedfrom extending.” 42 In the latter regard, MacPherson C.J.Q.B. spoke to the limited nature of the slips curable under Old Rule 5 in Ennis v.Standingready (1991), (SK KB), 95 Sask.

R. 149 (Sask. Q.B.) [Ennis], where he rejected a contention that “theremedial powers in rule 5 of the Queen’s Bench Rules authorizes [sic] the Court to extend a statutory time limit” and concluded “it isclear that Rules of Court can only deal with procedural matters and cannot alter substantive or statutory laws.” He called the argument tothe contrary “both novel and unacceptable.” 43 A review of the case law confirms the

interpretation given to Old Rule 5 in Ennis. … … 47 On this basis, notwithstanding the differences in the language used in Old Rule 5 and in Rule 1-6, I find no reason to depart fromthe Ennis

interpretation or the existing case law. That is, I find Rule 1-6 is not available to cure substantive errors or contraventions of ornon-compliances with substantive or statutory law. Rule 1-6 affords judges of the Court of Queen’s Bench a discretionary power to curecertain errors, namely, where “a person contravenes or does not comply with [The Queen’s Bench Rules], or if there is an irregularity in acommencement document, pleading, affidavit, Form or other document”. These enumerated errors are simply “procedural defects”, asthey were described under the Old Rule.

Importantly, the enumerated procedural defects only relate to contraventions or non-compliances under The Queen’s Bench Rules or irregularities in documents filed thereunder, not under substantive or statutory law. 48 To bring this to a close, an

interpretation of Rule 1-6 as empowering a judge to cure only procedural errors arising under The Queen’sBench Rules is consistent with the case law and the limits of the statutory and inherent rule making powers of the Court of Queen’sBench. Moreover, like MacPherson C.J.Q.B., I conclude there is simply no sound basis in law to adopt an

interpretation of the slip rulethat would expand its breadth to permit the Court of Queen’s Bench to alter substantive or statutory laws. Finally, a judge may notapply Rule 1-6 so as to give the rule a scope that is ultra vires the rule-making powers of the Court of Queen’s Bench. It would be anerror of law to do so. 49 I therefore find the Chambers judge erred in law by using Rule 1-6 to permit Mr. McCorriston to file a counter-petition claimingrelief under The Family Property Act.

As a substantive right under statute, it is beyond the reach of Rule 1-6 to cure a failure to assertthat right in the way or within the time prescribed by the statute.

Unless expressly empowered to do so, the Court of Queen’s Bench maynot use its rules to reinstate a right the Legislature has taken away by statute. [29] Further, in Stephens v MLT Aikins LLP, 2021 SKQB 323, 75 CPC (8th) 117 [Stephens], Elson J. noted at para.95 that statutory limitations are mandatory, and that “superior courts of record, such as this Court, do not possess any inherentjurisdiction to waive a limitation period or relieve a claimant from its effect”. [30] The language of Rule 1-6, along with the Hunter and Stephens decisions establish that Rule 1-6 does not permitthis Court to extend a statutory limitation period that is prescribed by The Limitations Act.

Doing so would be ultra vires the power ofthis Court and would amount to an error of law. [31] However, there is a difference in the wording of the applicable limitation period between the Rules and TheLimitations Act. Specifically, The Limitations Act provides that no proceeding shall be “commenced after 10 years from the date of the

judgment or order”, whereas Rule 10-12 provides that the judgment creditor must “serve” the notice of application on the judgmentdebtor before the proceedings would be barred by The Limitations Act. If the matter was “commenced”, though not served, before theexpiration of the limitation period, the within application will be statutorily compliant as it pertains to the relevant limitation period. It istherefore necessary to determine what it means to “commence” a proceeding, as that term is used in s. 7.1 of The Limitations Act. [32]

Section 2-10 of The Legislation Act, SS 2019, c L-10.2, codifies the modern approach to statutory

interpretationwhich was endorsed by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes, (SCC), [1998] 1 SCR 27. Section2-10 provides: Acts and regulations remedial 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [33] General dictionary

definitions of the term “commence” are quite broad. For example, Black’s Law Dictionary,11th ed (St. Paul, MN: Thomson West, 2019), defines the commencement of an action as the time at which the judicial or administrativeproceedings begin, typically with the filing of a formal complaint. The Oxford English Dictionary (Oxford University Press, 2022),online: OED<www.oed.com>(3 November 2022), defines “commence” as “to begin to happen; to begin something”. [34] In matters commenced by statement of claim, jurisprudence establishes that the proverbial limitations clockstops running when a statement of claim is issued.

In The Toronto-Dominion Bank v Gibbs, 2019 SKCA 57 at para 27, [2019] 12 WWR71, the Saskatchewan Court of Appeal recently noted that the action was commenced when the statement of claim was issued. [35] Additionally, in Gullett v Regina Qu’Appelle Health Region, 2019 SKQB 15, when assessing whether thematter was commenced within the applicable limitation period, the Court focused on whether the claim was issued within two yearsfrom the date the damages were sustained.

