James Mann Appellant (Defendant) v. Farm, 2023 SKCA 132

Court of Appeal for Saskatchewan Docket: CACV4264 Citation: Mann v Farm Credit Canada , 2023 SKCA 132 Date: 2023-12-06 Between: James Mann Appellant (Defendant) And Farm Credit Canada Respondent (Plaintiff) And 101258391 Saskatchewan Ltd., Melanie Anne Lay, Tessa Anne Lay and AgraCity Crop & Nutrition Ltd. Non-Parties (Defendants) Before: Leurer C.J.S., Caldwell J.A. and Dawson J. ( ad hoc ) Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Leurer In concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Dawson ( ad hoc ) On appeal from: 2023 SKKB 159 and QBG-SC-00144-2021, Swift Current (Sask KB) Appeal heard: November 15, 2023 Counsel: Alex Baboi for the Appellant Rick Van Beselaere, K.C. for the Respondent No one appearing for 101258391 Saskatchewan Ltd., Melanie Anne Lay, Tessa Anne Lay, or AgraCity Crop & Nutrition Ltd. Leurer C.J.S. I. INTRODUCTION [ 1 ] This appeal concerns the enforcement of a mortgage [Mortgage] of a

section of farmland [Lands] granted in 2019 by 101258391 Saskatchewan Ltd. [8391] in favour of Farm Credit Canada [FCC]. The Mortgage secures the debt owing by 8391, Melanie Lay and Tessa Lay to FCC. [ 2 ] At the relevant times, the Mortgage has been in arrears. Additionally, 8391 is in breach of at least one of the non-financial covenants contained in it.

For this reason, while there is a dispute over the existence of other breaches of the Mortgage’s terms, as matters now stand, the full amount secured by it is due and payable. [ 3 ] On December 20, 2021, FCC was granted an order under The Saskatchewan Farm Security Act , SS 1988-89, c S-17.1 . This order allowed FCC to issue a statement of claim to sue for foreclosure or sale of the Lands. FCC’s statement of claim was issued on February 14, 2022. It names, as defendants, 8391, the two other debtors, as well as James Mann and AgraCity Crop & Nutrition Ltd. [AgraCity]. [ 4 ] Mr.

Mann is named as a defendant because, on January 19, 2022, he registered a personal property security interest against the Lands [Mann Registration]. AgraCity is named as a defendant because it registered a mortgage against the Lands on February 15, 2022 [AgraCity Mortgage]. 8391 does not contest that it has breached the Mortgage by granting the AgraCity Mortgage and by allowing the Mann Registration to be made, although it disputes whether Mr. Mann has any interest in the Lands that justified the making of the Mann Registration. [ 5 ] Mr.

Mann claims to have an interest in the Lands based on his assertion that he funded part of 8391’s purchase of the Lands and the further allegation that he is the prospective purchaser of the Lands pursuant to an agreement for sale that he alleges to exist between himself and 8391. Mr. Mann also asserts that he has the right to acquire all the shares of 8391. In oral argument, Mr. Mann’s counsel represented to us that the Mann Registration relates to all of these claims, although this is, at best, unclear from the record before us. Nonetheless, Mr.

Mann recognizes that FCC has priority to the Lands and that, if FCC forecloses on the Mortgage or if the Lands are judicially sold, his interest or interests in the Lands, whatever they may be, will be extinguished. In advancing these allegations, Mr. Mann indicated that, prior to 8391’s ownership, the Lands had been part of the Mann family’s farm. [ 6 ] The Chambers judge granted to FCC two orders nisi for the judicial sale of the Lands.

The first of these [First Order Nisi] was made following a Chambers appearance in December of 2022: Farm Credit Canada v 101258391 Saskatchewan Ltd. (16 December 2022) Swift Current, QBG-SC-00144-2021 (Sask KB) [ December 2022 Decision ]. After the First Order Nisi was made, 8391 paid the then- outstanding arrears.

