Wolfridge Farm Ltd v. Bonang, 2016 NSCA 33

Nova Scotia Court of Appeal Citation: Wolfridge Farm Ltd v. Bonang , 2016 NSCA 33 Date: 20160428 Docket: CA 439106 Registry: Halifax Between: Wolfridge Farm Ltd f.k.a Wolfridge Farm Limited Appellant v. Gerald P. Bonang and Dianne Bonang Respondents Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: February 16, 2016, in Halifax, Nova Scotia Subject: Foreclosure practice – alternate remedies – functus officio – res judicata – adjournment – procedural fairness – adequacy of appeal record

Summary: After a trial, an Order for Foreclosure, Sale and Possession was issued on April 3, 2014 against Wolfridge Farm Ltd. Several attempts to sell the property pursuant to that order were frustrated by the actions of Wolfridge’s agent, John T. Early, III. This included three occasions where, despite being the highest bidder at the foreclosure sale and paying the required deposit, Mr. Early failed to make payment of the final balance. The last such sale occurred on March 5, 2015.

Ultimately, a chambers judge, on April 7, 2015, declared the Bonangs, as the second highest bidder at the most recent sale, to be the successful purchasers, and ordered Mr. Early’s deposit forfeited. Wolfridge appeals on numerous grounds. Issues:

(1) Did the chambers judge err in declining Wolfridge’s request to adjourn the April 7 th hearing?

(2) Did the chambers judge err by failing to recognize Wolfridge’s US bankruptcy proceedings, and stay the motion?

(3) Did the chambers judge, in ruling on the motion, breach the principles of functus officio or res judicata ?

(4) Was Wolfridge denied procedural fairness?

(5) Was the chambers judge obligated by the Civil Procedure Rules and the foreclosure Practice Memorandum created thereunder, to set yet another foreclosure sale, as opposed to granting the Bonangs’ motion? Result: Appeal dismissed. The chambers judge’s decision to refuse an adjournment is entitled to deference. On the material before the Court, there was no reason to interfere with that determination. The April 7 th motion was not res judicata , nor was the chambers judge functus officio . The chambers judge did not err in declining to grant a stay.

Finally, nothing in the Rules or Practise Memorandum prevented the chambers judge from granting the remedy he did. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 22 pages. Nova Scotia Court of Appeal Citation: Wolfridge Farm Ltd v. Bonang , 2016 NSCA 33 Date: 20160428 Docket: CA 439106 Registry: Halifax

Between: Wolfridge Farm Ltd f.k.a Wolfridge Farm Limited Appellant v. Gerald P. Bonang and Dianne Bonang Respondents Judges: Bourgeois, Hamilton and Van den Eynden, JJ.A. Appeal Heard: February 16, 2016, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Bourgeois, J.A.; Hamilton and Van den Eynden, JJ.A. concurring Counsel: John T. Early III, agent for the appellant James J. White, for the respondent Reasons for judgment: [ 1 ] This is an appeal of an order arising from a chambers motion heard by Justice Glen McDougall on April 7, 2015.

The appellant (“Wolfridge”) asserts the chambers judge erred in several respects when he declared the Bonangs to be the successful purchasers of property which was sold at a foreclosure sale on March 5, 2015. [ 2 ] For the reasons which follow, I would dismiss the appeal. Background [ 3 ] The background giving rise to the order under appeal was described by the chambers judge in his written decision ( 2015 NSSC 383 ): [1] The plaintiffs, Gerald and Dianne Bonang, commenced an action seeking foreclosure on property they sold to the defendant, Wolfridge Farm Limited, in 2003.

The notice of action and statement of claim was filed in this Court on July 12, 2011. [2] Wolfridge Farm Limited defended the action. A trial to determine the issues in dispute took place beginning on October 15, 2013. It lasted four days. The Honourable Justice Heather M. Robertson reserved judgment until January 31, 2014. The plaintiffs were granted an Order for Foreclosure, Sale and Possession. The defendant’s counterclaim was dismissed. [3] The Order for Foreclosure, Sale and Possession was issued on April 3, 2014.

Several attempts to sell the property at public auction have been frustrated by the defendant through the actions of its representative, John T. Early, III. [ 4 ] On at least two occasions Mr. Early has been declared the successful bidder at a public sale conducted by the Sheriff’s office. Now it is three, the latest sale having taken place on Thursday, March 5, 2015.

On each of these three occasions the successful bidder paid the requisite 10% deposit at the time of sale but reneged on the obligation to pay the balance in accordance with the time frame set out in the Supreme Court of Nova Scotia’s Practice Memorandum No. 1. Such balance must be paid “not later than fifteen days following the date of sale . . .” . . . [8] In addition to the two previous aborted attempts to enforce the Order of the Honourable Justice Robertson the defendant through its agent, Mr.

Early, de-railed a third attempt to have the property sold by seeking relief under the Farm Debt Mediation Act , S.C. 1997, c. 21. The 30-day stay of proceedings was terminated after only 15 days when the Federal authorities were made aware of the true nature of the activities carried on by Wolfridge Farm Limited at 39 Dartmouth Road, Bedford, Nova Scotia. No matter how you try to describe it, it is not possible to have a used-car retail business included in the definition of “farming”.

At least not as it is defined in s.2 of the Farm Debt Mediation Act . [9] This is just one other example of how the defendant through its agent and representative, Mr. Early, has attempted to frustrate the enforcement of a valid Court Order. Without so much as paying property taxes, let alone mortgage payments, the defendant and Mr.

