Master Schlosser

9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Plaintiff applied to open up a final Order for foreclosure. The subject property had been listed for a 6-month redemption period, in which it was neither redeemed nor sold. The Defendants were a father, who had co-signed for the mortgage, and his daughter, the other co-signor, who was the occupant of the house along with her husband. After the Plaintiff mortgagee took possession, it noticed that the Defendants had removed or destroyed significant portions of the house before vacating it. The Plaintiff sought to open up the final Order for foreclosure and to seek Judgment for the value of the items removed or for the diminished value of the property.

Master Schlosser noted the Court had three options: 1) to refer the file for prosecution, as stripping a mortgaged house is a criminal offence, and the Plaintiff could then apply for an Order for restitution prior to sentencing; 2) to open up the final Order pursuant to Rule 9.15; or 3) to commence an Action for the tort of waste or theft.

Master Schlosser noted, following prior authorities, that there are two situations where the importance of finality of Judgments overrides the interests of the Plaintiff: 1) where an attempt has been made to take some advantage from the Default Judgment; and 2) where the Judgment has been wholly satisfied. Master Schlosser noted that both situations applied to the present case. Master Schlosser also noted that there would be additional difficulty in opening up the Judgment against one of the Defendants but not the other. The Defendant father had filed evidence stating he had nothing to do with the loss, that he had no knowledge of it, and that opening up the Judgment would be prejudicial, which the Master noted was a relevant factor.

Despite the strong public policy favouring the Plaintiff’s position, the Master declined to set aside the Judgment, as the quality of the evidence establishing the loss was insufficient to determine the harm. The Master dismissed the Application with leave to re-apply with fresh evidence, if the Plaintiff elected not to pursue the tort Action.

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