However, it later again fell into arrears, and FCC applied for a new order nisi for sale based both on this subsequent non-payment and the breach of non-financial covenants given in the Mortgage. [ 7 ] Ultimately, the Chambers judge found there to be breaches of both the financial and non-financial covenants given by 8391 in the Mortgage. He summarized the situation as it existed in July of 2023 in a second decision, Farm Credit Canada v 101258391

Saskatchewan Ltd. , 2023 SKKB 159 [ July 2023 Decision ], as follows: [18] This has become a bit of a muddle at this stage. The mortgage is once again in arrears. It may be that the mortgagor can discharge Agracity’s mortgage. It may be that the mortgagor can discharge the Mann Registration. If the arrears can be brought current and the negative covenant defaults repaired – then in my opinion the mortgage could be reinstated. In any event, the court is prepared to grant FCC’s request for a new order nisi for sale to set things back in motion.

The drafting of the new order nisi may prove to be tricky since possibly the order will be a blending of the arrears and default of covenants. I await argument on this. I will remain seized with this file to see this through. [ 8 ] Accordingly, the Chambers judge directed that the Local Registrar set a special hearing date so that he could receive representations from the parties as to the drafting of a new order nisi for sale. This was done, and the second order nisi for judicial sale was made on August 16, 2023 [Second Order Nisi].

It identifies the following defaults of terms of the Mortgage not directly related to the payment of installments (at para 4): (

a) the grant of a mortgage by [8391] in favour of AgraCity Crop & Nutrition Ltd. and the registration of that mortgage against the titles to the Mortgaged Lands, which was done without the approval or consent of FCC; (

b) the grant of any interest by [8391] to James Mann, including the right or interests under or pursuant to the registration of an interest under a Personal Property Security Interest registered against the Mortgaged Lands on January 19, 2022, as Interest Register #124925520 (other than an interest as lessee of the Mortgaged Lands), which was done without the approval or consent of FCC; (

c) the grant of any interest to James Mann as purchaser under an unregistered agreement for sale of the Mortgaged Lands which was done without the approval or consent of FCC (the existence of such agreement is disputed by [8391] and Tessa Anne Lay and Melanie Anne Lay); and [ sic ] (

d) the grant of any right, interest or ability of James Mann to acquire the shares in [8391] without the approval or consent to such right, interest or ability by FCC (the existence of such right, interest or ability is disputed by [8391] and Tessa Anne Lay and Melanie Anne Lay); and (

e) Failure of [8391] to provide annual financial statements to FCC for 2020, 2021 and 2022. Based on these breaches, the Second Order Nisi directs that “all amounts owing [under the Mortgage] are due and payable by [8391] to FCC due to [the] acceleration of the amounts owing due to such defaults and the demand for payment by FCC” (at para 4). It also set out the terms for the judicial sale of the Lands. [ 9 ] Mr. Mann, but not 8391, has appealed against the July 2023 Decision and the terms of the Second Order Nisi granted pursuant to it. [ 10 ] I have concluded that Mr. Mann’s appeal must be dismissed.

My reasons follow. II. ISSUES [ 11 ] Mr. Mann’s notice of appeal raises 14 grounds. In his factum, he distilled these grounds down to five issues. These issues can, in turn, be addressed by answering the following three questions: (

a) Were FCC’s pleadings and evidence relating to Mr. Mann’s claimed interests in the Lands sufficient for the Chambers judge to find 8391 to be in breach of the non-financial covenants contained in the Mortgage? (

b) Did the Chambers judge err by failing to account for Mr. Mann’s claimed interests in the Lands when fixing the reinstatement period in the Second Order Nisi? (

c) Did the Chambers judge err by dismissing Mr. Mann’s injunction application? III. ANALYSIS A. The sufficiency of FCC’s pleadings and evidence [ 12 ] As I have noted, in the July 2023 Decision , the Chambers judge found 8391 to be in arrears under the Mortgage and to have breached several non-financial covenants contained in the Mortgage. As I have also observed, these breaches were particularized in paragraph 4 of the Second Order Nisi.