Early have continued to operate a used-car business by eliminating what would normally be a significant over-head expense. [10] If not for the plaintiffs paying arrears of municipal property taxes, the property would have been sold for taxes, thus depriving the plaintiffs of their secured interest in the property. [4] The factual findings made by the chambers judge have not been challenged on this appeal.

[ 5 ] It is clear that the chambers judge’s involvement in the dispute between the parties began well before the April 7 th appearance. Given the errors alleged by Wolfridge, that previous involvement is relevant. [ 6 ] The chambers judge first became involved on January 14, 2015. There was a scheduled chambers appearance that day, the purpose of which was to address two separate motions – one brought by each party. Wolfridge had filed a motion on November 19, 2014 seeking to have a foreclosure sale which had taken place on November 10 th set aside, and further, the opportunity to redeem the property in question.

The Bonangs had filed a motion on December 4, 2014, subsequently amended on December 12 th , seeking a declaration that they were the successful bidders at the November 10 th sale because the highest bidder, Wolfridge’s agent, had failed to complete the transaction. The Bonangs also sought possession of the property and removal of Wolfridge. [ 7 ] After hearing extensive submissions from the parties, the chambers judge concluded that the November 10 th sale ought to be set aside as the timing of the newspaper advertising did not accord with the Order for Foreclosure, Sale and Possession.

It was further ordered that the deposit paid by Mr. Early at the sale be returned. The chambers judge then proceeded to hear submissions on what amount should constitute appropriate payment, in the event Wolfridge sought to redeem the property. The court set a return date of February 2, 2015 to hear further submissions and set a date for the next foreclosure sale, if required. [ 8 ] The parties returned to chambers on February 2, 2015. However, the transcript shows that the scope of the hearing was expanded due to a new motion being filed by Wolfridge.

It sought a declaration that the original Order for Foreclosure, Sale and Possession was void by virtue of the Farm Debt Mediation Act . The chambers judge dismissed that motion. (In its Notice of Appeal, Wolfridge appears to challenge that decision, but did not pursue that further in its factum or oral submissions. Given the motion, supporting affidavit(

s) and written submissions are absent from the record filed with this Court, I see no need to address this alleged error further.) [ 9 ] The chambers judge heard further submissions regarding the appropriate redemption value, and gave an oral decision that day. The judge then proceeded to set a date for the next foreclosure sale in the event Wolfridge did not redeem the property. The court also set a return date of April 7, 2015. [ 10 ] The record does not contain an order from the February 2 nd hearing, but the court’s direction is contained in correspondence sent from the chambers judge the following day.

The redemption value, as determined by the chambers judge, is not challenged by Wolfridge. [ 11 ] There is no dispute that Wolfridge did not exercise its right to redeem the property, nor that a foreclosure sale was conducted on March 5, 2015 in accordance with the court’s direction. Although the report of Deputy Sheriff Pothier is referenced in the transcript, decision and order under appeal, Wolfridge did not include it in the record filed with this Court. Despite the absence of the report, it is uncontradicted that Mr. Early was the successful bidder at the sale, and paid the required 10% deposit.

It is further uncontradicted that the balance of the sale price was not paid by the established deadline. It is unrefuted that the Bonangs were the second highest bidders. [ 12 ] We arrive at the April 7 th appearance. The transcript shows that the hearing commenced with Mr. Early advising the court that he was no longer representing Wolfridge, as counsel had been retained. However, given that this newly-retained counsel had advised Mr. Early the previous day that he would no longer represent Wolfridge, an adjournment was sought. Mr.

Early advised that Wolfridge, previously a Nova Scotia company, had been exported to the United States and had filed for

Chapter 11 creditor protection in that jurisdiction. He further advised that as a result of this filing, Wolfridge was seeking the assistance of legal counsel to have that proceeding recognized under Canadian bankruptcy legislation. He argued that the order of the United States Bankruptcy Court served to stay the motion scheduled to be heard by the court. [ 13 ] The chambers judge did not grant the adjournment, nor did he consider the matter to be stayed. An oral decision was rendered from the bench, and an order issued the following day which provided: • The 10% deposit paid by John T.

Early, in Trust, in relation to the March 5, 2015 sale was forfeited; • The Bonangs, having the second highest bid, were declared the successful bidder at the sale; • The Sheriff was directed to provide a deed conveying the property to the Bonangs; • The Bonangs were given possession of the property; • The Sheriff was authorized, if required, to remove Wolfridge from the property; and • Costs were awarded to the Bonangs. Issues on Appeal [ 14 ] Wolfridge’s Notice of Appeal contains 14 grounds. Mr. Early helpfully condensed those issues to 5 in his submissions. I re- frame them slightly: 1.

Did the chambers judge err in failing to grant the adjournment as requested? 2. Did the chambers judge err by failing to stay the proceedings in light of Wolfridge filing for bankruptcy in the United States? 3. Was the chambers judge functus officio on April 7, 2015? Did he violate the principle of res judicata ?

4. Did the chambers judge deny Wolfridge natural justice and procedural fairness by pre-determining the outcome of the April 7th motion, and by not hearing from the parties in relation thereto? 5. Did the chambers judge fail to comply with the requirements of the Civil Procedure Rules in a manner justifying appellateintervention? Analysis 1. Did the chambers judge err in failing to grant the adjournment as requested? [15] The decision to adjourn the chambers motion was clearly a discretionary one. This Court has recently re-affirmed that thestandard of review for such decisions is a highly deferential one.

In Armoyan v. Armoyan, 2013 NSCA 99, Justice Fichaud wrote: [172] In Caterpillar Inc. v. Secunda Marine Services Ltd., 2010 NSCA 105, this Court described the appellate standard of review to ajudge’s decision whether to adjourn: [5] This court applies a deferential standard to a trial judge’s decision whether to grant or deny an adjournment. In Abbott v. Sharpe, 2007NSCA 6, ¶ 74, Justice Saunders for the court said: A trial judge’s right to supervise and control the trial includes a wide discretion to grant or refuse adjournments.

