



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Mass v. Canada Trustco Mortgage Company
(TD Canada Trust),









2019 BCCA 42




Date: 20190129

Docket:
CA44354

Between:

Shulamit Mass

Appellant

(Plaintiff)

And

Canada Trustco
Mortgage Company (TD Canada Trust) and
Jharna Chandok and Estate of Surjit Chandok

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage




On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 16, 2017 (
Mass v. Canada Trustco Mortgage Company (TD Canada Trust)
,
Vancouver Registry S165222).

Oral Reasons for Judgment




The Appellant appeared in person:



S. Mass





Counsel for the Respondents Canada Trustco Mortgage
  Company (TD Canada Trust):







T. Louman-Gardiner





The Respondent J. Chandok appeared in person:





J. Chandok





Place and Date of Hearing:



Vancouver, British
  Columbia

January 29, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 29, 2019








Summary:

The respondents obtained
orders in foreclosure proceedings against the appellants property in 1999. Years
later the appellant later commenced proceedings to challenge the validity of
the mortgages. Her action was dismissed as statute-barred and as re‑litigation
of issues previously determined. Her appeal from that order was put on the
inactive list after a year. Her application to have the appeal returned to the
active list was dismissed. She missed the deadline to apply to the Court to
vary the order. Her application to extend the time to do so was then dismissed.
The appellant applied to the Court to vary that order and for an extension of
time. Held: appeal dismissed. The appellant did not establish that the chambers
judge made any error in principle or misconceived facts or that relevant
information was not brought to his attention when he dismissed the application.
He did not err in concluding there was no prospect a division of this Court
would restore the appeal to the active list.

[1]

WILLCOCK J.A.
: This is an application pursuant to section 9(6)
of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77, to vary the order
of Harris J.A., made on October 19, 2018, dismissing the appellants
application to extend the time to vary the order of Newbury J.A. made May 24,
2018.

[2]

The standard of review is highly deferential. A review hearing is not a
rehearing of the original application. The court will interfere only if there
has been an error in principle, if the justice was wrong in a legal sense, the
justice misconceived the facts or the relevant information was not brought to
the justices attention.
De Fehr v. De Fehr
, 2002 BCCA 139 at para. 6
;
Haldorson v. Coquitlam (City)
, 2000 BCCA 672 at paras. 6‑7.

[3]

The appellant was the victim of fraud that extended over 17 years and is
described in detail in the judgment of Ballance J., pronounced on March 21,
2018, indexed at 2018 BCSC 464. That judgment brought an end to proceedings
commenced in 2003 and prosecuted in fits and starts over the years, and at
trial between June 2008 and September 2016. The appellant attempted to add
Canada Trustco Mortgage Corporation and Surjit Chandok as parties to those
proceedings. Her application to do so was dismissed on April 8, 2008.

[4]

Canada Trustcos involvement in the appellants financial affairs is
described at paras. 24‑26 of the reasons for judgment of Ballance J.
In 1991, the appellant was taken by the fraudster, a Ms. Wood, to Canada
Trustco to arrange to place a first mortgage on her home in the Oakridge area
of Vancouver. Proceeds of that mortgage were obtained by the fraudster and,
together with other advances made by the appellant to Wood, were the subject of
the trial heard by Ballance J.

[5]

The Canada Trustco mortgage went into arrears. Foreclosure proceedings
were commenced. An Order
Nisi
of foreclosure was obtained by Canada
Trustco on July 9, 1999. The appellants appeal of the Canada Trustco Order
Nisi
was dismissed by Bowden J. on March 16, 2017.

[6]

Chandoks involvement in the appellants financial affairs is described
at paras. 43‑56 of the reasons for judgment of Ballance J. In
1996, the appellant was taken by Ms. Wood to an individual who privately
arranged to place a second mortgage on the Oakridge home. Chandok eventually
replaced that second mortgagee. The second mortgage fell into arrears.
Foreclosure proceedings were commenced. On August 19, 1999, an Order
Nisi
of foreclosure was made. An application to extend the time within which that
order might be appealed was dismissed on November 25, 1999. On January 7,
2000 an Order Absolute of foreclosure was made.

[7]

On June 8, 2016, these proceedings were commenced by the appellant
in the Supreme Court of British Columbia. The Notice of Civil Claim, amended on
January 27, 2017, challenged the validity of the first and second
mortgages.

[8]

On March 16, 2017, the proceedings in Supreme Court were dismissed
by Bowden J.

[9]

The order of Bowden J. was appealed on April 4, 2017. The
appeal was moved to the inactive list on April 9, 2018.

[10]

The appellants application for an order removing the appeal from the
inactive list was heard by Newbury J.A. on May 22, 2018 and
dismissed. In her reasons dismissing the application Newbury J.A. held:

[11]      Ms. Mass has known about the frauds on the
part of Ms. Wood and all the actions of the lenders since before the
foreclosure took place in 1999. Thus at least 19 years have passed since the
events she now complains of. All limitations, even allowing for postponement,
have long since expired. In my opinion, the claims asserted are also statute
barred and barred
as res judicata
. Cause of action estoppel may also
apply to at least some of her claims.