Paragraph 7 of the Second Order Nisi provides that 8391 shall have the right to reinstate the Mortgage if it fulfils six conditions that would cure the defaults that are referred to in paragraph 4 of that order. Mr. Mann takes no issue with the imposition of three of these conditions, which relate to: (

a) the payment of arrears; (

b) the remedying of the default specified in paragraph 4(

a) via the discharge of the AgraCity Mortgage; and (

c) the remedying of the default specified in paragraph 4(

e) through the provision of the missing financial statements of 8391. However, Mr. Mann argues that the Chambers judge erred by imposing the following three preconditions to 8391 reinstating the Mortgage (at para 7): (

c) by remedying the default specified in paragraph 4(

b) hereof by obtaining a written release of all claim(

s) by James Mann of the interest(

s) claimed by him over the Mortgaged Lands as referred to or intended in the registration under the Personal Property Security Interest as registered against the Mortgaged Lands on January 19, 2022 as Interest Register #124925520 and the discharge of the said Personal Property Security Interest registration (with copies thereof to be provided to FCC and filed with this Court);

… (

e) by remedying the default specified in paragraph 4(

c) hereof by obtaining a written acknowledgement from James Mann that he does not have and does not assert that he has an interest as purchaser of the Mortgaged Lands or any other interest in acquiring the Mortgaged Lands as alleged by him, or by obtaining an order of a Court of competent jurisdiction to the same effect (with copies thereof to be provided to FCC and filed with this Court); and (

f) by remedying the default specified in paragraph 4(

d) hereof by obtaining a written acknowledgement from James Mann that he does not have and does not assert that he has the right, interest or ability to acquire the shares in the Defendant Mortgagor, or by obtaining an order of a Court of competent jurisdiction to the same effect (with copies thereof to be provided to FCC and filed with this Court). [ 13 ] It assists in understanding Mr. Mann’s arguments to underscore that: (a) 8391 disputes whether Mr. Mann has any interest in the Lands beyond that as a lessee; and (

b) FCC has also refused to acknowledge the existence of any such interest. With these two points in mind, Mr. Mann argues that FCC’s pleadings and evidence were insufficient for the Chambers judge to have made the Second Order Nisi. [ 14 ] I will first address Mr. Mann’s argument relating to FCC’s pleadings. On this point, Mr.

Mann’s factum states that “[n]owhere in FCC’s pleadings was the existence of an unregistered interest by James Mann actually pled, only the existence of the allegation of an unregistered interest” (emphasis added). [ 15 ] It must be said at the outset that FCC’s statement of claim pleaded, albeit in a general way, that 8391 had breached non- financial covenants contained in the Mortgage.

In this regard, FCC alleged that not only had 8391 refused or neglected to pay amounts owing to FCC as secured by the Mortgage, but that it had also failed “to remedy the other defaults in respect of the Mortgage, including but not limited to failing to provide copies of reports and farm records and operation summaries”. While this pleading refers to only one of the four breaches of non-financial covenants later found by the Chambers judge to exist, the list of breaches alleged to have occurred as set out in FCC’s statement of claim is a non-exhaustive one.

Moreover, the presence of other breaches was clearly raised in both the notice of application filed by FCC, which led to the making of the Second Order Nisi, as well as in the affidavits filed by FCC before the Chambers judge. Therefore, it cannot be said that FCC’s pleadings are silent on the existence of breaches of these non-financial covenants. [ 16 ] Nonetheless, Mr. Mann asserted that it was unfair for the Chambers judge to have made the findings he did based on the generality of the pleadings.

However, it does not appear that 8391 raised any issue with respect to the sufficiency of the pleadings or the proof of breaches of the Mortgage in the proceedings before the Chambers judge. Most notably, 8391 has not appealed from the Second Order Nisi on this or any other basis. Moreover, Mr. Mann himself does not allege that either he or 8391 were caught unaware by the Chambers judge having made the findings he did as to breach of the non-financial terms of the Mortgage.

FCC’s statement of claim therefore may have been general in nature, but it and the detail provided in the notice of application and the evidence that followed it satisfy me that FCC’s pleadings fulfilled their basic function of providing a framework for a just adjudication of the dispute before the Court. [ 17 ] Mr. Mann’s point about the inadequacies in the evidence builds on his complaint about the pleadings.