The exercise of thatdiscretion is owed considerable deference on appeal unless it can be shown that the judge erred in principle or that the judge did notexercise his or her discretion judicially. Webber v. Canada Permanent Trust Co. (1976), (NS CA), 18 N.S.R. (2d)631 (N.S.C.A.), and Moore v. Economical Mutual Insurance Co. 1999 NSCA 91 , [1999] N.S.J. No. 250 (N.S.C.A.) In Moore, cited in the passage from Abbott, Justice Cromwell said: 33 The decision to grant or refuse an adjournment is within the discretion of the presiding judge. It is a discretion which the judge isparticularly well placed to exercise.

An appellate court should not substitute its judgment for that of the presiding judge but should limitits review to determining whether the judge applied a wrong principle or the decision gave rise to an injustice. To similar effect: Innocente v. Canada (Attorney General), 2012 NSCA 36, paras 27-29. In Éditions Écosociété Inc. v.

Banro Corp.,2012 SCC 18 , [2012] 1 S.C.R. 636, at para 41, Justice LeBel defined: ... the principle of deference to discretionary decisions: an appeal court should intervene only if the motion judge erred in principle,misapprehended or failed to take account of material evidence, or reached an unreasonable decision. ... [16] It has long been recognized that in determining whether a judge erred in principle, or failed to address a request for anadjournment judicially, the context of the proceeding as a whole should be considered (Moore, supra). [17] In the present matter, context is important.

The April 7th date was set during the appearance on February 2nd, and confirmed byvirtue of a letter sent from the court the following day. Based on what Wolfridge submitted in the Appeal Book, it appears Mr. Earlyfirst made the request for an adjournment known to the court by faxing materials on the morning of the hearing. This included a copy ofa letter dated April 6, 2015 from Mr. Early - “Connecticut Attorney and Counselor at Law” to Mr. Tim Hill, Q.C. [18] Either by way of that fax, or at the afternoon hearing (the record is unclear with respect to the timing), Mr.

Early also providedthe court with a document entitled “United States Bankruptcy Court District of Connecticut – Notice of

Chapter 11 Bankruptcy Case,Meeting of Creditors, & Deadlines”. It clearly relates to Wolfridge, and bears the date of March 4, 2015. Although the document has anarea for the signature of a “Clerk of the Bankruptcy Court”, it is unsigned. It bears no court seal or other indicia of authentication. Nomotion was filed seeking an adjournment, nor any affidavit or other supporting material other than that described above. [19] Mr. Early advised that although bankruptcy protection was sought in the United States in early March, he did not seek to retain counsel for the April 7th hearing until April 2nd.

Here, context is significant. April 2nd was the last business day before the Easterholiday, and the motion was set to be heard the first business day thereafter. Despite Mr. Early asserting without the benefit of swornevidence that Mr. Hill had been retained to appear, a Notice of New Counsel had not been filed with the court, nor is there anydocumentation from Mr. Hill supportive of his alleged retainer and withdrawal. [20] The hearing date had been set for well over two months. Wolfridge was aware of the bankruptcy application for a month in advance of the April 7th hearing.

No attempts were made to seek an adjournment in advance of the appearance. Given Wolfridge left theretention of counsel to the last business day prior to the hearing, it is little wonder difficulties ensued. [21] Based on the record before me, I am satisfied there is no reason for this Court to interfere with the chambers judge’s exercise ofdiscretion in denying the requested adjournment. 2.

Did the chambers judge err by failing to stay the proceedings in light of Wolfridge filing for bankruptcy in the United States? [22] Wolfridge argues the chambers judge erred by failing to recognize the obligation contained in the Bankruptcy and InsolvencyAct, R.S.C., 1985, c. B-3, specifically s. 267, to co-operate with foreign jurisdictions in cases of cross-border insolvencies. It is arguedthe presentation of a “valid US Bankruptcy Court order” (as described by Mr. Early) was sufficient authority, in conjunction with provisions of the BIA, to mandate a stay of the April 7th proceeding.

[ 23 ] The above assertion is devoid of merit. Although s.267 of the BIA sets out general objectives relating to the facilitation of cross-border recognition of bankruptcies, the Act also sets out a specified procedure to seek the recognition of a foreign bankruptcy by a Canadian court (See s.269). There is nothing in the record which suggests Wolfridge undertook that mandatory process prior to the April 7 th appearance. [ 24 ] Rather, without notice, Wolfridge’s agent appeared in court on April 7 th and demanded the court address an issue which had not been properly placed before it.

The court had no Notice of Motion, no supporting affidavit, no authorities – only a purported “valid US Bankruptcy Court order” and Mr. Early’s oral submissions. [ 25 ] Both the Evidence Act , R.S.N.S. 1989, c. 154 and Canada Evidence Act , R.S.C. 1985, Chap. C-5 address the introduction into evidence of records from courts outside the jurisdiction.

The provincial legislation provides: 20 Evidence of any proceeding or record whatsoever of, in or before any court in the United Kingdom or the Supreme or Federal Courts of Canada, or any court, or before any justice of the peace, or any coroner, in any province of Canada, or any court in any British colony or possession, or any court of record of the United States of America, or of any state of the United States of America, or of any other foreign country, may be given in any action or proceeding by a certified copy thereof, purporting to be under the seal of such court, or under the hand or seal of such justice or coroner , as the case may be, without any proof of the authenticity of such seal, or of the signature of such justice or coroner, or other proof whatever, and if any such court, justice or coroner has no seal, or so certifies, then by a copy purporting to be certified under the signature of a judge or presiding magistrate of such court , or of such justice or coroner, without any proof of the authenticity of such signature, or other proof whatsoever. [Emphasis added] The federal legislation contains a substantively identical provision (section 23). [ 26 ] The document submitted by Wolfridge was neither certified nor under court seal.