[12]      In my opinion it would
not be in the interests of justice to spend further public resources on the
unfortunate events that have been explored at such great length in the fraud trial.
I understand that Ms. Mass judgment against Ms. Wood is a dry one,
but unfortunately for Ms. Mass that does not change the facts I have
described and the law that applies to those facts. I am therefore dismissing
the applications.

[11]

Section 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996,
c. 77, provides that the court may discharge or vary any order made by a justice
other than an order granting leave to appeal. Section 34 of the
Court
of Appeal Rules
provides that a party wishing to bring an application under
section 9(6) of the
Act
must prepare a Notice of Application to
vary the order in Form 15, file the Notice, and serve it on each of the
other parties within seven days after the order was made. The appellant did not
do so.

[12]

On October 16, 2018, the appellant appeared before Harris J.A.
and sought an order extending the time within which to do so.

[13]

Harris J.A. held that the criteria that should apply on the application
were well established:

[3]         I have to consider
whether there was a bona fide intention to appeal, whether the respondents were
informed that intention, any prejudice that might arise from extension of time
in the merits of the proposed application. These factors are all encompassed by
whether it is in the overall interests of justice to grant the extension.

[14]

He concluded:

[10]      Having examined the materials before Madam Justice
Newbury, I am not persuaded that she misapprehended, in any material way, the
facts underlying the exercise of her discretion. Ms. Mass has not
persuaded me that there is new evidence, either that Madam Justice Newbury
misapprehended, or that is capable of undermining her conclusion, in substance,
that the appeal of the order Mr. Justice Bowden was bound to fail.

[11]      As a result I do not think there is any prospect
that a division of this court could interfere with Madam Justice Newburys
order on a review application. The proposed review application is so lacking in
merit that the interests of justice do not support extending time.

[12]      As well, I am concerned
about the length of time that has elapsed before this application was brought.
I accept that Ms. Mass did not understand the nature of her appeal
remedies arising from Madam Justice Newburys order. That is not, however,
explain the delay in bringing the application once Ms. Mass learned of the
true position in July of this year. Likely I would not have refused to extend
time if this true if this delay were the sole impediment to doing so. Rather, I
ground my decision not to extend time on the lack of merit in the proposed
application to review. I share Madam Justice Newburys opinion that it is not
in the interests of justice to spend more resources on this matter, which must
come to an end.

[15]

In a lengthy written submission provided to us today, Ms. Mass seeks
not only an order varying the order of Harris J.A. but other relief,
including an order removing her appeal from the inactive list. The only matter
properly before us is the application to vary the order of Harris J.A. by
extending the time within which to seek a review under Rule 9(6).

[16]

In those written submissions, Ms. Mass argues that both Harris and
Newbury JJ.A. were under a misapprehension with respect to the extent to
which newly discovered evidence would enable her to make out a meritorious
claim against the respondents. She claims that the full extent of the fraud
perpetrated upon her by the fraudster was unknown to her until the trial before
Ballance J. concluded in September 2016. However, the material
substantiates rather than undermines Newbury J.A.s conclusion that Ms. Mass
has known about the fraud on the part of Ms. Wood and all the actions of
the lenders since 1999. The appellant herself notes in para. 96 of the
written submissions:

With the commencement of the
foreclosure actions I realized that I was defrauded by the mortgagees
themselves and in hindsight they were perpetrators of the Fraud in
participation with the fraudster.

[17]

It was not necessary for the appellant to fully comprehend the extent to
which Ms. Wood had defrauded her in order to contest the validity of the
mortgages that are the subject of these proceedings.

[18]

In my opinion, the appellant has not established any error in principle
or that Harris J.A. misconceived facts or that relevant information was
not brought to his attention when he dismissed the application to extend the
time to seek a review of Newbury J.A.s order. In particular, he did not
err in concluding there was no prospect that a division of this Court could
interfere with Newbury J.A.s order on a review application. Newbury J.A.,
in turn, was not under a misapprehension when she concluded that all
limitations, even allowing for postponement, have long since expired and the
claims asserted are statute barred and barred as
res judicata.


[19]

The appellant seeks leave to adduce new evidence on this application.
The evidence the appellant seeks to adduce, set out in her affidavit filed on
December 7, 2018, is a recital of evidence that was available to the
appellant at the time the application came on for hearing before Harris J.A.
and before her application came on for hearing before Newbury J.A. I would
not grant leave to adduce new evidence. In any event, the evidence does not
address the fundamental weakness of the appellants case, set out in great
detail in the judgment of Newbury J.A.

[20]

I would dismiss the application.

[21]

FRANKEL J.A.
: I agree.

[22]

SAVAGE J.A.
: I agree.

[23]

FRANKEL J.A.
: The application is dismissed.

The
Honourable Mr. Justice Willcock