He says in this regard that, because 8391 and FCC had disputed his various claims, there was nothing in the evidence that could serve as a foundation for the Chambers judge to have actually found 8391 to be in breach of the Mortgage. He asserts that “it was not sufficient for FCC to rely on the allegation of an agreement to grant James Mann an interest in the Lands without specifically pleading its existence” (emphasis added).

He then submits it to be “trite law that the party asserting a proposition must prove it” and that “FCC had an obligation and bore the onus to put the specific provisions [from the Mortgage that were alleged to have been breached] to the Court in order to prove they were breached”. [ 18 ] I begin my consideration of Mr. Mann’s arguments relating to the sufficiency of the evidence by observing that it was he who had asserted that he had the interests that he complains the Chambers judge relied upon to impose the conditions found in paragraphs 7(c), (

e) and (

f) of the Second Order Nisi. I find it difficult to understand how Mr. Mann can complain that the Chambers judge erred in structuring an order around the existence of the interests he claimed he had. [ 19 ] I also note that Mr. Mann’s argument about the sufficiency of the evidence does not grapple with the simple and uncontested fact that the registration of the AgraCity Mortgage and the existence of the Mann Registration each constitute an event of default under the Mortgage. In this regard, the Mortgage states in part as follows: 6.1 Events of Default Each of the following shall be an event of default under the Agreement: … (

n) a mortgage, hypothec, security interest or any other interest, right or charge affecting the Property is registered against the Property without Our approval[.] [ 20 ] The uncontroverted evidence was that the AgraCity Mortgage and the Mann Registration were on title when the Second Order Nisi was made. By virtue of this fact alone, 8391 was in default under the Mortgage, entitling FCC to accelerate the full amount secured under it. Mr.

Mann has offered no argument to the contrary, nor does he suggest that this fact did not entitle FCC to accelerate the debt repayment obligation under the Mortgage. [ 21 ] In any event, the Second Order Nisi was not premised upon Mr. Mann’s interests actually existing. Instead, its terms address the fact that Mr. Mann alleged that these interests exist. I will expand upon this conclusion in the context of my discussion of the next issue in this appeal.

In the circumstances of this case, at least, I see no reviewable error on the part of the Chambers judge in structuring that order on this basis. [ 22 ] For these reasons, I reject Mr. Mann’s arguments that FCC’s pleadings were deficient or that the Chambers judge did not have

a sufficient evidentiary foundation to grant the Second Order Nisi. B. The issues around the reinstatement of the Mortgage [ 23 ] Mr. Mann’s second set of arguments relate to the fact that paragraph 7 of the Second Order Nisi only gave 8391 until October 31, 2023, to reinstate the Mortgage. He also attacks the conditions that were attached to its possible reinstatement. Again, his focus is on paragraphs 7(c), (

e) and (

f) of that order. [ 24 ] Mr. Mann’s complaints about these parts of the Second Order Nisi are twofold. The first is advanced only in his factum, wherein he alleges that the Chambers judge erred by failing to allow for sufficient time for a resolution of the dispute between himself and 8391. Mr. Mann’s second complaint is that it was improper for the Chambers judge to have required him to abandon his claims against 8391 in order for it to reinstate the Mortgage.

He contends that, although 8391 is in default by having allowed the AgraCity Mortgage and the Mann Registration to be on the title to the Lands, the Second Order Nisi went beyond what was required for 8391 to cure the defaults associated with his own claims. More specifically, he says that paragraph 7(

c) should not have required him to release his claims, paragraph 7(

e) should not have required him to provide an acknowledgment that he does not have an interest in the Lands, and paragraph 7(

f) should not have required him to acknowledge that he had no right to acquire the shares in 8391. Mr. Mann says that, instead, the Second Order Nisi should only have required that the Mann Registration be discharged. [ 25 ] I agree with the starting point of Mr. Mann’s arguments under this head; the Mortgage was not breached simply because he alleged that he had an interest in the Lands or claimed to have a contractual right to purchase 8391’s shares. To this extent, there would have been a basis for 8391 to have taken the position that the Second Order Nisi went too far when it required Mr.

