TORONTO DOMINION BANK v SAWCHUK, 2011 ABQB 757
1.2: Purpose and intention of these rules
5.13: Obtaining records from others
9.15: Setting aside, varying and discharging judgments and orders
9.33: Sale to plaintiff
This case dealt with the question of whether or not it is “appropriate to order a first mortgagee to provide a mortgage payout statement - or at least the payout figure - to a foreclosing second mortgagee”. The first mortgagee was reluctant to provide the information because of concerns that doing so may violate privacy legislation.
Master Schlosser noted that “Rule 9.33(2)(e) requires the court to consider (amongst other things) the amount owed for prior charges” and that the “Foundational Rules require facilitating the quickest means of resolving claims at the least expense”.
Master Schlosser noted that in Alberta prior encumbrancers are not made parties to Foreclosure Actions and including prior encumbrancers simply to impose disclosure obligations on them would increase costs and decrease efficiency.
It was indicated that compelling records of a non-party in a lawsuit usually requires notice under Rule 5.13. In deciding that no notice was required, the Court took into consideration that the first mortgagee was not a “true outsider” to the proceedings, the first mortgagee had no objection to producing the records other than wanting the Court’s protection with respect to privacy legislation and that all the usual requirements under new Rule 5.13 and old Rule 209 were satisfied.
It was decided that the required information was to be produced. In coming to this conclusion, the Court specifically considered Rule 6.4 (which allows for ‘ex parte’ applications if a Court decides no notice is necessary), Foundational Rules 1.2(2)(b) and (e) and that if the first Mortgagee takes issue with the Order it can return to Court under Rule 9.15 to challenge the result.View CanLII Details