THE TORONTO-DOMINION BANK Plaintiff - v. -, 2023 SKKB 229

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 229 Date: 2023 10 31 Docket: KBG-SA-00921-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: THE TORONTO-DOMINION BANK Plaintiff - and - KYLE POULIOT and MIRANDA CAIN Defendants Counsel: Deron A. Kuski, K.C. for the plaintiff no one appearing for the defendants ___________________________________________________________________________ FIAT DANYLIUK J.

October 31, 2023 ___________________________________________________________________________ [ 1 ] This is the plaintiff’s application for an Order Nisi for Sale by Real Estate Listing. Among other terms, the plaintiff seeks a provision that the selling officer be a member of the law firm that is representing the plaintiff. [ 2 ] There is no question that every application is treated on its own merits as considered within its own factual context. These applications, and the results thereof, are necessarily idiosyncratic. However, there are well-established principles on point that cannot be ignored.

Nor should those principles be misstated or understated. [ 3 ] There is also no question that on the particular point at issue herein – whether a selling officer may be a member of the firm representing one party – there is no “one size fits all” answer. Most often, there are good reasons not to appoint the selling officer from the same firm. Sometimes, but not very often, such an order will be appropriate. [ 4 ] In this case the plaintiff has filed a brief of law supporting its application.

Unfortunately the brief largely relies upon and/or speaks to matters not in evidence. [ 5 ] Cited in that brief, and already known to the Court, is the decision in The Toronto-Dominion Bank v Sader , 2021 SKCA 154 , 464 DLR (4th) 692 . The plaintiff’s brief is correct insofar as saying Sader confirmed that judges of this Court have the discretion to allow or disallow the provision sought herein.

Indeed, there is no absolute prohibition on selling officers being from the same firm as the mortgagee’s counsel, but from all the case authorities it is readily apparent that such orders are made far more rarely than the plaintiff submits. [ 6 ] Respectfully, the plaintiff’s brief does not completely and accurately reflect what the Court of Appeal said in Sader . The decision on the merits in Sader is mentioned at paras. 2, 7 and 8 of the brief, with plaintiff’s counsel characterizing that decision as follows: 2.

The Court of Appeal in The Toronto-Dominion Bank v Sader , 2021 SKCA 154 [,] confirmed that judges do have the discretion to permit a mortgagee’s solicitor to act as selling office in appropriate circumstances. The justices of the Court will determine now what are appropriate circumstances based on the facts and circumstances of each case, and including the position of the Mortgagor (who often consents). Since Sader [ sic ], the judges of this court have exercised their discretion on a case by case basis depending on the facts of the case and their comfort level with the requested Order.

The discretion is not exercised the same by all Justices but that holds true for any matter of discretion before the Court. … 7. This position was then challenged in The Toronto-Dominion Bank v Sader , 2021 SKCA 154 , where The Toronto-Dominion Bank appealed a decision denying an application to appoint its solicitor as selling officer. Although the Court of Appeal denied the appeal, they did provide clarity to the law.

The Court of Appeal confirmed that the power to order the appointment of a selling officer is discretionary, and reliance solely on comity to refrain from appointing a mortgagee’s solicitor as selling officer with an insufficient

analysis of the relevant factors constitutes a fettering of that discretion ( Sader at para 11 ). Courts should not dismiss such applications out of hand, but instead should consider whether there are compelling reasons why such an appointment should be made on a case by case basis ( Sader at para 18 ). 8. Since the decision in Sader , the judges of the Court of King’s Bench have granted several orders to allow MLT Aikins LLP to act as selling officer when counsel appeared and made the request.

A similar number have declined to do so because there is concern over a conflict or they just were not comfortable with this change in approach to the practice.

