Investors Group Trust v Deroo, 2016 SKCA 23

Court of Appeal for Saskatchewan Docket: CACV2764 Citation: Investors Group Trust v Deroo, 2016SKCA 23Date: 2015-12-15Between:Investors Group Trust Co. Ltd.Appellant (Proposed Plaintiff)AndDennis Robert Deroo and Elaine Marie Korbo (formerly Elaine Marie Deroo)Respondents (Proposed Defendants)Before: Lane, Jackson and Ottenbreit JJ.A.Disposition: Appeal allowed (orally)Written reasons by: The Honourable Mr. Justice OttenbreitIn concurrence: The Honourable Mr.

Justice Lane The Honourable Madam Justice JacksonOn Appeal From: QB 57/15, Moose JawHeard: 15 December 2015Counsel: Deron Kuski, Q.C., for the Appellant No one appearing for the Respondents Ottenbreit J.A. [1] Investors Group Trust Co. Ltd. (Investors) appeals the Queen’s Bench Chambers decision in this matter dated August 17,2015, denying Investors pre-leave costs on an application for leave to commence foreclosure under The Land Contracts (Actions) Act,RSS 1978, c L-3 [Act].

When this matter was heard, we allowed the appeal and remitted the matter of costs back to the Chambers judgewith written reasons to follow. These are those reasons. [2] Investors sought leave to foreclose the property of the respondents. The mortgage the respondents had executed withInvestors provided that Investors could recover solicitor client costs for all aspects of enforcement. [3] At the application for leave, Investors provided evidence to the Chambers judge that pre-leave costs of $2,941.25 had beenincurred as well as occupancy check costs of $346.50 and that further pre-leave costs would be incurred.

Investors, as well, providedevidence of the status of the mortgage and the circumstances of the respondents’ defaults and payments as described above.

TheChambers judge granted leave to foreclose but dismissed the application for pre-leave costs without written reasons. [4] We note that s. 3(11) of the Act provides authority to order pre-leave costs in the discretion of the judge hearing the leaveapplication. [5] In Lloydminster Credit Union Ltd. v Hogg (1992), (SK KB), 102 Sask R 185 (QB) at para 11, Wright J.notes that s. 3(11) of the Act contemplates the widest possible discretion with respect to costs: “It is quite clear from the provisions of theAct, moreover, that a judge has a very wide discretion in awarding costs at the leave stage.” [6] Some of the principles guiding the exercise of that discretion are summarized by Wilkinson J. in First Nations Bank ofCanada v Ledoux, 2005 SKQB 262 at para 7, [2006] 1 WWR 190. [7] We recognize that these reasons and this disposition do not resolve all of the issues in this area of the law.

Given the lack ofwritten reasons supporting the decision from which the appeal is taken and without submissions from the mortgagor, it is preferable toaddress these issues in another appeal. [8] In view of the foregoing, the appeal is allowed. To the extent the Chambers judge fettered his discretion to award pre-leavecosts, this matter is remitted to the Chambers judge to exercise his discretion in light of the statement of this decision and the affidavitmaterial respecting pre-leave costs filed by Investors. [9] Investors shall have their costs in this Court fixed at $1,000.