The Court ultimately concluded that the matter was not statute barred because the statementof claim was issued within two years from when the matter was discoverable. [36] The circumstances under Rule 10-12 are unique as a matter is not commenced by statement of claim, but ratherby way of application. Nonetheless, I find that, using the modern approach to statutory

interpretation as set out in The Legislation Act andgiven the jurisprudence relating to limitation periods for other commencing documents, the term “commence” within s. 7.1 of TheLimitations Act means to take a formal step to begin a judicial proceeding, which includes both filing or serving the notice of application. [37] Therefore, to comply with The Limitations Act, a matter must be filed (or served, or both) before the expirationof the limitation period, while Rule 10-12 requires that the application must be served before the expiration of the limitation period.

TheLimitations Act and the Rules set out distinct requirements. The Limitations Act, at the very least, requires the application to be filed,whereas the Rules require the application to be served. [38] While Rule 1-6 can be used to cure an irregularity of service under Rule 10-12, it cannot be used to cure a lackof compliance with s. 7.1 of The Limitations Act.

Practically speaking, this means that if an application is filed, but not served prior to theexpiration of the limitation period, Rule 1-6 can be utilized to cure that irregularity under Rule 10-12, being that the application must beserved prior to the expiration of the applicable limitation period. If, however, the application is neither filed nor served prior to theexpiration of the limitation period, the application cannot be said to have been commenced, which results in a statutory defect pursuant tos. 7.1 of The Limitations Act that cannot be cured using the Court’s remedial powers under Rule 1-6.

I appreciate that these provisionshave previously been interpreted differently, contra Capital One Corporation v Heebner, 2020 SKQB 299. [39] The Court should, however, be reluctant to permit a matter to proceed under Rule 10-12 when the applicationwas served after the expiration of the limitation period. As Estey J. (as he then was) stated in Nikiten, the purpose of the requirement toserve a debtor within the 10-year time period in what is now Rule 10-12 is to give them notice of the application and to permit them toreturn on the date set in the application if they so desire.

Failure to serve the application within the applicable limitation periodundermines this stated purpose. ii) Appropriate Interest Rate [40] Another relevant issue when an application for a new judgment is brought under Rule 10-12, which was referredto be by both Elson J. and Crooks J. in their earlier decisions relating to this matter, is the appropriate rate of interest to be applied fromthe date of an original judgment to the date of a new judgment. [41] As previously noted, Rule 10-12 prescribes a process for a judgment creditor to “renew” a judgment for anadditional 10 years, as contemplated by s. 7(1)(

d) of the Regulations. Despite Rule 10-12 describing it as a “new” judgment, it is moreaccurately described as a “renewed” judgment. [42]

Section 113 of the Act provides that every judgment “shall carry interest at the prescribed rate from the time ofentry of the judgment until the judgment is satisfied”.

Section 10 of the Regulations further provides that for the purpose of s. 113 of theAct, the prescribed rate of interest is 5 percent. [43] Therefore, after a judgment is entered, the prescribed rate of interest that accrues on the unpaid amount is 5percent. If the judgment remains unsatisfied after 10 years and the creditor applies for a new judgment, it does not mean that the interestrate prescribed by the Regulations was inapplicable for the previous 10-year period simply because a “new” judgment is issued.

Theinterest rate prescribed by the Regulations applies as of the date of an original judgment and continues to apply after a new judgment isissued. In essence, once a judgment is entered against a debtor, the rate of interest is as prescribed by the Regulations for as long as the

judgment remains in force and unpaid. iii)

Summary [ 44 ] In sum, I find that subrule 10-12(4) requires an applicant seeking to renew a judgment to prove the following: a.

That the application was duly served prior to the expiration of the applicable limitation period, being 10 years: i. an application served prior to the applicable limitation period, but made returnable after the applicable limitation period is sufficient; ii. an application that was neither served nor filed until after the applicable limitation period is deficient and cannot be cured; and iii. an application that was filed prior to the applicable limitation period, but not served until after the applicable limitation period is deficient, but is capable of being cured by Rule 1-6 in appropriate circumstances. b. that the application was duly served on the judgment debtor at least 20 days before the return date; and c. the amount still due and unpaid by the judgment debtor under the original judgment, including interest calculated at the applicable rate.

B. Application [ 45 ] Based upon the material filed, I find that the within application does not comply with Rule 10 - 12 . It is deficient, but capable of being cured by Rule 1-6. I will elaborate. [ 46 ] As noted, the Original Judgment was issued on December 13, 2011. Pursuant to The Limitations Act , the applicable limitation period to bring an application under Rule 10 - 12 was 10 years. The application for a new judgment was filed on November 24, 2021, and therefore was “commenced” prior to the expiration of the limitation period. [ 47 ] However, the application was not served upon Mr.

