CIBC MORTGAGES INC (FIRSTLINE MORTGAGES) v TUCHSEN

CIBC was the mortgagee pursuant to mortgages entered into with the Defendants in three separate Actions. CIBC commenced Foreclosure Proceedings in each Action and ultimately sought to include an Order for Costs on a full indemnity basis, based on the terms of the contract. CIBC was permitted to recover “reasonable” Costs on a full indemnity basis. CIBC appealed the three Decisions of the Master, and in particular, the use of the word “reasonable”.

Nielsen J. found that each of the mortgages in issue in the Appeals contained a clause that stated that the mortgagor would pay CIBC’s legal fees on a full indemnity basis if they defaulted. The Court further stated that it was doubtful whether the Master had jurisdiction in relation to Costs in the face of a contractual term regarding Costs. The Court noted that in any event, all Costs were being sought subject to assessment by a Review Officer pursuant to the Alberta Rules of Court, and cited Rules 10.9 and 10.17(1)(f). Any Appeal therefrom is then to a Judge of the Court of Queen’s Bench pursuant to Rule 10.26. The Court concluded that there was no basis for the Master to insert the word “reasonable”, and the Appeal was allowed.