Since Sader , the Court of King’s Bench of Saskatchewan has exercised its discretion one way or the other depending on the facts and circumstances of the case, including the position of the Mortgagor (who often consents when provided the options). [ 7 ] These comments within the plaintiff’s brief are remarkable, both for what they purport to say and do and for what they do not say, but arguably should have said. [ 8 ] Although present counsel was also counsel in Sader , there is no mention of a highly salient passage from para. 18, which is highlighted below: [18] I end with this observation: mortgagees would be advised that , if , in a particular case, they wish to have their solicitor appointed as selling officer, they must demonstrate to the court that there are compelling reasons why, despite the real or perceived conflict noted above, such an appointment should be made.

Although this may be an uphill battle , the circumstances under which such an appointment may be possible is best explored in the Court of Queen’s Bench. [Emphasis added] [ 9 ] The plaintiff’s brief appears to ignore this aspect of the Court of Appeal’s guidance. First, Sader explicitly and clearly recognized the significant potential for conflicts of interest in situations where the selling officer comes from the same firm as plaintiff’s counsel. This large potential for legal and ethical conflicts is all but ignored in the plaintiff’s brief.

Second, the plaintiff’s brief does not mention that such appointments are generally going to be the exception – hence the comment “this may be an uphill battle”. [ 10 ] I do agree with the comments in both Sader and the plaintiff’s brief that a full analysis of the situation in each case is required, taking into account the specific factual context as well as the established applicable legal principles. [ 11 ] I take specific issue with the comments in para. 8 of the plaintiff’s brief. No evidence is presented on this point.

The suggestion – thinly veiled as it is – is that as many orders are granted allowing in-house selling officers as there are denying such relief. More is required. Actual evidence is required. The subjective anecdote of one lawyer practising in the area is hardly compelling. [ 12 ] Further, the statement of putative “reasons” for some judges declining to order in-house selling officers is as objectionable an assertion as it is wholly unsupported by any evidence. Factually, this Court has ruled on this issue many times and now the Court of Appeal has also done so.

Let me assure counsel, it is not the justices of this Court who are uncomfortable with, or unaccepting of, how the law has evolved. Insisting on continually seeking a remedy that has been refused on a principled basis in the vast majority of cases should not be taken as a license to keep doing that, nor as any insight into how the judges of this Court do their jobs. [ 13 ] This is equally true of para. 9 of the brief, where there is commentary as to why I decided as I did in Moskowitz Capital Mortgage Fund II Inc. v Kolisnek Developments Inc. , 2023 SKKB 148 . Paragraph 9 reads as follows: 9.

It must be noted here that Justice Danyluik [ sic ] has addressed this issue again in Moskowitz Capital Mortgage Fund II Inc. v Kolisnek Developments Inc. , 2023 SKKB 148 [ Moskowitz ] . He is clearly of the view that an independent selling officer is necessary in virtually all scenarios. This must be considered as well along with the other jurisprudence on this topic. What we are requesting is a shift in the practice no question, thus the Brief and the personal appearances for many months rather than just ex parte applications.

This was the very reason for the appeal in Sader [ sic ], not to hide from the issue but to bring it to the forefront and have it fully considered. Change can be difficult or painful but all we seek is a rational and objective look at the facts of the case and that discretion be exercised judicially. What is not correct or fair is the idea that counsel is attempting to do anything unethical or to slip one past the court here.

This is not a hill to die on for the Bank or for counsel, it is an attempt to make the process more efficient and less expensive and onerous for Mortgagors, nothing more and nothing less. [ 14 ] There is a lot to unpack from that paragraph of the brief. Let me start with plaintiff’s counsel’s belief as to what I was thinking when deciding Moskowitz . It is dangerous for counsel to make such assumptions, as there is no basis for same. The full and the only reasons I decided as I did in that case are contained in the decision itself. In the case at bar the plaintiff has senior counsel before the Court.

He knows full well judges may only speak through their decisions and cannot otherwise publicly opine on any issues. To suggest some other motive is as improper as it is inaccurate. [ 15 ] Secondly, if it is “not the hill to die on”, the persistence of counsel in advancing this position notwithstanding a consistent rejection of same is difficult to understand. This Court has accepted that in some instances ordering the selling officer to be from the same firm as a plaintiff’s lawyers is appropriate.