Bacsu until May 13, 2022, well after the expiration of the limitation period. [ 48 ] We are thus left in a situation whereby the application was filed in advance of the expiration of the limitation period (as I have found is required to comply with the statutory requirements with respect to the limitation period), but was not served in advance of the expiration of the limitation period, as is required by Rule 10 -12 . [ 49 ] As the statutory requirements under The Limitations Act were met in this case, being that the application was filed and therefore commenced prior to the expiration of the limitation period, this Court has the jurisdiction to cure the procedural irregularity relating to service of the application outside the 10-year period as this is a procedural requirement set out in the Rules.

Therefore, I must consider whether this is an appropriate case to cure the irregularity under Rule 1-6 . [ 50 ] I am unable to determine whether this is an appropriate circumstance to cure the procedural irregularity under Rule 1-6. There are conflicting considerations on this point. [ 51 ] The factors that lead me to believe that this may be an appropriate circumstance to utilize Rule 1-6 are as follows: a. The material filed with this application establishes that Mr. Bacsu has acknowledged the outstanding debt and went so far as to begin a payment

schedule with the Bank of Montreal after being served with the application; b. Mr. Bacsu did not respond to this application or oppose it; and c. The Bank of Montreal took steps to commence the proceeding prior to the expiration of the limitation period. [ 52 ] However, the Bank of Montreal has not acknowledged the service irregularity, nor has it provided any evidence as to why the within application was not brought in compliance with Rule 10 - 12 . Specifically, there is no material before me that explains why the Bank of Montreal filed the application in November of 2021 but did not serve it on Mr.

Bacsu until May 2022. [ 53 ] As a result, without further material, I am not in a position to render a decision as to whether the interests of justice permit the Court to invoke Rule 1-6 in the present circumstances. On one hand, it may well be that Mr. Bacsu was evading service of the application. In those circumstances, I may conclude that it would be in the interests of justice to utilize Rule 1-6 to cure the irregularity as debtors should not be permitted to cause a judgment to be extinguished by evading service until after the expiration of the limitation period.

On the other hand, this Court should not permit or encourage creditors to ignore or be non-compliant with the Rules without a legitimate reason by permitting applications such as this to proceed. I therefore grant the Bank of Montreal leave to file further material on this issue. [ 54 ] Despite the conclusion on the foregoing, I will turn to the second requirement that the Bank of Montreal must prove to be successful on this application – whether the notice of application was duly served at least 20 days before the return date. After some delay, I am satisfied that Mr.

Bacsu was given at least 20 days notice of the application for the June 28, 2022 return date and was given notice of the adjournment to July 26, 2022. He nonetheless did not appear on July 26, 2022. He was also advised of the adjournment to August 23, 2022 and was served with the supplemental affidavit of Ms. Harmonie Wenaas. [ 55 ] Finally, I am not satisfied as to the amount still due and unpaid on the Original Judgment based on the materials filed. The supplemental affidavit of Ms.

Harmonie Wenaas states that the balance owing as of August 23, 2022 is $24,028.15, including $8,375.32 in interest calculated at the rate of 5.0 percent per annum. However, there is an issue relating to the outstanding amount.

[ 56 ] The supplemental affidavit of service of Harmonie Wenaas, sworn on July 13, 2022, exhibits an email exchange between Ms. Wenaas and Mr. Bacsu. The email exchange suggests that in June of 2022, Mr. Bacsu and the Bank of Montreal agreed to a payment

schedule whereby Mr. Bacsu would make monthly payments of $500.00 to satisfy the Original Judgment. Further, an email exhibited to the same affidavit suggests that sometime in June, Mr. Bacsu did in fact make a payment, which was allegedly applied to his account. [ 57 ] Despite this, the supplemental affidavit of Ms. Wenaas deposes that since the date of the Original Judgment, the Bank of Montreal’s records show that there were no payments made by Mr. Bacsu. An exhibit to that affidavit likewise suggests that as of August 23, 2022, there were no payments applied to the Original Judgment.

This results in some questions as to whether Mr. Bacsu has in fact made any payments to satisfy the amount unpaid, and therefore, what amount truly remains due and unpaid on the Original Judgment. V. CONCLUSION [ 58 ] Pursuant to the foregoing, I am not prepared to grant the Bank of Montreal’s application for a new judgment under Rule 10 - 12 . That said, I grant leave for the Bank of Montreal to file further supplemental material that addresses the following points: a. An explanation as to why the within application was not served upon Mr.

Bacsu prior to the expiration of the limitation period, as required under Rule 10 - 12 ; b. Evidence on the relevant circumstances that may render it appropriate for this Court to cure the procedural irregularity relating to service, if any; and c. Confirmation as to whether the Bank of Montreal has received any payments on the Original Judgment. I specifically draw counsel’s attention to the June 3, 2022 and June 24, 2022 emails, which indicate that Mr.

Bacsu agreed to make $500.00 monthly payments and that at least one payment was received and applied to his account. [ 59 ] An updated draft order should also be filed to reflect the proper amount owing based on the applicable interest rate and in light of any payments that have been made. Proof of service must be filed with the supplemental material. [ 60 ] I caution that this could very well be the final time this Court allows the filing of supplemental material on this matter given the history of the application. C.J.K.B. M.D. POPESCUL