Mann to disavow his claims to these matters. More specifically, 8391 would have been entitled to say that it could reinstate the Mortgage by paying the arrears, obtaining discharges of the AgraCity Mortgage and the Mann Registration, and providing the missing financial statements. Indeed, this point seems to have been recognized by the Chambers judge in the passage from the July 2023 Decision , quoted earlier, wherein he stated that it “may be that [8391] can discharge the Mann Registration.

If the arrears can be brought current and the negative covenant defaults repaired – then in my opinion the mortgage could be reinstated” (at para 18). [ 26 ] However, I do not see the inclusion of the additional requirements for reinstatement set out in paragraph 7 of the Second Order Nisi as a reason for this Court to set that order aside. I say this for several reasons. [ 27 ] First, 8391 is not before this Court asking that the Second Order Nisi be set aside or varied in any way. This is significant because, while 8391 has the right to reinstate the Mortgage, Mr. Mann does not.

In this regard, s. 10 - 11 of The King’s Bench Act , SS 2023, c 28 , states as follows: 10-11 If default is made in the payment of money due under a mortgage or in the observance of a covenant contained in a mortgage and, under the terms of the mortgage, the payment of other portions of the principal money is accelerated by reason of the default and those portions become due and payable: (

a) the mortgagor may, notwithstanding any provision of the mortgage to the contrary and at any time before sale or before the grant of a final order of foreclosure, perform the covenant or pay the arrears that are in default, with costs to be taxed; and (

b) on performing a covenant or paying arrears pursuant to clause (a), the mortgagor is relieved from immediate payment of the portion of the money secured by the mortgage that has not become payable by lapse of time. (Emphasis added) [ 28 ] As FCC points out, this provision recognizes a mortgagor’s right to reinstate a mortgage but gives that right to no other person. It concedes that Mr. Mann has a right to redeem the Mortgage by paying out all sums it secures. Indeed, FCC goes further and states that Mr.

Mann enjoys this right even without it being expressly given to him in the Second Order Nisi and that this right of redemption will exist at least up to the point that the selling officer enters into an agreement for the sale of the Lands with a third party. However, FCC asserts that the right that Mr. Mann enjoys to redeem the Mortgage, which would see FCC be paid out in full, is different than the purported right to reinstate the Mortgage, which would require FCC to continue as a secured creditor in relation to the debt. Mr.

Mann has offered this Court no argument to suggest that FCC has in any way misstated these points of the law. [ 29 ] I might have been persuaded that the Chambers judge should not have imposed as a condition for reinstatement that Mr. Mann disavow his claims if, in some way, the inclusion of such a condition worked an unfairness on him. However, on the facts of this case at least, I am unconvinced that such unfairness exists. This is because I can see no realistic possibility that Mr. Mann will be able to resolve his allegations against 8391 within any reasonable period for 8391 to reinstate the Mortgage.

Moreover, even if this practicality is disregarded, Mr. Mann has not explained how his claimed interests can stand in priority to those of FCC such that FCC should have to wait to enforce its security at all. [ 30 ] The Chambers judge referred to the latter of these two points when he explained in the July 2023 Decision why he was not required to account for the time it would take for 8391 and Mr. Mann to resolve their dispute when he set the terms of the Second Order Nisi: [2] … Mr.

Mann claims (although disputed by the principals of [8391]) that in addition to the Mann Registration he has an interest as a purchaser under an unregistered agreement for sale of the mortgaged lands. This would also be a form of default under the terms of the mortgage. It is clear that FCC does not want to do business with Mr. Mann. I also understand that the principals of [8391], Melanie and Tessa are at odds with Mr. Mann. I only say this because regardless of whatever may be or may not be going on between the principals of [8391], Melanie, Tessa and Mr. Mann – it bears no effect on this foreclosure action.