Counsel needs to accept that such orders will very much be the exception as opposed to the rule, and that it is this Court that is entitled to set the practice to be followed. [ 16 ] Thirdly, the personalization of issues in this and other portions of the plaintiff’s brief is inappropriate. Whether formal or informal, counsel’s communications with the Court are subject to the principles of civility. See, for example, General Practice Directive #8 (GA-PD 8).

Intemperate submissions replete with opinion or speculation and with no basis in any evidence do not comply. [ 17 ] Moving on from para. 9, I note the plaintiff’s position as set out in the brief is plagued with further difficulties. Let me explain. [ 18 ] The brief contains a number of assertions that are made without the strength of having supporting evidence. In fact, there is no such evidence filed on this matter. A brief of law and argument is not the proper place to make factual assertions with no

grounding. This is improper. The judges of this Court will always consider evidence properly filed. They will not consider bald assertions or opinions as having the strength of actual evidence. [ 19 ] At the end of para. 9 of the brief it is asserted that this position … … is not a hill to die on for the Bank or for counsel, it is an attempt to make the process more efficient and less expensive and onerous for Mortgagors, nothing more and nothing less. Further at para. 20 this is said: 20.

The motivation in doing this is to make the process more efficient and to protect Mortgagors from inefficiency between counsel and the courts. … Respectfully, this ignores that this Court’s mission is not to make things easier or cheaper for any particular party or “side” in a dispute. This Court sedulously fosters the requirement that competing interests in litigation must be balanced. The plaintiff may wish to refer to the Foundational Rules for guidance on this point. Further, there is no “inefficiency” on the part of this Court.

There is a significant extant body of law pertaining to this issue, which comprises the Court’s communication to litigants and their lawyers on point. There is no inefficiency or miscommunication on such matters – at least, not on the Court’s part. [ 20 ] Let me turn from the deficiencies in the plaintiff’s position and material to the merits of this application.

Lest plaintiff’s counsel again misattribute some motivation to me in conducting my analysis and reaching my decision herein, I state unequivocally that I am simply applying the relevant legal principles (including what was said in Sader ) to the evidence the plaintiff has chosen to place before me. I agree wholeheartedly that this Court has the discretion to appoint as selling officer a lawyer from the same firm as is representing mortgagee’s counsel, and will do so when the circumstances are appropriate even if the mortgagee’s argument is “an uphill battle”.

What this Court will not do is ignore established legal principles or fail to analyze the evidence tendered, including deficiencies in that evidentiary record. [ 21 ] The plaintiff’s brief (para. 10) lists “some of the factors to consider when exercising discretion”. It does not list others that apply to the present situation. The plaintiff’s list of factors is as follows: 10. Some of the factors to consider when exercising discretion (and that have been mentioned by the court on these applications) include: (

a) Experience and reputation of counsel or the firm seeking this role; (

b) Experience and reputation of the Mortgagee (established “Big 5 Banks” vs private lender will have different credibility profiles); (

c) The equity in the property, with non equity scenarios being more likely to give rise to the order; (

d) Has the Mortgagor and\or subsequent interest holder consented to the order. This is very typical once the options are explained to them; (

e) The amount of the mortgage and whether the extra cost is material or not given the amount at stake. [ 22 ] I agree with some of these proposed factors but I cannot accept all of them. While plaintiff’s counsel argues that these factors “have been mentioned” in decisions, I found no published judicial decisions for some of the plaintiff’s list of factors. [ 23 ] Therefore, the plaintiff’s list of factors has been adjusted. What follows is a non-exhaustive list of factors for a judge to consider when asked to make an order nisi for sale by real estate listing and, in particular, to appoint a selling officer from the same firm as is representing the mortgagee: (

a) What is the potential for legal or ethical conflicts of interest in this case? (

b) What is the equity or deficiency in the property? (

c) How have the mortgagors conducted themselves including during the litigation? (

