Royal Bank of Canada v. Kamstra, 2022 NSSC 102

SUPREME COURT OF Nova Scotia Citation: Royal Bank of Canada v. Kamstra , 2022 NSSC 102 Date: 20220406 Docket: Hfx No. 480309 Registry: Halifax Between: Royal Bank of Canada Plaintiff v. Petra G.A. Kamstra and Alain Francois Morin Defendants DECISION ON COSTS Judge: The Honourable Justice Kevin Coady Heard: September 16, 2021, in Halifax, Nova Scotia Written Decision: April 6, 2022 Counsel: Joshua Santimaw and Luke Godin, for the Plaintiff Dr.

Alain Morin, the Defendant By the Court: [ 1 ] In 2009 the Royal Bank of Canada (RBC) extended credit to the Defendants which was secured by their property at 3418 Highway #1, Aylesford East, Nova Scotia. In 2017 Mr. Morin signed a Quit Claim Deed in favour of Ms. Kamstra. It appears that Mr. Morin then moved to Alberta leaving the Aylesford property, and its attendant financial obligations, in the care of Ms. Kamstra. Obviously, the trust Mr. Morin placed in Ms.

Kamstra was not honoured and a loan and a mortgage fell into arrears. [ 2 ] RBC filed a Notice of Action in 2018 seeking the arrears in the amount of $192,908.74. Late in 2018 Justice Rosinski issued an Order for Foreclosure, Sale and Possession. [ 3 ] In 2019 RBC filed a Notice of Motion in which it sought an Order for Deficiency. Mr. Morin indicated that he wished to contest the claim for a deficiency and he raised several issues that he felt were relevant, but which were later determined to be without

merit. The matter was moved to a contested chambers slot. I determined that there was a total deficiency of $62,585.24 ( 2022 NSSC 5 ). [ 4 ] I invited the parties to submit their position on costs. Obviously, RBC was completely successful and seeks $4,000. Mr. Morin takes the position that RBC’s “astonishingly improper and abusive conduct” dictates that RBC is not entitled to any costs. [ 5 ] The subject of costs is governed by Civil Procedure Rule 77 which states: 77.02 General discretion (party and party costs)

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement. 77.03 Liability for costs

(3) Costs of a proceeding follow the result, unless a judge orders or a Rule provides otherwise. 77.08 Lump sum amount instead of tariff A judge may award lump sum costs instead of tariff costs. 77.10 Disbursements included in award

(1) An award of party and party costs includes necessary and reasonable disbursements pertaining to the subject of the award. Costs are intended to provide a substantial but not a complete indemnity against costs incurred by a successful litigant. The objective is to find a number that does justice between the parties. It is a matter of judicial discretion. [ 6 ] Motions for deficiency judgments are generally not contested. It is the role of this Court to ensure that lenders do not exploit mortgagees when they are losing their home and that they follow the Rules and Practice Memorandum.

There was nothing complicated about this file. Mr. Morin was “left holding the bag” when Ms. Kamstra defaulted on their agreement. It appears that he viewed this obligation as Ms. Kamstra’s obligation. I get the impression that Mr. Morin may have felt that his mortgage obligations were terminated by the 2017 Quit Claim Deed. Once the Motion was filed, he realized his exposure. [ 7 ] Mr. Morin raised a number of issues that he argued should release him of this obligation. They were without merit. Mr.

Morin advanced the following arguments: • RBC failed to serve the Notice of Motion and failed to file the Affidavit of Service as required by the Rule. • RBC failed to advise the Court about a 2012 appraisal for $266,00 when at foreclosure the appraisal came in at between $130,000 and $145,000. • RBC failed in its duty to sell the property at the best price obtainable. • RBC failed to generally follow the rule and violated practice directions. I have addressed these issues in my decision on the Deficiency Motion. It seems as if Mr.

Morin feels that nefarious things were going on between RBC and this Court. [ 8 ] I have determined that the best way to do justice between the parties is to make a lump sum award in favour of RBC. I recognize that the Tariff system should not be departed from lightly, but I conclude a lump-sum approach best suits the particulars of this case. Consequently, I award RBC $1,500 plus disbursement, payable forthwith. Coady, J.