nan 2003 SKQB 69 Q.B.G. A.D. 2003 No. 317 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DELOITTE TOUCHE INC., in its capacity as Receiver Manager and Trustee in the Bankruptcy of 597383 Saskatchewan Ltd. dba Peter’s Sewer Service and 614630 SASKATCHEWAN LTD. and 597383 SASKATCHEWAN LTD. dba PETER’S SEWER SERVICE RESPONDENTS R.M. Van Beselaere for the applicants No one else appearing. FIAT ZARZECZNY J. February 14, 2003 [1] Deloitte & Touche Inc. as Receiver Manager of 597383 Saskatchewan Ltd. (the “Registered Owner”) under the Bankruptcy Act, R.S.C 1985, c. B-3, as am. by the Bankruptcy and Insolvency Act, S.C. 1992, c. 27, s. 2 and instrument appointed receiver of the Registered Owner on behalf of the HSBC Bank, a secured creditor and mortgagee of certain real property of the Registered Owner applies for a vesting order with respect to a sale of the real property. The vesting order applied for would register title in favour of the proposed purchaser of the property obtained as result of year long effort by the applicant trustee to sell it. [2] The material satisfies me that the mortgagee, HSBC Bank’s indebtedness secured by its mortgage far exceeds the purchase price of the property. Notice of this application was served upon counsel for the Registered Owner and no opposition on its part has been taken to this application. Additionally, the materials filed, including the affidavit of the representative of the applicant trustee in bankruptcy, represents and satisfies me that there are no other interests that will be adversely affected if the vesting order applied for is granted. No subsequent encumbrancers, competing creditors nor the Registered Owner’s rights respecting redemption or preservation of equity (there is none) are adversely affected if the order is granted. [3] The court raised with counsel for the applicant the court’s jurisdiction to issue the vesting order applied for in these circumstances. Neither HSBC nor the applicant trustee proceeded with foreclosure proceedings against the property in question. Counsel requested the opportunity to address the concerns raised and to make supplementary submission in support of its application which has now been done. [4] Based upon the submissions now received from counsel, the court is satisfied that the jurisdiction formerly granted to the court by s. 87 of The Land Titles Act, R.S.S. 1978, c. L-5 not brought forward in the new Land Titles Act, 2000, S.S. 2000, c. L-5.1 is nevertheless reintroduced by the Land Titles Conversion Facilitation Regulations, R.R.S., c. L-5.1, Reg. 2, and in particular Regulation 6.5 dealing with vesting orders. It provides as follows: 6.5(1) On application to the court, if the judge hearing the application considers it appropriate to do so, the judge may make an order: (a) directing that title be vested in any person; and (b) either: (i) directing the Registrar to transfer title or to make changes to title; or (ii) authorizing any person to apply to the Registrar to transfer title or to make changes to title. (2) An order may be made pursuant to subsection (1): (a) on any notice that the judge considers appropriate; or (b) without notice if in judge’s opinion the circumstances warrant it. [5] Although the court tentatively concluded that s. 109 of the new Land Titles Act, 2000 combined with ss. 12 and 65 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 are not sufficient authority to support the granting of a vesting order in the circumstances before the court, nevertheless the court is now satisfied that Regulation 6.5 of The Land Titles Conversion Facilitation Regulation to the new Land Titles Act, 2000 does so. In substance, the Regulation parallels the nature, extent, purpose and intent served by the vesting order provisions contained in the former s. 87. [6] The only question remaining is whether or not the discretion to grant vesting orders should appropriately be applied in the circumstances of this case. [7] Because of the conclusions that I have reached based upon the materials filed as previously referred to respecting the absence of adverse interests nor any interest in the registered owner or any subsequent encumbrancer or other creditor with respect to the equity of redemption I conclude that this is an appropriate case to grant the relief requested (see Clarkson Co. Ltd. v. Credit Foncier Franco Canadien (1984), 1984 CanLII 2444 (SK QB), 37 Sask. R. 295 (Sask. Q.B.), Clarkson Co. Ltd. v. Credit Foncier Franco Canadien (1985), 1985 CanLII 2651 (SK CA), 44 Sask. R. 151 (Sask. C.A.). [8] have been satisfied by the material presented upon this application that the reservations expressed by Matheson J., endorsed in the Court of Appeal decision reviewing the judgment in the Clarkson case do not exist or apply to the circumstances respecting the application presently before the court. [9] The applicant, and others having similar interests or circumstances in the future, are nevertheless cautioned to consider the direction of the court of appeal given at para. of its judgment concluding, as it did, as follows: [3] During the presentation of the appeal, discussion arose as to the proper procedure to be followed by receiver-manager who has arranged sale of the real property. The court suggested that the first step was to make application to have the sale approved by the court. The notice of application should be served upon the registered owner and all other interested parties. The onus is on the applicant to prove to the court that all such parties have been served. At para. of the judgment the court goes on to observe: [6] If the order for sale is approved, the applicant might then or on later occasion apply for vesting order. However, under no circumstances should vesting order be made unless or until the rights of all interested parties have either been relinquished or have been extinguished by due process. [11] The application for the vesting order applied for is granted. The form of the draft order filed with the applicant solicitor’s subsequent submissions dated February 13, 2003, may issue.
FIAT. The receiver manager of the registered owner (the numbered company) under the Bankruptcy Act and the instrument appointed receiver on behalf of the secured creditor and mortgagee (HSBC Bank) applied for a vesting order. The trustee had tried to sell the real property for year. HELD: The vesting order was granted. 1)Although the Court tentatively concluded that s.109 of the new Land Tittles Act, 2000 combined with Queen's Bench Act ss.12 and 65 are not sufficient authority to support the granting of a vesting order in the circumstances, the Court was now satisfied that Regulation 6.5 of the Land Titles Conversion Facilitation Regulation to the new Act does so. In substance the regulation parallels the nature, extent, purpose and intent served by the vesting order provisions contained in the former s.87. 2)This was an appropriate case to grant a vesting order in the absence of adverse interests or any interest in the registered owner or any subsequent encumbrancer or other creditor. The bank's indebtedness secured by its mortgage far exceeded the purchase price. The registered owner had taken no opposition. No other interests will be adversely affected. 3)The reservations expressed in the Clarkson case did not exist or apply to the circumstances here but others having similar interests in future were cautioned to consider the direction of the Court of Appeal at para of its Clarkson judgment.