d) Is the proposed order consented to or opposed by the mortgagors? (

e) What is the evidence related to the costs of an inside as opposed to outside selling officer, and any other relevant matters which pertain to that issue? (

f) Are there any concerns about the probity of the lender or its counsel? (

g) Looking at the matter as a whole, what is the equitable order to make? [ 24 ] The plaintiff proposed other criteria, such as experience and reputation of both the lender and its counsel. The brief suggests (para. 10) the “Big 5 Banks” will have a better reserve of expertise and credibility than private lenders. What about Credit Unions? What about sophisticated private lending syndicates? What evidence do I have before me to support this assertion (this can be swiftly answered: I have none). Unless there are concerns that a lender or its lawyer may pose problems (I have dealt with this in item (

f) above) this is not a valid consideration. [ 25 ] Similarly, it is suggested by this plaintiff that a big and/or experienced firm is more worthy of the Court’s trust than is a small or less experienced firm. Ironically that is the very sort of broad brush thinking which the plaintiff argues against. That cannot be a determinative factor. For example, just because creditor’s counsel on a foreclosure matter is from a large and reputable firm

does not mean that lawyer will not act unreasonably, stubbornly, or unprofessionally. It is dangerous for the Court to make suchassumptions in either direction, and it is likely an error in law to adjudicate a legal dispute based on a subjective analysis of who thelawyer is, how good he or she is, and how reputable or reasonable he or she is. That will lead to manifold results which would border oncapriciousness. The Court must always adjudicate based on the evidence heard in a case and a proper

interpretation and application of thelaw. Litigation is not a popularity contest. [26] I have carefully examined the non-exhaustive list set out above in light of the material before me on this matter.I have not, as plaintiff’s counsel appears to have suggested, blindly applied a body of law without regard to the particular circumstancesof this case. This case has been decided on its own facts and on its merits. I have fully, calmly and rationally examined the evidence andthe lack of evidence applying to relevant matters. I have not cited the principle of comity to come to any result, predetermined orotherwise.

As with all matters coming before me the law and the evidence have been analyzed and have led to a conclusion. [27] The first criterion is: What is the potential for legal or ethical conflicts of interest in this case? There is oftencause for concern as to conflicts of interest. My recent decision in Moskowitz is a clear and stark example of how conflicts can arise in amanner wholly unanticipated, yet be very serious in nature. [28] In Sader the Court of Appeal expressly recognized the serious potential for conflicts of interest to arise whenplaintiff’s counsel and the selling officer are from the same law firm.

While the potential for conflicts is minimized in the plaintiff’ssubmissions in this case the Court of Appeal clearly understood and expressed its concern, noting (para. 10) that the requirement for anindependent selling officer ameliorates such conflicts. At paras. 8 to 10: [8] The genesis of the concern that a conflict of interest may arise where the mortgagee’s lawyer is appointed as the selling officerwas not explored by TD before the Chambers judge. However, it appears that the recognition of a potential conflict where the sellingofficer is not independent has been long established.

For example, a mortgagee’s unrestricted right to bid on the property where it is atrustee or has conduct of the sale: London & British North America Company, Limited v Haigh and Investment Trustees Company, (SK KB), [1922] 1 WWR 172 (Sask SC). Notably, the order nisi for sale granted TD the right to bid. Based on this oldercase law alone, an independent selling officer was warranted in the case before us. [9] It is apparent that the issue of conflict of interest is broader than just whether the right of the mortgagee to bid at the saleconflicts with the appointment of its representative as a selling officer.

That much is clear from the following excerpt fromRonald C.C. Cuming, Overview of Saskatchewan Real Property Security Law (Regina: Office of the Queen’s Printer, 2016) at 11–17[Cuming]: … The power to order a judicial sale is based in equity and, consequently is in the discretion of the court. The role of judicial sale is toensure, as much as is possible, a fair balance between the interests of mortgagors and mortgagees. … (Emphasis added) [10] This excerpt highlights the existence of an inherent conflict between the mortgagor and mortgagee in foreclosures andjudicial sales as seen from the viewpoint of equity.