The chambers judge was under no obligation to consider the request, let alone grant any remedy based upon the document presented to him. I would dismiss this ground of appeal. 3. Was the chambers judge functus officio on April 7, 2015? Did he violate the principle of res judicata? [ 27 ] Wolfridge’s arguments overlap in relation to the above. In its factum, Mr. Early asserts that the January 14, 2015 court appearance is pivotal to both questions.

He poses: Did the Learned Judge err and violate the principle of Res Judicata when he scheduled a hearing on April 7, 2015 of a motion made on December 12, 2014, and heard and decided on January 14, 2015? . . .

Did the Learned Judge violate the Doctrine of Functus Officio in revisiting his decision of January 14, 2015 in his decision of April 7, 2015? [ 28 ] Wolfridge also asserts that on April 7 th the chambers judge was functus officio because the earlier Order for Foreclosure, Sale and Possession issued by Justice Robertson was a final order, and as such, could not be varied. [ 29 ] Based on the record before this Court, the chambers judge was not asked to consider whether he was functus officio , or whether the motion was res judicata . These are novel arguments raised by Wolfridge before this Court.

As such, a traditional standard of review analysis is not engaged. For our purposes, the chambers judge was either functus , or not. Similarly, the motion had been previously determined, or it had not. [ 30 ] I will first address the assertion that the April 7 th motion had been previously decided by the chambers judge on January 14 th . The record before this Court unequivocally refutes that suggestion. The only oral submissions made by the parties on the earlier appearance related to Wolfridge’s motion to have the November foreclosure sale set aside, and to have a redemption value determined.

The order arising from the January 14 th appearance addresses only those matters; it is silent as to the Bonangs’ motion to be declared the successful purchasers. [ 31 ] A review of the January 14 th hearing transcript discloses the chambers judge did not dismiss the Bonangs’ motion. Rather, he anticipated that should the history of incomplete sales continue, it would be heard in the future. After deciding the November sale was to be set aside, the court advised it would set a further date to determine the redemption value, should Wolfridge seek to exercise that right. The chambers judge said: THE COURT: Yes.

Yes. Again, you're looking for taxes up until the date, I guess, of redemption. And what I'll do is likely set a date this afternoon to bring you back, so I can give you my ruling orally. MR. EARLY: Yes, My Lord. THE COURT: And then we'll proceed from there. But my full intention is to stay involved in this file, to see it through to a successful completion.

A successful completion that either sees Wolfridge Farms, Farm Limited redeem the property and the foreclosure proceedings will dis..., be discontinued and dismissed, or there will be a sheriff's sale, and the successful bidder, if that bidder does not complete the requirements of, of the, the additional amount over and above the deposit, then it will come back to me immediately and I'll decide if the second-highest bidder should be awarded...

MR. EARLY: Yes, My Lord. THE COURT: ...the property. MR. EARLY: My Lord, I welcome .... THE COURT: What, and, and this, the whole process might take us another couple of months, even. MR. EARLY: I welcome your continued involvement. I really do. THE COURT: You'll get sick and tired of me before we finish this, ... MR. EARLY: I doubt it. THE COURT: ...I think. But one way or the other, it's not going to go on ad infinitum. It's gone on too long now. I, I think everybody will agree, it's… MR.

EARLY: I agree. [ 32 ] Later in the January 14 th hearing, after setting the February 2 nd return date, the chambers judge similarly directs: MR. WHITE: Wondering if we should set a date for the next foreclosure sale, so we can get that...? THE COURT: I think I can do that on the 2 nd . MR. WHITE: Okay. THE COURT: Okay? Yes.

We have a better, like I said, if, if, if there isn't an agreement, which likely there won't be an agreement, on what that redemption amount is, you're going to rely on my decision, and if that is something that Wolfridge Farms can live with, even though it might not be something they thought was, they should pay, but if it's still something they can live with to redeem the property, then they have to have some time in order to do that. Failing which, then we proceed with the foreclosure sale, and we can, on the 2 nd , know what that date is, because let's say I allow one week for Wolfridge Farms to redeem.

In the event that they don't redeem or don't cough up the money that is required, then the date for the sheriff's sale can be set at that time on February 2 nd , giving enough time for the plaintiffs again to place the ads in the paper in conformity with Justice Robertson's rules. But the understanding is that, once that, that, that effort is made to redeem, if, if that date comes and goes and it hasn't been redeemed, then that's it, as far as redemption is concerned. It's going to sale. MR. EARLY: Yes.

THE COURT: And the only thing that might bring it back is if the successful bidder pays the 10 percent deposit, and no more, within the additional time that the sheriff allows for the 90 percent to be paid. MR. EARLY: Right. THE COURT: I'll set the date to come back before me the very next day, or two days after, whatever it is, so that if it, if that

happens again, then I'll be faced, then, with the decision on whether or not to award the property to the second-highest bidder. MR. EARLY: Understood, My Lord. [33] The chambers judge did not rule on the Bonangs’ motion; rather, he anticipated it being heard in future, should Wolfridge once again fail to complete the foreclosure sale. As such, he was neither functus, nor did his ruling on the motion on April 7th violate theprinciple of res judicata. [34] I turn now to Wolfridge’s submission that the chambers judge was functus by virtue of the earlier Order for Foreclosure, Saleand Possession.

