Court of Appeal

Nova Scotia Court of Appeal

Citation: MacGillivary v. Brown, 2024 NSCA 56

Date: 20240524

Docket: CA 523484

Registry: Halifax

Between:

William MacGillivary

Appellant

v.

Stephen Brown and Brenda Brown

Respondents

Reasons for judgment:

[1]             In this Court’s reasons in MacGillivary v. Brown, 2024 NSCA 31, we found that the appellant William MacGillivary was prevented from properly redeeming the mortgage for an appropriate payment. We further found that the respondents did not give Mr. MacGillivary a final figure to redeem his mortgage. We asked the parties to make submissions on what the correct amount should be to redeem the mortgage. Those submissions were received on May 13, 2024. What follows is a chart setting forth the position of the two parties on the appropriate amount for redemption.[1]

[2]             The following is determined by the Court to be the appropriate amounts to redeem.

Interest on $106,011.29 at 5% Until Payment

[3]             On October 30, 2023, the appellant paid the sum of $106,011.29 into Sampson McDougall in Trust. Interest on that amount to October 30, 2023 is $12,096.91. Prejudgment interest on that $12,096.91 to May 13, 2023 is $323.14.

Costs

[4]             The parties are agreeable that costs in the amount of $6,500.00 are payable. We would not allow prejudgment interest on the costs.

[5]             We accept the appellant’s position that the minimum bid should be the annual tax owed for 2023 in the amount of $4,116.86. Prejudgment interest for 350 days on that amount is $197.38 for a total of $4,314.24.

Deed Transfer Tax

[6]             With respect to Deed Transfer Tax and Recording Fees we would allow 50% of that amount in light of our finding that neither party was without fault with respect to this matter. It may be that the Deed Transfer Tax can be recovered if the Property is redeemed as set out in the Interim Order. We would allow $110.27 in prejudgment interest on the Deed Transfer Tax for a total of $2,610.27.

Eviction Fees

[7]             We would not allow the claim for Eviction Fees.

Prejudgment Interest on $314,733.14

[8]             Again, because both parties bear fault for the way in which this proceeded, the sale should have never taken place in the manner it did. As a result, we would allow 50% of the prejudgment interest on $314,733.14 from June 1, 2023 through September 13, 2023 in the amount of $2,241.94.

[9]             We would also allow half the prejudgment interest on $314,733 from September 14, 2023 to May 13, 2024 in the amount of $1,565.

[10]         We would not allow any other amounts being claimed by the respondents as they were unnecessarily incurred by the impugned process followed by them.

Conclusion

[11]         In summary, the allowable amount is $29,653.20. The appellant has until noon on June 7, 2024 to redeem, which is an additional 26 days from May 13, 2024. We would allow interest on $29,636.20 at 5% per annum until the date of redemption. If it is redeemed on June 7, 2024, the interest is $105.61 or approximately $4 per day for a total of $29,758.81. If the appellant redeems before noon on June 7, 2024, the amount will reduce by $4 per day. For example, if he redeems on June 5, 2024, the amount would be $29,750.81.

[12]         Therefore, the total amount to redeem is $29,758.81 before noon on June 7, 2024.

[13]         The appellant must tender that sum to Sampson McPhee on or before noon on Friday, June 7, 2024. On confirmation the amount has been paid, the Court will issue a final Order confirming redemption of the Property and ancillary directions. If he fails to do so, his right to redeem shall expire.

Farrar J.A.

Bryson J.A.

Beaton J.A.