That conflict continues to exist and perhaps is highlighted where the sellingofficer is, in fact, the mortgagee’s solicitor. To ameliorate that conflict – real and perceived – courts have required independentselling officers or persons who are not retained by the mortgagee.

In Ontario, for example, the law governing judicial sales providesfor a referee that is a quasi-judicial officer: see Rules of Civil Procedure, RRO 1990, Reg 194, s 55.06, 64.03, 64.04 and 64.06. [Emphasis in bold added] [29] In this case the plaintiff largely depends upon removing its right to bid from the order nisi as dealing withpotential conflicts. As can be seen from the above excerpt from Sader, this is insufficient. As Justice Ottenbreit noted, the issue ofconflict is broader than that. [30] Moskowitz is far more illustrative as to how conflicts can arise.

There, the selling officer was actuallyindependent but she fell into a dispute with both a third-party offeror and the plaintiff/mortgagee. The case was, to be blunt, a mess. Asposited in that decision imagine how this would be exacerbated had that selling officer been a member of the plaintiff’s counsel’s firm. [31] Not cited in the plaintiff’s brief – oddly, since plaintiff’s counsel on that matter was from the same firm as onthis matter – is Farm Credit Canada v Willow Ridge Bison Ranch Ltd., 2023 SKKB 213.

This is a recent decision of Clackson J.(October 10, 2023) but it predates the plaintiff’s brief by two weeks. Justice Clackson cited Sader, then at para. 6 said: [6] Conflict of interest and the potential for conflict of interest is inherent in mortgage foreclosures and judicial sales. Theappointment of an independent selling officer is intended to ameliorate that conflict; Sader at para 10. Nevertheless, whether toappoint or who to appoint as selling officer is discretionary. To properly exercise that discretion the court must consider thecircumstances of the case before it.

If the circumstances of the case warrant the appointment of the mortgagee’s lawyer as selling officerthen relying only on the governing law to refuse that remedy would constitute an improper fettering of the court’s discretion. In sum,proper exercise of the court’s discretion requires some analysis of the specific circumstances of the case; Sader at para 11. [Emphasis added] [32] Justice Clackson also dealt with the plaintiff’s present argument that equity (or lack thereof) can determine aconflict issue.

At para. 11 he stated: [11] The plaintiff’s brief does not address the possibility of an actual or potential conflict of interest in this context except to state that“The fact that there is equity in a property is not sufficient to establish an inherent conflict.” I disagree. The mortgagee’s goal inforeclosing on a mortgaged property is to recover as much of the indebtedness and the expenses it has incurred as is possible. Thelonger it takes to complete the debt recovery process the more expensive it becomes for the mortgagee. Where the mortgage

indebtedness is less than the mortgagor’s equity in the property there is an incentive for the mortgagee to secure a quick sale to minimize the time and expense of foreclosure proceedings. It is in the mortgagee’s financial interest to sell the property to any person willing to pay the upset price rather than wait for a better offer. The mortgagee loses nothing by accepting an offer at the upset price, but, at least in this case, the mortgagors could suffer a $53,000 reduction in their equity .

In a nutshell, where the equity in the mortgage property is more than sufficient to cover the mortgage debt, the mortgagee desires a quick sale at the upset price while the mortgagors desire a sale at a price that will preserve as much of their equity as possible.

If the mortgagee is the selling officer ’s client then the selling officer is placed in a conflict of interest: serve the client by accepting the low offer or risk losing the offer by making a counter-offer at a higher price and/or waiting for a better offer. [Emphasis added] [ 33 ] That this clear and significant potential for conflict eludes creditors’ counsel, or that they believe relatively minor monetary concerns somehow trump ethics, is a most startling proposition. This Court has pronounced on the subject for decades.

I also note that a court-directed sale order must not only actually be fair, it must appear to be fair and above board in all respects in order to foster and maintain confidence in the judicial land realization process. [ 34 ] In reviewing the List of Authorities attached to the plaintiff’s brief there are material omissions. Numerous authorities exist which simply have not been cited. One example is Manulife Bank of Canada v Holmes , 2023 SKKB 105 , which contains an exhaustive review of the foreclosure and sale processes with emphasis on the issue of the selling officer found at paras. 88 to 97.