In advancing this argument, it relies on the recent decision of this Court in MacQueen v. Canada (Attorney General),2014 NSCA 73. Wolfridge asserts MacQueen is definitive authority in support of its proposition. It is not. [35] In MacQueen, the court was being asked to reconsider a decision it had rendered regarding the certification of a class actionmatter. The request was made after the Supreme Court of Canada released two decisions which the appellants believed were highlyrelevant, and may impact the earlier disposition.

In declining to set down a motion for reconsideration, Justice Oland wrote: [7] It is important to keep in mind that, in this case, the Court issued its order. That is because in assessing reconsideration motions, thecourts have distinguished between those where the order had not yet issued although the decision had been made, and those where theorder had issued. See, for example, Burke v. Sitser, 2002 NSCA 115 at ¶ 7 and 8, and Pennecon Energy Ltd. v. Metal World Inc., 2014NLCA 10 at ¶ 13.

My analysis will deal only with the latter, as that is the situation here. [8] Once a court has issued its order, the general rule is that it cannot re-open the decision. See, for example, Midland Doherty Ltd. v.Rohrer, [1985] N.S.J.

No. 121 (S.C.A.D.), where MacKeigan, C.J. stated: [5] Once a final order is issued on appeal this Court has prima facie no jurisdiction to open the appeal to grant a new hearing of theappeal or to correct any substantive error made by it on the appeal; a party aggrieved by our error must ordinarily look for remedy to theSupreme Court of Canada, if appeal to that Court is available. [9] Although he did not use the term, what MacKeigan, C.J. described was the effect of the common law doctrine of functus officio. InNova Scotia Government and General Employees Union. v.

Capital District Health Authority, 2006 NSCA 85, Cromwell, J.A. (as hethen was) explained the principles relating to functus officio: [36] Functus officio is a rule about finality: once a tribunal has completed its job, it has no further power to deal with the matter. Inrelation to court proceedings, the principle means that, in general, once a court has issued and entered its final judgment, the matter mayonly be reopened by means of appeal.

To this general rule, however, there are at least two exceptions: the court may correct slips and, aswell, address errors in expressing its manifest intent: Paper Machinery Ltd. v. J.O. Ross Engineering Corp., (SCC),[1934] S.C.R. 186; see also Civil Procedure Rule 15.07. [37] These principles developed in the context of court decisions which are subject to full rights of appeal.

The existence of these fullrights of appeal fostered the view that an appeal, rather than a reopening of the case before the initial decision-maker, was generally thepreferred way to address errors in the initial decision. [36] The purpose of the doctrine of functus officio is to ensure that final judgments remain final. The fundamental flaw inWolfridge’s argument is that orders for foreclosure and sale are not final, but rather an interim step in the process leading to concluding asale. As such, a foreclosure order is subject to variation in appropriate circumstances. In Golden Forest Holdings Ltd. v.

Bank of NovaScotia, (NSCA), Justice Hallett explained: Apart from those matters covered by Rules 15.07 and 15.08, the inherent jurisdiction of judges of the Supreme Court of Nova Scotiadoes not extend to varying “final” orders of the Court disposing of a proceeding unless the order does not express the true intent of theCourt’s decision. If it were otherwise, there would not be the certainty or finality to Court orders that the Judicial process requires.

However, a foreclosure order is not a final order disposing of a proceeding; it merely fixes the amount due on a mortgage and foreclosesthe right of a mortgagor to redeem the property unless the amount due on the mortgage plus costs is paid before the property is sold bythe Sheriff. … In short, the foreclosure order itself is not an order finally disposing of a proceeding but an order which, amongother things, initiates a Court-ordered sale by the Sheriff, which sale is under the supervision of the Court; it is an ongoing processthat culminates with the Sheriff’s sale and the confirming order.

Therefore, prior to sale, the Court has jurisdiction to amend orvary its order respecting the advertising requirements in a proper case. This power exists because of the Court’s inherentjurisdiction to control its own processes. [Emphasis added] [37] Although Golden Forest was decided under the 1972 Civil Procedure Rules, I am satisfied that there is nothing in the currentRules or practice memorandum which serves to change the nature of a foreclosure order as described therein, or extinguish the inherentjurisdiction of the court to control its own processes.

As such, the chambers judge was not functus and could exercise the inherentjurisdiction of the court to amend the Order for Foreclosure, Sale and Possession. 4. Did the chambers judge deny Wolfridge natural justice and procedural fairness by pre-determining the outcome of the motion,and by not hearing from the parties? [38] There is no standard of review analysis engaged when considering a claim of denial of natural justice or procedural fairness. InWaterman v.

Waterman, 2014 NSCA 110, Justice Beveridge explained: [23] The third ground of appeal argues there was a breach of the rules of natural justice or procedural fairness. This is a question of law.Our review does not engage concerns associated with the concept of a standard of review. (See Bellefontaine v. Slawter, 2012 NSCA 48at ¶ 18.) The adjudicator either fulfilled the duty required or did not (See Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12

at ¶ 43 ; Nova Scotia (Community Services) v. N.N.M. , 2008 NSCA 69 at ¶ 39 ). In other words, either there was a breach of the principles of natural justice, or there was not. [ 39 ] Wolfridge argues it was not given an opportunity to speak to the motion, and the chambers judge had clearly made up his mind with respect to the outcome in any event. The opportunity to be heard by an impartial adjudicator, with adequate notice, is a fundamental component of natural justice and procedural fairness ( Waterman , ¶ 63 ).