It is undisputed that FCC has a valid registered first charge on the titles regarding the subject mortgaged lands and the subsequent encumbrances registered by Mr. Mann and Agracity are legally subservient. [ 31 ] I agree with the Chambers judge’s reasoning on this point. He was only required to consider what time would be required for

Mr. Mann to resolve his dispute with 8391 and its principals if the outcome of that dispute could bear on FCC’s entitlement to enforce its security. It does not. Mr. Mann’s interest is subordinate to that of FCC. His agreements, if any, are with 8391 not FCC. 8391 had no right to unilaterally alter its arrangements with FCC. Mr. Mann does not suggest otherwise. He has also not explained to this Court, at least in a way that I can understand, how the law requires FCC to delay its enforcement of its interest in these circumstances. [ 32 ] For the reasons I have just given, I must reject Mr.

Mann’s argument that the Chambers judge erred in attaching the conditions to reinstatement of the Mortgage set out in paragraphs 7(c), (

e) and (

f) of the Second Order Nisi. C. Mr. Mann’s injunction application [ 33 ] I now turn to consider whether the Chambers judge erred in dismissing Mr. Mann’s injunction application. It assists in the understanding of this issue to recount more of the procedural history of this matter. None of the defendants filed statements of defence to FCC’s claim, and they were noted in default. Nonetheless, although Mr.

Mann did not defend the action, he served a notice of application seeking, amongst other relief, an injunction to block the sale of the Lands and an order “compelling [FCC] to discuss and negotiate the mortgage” with himself. Mr. Mann asserted, as grounds, that he had a valid agreement to purchase the Lands and had made all payments due by him under it. [ 34 ] At around the same time, FCC agreed with 8391 that it would delay in seeking an order nisi for the sale of the Lands to see if the issues between those two parties could be resolved. Mr.

Mann agreed that his injunction application should be heard in conjunction with the application by FCC for an order nisi, should it in fact seek one. [ 35 ] When FCC and 8391 were not able to reach an agreement on matters between them, FCC pursued its application for an order nisi for the judicial sale of the Lands, which came before the Chambers judge for consideration. This was dealt with by the Chambers judge in the December 2022 Decision . In it, the Chambers judge noted that 8391 offered “no opposition” to FCC’s request for an order for the judicial sale of the Lands (at para 13).

He observed that, instead, the only issues between these two parties were the upset price and the redemption period. The December 2022 Decision also dismissed Mr. Mann’s injunction application, stating that it “appears groundless” (at para 10). The Chambers judge then ordered it to be “struck without costs” (at para 12). In the result, the Chambers judge granted the First Order Nisi. No appeal was taken by Mr.

Mann from the December 2022 Decision , including the dismissal of his injunction application. [ 36 ] In January of 2023, 8391 paid into court a sum of money that was sufficient to address the arrears owing as at that time. By notice of application dated March 19, 2023, FCC applied for an order that those monies be paid out to it and also for another order nisi. The stated grounds for seeking the further order were that 8391 remained in default of the Mortgage because of the grant of the AgraCity Mortgage, “the alleged interest claimed by James Mann” and “the intention by [8391] not to farm the Mortgaged Lands”.

FCC provided the evidence of these matters in an affidavit it submitted with its notice of application. Later, FCC filed additional evidence that showed that the Mortgage had again fallen into arrears. [ 37 ] On April 4, 2023, a judge of the Court of King’s Bench granted an order directing that the monies in court be paid out to FCC and that its request for a second order nisi be adjourned to a later date. [ 38 ] By notice of application dated May 2, 2023, Mr.

Mann sought an injunction to restrain FCC “from applying for an order nisi or proceeding with any other foreclosure action until the interests and rights of James Mann have been determined” by the Court of King’s Bench. Mr. Mann filed an affidavit providing the factual background for this request. [ 39 ] FCC’s March 19, 2023 notice of application came before the Chambers judge on June 20, 2023. After the parties made submissions, the Chambers judge rendered the July 2023 Decision . He addressed Mr.

Mann’s injunction application in a single paragraph of that decision in which he stated as follows: [5] I will pause here to state that any supposed issues brought forward by Mr. Mann are in my opinion without merit. He appears to want the whole foreclosure to start up again with the necessary serving of the federal and provincial notices of intention and presumably mediation followed by a report from the Farm Security Board. Failing that, he seems to be requesting some sort of injunctive relief. If indeed any such applications are actually before the court – I dismiss them.