Also noticeably absent (although published almost two years ago) is CIC Asset Management Inc. v Townsgate Development Corporation, 2021 SKQB 327 , which relied upon Sader and which summarized the current state of the law at para. 14: [14] The Court of Appeal, in Sader , accepted as legitimate the rationale of requiring independent selling officers to avoid potential conflict of interest. While this rule admits of exception, the court stated at para. 18 that convincing the court to make such an exception “may be an uphill battle” …. Again, counsel in CIC was from the same firm as counsel on this application.

CIC ought to have been known to present counsel and ought to have been cited or at least listed in the brief of law filed on this application. [ 35 ] Rather than obliquely referring to unreported decisions or making unfounded suggestions that these selling officer provisions are granted as often as they are refused, the plaintiff should have listed and dealt with numerous cases which have been omitted or ignored. Counsel has repeatedly been asked for a citation for a case or cases which take issue or disagree with the preponderance of the authority in this province. No such case has ever been produced.

The irresistible inference is that there are no such cases. While there are cases where a selling officer has been appointed from the same firm as a plaintiff’s lawyers, I know of none questioning the consistent case law cited and cited again to counsel by numerous members of this Court. [ 36 ] These cases form an unbroken line of authority which pertain to a general requirement that a selling officer be an independent lawyer. Exceptions have been made and, to be sure, will be made again in the future.

To suggest that there is some equivocation in the overall line of authority is simply incorrect. [ 37 ] I note that in addition to the other cases mentioned, the plaintiff’s brief neglects to refer to several clear authorities contrary to its position, which should have been cited and dealt with in the brief.

These include but are not limited to: Toronto-Dominion Bank v Schell , 2014 SKQB 344 , 461 Sask R 257 ; Toronto-Dominion Bank v Forsyth , 2017 SKQB 235 at paras 4-7 ; Royal Bank of Canada v Strelioff , 2020 SKQB 23 at para 14 ; Bank of Nova Scotia v Nieswandt , 2020 SKQB 53 at para 6 ; and Royal Bank of Canada v Pearl Boutique Ltd. , 2020 SKQB 106 at paras 56-58 and 103-104 .

As referenced in Sader the line of authority on point stretches back much further than this, back to the 1920s. [ 38 ] It is not helpful to reference unreported flyleaf fiats instead of dealing with this firm line of authority, a line of authority not broken by Sader . [ 39 ] These (and others) are important authorities and should be listed, even if the goal is to distinguish them.

Justice Robertson identified the duty of counsel in Manulife v Holmes , where at para. 48 he listed the standard requirements in land realization actions and then in para. 49 he said: [49] It should be emphasized that any application to depart from the general requirement or standard should not only be supported by evidence but must also be clearly brought to the attention of the presiding justice on a with notice application or reviewing justice on a without notice application.

Failure to do so erodes the trust in lawyers on which the proper operation of the court depends. [Emphasis in original] [ 40 ] In any event, having conducted a full review of the reported authorities ( including Sader ) I am entirely satisfied that the potential for conflict is a real and present concern which this Court must independently evaluate on every request for the appointment of a selling officer that is not independent of the plaintiff or its counsel. [ 41 ] Turning to the case at bar, I have no evidence before me dealing with potential conflicts or how MLT Aikins proposes to deal with same.

There is nothing before me except a very standard creditor’s affidavit as to the state of the mortgage account. This conflicts criterion is of vital importance in an application of this type. I have already emphasized, but now reiterate, that if a creditor wishes this Court to depart from what is unquestionably the standard practice, evidence on point is required. Broad assertions of counsel in a brief, without substantiation, are not evidence.