If Wolfridge was denied either of the above, it would be of great concern, and may justify intervention. However, no such denials are apparent from the record. [ 40 ] It cannot be seriously entertained that Wolfridge did not have notice of the April 7 th hearing, or its purpose. It was set during the February 2 nd hearing, the chambers judge anticipating that history may repeat itself.

He said: THE COURT: … If the property is sold at sheriff's sale, in other words, it has not been earlier redeemed by the defendant, Wolfridge Farm Limited, the successful bidder will have to pay the required 10 percent deposit at, at the time of the sale. The balance of, owing on the purchase pli..., price, pardon me, will have to be paid by the successful bid, bidder, and the successful bidder will have 15 days following the date of sale to pay that 90 percent balance. The deadline for paying the balance will end at 4:30 p.m., and that's Atlantic Daylight Savings Time, on Thursday, March 26, 2015.

So, again, the balance, if it does go to sale, the successful bidder will pay the 10 percent deposit. The balance of 90 percent has to be paid no later than Thursday, March 26, 2015, at 4:30 p.m., and that's local time, I guess. MR. EARLY: My Lord... THE COURT: If the balance is not tendered in full by that deadline, in other words, if we end up in a similar situation to what happened after the July sale and after the November sale, the motion that was initially filed on behalf of the plaintiffs on 12 December, 2014, will be heard by me on Tuesday, April 7, 2015.

I can't do it the week before, because I am tied up in trials, criminal trials, jury trials, in Amherst and Truro during... … THE COURT: … Okay, so, again, I, I've scheduled the, I guess, a return to deal with the motion brought on behalf of the plaintiffs and filed on 12 December, 2014, only if it becomes necessary. If it's not necessary, I will expect that, Mr. White, you'll notify me in writing that, indeed, you will not have to have that motion heard. Because of one or two things, one of two things happening. I guess one of three things happening. One, the property has been redeemed.

Two, the property has been sold to a high bidder and the high bidder has paid the full amount of the purchase price. Or thirdly, the, the, the successful bidder were the Bonangs. That, that would basically eliminate the need to have you gentlemen back before me on Tuesday, April 7, 2015. I will give you the option of choosing whether it's going to be in the morning or in the afternoon. What's convenient, Mr. Early, to you and Mr. White in, on Tuesday, April 7, 2015? … THE COURT: Okay. So, we'll

schedule it for 2 o'clock on the afternoon of Tuesday, April 7, 2015. But as I said, if it's not necessary to conduct or to hear that motion, then I would ask counsel to, Mr. White to give me advance notice to that effect. And again, as I mentioned, I couldn't hear that motion earlier than that, because I'm tied up in trial in Truro and Amherst during the pre..., the prior week. And this date, Tuesday, is right after Easter Monday, so that's the earliest possible day that week I could hear it. If any additional filings are required for that motion on April 7, 2015, then I would refer Mr. Early and Mr.

White to Civil Procedure Rule 23.11. I'm treating this as a motion that will take one half hour or less. And the, the filing deadlines, particularly by the defendant, the responding party, is, is, it's most generous, as well, in terms of how many days in advance of the actual hearing that, that affidavits or a brief and whatnot has to be filed. [ 41 ] As noted earlier, the record does not contain an order arising from the February 2 nd appearance, but the chambers judge documented the outcome in a letter the following day. It included the following directives: 4.

The Defendant, Wolfridge Farm Limited, shall have the right to redeem the property being foreclosed upon provided that the amount required to redeem the property is paid to the Plaintiffs prior to the time and date set for the Sheriff’s sale. 5. The amount required to redeem the property as of Monday, February 2, 2015 is set at $249,478.11. Counsel for the Plaintiffs has been instructed to request Mr. Stephen Kingston, Barrister & Solicitor, to re-visit his calculation of the redemption amount to reflect the deductions agreed to by Plaintiffs’ counsel during the course of the Hearing.

These deductions might result in a further reduction in the amount required to redeem the property prior to Sheriff’s sale. Counsel for the Plaintiffs has been requested to obtain an Affidavit of Mr. Kingston confirming his calculations. 6. If the matter proceeds to public auction (in other words, if the Defendant fails to redeem the property) the successful bidder will be required to pay a deposit of 10% of the total purchase price at the time of sale. The successful bidder will have 15 days following the date of sale in order to pay the remaining balance.

The deadline for paying the remaining balance will end at 4:30 p.m. (local time) on Thursday, March 26, 2015. 7. If the remaining balance to cover the purchase price is not tendered in full by the deadline set out above, the Motion filed by counsel on behalf of the Plaintiffs on 12 December 2014 will be heard by me beginning at 2 o’clock on the afternoon of Tuesday, April 7, 2015. Any additional filings that might be required are to be done in accordance with Civil Procedure Rule 23.11 (a Motion that will take ½ hour or less) .

If this Motion does not have to be heard I would ask counsel for the Plaintiffs to provide advance notice to the

Court so that it can be removed from the docket. [Emphasis added] [ 42 ] I pause at this juncture to comment upon the chambers judge’s reference to “additional filings”. I am satisfied from reviewing the transcript of the January 14 th proceeding that significant materials had been filed in support of, and in opposition to, the Bonangs’ motion to be declared the successful purchasers of the property. The transcript and Notice of Motion reference an affidavit of Tony Bonang, and several responding affidavits filed by Mr. Early. Reference is further made to written submissions filed by both parties.

None of this supporting material was included in the Appeal Book filed by Wolfridge on December 15, 2015. [ 43 ] The appeal court file shows that on December 16, 2015 the court clerk emailed the parties raising concern with respect to the completeness of the Appeal Book, and directed that “[a]ll documentation that was before Justice McDougall prior to his rendering his decision on appeal would need to be provided in the Appeal Book”. On December 22, 2015, Wolfridge filed a Supplementary Appeal Book.

