TORONTO DOMINION BANK v DEMICHELE, 2015 ABQB 607
6.14: Appeal from master’s judgment or order
13.5: Variation of time periods
Mr. Demichele and Ms. Henderson (collectively the "Respondents") owned property with two registered mortgages against it. The first mortgage was registered in favour of Co-operative Trust Company of Canada ("First Mortgagee") and the second mortgage was registered in favour of the Applicant, Toronto Dominion Bank. The First Mortgagee obtained a Redemption Order (the "Order") and a subsequent Order Confirming Sale and Vesting Title. The sale of the property closed, and the excess proceeds were paid into Court.
The Applicant applied successfully to have the excess funds paid out of Court. After receiving the funds, the Applicant instructed counsel to appeal the Order since the amount of excess funds was insufficient to cover the second mortgage. The Applicant sought an extension of the time to appeal the Order because it wished to obtain a deficiency Judgment against the Respondents. Justice Shelley noted that, under Rule 6.14(2), the Appeal period was ten days, beginning when the Order was entered and served. Referencing recent authority, Shelley J. set out three factors to be considered when extending time pursuant to Rule 13.5: the length of delay; the explanation for the delay; and the relative prejudice to the parties.
In the result, the Application was dismissed on the basis that the delay in seeking the extension was considerable and the explanations by the Applicant were insufficient to overcome the magnitude of the delay, or its potential prejudice to the Respondents.View CanLII Details