I might have expected actual evidence as to the safeguards the law firm proposes to put in place to avoid conflicts or their effect, if such safeguards are even possible in this type of situation. I might have expected actual evidence as to the type of conflicts that are contemplated and how same would be managed. I have nothing of the sort before me. [ 42 ] On the basis of the record and the material supporting this application, there is nothing to assuage the general concern nor my particular concern on this matter as to potential conflict of interest. On this application this factor militates strongly

against appointing a selling officer from the same firm as the lawyers for the creditor. [ 43 ] The next factor is: What is the equity or deficiency in the property? I agree with plaintiff’s counsel that this will always be a factor to be considered, but I respectfully disagree that it is anything close to a determinative factor. On this issue I have the affidavit of Linda Brooks, a litigation officer employed by the plaintiff. She deposes that the total owing on the mortgage loan is $198,503.19 as of October 7, 2023.

She further deposes that the land value is $230,000.00 to $250,000.00 based on a May 23, 2023 appraisal previously filed. [ 44 ] On the evidence before me, the face amount of equity is $30,000.00 to $50,000.00. This is not a trivial sum – certainly not to the mortgagors. In its brief the plaintiff repeatedly suggests it is seeking an in-house selling officer to assist the mortgagors. This is difficult to rationalize or accept in light of Justice Clackson’s comments in FCC v Willow Ridge and numerous other cases. There is equity to protect here.

The mortgagors do have an interest in seeing a sale for the highest possible sum. Based on the evidence before me this factor also militates against appointing the selling officer from MLT Aikins. [ 45 ] The next factor is how have the mortgagors conducted themselves including during the litigation? Again, there is no actual evidence on point but the Court’s record speaks for itself. There is no evidence of misconduct on the part of the mortgagors. Ms. Cain, one of the defendants, appeared on the bank’s application for leave to commence on August 17, 2023.

There are no applications suggesting the defendants have not conducted themselves properly, nothing suggesting evasion of service or any other blameworthy conduct. This is a factor that in this case is, at most, neutral. Certainly it does not favour an in-house selling officer for any reason. [ 46 ] I next consider whether the proposed order consented to or opposed by the mortgagors . There is no consent on the file. There is no evidence of consent. There is no evidence at all on this point. Once again, plaintiff’s counsel in his brief suggests that many mortgagors consent, but there is no evidence on point.

There is nothing empirical. At best counsel’s bald assertion is an anecdote. My own experience is that very seldom is there a consent order filed where the mortgagors are consenting to the appointment of a selling officer from the same firm as the plaintiff’s lawyers. I cannot treat this particular matter as not proceeding by consent. [ 47 ] What is the evidence related to the costs of an inside as opposed to outside selling officer, and any other relevant matters which pertain to that issue? Yet again, I have absolutely no evidence on point.

At para. 3 of the plaintiff’s brief counsel asserts “It is more economical, efficient and in all parties [ sic ] best interests to appoint MLT Aikins LLP as selling officer and save the file approximately $2,000.00 - $5,000.00 in unnecessary duplicative costs.” Where do those figures come from? There is no evidence, so I do not know. What is the average and range of costs in having an internal MLT Aikins LLP selling officer? There is no evidence, so I do not know. What is the average and range of costs in having an outside, independent selling officer?

There is no evidence, so I do not know. [ 48 ] While plaintiff’s counsel points to Moskowitz where a selling officer’s fees were at $14,000.00 before the matter had been concluded, that decision highlights the complex and time-consuming nature of that matter. There are no details disclosed in that decision as to how the fees ended up at that sum. It amounts to the plaintiff making an “apples and oranges” comparison of fees for selling officers. [ 49 ] There needs to be evidence upon which an argument can rest. This is not only my view. It is the view of the Court of Appeal in Sader .

At paras. 15 to 17 this was said: [15] TD argues in this Court as it did before the Chambers judge that, in reality, there is no conflict of interest. I am not satisfied this is so in this case. In support of this submission, TD, in its factum, makes the same sweeping factual assertions about the behaviour of mortgagees and the interests of mortgagors as did in its brief before the Chambers judge. All of this is, as it was in the court below, without a shred of evidence to underpin those assertions.