It contained a copy of the Bonangs’ written submissions, dated December 18, 2014, but none of the other supporting documentation referenced above. [ 44 ] It is unclear why Wolfridge chose to include the Bonangs’ December Notice of Motion, including the amended version, in the Appeal Book, but omitted, despite direction from the Court, the vast majority of materials filed in relation thereto. It is clear however, the chambers judge had the Bonangs’ evidence and submissions, as well as Wolfridge’s material filed in opposition to the motion.

It is equally clear the chambers judge gave the parties the opportunity, prior to April 7 th , to file any additional materials. The record shows the Bonangs simply re-filed their original written submissions. Wolfridge filed nothing in addition to what was already before the chambers judge. [ 45 ] The transcript of the April 7 th appearance also shows, contrary to Wolfridge’s assertion, it was given the opportunity to make oral submissions. Mr. Early acted upon that opportunity.

I am satisfied Wolfridge knew of the purpose of the April 7 th appearance; had filed written submissions in relation to the issue to be decided; and was given the opportunity to make any additional submissions it wished. Wolfridge was denied neither procedural fairness, nor natural justice in this regard. [ 46 ] I turn now to the allegation the chambers judge, having pre-determined the motion, was not an impartial adjudicator. Judges are presumed to be impartial. As such, an allegation of judicial bias carries an onerous burden. In Cojocaru v.

British Columbia Women’s Hospital and Health Centre , 2013 SCC 30 , Chief Justice McLachlin wrote: [22] … The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently. [ 47 ] Wolfridge submits the chambers judge, without hearing from the parties, simply read a pre-prepared decision into the record on April 7 th . Based on my conclusion above, I do not accept that characterization.

The parties were heard. The chambers judge would have had the benefit of considering the materials filed in advance of the hearing. [ 48 ] I also note the chambers judge had specifically advised the parties that the matter would be heard as a motion taking a ½ hour or less. As such, both parties were well advised additional oral submissions would be time-limited. After hearing from Mr.

Early, the chambers judge proceeded to immediately give his oral decision on the motion. [ 49 ] Although a court may often adjourn to consider the submissions heard, the failure to do so does not call into question the impartiality of the decision-maker. The chambers judge may very well have prepared a draft decision based on the strength of the written materials both parties had filed. If the oral submissions did not alter his preliminary view, nothing prevented him from rendering the decision as he did. I would dismiss this ground of appeal. 5.

Did the chambers judge fail to comply with the requirements of the Civil Procedure Rules in a manner justifying appellant intervention? [ 50 ] Wolfridge argues the chambers judge failed in several respects to comply with the Civil Procedure Rules and Practice Memorandum 1 relating to foreclosure proceedings. None of the arguments presented in this Court were, based on the record made available, advanced before the chambers judge. [ 51 ] Wolfridge firstly argues the chambers judge ruled on a non-existent motion.

It submits as the respondents had not filed a new motion pursuant to Rule 23 after the November 10 th foreclosure sale was set aside, the Court could not rely on the motion filed by the Bonangs in December to found the April 7 th decision. [ 52 ] Wolfridge is quite correct the Bonangs’ original motion specifically related to the November 10 th sale, which was subsequently deemed invalid.

However, as outlined earlier, there is no question the chambers judge made it abundantly clear that the remedy sought by the Bonangs in that motion would be revisited should Wolfridge repeat its pattern of placing the highest bid at sale, only to default on final payment.

The excerpts of the transcript referenced earlier unequivocally established Wolfridge was aware of the court’s intention and made no objection thereto. [ 53 ] Although the Bonangs could have filed a new motion and the chambers judge could have requested that be done, any technical non-compliance with the Rules had no impact on Wolfridge’s awareness of, or ability to respond to, what was clearly being requested of the court.

In the absence of prejudice resulting from how the motion was managed by the chambers judge, I would not intervene. [ 54 ] Wolfridge also submits the chambers judge ignored the mandatory wording of Practice Memorandum 1, in particular the requirements set out in the “Standard Procedure for Sheriff’s Sale by Public Auction”. It relies on paragraphs 2(

c) and (

d) of the “Instructions to Sheriff” which provide:

(

c) Not later than fifteen days following the date of sale, or such later time not exceeding a further fifteen days consented to in writing bythe plaintiff or the solicitor, the purchaser shall pay the balance of the purchase price to the sheriff, at which time the sheriff shall deliverthe deed and any bill of sale to the purchaser or the purchaser’s nominee. If the purchaser fails to make payment of the balance of thepurchase price within the period fixed, the deposit is forfeited, and it shall be applied first to sheriff’s fees, second to outstandingproperty taxes, and third to the plaintiff’s claim.

On default, the sheriff, deputy sheriff, or authorized person shall re-sell the landsand any chattels at the time and place specified in a new notice, which shall be published in accordance with the terms of theoriginal order. (

d) When the mortgagee is the purchaser at sale and no other person is entitled to any part of the proceeds of sale, the sheriff may, uponreceipt of the amount of the minimum bid, deliver the deed to the purchaser or its nominee. [Emphasis added] [55] Wolfridge argues the chambers judge impermissibly infringed paragraph 2(c), as it requires, in the case of a default, that a newforeclosure sale be ordered. In his oral submissions, Mr. Early submitted that in the face of a default, a court has no option but to setanother sale, even if 10 unsuccessful ones have already been held. Mr.

