SUPREME COURT OF NOVA SCOTIA
Citation: CitiFinancial Canada East Corporation v Touchie,
2010 NSSC 149
Date: 20100422
Docket: Hfx No. 297572
Registry: Halifax
Between:
CitiFinancial Canada East Corporation
Applicant
v.
Colin W. Touchie and L. Clare Foley
Respondents
- and -
CIBC Mortgages Inc.
Intervenor
LIBRARY HEADING
Judge: The Honourable Justice Peter Bryson
Heard: March 24, 2010, in Halifax, Nova Scotia, in Chambers
Written Decision: April 22, 2010
Subject: Real Property. Land titles system. Priorities. Fraud.
Summary: CIBC took a mortgage in 2005 from Respondents. Through inadvertence it was not recorded. CitiFinancial took a mortgage in 2007 which was recorded. In 2008 Respondents refinanced with CitiFinancial. After funding the mortgage, but before recording a CIBC representative spoke to CitiFinancial, asking for a postponement of CitiFinancial’s 2007 mortgage. CitiFinancial declined. The 2008 mortgage was recorded. CIBC then recorded its 2005 mortgage, and claimed CitiFinancial could not claim priority because it knew of CIBC’s 2005 mortgage prior to recording its own.
Issue: When did the 2008 CitiFinancial Mortgage “transaction” occur? Did CitiFinancial lose priority owing to “fraud” (knowledge of CIBC’s prior mortgage)?
Result: CitiFinancial’s 2008 mortgage has priority over CIBC’s 2005 mortgage. CitiFinancial recorded first. The CitiFinancial mortgage transaction occurred when it took the mortgage and advanced funds. It had no knowledge of the 2005 CIBC mortgage at the time. Alternatively, CitiFinancial did not acquire knowledge constituting “fraud” during the CIBC - CitiFinancial conversation.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.