For example, the order nisi for sale in this matter provides that both the plaintiff and defendants have leave to bid at the sale.

In respect of this, TD makes the bald statement without any evidentiary foundation that mortgagees never bid on the property for sale, notwithstanding that they have a right to do so. [16] If the exercise of the Chambers judge’s discretion is to be properly informed with regard to the appointment of the mortgagee’s lawyer as the selling officer, more is required than a draft order nisi for sale with the mortgagee’s lawyer’s name inserted as selling officer and a brief of law containing unsupported factual assertions and speculation about how the interests and behaviour of the parties will play out. IV.

CONCLUSION [17] I conclude, based on all the foregoing, that the Chambers judge did not fetter his discretion by solely applying the body of case law mentioned above in the circumstances of this case without the appropriate engagement with and consideration of TD’s arguments. The Chambers judge left open the possibility that a mortgagee’s lawyer could be appointed as selling officer in the proper circumstances.

His decision must be understood as a determination that the evidence and arguments provided by TD did not overcome the real or perceived conflict mentioned above. [Emphasis added] [ 50 ] Notwithstanding the clear directions provided by the Court of Appeal in Sader , in the matter before me this Court is once again faced with a lack of cogent evidence. Instead, the same type of submissions as were filed in Sader (at the King’s Bench level) have again been filed: “ a brief of law containing unsupported factual assertions and speculation about how the interests and behaviour of the parties will play out”.

There is no actual evidence filed as to any of the factors relevant to this decision. As noted, counsel in Sader is counsel in the case at bar and must be taken to know of the expectations of our courts in this regard. [ 51 ] In the case at bar the evidence is very poor, almost nonexistent, insofar as it relates to the factors actually pertaining to whether a selling officer needs to be independent. My careful, objective and independent assessment of the evidence filed leads me to conclude that this criterion also militates against directing an in-house selling officer.

[ 52 ] I turn to the next enumerated factor. Are there any concerns about the probity of the lender or its counsel? I would say on this file there are no apparent concerns as to the TD Bank. This does not mean I place that bank ahead of any other banks, or lenders generally. It only means what I have said – there are no concerns. I have no concerns about counsel which essentially means the same thing as it does about the plaintiff. I further note that having experienced and skilled counsel on a matter does not obviate the need (as expressed in Sader ) for cogent evidence to be placed before the Court.

Here, I have no such evidence. [ 53 ] I have listed as the final factor this: Looking at the matter as a whole, what is the equitable order to make? In broad terms this is similar to the overarching criterion in the injunction test set out in Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc., 2011 SKCA 120 , 341 DLR (4th) 407 . On issues pertaining to judicial sales, a judge’s ultimate focus ought to be on the overall equities and justice of the situation at hand. This factor militates against the granting of the provision sought in this case.

In argument the plaintiff’s emphasis has been on what is good for the mortgagee. While the brief suggests ways in which this could benefit the debtors there is no evidence to support these assertions. [ 54 ] It must be borne in mind that a judge’s duty is not to do what is most expedient for one party or one class of litigants. A judge must balance competing interests and factors. A judge must do what is fair for both sides, for all litigants involved in an action. A judge must resolve inherent tensions in competing positions. A judge must listen. A judge must be fair.

A judge must do the right thing, which very often is not the easy, popular, thrifty or expedient thing. [ 55 ] In coming to my decision in this case I am not making a sweeping pronouncement. I am not relying solely on the case law, or on the principle of comity. I have considered the case authorities and have applied them to the evidentiary matrix as it exists before me – which, of course, is how the plaintiff has chosen to place evidence before me. [ 56 ] Based on all the considerations outlined herein, in the case at bar I decline to appoint a selling officer from MLT Aikins, the lawyers for the plaintiff.

I order the plaintiff to submit a new draft sale order to my attention with the name and law firm of a lawyer who will be an independent selling officer. “R.W. Danyliuk” J. R.W. DANYLIUK