Early also referred this Court to Wood v. Wood Enterprises Ltd., (NSSC), where in a similar case of default, the court ordered a new sale, but directed the defaulting party, should itwish to bid, to provide complete payment of the purchase price on the day of sale. It is submitted this case supports the proposition thata court, in the face of default, must

schedule a new sale, although it may impose such conditions as it sees fit. [56] Underpinning Wolfridge’s argument is the assertion the chamber’s judge was invariably bound by the above provisions, andhad no choice but to order a new sale. That simply is not the case. Neither the foreclosure practice memorandum, nor the instructions tosheriff created thereunder, shackled the chambers judge. I say this for two reasons. [57] Firstly, on its face, the Practice Memorandum (and the instructions resulting therefrom), recognize that it is not the exclusivemeans of addressing foreclosure proceedings.

It intends, rather, to set out the simplified procedure to be used in “most” instances. Thisis amply reflected in the following provisions: 1.2 Purpose The Judges of the Supreme Court have approved a simplified procedure which can be used in most proceedings for foreclosure. … 1.3 Subject The subject of this Memorandum is a simplified procedure providing for the remedy of foreclosure, sale, and possession by way ofaction. There are other well established foreclosure remedies, such as sales ordered in the course of a receivership.

There are lessestablished foreclosure remedies the Court has occasionally ordered, such as sale by completion of a mortgagor’s agreement ofpurchase and sale.

Some of the comments in this Memorandum may provide guidance in respect of other foreclosure remedies. 2.2 The Simplified Procedure The simplified procedure is expected to be suitable for the majority of actions for foreclosure, sale, and possession. … 2.8 Sale Procedure The sale by public auction shall be conducted in accordance with the prescribed Standard Procedure for Sheriff’s Sales by PublicAuction – Instructions to Sheriff, or as close thereto as is possible in the circumstances. [Emphasis added] [58] In my view, the above provisions demonstrate the court is not strictly bound to follow the procedure set out in the memorandumor sale instructions.

Variation and flexibility is inherently contemplated therein. This is entirely compatible with the court’s inherentjurisdiction to control its own processes. Only the clearest of provisions can serve to limit that authority. The provisions relied upon byWolfridge do no such thing. [59] This brings me to the second, and related reason for rejecting Wolfridge’s proposition. The need for flexibility is an adjunct notonly to the court’s power to control its own processes, but in particular to respond effectively to abusive conduct.

It is worthy of note thatin making their motion, the Bonangs, in addition to other rules, relied upon Civil Procedure Rule 88. It provides in part: 88.01(1) These Rules do not diminish the inherent authority of a judge to control an abuse of the court’s processes.

(2) This Rule does not limit the varieties of conduct that may amount to an abuse or the remedies that may be provided in response to anabuse. [60] Here, the chambers judge made strong findings in relation to the abusive and improper conduct of Wolfridge and its agent. Those findings have not been challenged on appeal. It was determined that Wolfridge’s conduct in frustrating past sales was “an abuseof the rules of Court”, which caused prejudice to the Bonangs.

It was further found Wolfridge had attempted to frustrate and avoidenforcement of the Order for Foreclosure, Sale and Possession, and had, by its “abuse of the rules” significantly delayed the enforcementthereof. [61] In the face of such conduct, the chambers judge had ample authority to proceed as he did, and craft a remedy that brought theongoing abuse to an end. Although it was open to him to consider the type of remedy ordered in Wood, supra, nothing required him to doso. [62] Finally, I turn to Wolfridge’s argument the remedy imposed by the chambers judge infringed paragraph 2(

d) of the Instructionto Sheriff, as it was entitled to a part of the proceeds of sale. This is explained in its written submissions as follows: 211. The highest selling bid at the auction was $279,000, second-highest was $278,636.86. Just before sale, the Defendant could have

redeemed by paying $249,478.11. As such there was a surplus in excess of $25,000 after paying the sheriff’s fee. As another person would be entitled to part of the proceeds, a sale made under Rule 2(

d) was in error. For this error alone, the sale should be reversed. 212. John T. Early, III, Trustee, paid in, a deposit of $27,900. The successful bidder in the final analysis was treated as if he had not bid at all, the result was as if he had never attended the sale.

Given that the property was sold to the Plaintiffs for the minimum bid, the deposit of the successful bidder should be returned to the bidder. [ 63 ] In effect, Wolfridge asserts, notwithstanding its abusive conduct, its deposit should be returned, and it should be given the benefit of applying the lower redemption value to calculate a “surplus”, which it claims. The audacity of these assertions is readily apparent. The deposit which Wolfridge now seeks was only forfeited because of its decision not to complete the foreclosure sale.

There is no reason in law, or in equity, for this Court to intervene at its behest. [ 64 ] Further, if Wolfridge wished to obtain the benefit of a lower value, it could have redeemed the property. It did not. Rather, it put the Bonangs through the delay of another sale while it continued to occupy the property and operate its business without payment of normal overhead. There is no rationale to permit Wolfridge to utilize the redemption value it chose not to act upon to create a surplus.

If this Court acceded to that request, it would serve to reward the deliberate frustration of what should have been a straightforward enforcement process. [ 65 ] There is nothing in the record before this Court indicating a surplus arose from the foreclosure. If there is such a surplus, Civil Procedure Rule 72.14 sets out the process for dealing with it. Conclusion [ 66 ] For the reasons above, I would dismiss the appeal with costs payable to the Bonangs in the amount of $2,500.00, inclusive of disbursements.

In their oral submissions, the Bonangs requested this Court order any cost award in their favour to be paid from funds previously paid by Wolfridge and held by the Registrar as security for costs in another appeal matter. No factual detail or authority was provided in support of this request. As such, I would order costs payable in the usual manner. Bourgeois, J.A. Concurred in: Hamilton, J.A. Van den Eynden, J.A.