The plaintiff’s request for a new order nisi is really only a logical off shoot of the first order nisi . Mr. Mann is not the land owner. In my opinion, he has no standing to claim relief under The Saskatchewan Farm Security Act . Any claim for injunctive relief is without merit. The foreclosure proceedings are paramount to any other claims ( i.e. any issues between Mr. Mann and [8391]) and should not interfere with the foreclosure procedure. Mr. Mann is merely a defendant in these proceedings because of his subsequent encumbrance registration.

That does not entitle him to any other relief . [ 40 ] In this Court, Mr. Mann takes the Chambers judge’s statement questioning if “indeed any such applications are actually before the court”, as being indicative that his application was not heard by the Chambers judge. He points out that his affidavit had been filed.

In his factum, he states that the Court of King’s Bench “did not have jurisdiction to dismiss an application without a hearing and without having read the materials in support, which had already been filed at the time the Judgment was issued”. [ 41 ] I accept that it would have been a breach of the duty of procedural fairness if the Chambers judge had dismissed Mr. Mann’s application without a hearing. However, I am not satisfied that this is what occurred. While the appeal record does not allow this Court to make a finding as to what specific representations were made by Mr.

Mann to the Chambers judge, it is evident from the July 2023 Decision that Mr. Mann asked that the judicial sale of the Lands not proceed while he pursued his claims against 8391. It is also obvious that the Chambers judge rejected this request and provided reasons why he did so. [ 42 ] It was open to Mr. Mann to seek leave to file new evidence with this Court as to the details of the proceedings before the Chambers judge to prove that they were procedurally unfair: Onion Lake Cree Nation v Stick , 2020 SKCA 101 at para 85 , [2021] 2 WWR 614; and Barendregt v Grebliunas , 2022 SCC 22 at para 30 , 469 DLR (4th) 1.

He has brought no such evidence forward. Without it, I see no basis for this Court to conclude that the proceedings were unfair. For this reason, this ground of appeal must be dismissed. [ 43 ] There is a second reason that Mr. Mann’s argument under this head cannot succeed; if the Chambers judge did not read or

consider Mr. Mann’s affidavit, his failure to do so has caused Mr. Mann no prejudice. In this regard, as I have explained, Mr. Mann has no right to reinstate the Mortgage or to insist that FCC delay its foreclosure proceedings. Accordingly, I see no principled basis upon which the Chambers judge could have granted an interlocutory injunction to restrain FCC “from applying for an order nisi or proceeding with any other foreclosure action until the interests and rights of James Mann have been determined”, as Mr. Mann had requested. [ 44 ] I therefore reject Mr. Mann’s final ground of appeal.

I do so without considering the other arguments raised by FCC as to why an injunction could not have been granted in this case, including that Mr. Mann’s application was an attempt to relitigate a point decided against him in the December 2022 Decision , from which he had taken no appeal (and, as such, was either res judicata or an abuse of process) and because he had not filed an appropriate undertaking as to damages. IV. CONCLUSION [ 45 ] For the reasons I have given, Mr. Mann’s appeal must be dismissed. I would reiterate that FCC acknowledged at the hearing of this appeal that Mr.

Mann has the right to redeem the Mortgage by paying out in full the obligations it secures if this is done before the selling officer enters into an agreement to sell the Lands to a third party. These reasons are not intended to negate or limit Mr. Mann’s rights in this regard. [ 46 ] At the hearing of this appeal, FCC advised that 8391 had made a further payment that, at least for the moment, has brought the Mortgage arrears up to date, and that 8391 had provided it with documents that, on their face, complied with 8391’s obligation to provide current financial statements.

If relevant to whether the judicial sale of the Lands should proceed, these are matters that can be considered by the Court of King’s Bench in the context of an application to amend the Second Order Nisi. They are not a reason for this Court to question whether that order should have been made in first instance. [ 47 ] In the result, Mr. Mann’s appeal must be dismissed. FCC is entitled to its costs against Mr. Mann, to be calculated under Column 3 of the Tariff of Costs in the Court of Appeal . “Leurer C.J.S.” Leurer C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Dawson J.” Dawson J. ( ad hoc )