BANK OF MONTREAL v RAJAKARUNA, 2014 ABQB 415
1.2: Purpose and intention of these rules
1.4: Procedural orders
6.14: Appeal from master’s judgment or order
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
The Appellant, the Bank of Montreal, appealed a Master’s Decision dismissing its Application for Summary Judgment. The Respondents, Gaston Rajakaruna and Shirley Rajakaruna, Cross-Appealed the Master’s Costs award and, for the first time, applied for Summary Dismissal.
The Appellant had sought Summary Judgment of its foreclosure Action. The Appellant argued that the Respondents’ failure to pay a noise fine and a witness fee (in relation to a Residential Tenancy Dispute Resolution Hearing) constituted defaults, and thus foreclosure was an appropriate remedy. The Court held that, although further evidence was adduced, there was still insufficient evidence to establish that the witness fee was a charge that would fall within the scope of the mortgage. In relation to the noise fine, the Court held that, even if further evidence could be brought to validate the legitimacy of the noise fine, the Appellant could not rely on the noise fine to obtain foreclosure. The Appeal was dismissed.
The Court then determined whether the Master had erred in declining to award solicitor-client Costs to the Respondents. The Appellant argued that the Respondents did not obtain leave from the Master to Appeal the Costs award. The Court held that leave was not required as the Appeal did not relate only to Costs. However, the Court found no error in the Master’s Costs award.
For the same reasons that the Appeal was dismissed, the Court held that Summary Judgment dismissing the Action should be granted. The Court held while there was arguably a triable issue, a Trial would not be proportionate and fair, and was not necessary for the adjudication of the claim. The Court held that the Appellant had two opportunities to bring the required evidence before the Court and had failed to do so.
The Application for Summary Dismissal was granted and Costs were awarded on the basis of Column 5 of Schedule C, as there had been an extraordinary amount of time spent litigating the matter in relation to the value of the claim involved.View CanLII Details